1

Filed 8/25/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of ANA and 

CARL SIVA.

ANA MARIA PALOMARIA 

SIVA,

Appellant,

v.

CARL RALPH SIVA,

Respondent.

 A157554

 (Alameda County

 Super. Ct. No. HF17869391)

This appeal arises from an order awarding a credit under Jackson v. 

Jackson (1975) 51 Cal.App.3d 363 (Jackson)

1 for child support that 

respondent paid to petitioner for approximately 10 months while the parties’ 

daughter lived full-time with respondent. Petitioner argues that the trial 

court impermissibly modified the parties’ child support order retroactively. 

She also challenges the denial of her request for attorney fees and costs as 

1 Under Jackson, a court has discretion to give credits against child 

support arrearages where the obligor has satisfied his or her child support 

obligation by taking physical custody of the supported child. (Jackson, supra, 

51 Cal.App.3d at p. 368.) Courts now refer to these types of credits as 

“Jackson credits.” (Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 721–

722.)
2

sanctions under Family Code2 section 271. We find that the court had 

discretion to allow a credit for respondent’s double-satisfaction of his child 

support obligations, and the court did not err by denying sanctions. We 

affirm. 

BACKGROUND 

Petitioner petitioned to dissolve her marriage to respondent in July 

2017. The parties had one teenage child, S.S. Contentious dissolution 

proceedings ensued3 during which S.S. experienced serious issues. At 

respondent’s request, the court appointed counsel for S.S. 

In January 2018, the trial court incorporated the parties’ binding 

Marital Settlement Agreement (MSA) into a judgment. The judgment 

provided for joint legal and physical custody of S.S., with mother having a 72

percent and father a 28 percent timeshare. S.S. was able to spend time at 

either parent’s residence at her discretion, and respondent was ordered to 

pay $1,700 in monthly child support.

On April 10, 2018, S.S. left petitioner’s home. S.S. lived full-time with 

respondent thereafter. In May 2018, petitioner filed an income withholding 

order for child support.

In July 2018, the trial court held a custody review hearing. Respondent 

requested that the court grant him full physical custody of S.S., allowing 

weekly visits with petitioner at S.S.’s discretion; he further asked the court to

order reunification therapy to repair the mother-daughter relationship. In 

addition, he requested appointment of a special master to make 

2 All further statutory references are to the Family Code unless 

otherwise specified.

3 The parties engaged in extensive litigation in the dissolution and 

related proceedings, but we do not discuss facts relating to those proceedings 

as they are unnecessary to the resolution of this appeal.
3

determinations regarding parental decision-making, such as whether S.S. 

could work. In her statement to the court, petitioner told the court that S.S. 

had serious problems requiring intervention, requested that S.S. be 

prohibited from obtaining a driver’s license or working, and sought to require 

S.S. to return to petitioner’s care. At the hearing, counsel for S.S. and 

respondent reported that S.S. was doing well living with respondent. Among 

other things, the court ordered petitioner and S.S. to start reunification 

therapy, authorized S.S. to continue working, denied petitioner’s requests to 

require S.S. to return to her physical custody and to prohibit S.S. from 

obtaining a learning permit or driver’s license, and, because petitioner

requested a long cause hearing, the court set a custody trial for January 

2019.

To allow S.S. and petitioner to participate in reunification therapy, the 

parties stipulated to a continuance of the custody trial to June 2019. At a 

review hearing in January 2019, respondent asked the court to vacate the 

custody trial date and endorse his full-time physical custody of S.S. because 

reunification therapy had been unsuccessful, or, in the alternative, to order a

full custody evaluation. Petitioner urged the court to set a custody trial date. 

The court continued the custody trial date, ordered a full custody evaluation,

and set a June 2019 hearing date for the receipt of the evaluation.

On February 27, 2019, respondent filed a request for an order

modifying child support, ordering Jackson credits and reimbursements for 

expenditures related to S.S., and awarding attorney fees and costs. He 

requested that he be permitted to cease paying child support, and that 

petitioner be ordered to pay him (1) $812 in monthly child support retroactive 

to the filing of his request for modification, and (2) $18,133 in Jackson credits 

for the child support he paid from April 11, 2018 (when S.S. began living with 
4

him) to the date of his February 27, 2019 request for orders. Respondent 

explained that he had not filed his request earlier because he was focused on 

stabilizing S.S. Respondent sought sanctions under section 271. Petitioner

opposed and also sought sanctions under section 271.

