Filed 11/21/13 Marriage of Owen CA4/1 

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

In re the Marriage of REBECCA and 

MARTIN OWEN. 

REBECCA CROW, 

 Respondent, 

 v. 

MARTIN OWEN, 

 Appellant; 

SAN DIEGO COUNTY DEPARTMENT 

OF CHILD SUPPORT SERVICES, 

Respondent. 

 D062487 

 (Super. Ct. No. DN54638) 

 APPEAL from an order of the Superior Court of San Diego County, 

Keri G. Katz, Commissioner. Reversed and remanded with directions. 

 Stephen Temko and Dennis Temko for Appellant. 

 No appearance for Respondent Rebecca Crow. 
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 Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney 

General, Linda M. Gonzalez, Jessica Foster and Ricardo Enriquez, Deputy Attorneys 

General, for Respondent San Diego County Department of Child Support Services. 

 Martin Owen appeals from an order setting payment on child support arrears. 

He contends the family court abused its discretion because it erroneously believed it 

had to order a monthly payment of at least the interest owed on the arrears. 

Alternatively, he contends the evidence did not support his ability to pay the amount 

ordered. We conclude the court abused its discretion by using the wrong legal 

standard. Accordingly, we do not reach his second argument. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Martin and Rebecca divorced in 1990. They have four children, the youngest 

turned 18 in 1999. In 2007, the trial court ordered Martin to pay child support arrears 

at a rate of $850 per month. In 2012, the San Diego County Department of Child 

Support Services (Department) moved to increase the arrears payment to at least 

$10,000 per month. The Department stated that Martin owed at least $1,247,436.93, 

and that interest was accruing at a rate of $4,690.39 per month. Martin opposed the 

motion arguing, among other things, that he was unable to pay the ordered support at 

the time of the divorce, but he never sought a downward modification of the support 

order. He filed an income and expense declaration, attaching his 2011 individual tax 

return. He represented that he had a federal tax obligation of $174,958 and a state tax 
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obligation of $6,000. On these obligations, he was paying a monthly amount of 

$3,821 and $300, respectively. 

 The family court determined that Martin transferred real property to his current 

wife in 2010 to avoid his support obligation. It further found that Martin had moderate 

medical expenses, and that both parties support additional family members. The 

family court believed that Martin had more available income than indicated in his tax 

return, that his expenses were high and if those were reduced, additional money 

existed for support. 

 The family court then stated the following: 

 "[T]he law require[d] [it] to make a meaningful payment. The 

way we define meaningful payment is that which is to cover the 

interest. In this case interest is 4680. 

 "[¶ . . . ¶] 

 "I have to look what the law is. The law is a meaningful 

payment. I can base a meaningful payment, that's 4680, so I 

believe I am required under the law based on what I see to add on 

meaningful 4680 and not a cent more. I would require more, but I 

believe that the medical expenses, the loss of your job has 

affected your ability to make some payments. 

 "I also, without any briefing, I do believe that you do have 

these tax obligations, which I don't know whether they can be 

negotiated, and I do believe child support due is a superior 

obligation, but that hasn't been received, and that question is open 

to my analysis. I don't know the answer to that off the top of my 

head. 

 "So I believe the . . . order is 4680 under the law per month. I 

am basing that on, I don't want to keep this going, but I am basing 

that on the fact I believe this child support obligation is superior. 

 "So I am going to make the order that you should pay 4680, 

which is the interest due monthly." 
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 Because the family court had not heard from the parties regarding the priority 

of Martin's debts, it requested briefing and set an additional hearing to address that 

issue. Martin timely appealed. 

DISCUSSION 

 Courts have no discretion to waive or forgive any part of a support arrearages 

debt. (Fam. Code, § 3651, subd. (c); County of Santa Clara v. Wilson (2003) 111 

Cal.App.4th 1324, 1327 ["retroactive modification of accrued child support arrearages 

is statutorily barred"].) Courts, however, have " 'equitable discretion to determine 

whether and to what extent the original support provision should be enforced by 

execution.'" (Id. at p. 1326; Fam. Code, § 290.) A failure to exercise discretion when 

called upon to do so is an abuse of discretion. (Kim v. Euromotors West/The Auto 

Gallery (2007) 149 Cal.App.4th 170, 176.) 

 Here, the family court believed the law required that it order Martin make 

meaningful payments, which it defined as the amount necessary to cover accruing 

interest. The Department cited no authority to support the family court's conclusion 

that the law required it to issue an order in the amount necessary to cover accruing 

interest, nor have we found such authority. We reject the Department's assertion that 

we should affirm the order because the record supports a conclusion that the family 

court exercised its discretion to impose the maximum it believed Martin had the ability 

to pay. Even assuming the family court considered some evidence regarding Martin's 

ability to pay the arrearages, it repeatedly stated that "the law" required it to order a 
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meaningful payment in the amount of interest owed. Thus, it ultimately used the 

wrong legal standard in deciding the payment amount. 

 Accordingly, we remand the matter to enable the family court to exercise its 

discretion to determine whether and to what extent the support arrearages debt should 

be enforced by execution. (County of Santa Clara v. Wilson, supra, 111 Cal.App.4th 

at p. 1326.) In exercising its discretion, the family court may take the equities of the 

situation into account. (In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1154.) 

On remand, the court must determine whether Martin's state and federal tax 

obligations take priority to determine his net income. After a net income is 

determined, the court can then exercise its discretion to determine a monthly payment 

amount. 

DISPOSITION 

 The order is reversed. The matter is remanded to the trial court with directions 

to conduct another hearing in accordance with the views expressed herein. 

 MCINTYRE, J. 

WE CONCUR: 

HUFFMAN, Acting P. J. 

MCDONALD, J.