After hearing argument and taking the matter under submission, the 

trial court granted respondent’s request to modify child support. Because 

petitioner had been laid off around the time of the March 2019 hearing, the 

court set a future review hearing, and, in the interim, ordered that neither 

party would pay child support. Regarding the Jackson credit, the court found 

that, “[w]hile not a parallel set of facts, the same reasoning applies in this 

case as it does in Jackson v. Jackson 51 Cal.App.3d 363 and its progeny,” and 

“[g]iven the equitable considerations,” the trial court ordered petitioner to 

pay respondent $18,133 in $1,000 monthly installments until paid in full. 

The trial court denied each party’s request for sanctions.

4

DISCUSSION

A. The “Jackson” Credit

Child support orders and orders the trial court deems necessary to 

enforce its child support orders are generally reviewed for abuse of discretion.

(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282; § 2905.) But 

California’s child support statutes and the purposes of the law regarding 

4 The trial court granted respondent’s requests for reimbursement for 

health care, reunification therapy, and extra-curricular expenditures related 

to S.S. Appellant challenges only the trial court’s order with respect to the 

Jackson credit and sanctions, so the reimbursements and the court’s order 

modifying child support are not at issue in this appeal.

5 Section 290 provides, “A judgment or order made or entered pursuant 

to this code may be enforced by the court by execution, the appointment of a 

receiver, or contempt, or by any other order as the court in its discretion 

determines from time to time to be necessary.”
5

child support limit the trial court’s exercise of discretion. (Cheriton, p. 283.) 

Here, where there are no facts in dispute, we review de novo the legal 

questions of whether the trial court had discretion to give a Jackson credit 

and whether it acted in excess of its jurisdiction and in violation of child 

support statutes. (See S.C. v. G.S. (2019) 38 Cal.App.5th 591, 598 (S.C.).)

1. The Trial Court’s Order Did Not Violate the Statutory 

Prohibition on Retroactive Modification of Child Support

Petitioner first argues that the trial court acted in excess of its 

jurisdiction and violated statutory prohibitions by retroactively modifying a 

child support order for the roughly ten months that predated respondent’s 

request for modification. She invokes a number of statutes prohibiting

retroactive modification. “An order modifying or terminating a support order 

may be made retroactive to the date of the filing of the notice of motion or 

order to show cause to modify or terminate, or to any subsequent date[.]” 

(§ 3653, subd. (a).) “[A] support order may not be modified or terminated as 

to an amount that accrued before the date of the filing of the notice of motion 

or order to show cause to modify or terminate.” (§ 3651, subd. (c)(1).)6 

Section 3603 states, “An order made pursuant to this chapter may be 

modified or terminated at any time except as to an amount that accrued 

before the date of the filing of the notice of motion or order to show cause to 

modify or terminate.” And section 3692 provides, “Notwithstanding any 

other provision of this article, or any other law, a support order may not be 

set aside simply because the court finds that it was inequitable when made, 

nor simply because subsequent circumstances caused the support ordered to 

become excessive or inadequate.” We do not believe the trial court’s order 

6 Sections 3651 and 3653 contain some exceptions not relevant here. 

(§§ 3651, subds. (b), (c)(1)–(2); 3653, subd. (a).)
6

recognizing that respondent doubly satisfied his child support obligation—by 

paying child support while maintaining full physical custody of S.S.—violated 

these statutes. 

Starting with Jackson, California courts have recognized that a judicial 

determination that an obligor discharged his or her child support obligation

for the period during which the supported child lived with the obligor does 

not run afoul of the statutory prohibition on retroactive modification. In 

Jackson, the parties divorced, the mother received custody of their daughter, 

and the mother subsequently let the daughter live with the father. When the 

mother obtained a writ of execution for child support arrearages for the time 

when the daughter lived with the father, the father moved to quash the writ

or, alternatively, to be reimbursed for money he spent on his daughter. 

(Jackson, supra, 51 Cal.App.3d at p. 365.) The trial court found the father

was attempting to retroactively modify a child support order and denied his 

request. (Id. at pp. 365–366.) The appellate court disagreed, reasoning that 

all child support orders are an exercise of the trial court’s “equitable power 

and are designed to compel satisfaction of the child support obligation” which 

is owed to the child, not the obligee parent. (Id. at pp. 366–367.) Where the 

father provided the child a home and expended amounts in excess of the 

court-ordered child support, the trial court would have been well within its 

discretion in quashing the writ or permitting partial enforcement “on the 

basis that [the father] had directly discharged his obligation or on the basis of 

equitable considerations.” (Id. at pp. 368–369.)

In In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075

(Trainotti), the appellate court reversed the trial court’s finding that the 

statutory ban on retroactive child support modification prevented it from 

considering whether to grant the father credit for child support for the time 
7

during which his child lived with him.

7 The mother had been granted

custody of the parties’ son, but he moved in with the father. The father

attempted to get the mother to stipulate to entry of an order changing 

custody and child support on several occasions, but she refused. (Id. at 

p. 1073.) After the father sought modification of the custody and support 

orders and subsequently attempted to get the mother to stipulate to the 

change of custody and support, the mother initiated a contempt proceeding 

for unpaid child support. The parties ultimately stipulated to the custody 

change and dismissed the contempt proceeding; however, they asked the trial 

court to determine arrearages. For the time period during which the child 

lived with his father, the trial court “should have considered whether the 

debtor had satisfied or otherwise discharged the obligation imposed by the 

original order. [Citations].” (Id. at p. 1075.) “Such consideration does not 

violate the prohibition against retroactive modification of the support award.” 

(Ibid.; In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182 [following 

Jackson and finding the trial court had discretion to allow credits against

arrearages as to parent who had sole physical custody of one of parties’ two 

children during period in question].)

More recently, in Helgestad v. Vargas (2014) 231 Cal.App.4th 719

(Helgestad), the appellate court held that Jackson credits were available in a 

paternity action for the period during which the father and mother lived

together and attempted reconciliation if the obligor established the provision

of actual in-kind or in-the-home support. The court reviewed the equitable 

7 At the time, this prohibition was set forth in former Civil Code section 

4700, subdivision (a)(1), which provided in pertinent part: “Any order for 

child support may be modified or revoked as the court may deem necessary, 

except as to any amount that may have accrued prior to the date of the filing 

of the notice of motion or order to show cause to modify or revoke.”
8

theory supporting the availability of credits in Jackson and its progeny, as 

well as theories underlying out-of-state decisions allowing and disallowing 

similar credits. (Id. at pp. 723–732.) The court endorsed the availability of a 

credit based on equitable concerns and rejected what it deemed the “ ‘pure’ 

anticredit case[s]” from other states that categorically refused credit based on

statutes prohibiting retroactive modification. (Id. at pp. 730–733.)

“[M]echanical application of the no-retroactive-modification rule seems to us 

inconsistent with the entire Jackson line. ‘The trial court may determine 

that nothing is owed for child support amounts that accrued during the 

period the supported child was living with the obligor parent. This does not 

affect an improper “retroactive modification” because the arrearages are 

deemed satisfied by the obligor’s direct provision for the child’s needs during 

the applicable period of time.’ [Citations]” (Id. at p. 733, italics omitted; In re 

Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1017 (Wilson) [recognizing 

Jackson’s theory “that a parent can discharge the child support obligation by 

caring for the child at the parent’s own expense” and remanding for the trial 

court to consider a setoff against arrearages for the period during which the 

child lived with grandparents and the father provided support].)

Applying the theory behind Jackson and its progeny here, respondent

in essence satisfied his child support obligation twice for the time period 

commencing when S.S. began living with him full-time and ending when he 

filed his request for child support modification. Recognition of this double

satisfaction did not violate prohibitions on retroactive termination or

modification of child support orders under sections 3651, 3653, or 3603, and,

for the same reasons, did not impermissibly set aside a child support order 

under section 3692. (Trainotti, supra, 212 Cal.App.3d at p. 1075; Helgestad,

supra, 231 Cal.App.4th at p. 733.)
9

The cases petitioner cites in support of her retroactive modification 

argument are distinguishable. In none of those cases did the obligor take 

custody of his child and fulfill a support obligation. Rather, in each, the 

obligor sought to eliminate some part of his obligation and accrued child 

support arrearages. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 25–27

[reversing an order subtracting $441 monthly from child support arrearages 

for the time the obligee did not have the supported child in licensed child 

care]; In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203,

1217 [finding unenforceable the parties’ postdissolution agreement waiving 

thousands of dollars of undisputed accrued child support arrearages]; In re 

Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 518 [rejecting the 

obligor’s interpretation of an order determining arrearages that would 

eliminate 9 months of accrued child support and interest and dismissing the 

appeal as frivolous]; County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 

1324, 1325–1326 [reversing trial court’s order eliminating months of child 

support arrearages for the time the obligor was imprisoned]; S.C., supra, 

38 Cal.App.5th at pp. 593–594, 601 [finding same and contrasting Jackson 

and its progeny where the parent provided support to the child during the 

relevant period by caring for him or her]

8.) 

2. The Trial Court Had Discretion to Give a Jackson Credit 

Petitioner next argues that Jackson credits could not be given in this 

case because they are only available in collection proceedings such as those in 

Jackson where the obligee obtained a writ of execution to recover child 

support arrearages. The parties have not cited, nor have we found, a case 

8 Appellant concedes that respondent had 100 percent physical custody 

of S.S. from April 10, 2018 through the date of his February 2019 request for 

orders, and she has never contested respondent’s statement that he provided 

actual in-home support to S.S.
10

allowing a Jackson credit in circumstances identical to those before us. 

Nevertheless, examination of pertinent authority leads us to conclude that 

the trial court’s discretion to recognize Jackson credits is not confined to

proceedings where the obligee seeks to collect on arrearages. 

Courts have recognized the availability of Jackson and other child 

support credits outside of collection proceedings, relying on their inherent 

authority to determine what is owed under their support orders and the 

manner in which these orders are enforced. (See Trainotti, supra, 

212 Cal.App.3d at p. 1075 [recognizing availability of Jackson credits in an 

action denominated as a “modification proceeding” where the parties sought a 

determination of arrearages and “the court’s jurisdiction was invoked to 

enforce the terms of the original child support order”]; Helgestad, supra, 

231 Cal.App.4th at p. 722 [recognized the availability of Jackson credits in

response to the obligor’s motion to determine arrearages]; County of Shasta v. 

Smith (1995) 38 Cal.App.4th 329, 334–335 (Smith) [even absent an

enforcement proceeding, the court has inherent authority to determine the 

amount of its judgment, so it could decide the obligor’s motion to determine 

arrearages, including his entitlement to credits from the alleged discharge of 

his support obligation]9.) 

There appear to be few cases addressing requests for child support 

credits in the absence of arrearages, but we have found two that involve 

requests for a credit in the form of a refund or future offset. In In re 

Marriage of Starr (2010) 189 Cal.App.4th 277, 290–291, the obligor filed a 

request seeking modification of child support and a refund of overpaid child 

9 In Smith, the obligor claimed he had discharged his child support 

obligations based on wage garnishments with which his employer had 

allegedly absconded. (Smith, supra, 38 Cal.App.4th at p. 332.)
11

support after discovering that the parties’ stipulated child support formula 

was based on the erroneous assumption that the parties had four children, 

when, in fact, they had two. The trial court first modified the support order

to reflect support for the parties’ two children, but, after holding a trial on the 

refund issue, it found the modified child support was inadequate, raised the 

father’s support, and denied a refund. (Id. at p. 290.) The appellate court 

affirmed, finding that the trial court had discretion to grant or deny the 

request for a refund based on its equitable discretion to provide a credit 

against arrearages for overpayment of child support.10 (Id. at pp. 290–291 

[following In re Marriage of Peet (1978) 84 Cal.App.3d 974, 977–979 (Peet)].)

More recently, Y.H. v. M.H. (2018) 25 Cal.App.5th 300 (Y.H.), 

recognized the trial court’s ability to provide a credit for overpaid child

support, in the form of a refund or future offset at the trial court’s discretion,

despite the absence of arrearages. (Id. at p. 302 & fn. 2.) In Y.H., the father

paid full child support for six years while his application for social security 

disability (SSDI) benefits was pending; when the benefits were approved, the

mother received a lump sum payment for past derivative SSDI benefits on 

behalf of the parties’ daughter. The father then filed a request for an order 

10 The dissent characterizes Starr’s endorsement of the trial court’s 

discretion to order a refund of overpaid child support as little more than

dicta. (Dissent, p. 7.) We disagree. Starr’s holding with respect to this issue

has two components. First, the appellate court found that the trial court had 

discretion to decide the request for a refund under Peet, supra, 84 Cal.App.3d 

at pp. 977–979. (Starr, supra, 189 Cal.App.4th at p. 290.) Describing Peet, 

the court stated, “Peet involved a spouse’s claim for reimbursement of 

voluntary overpayments [of child support], which the trial court granted. The 

Court of Appeal affirmed, holding that the trial court had discretion in such 

matters. We hold that Peet is applicable here.” (Ibid.) Second, the court held 

that the trial court did not abuse its discretion in the circumstances of the 

case by declining the father’s request for reimbursement. (Id. at p. 291.) 
12

granting a credit for overpaid child support. (Ibid.) The trial court found the 

SSDI lump sum payment had to be credited against the father’s child support 

obligation under section 4504, subdivision (b)11, and it ordered the benefits to 

be retroactively applied first against the father’s obligation for the months 

covered by the lump sum payment before applying the father’s child support 

payments; any payment exceeding the child support obligation amount 

“would be subject to an offset or a refund.” (Id. at p. 304.) 

The appellate court affirmed, holding that section 4504, subdivision (b) 

required the derivative SSDI benefits received by obligor’s child to be credited 

against the obligor’s child support obligation, although the statute did not 

address how to effect a credit where no arrearages existed. (Y.H., supra, 

25 Cal.App.5th at pp. 305–307.) It further observed that not allowing a 

retroactive credit would discourage the obligor from making support 

payments while seeking benefits and inequitably require him to overpay child 

support once the benefits materialized. (Id. at pp. 310–311 and fn. 8.) The

appellate court then approved the trial court’s method of implementing the 

credit: “The [trial] court met the statutory mandate by ordering retroactive 

child support credit for the months covered by the lump-sum payment for 

past-due benefits. This fell within its broad enforcement power to determine 

11 This subdivision provides, “If the court has ordered a noncustodial 

parent to pay for the support of a child, payments for the support of the child 

made by the federal government pursuant to the Social Security Act or 

Railroad Retirement Act, or by the Department of Veterans Affairs because of 

the retirement or disability of the noncustodial parent and received by the 

custodial parent or other child support obligee shall be credited toward the 

amount ordered by the court to be paid by the noncustodial parent for 

support of the child unless the payments made by the federal government 

were taken into consideration by the court in determining the amount of 

support to be paid. Any payments shall be credited in the order set forth in 

Section 695.221 of the Code of Civil Procedure.”
13

the manner in which its child support order is enforced. (§ 290.) ‘[T]he trial 

court may give credit for past overpayment (In re Marriage of Peet, [supra,] 

84 Cal.App.3d [at pp.] 980–981)’ . . . ‘or take into consideration “whether the 

debtor had satisfied or otherwise discharged the obligation imposed by the 

original order.” ’ (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 858–

859.) That is precisely what the court did.” (Y.H., at p. 307.) 

Turning to the case at hand, the trial court’s order reflects a recognition 

that respondent doubly satisfied his child support obligation by caring for 

S.S. when she lived with him full-time and through his support payments. 

Effectively, he double paid. Once the court recognized the doublesatisfaction, similar to Y.H., the court’s election to give a credit in the form of 

a refund where no arrearages existed “fell within its broad enforcement 

power to determine the manner in which its child support order is enforced.” 

(Y.H., supra, 25 Cal.App.5th at p. 307.) We acknowledge that the statute as 

interpreted in Y.H. required the SSDI benefits to be credited against the 

obligor’s child support obligation whereas Jackson credits are discretionary. 

However, as we previously found herein, the child support statutes on which 

petitioner relies do not prohibit a credit. 

“Family law court is a court of equity.” (In re Marriage of Calcaterra & 

Badakhsh (2005) 132 Cal.App.4th 28, 38.) Although a court cannot

transgress statutory mandates, family law proceedings “ ‘are equitable 

proceedings in which the court must have the ability to exercise discretion to 

achieve fairness and equity.’ ” (In re Marriage of Boswell (2014) 

225 Cal.App.4th 1172, 1175.) Equity would not be served by holding that the 

trial court lacked discretion to give a credit in this case when it indisputably 

could have exercised such discretion under Jackson had respondent 

requested a determination of arrearages after not paying the court-ordered 
14

child support. Such a ruling would effectively punish respondent for 

complying with the child support order while simultaneously providing a 

home to S.S.

Our dissenting colleague believes that the trial court’s order 

undermines the “equitable role that Jackson credits normally fulfill.” 

(Dissent, p. 6.) The dissent states that, although an obligee parent is entitled 

to seek enforcement of unpaid child support when the obligor parent takes 

custody of the child, where the obligee parent agrees that non-payment is 

equitable under the circumstances and declines to seek enforcement until 

many months have passed, Jackson credits are available to the obligor to 

defeat such a “post hoc ‘gotcha’ ” motion. (Dissent, p. 6, citing Helgestad,

supra, 231 Cal.App.4th at p. 733.) In contrast, when the obligor parent pays 

child support while providing in-home support and then requests a courtordered refund, the dissent characterizes the obligor’s request as a “post hoc 

‘gotcha’ ” because the obligee had no reason to believe she was not entitled to 

spend the child support that “was lawfully hers.” (Dissent, pp. 6–7.) 

We disagree. The dissent states that money paid pursuant to a child 

support order is lawfully that of the obligee parent, implying that the support 

obligation runs to the obligee parent. (Dissent, pp. 6–7.) But it is well 

established that the support obligation is owed to the child, not to the parent 

identified in the support order as the recipient of child support payments. 

(Jackson, supra, 51 Cal.App.3d at p. 367; Williams v. Williams (1970) 

8 Cal.App.3d 636, 640.) “In essence, the parent, to whom such support is 

paid, is but a mere conduit for the disbursement of that support.” (Williams, 

at p. 640.) When a supported child moves completely out of the obligee 

parent’s home to live with the obligor parent and the obligor provides inhome child support, the obligee parent cannot be said to be unaware that he 
15

or she is no longer acting as a conduit for the disbursement of child support to 

a child who no longer lives with him or her.

Our dissenting colleague also implicitly equates a refund of support 

with a reduction in the amount of support the trial court previously ordered. 

(Dissent, pp. 1–2.) They are not the same. The court may never reduce 

support payable prior to the date the obligor files a motion requesting a 

reduction. But as Jackson and its progeny recognized, acknowledging the 

obligor parent’s satisfaction of the support obligation by providing in-home 

support for the supported child does not reduce, enlarge, or modify the 

support obligation. Where, as here, the support obligation has been satisfied 

twice, a refund may or may not be ordered depending on the circumstances. 

Although we uphold the trial court’s order based on the record in this 

case, nothing in this opinion should be construed to require a court to award a 

Jackson credit in similar circumstances. The determination of whether to 

give a Jackson credit is left to the sound discretion of the trial judge, who 

must weigh the circumstances and the equities in each case. (See Wilson, 

supra, 4 Cal.App.5th at p. 1018 [directing the trial court to consider all 

relevant factors when exercising its discretion to determine whether to award

a Jackson credit].) It is possible that a trial court may determine that the 

equities weigh against recognizing a full or partial credit if, for example, the 

obligee establishes that he or she paid certain fixed child support costs, the 

determination of when a child was in the custody of the obligor parent 

becomes unduly complicated or protracted, or the granting of a credit is not in 

the best interests of the child. The court may also consider factors such as 

the length and explanation for the obligor parent’s delay in requesting a 

refund, the obligee parent’s use of the payments (i.e., whether or not for the 

benefit of the minor), and the relative hardships of requiring or refusing a 
16

refund. We are not called upon to decide whether the trial court abused its 

discretion in this case because petitioner does not argue that, if the trial court 

had discretion to award a Jackson credit, it abused its discretion in doing so.

B. Attorney Fees and Costs 

Petitioner seeks to overturn the trial court’s order denying what she 

contends were requests for need-based attorney fees and costs under section 

2030 and sanctions under section 271. Under an abuse of discretion 

standard, where we construe all the evidence and indulge all reasonable 

inferences in support of the trial court’s order, we find no error. (See 

Marriage of Fong (2011) 193 Cal.App.4th 278, 291 [a section 271 order is 

reviewed for abuse of discretion]; In re Marriage of M.A. & M.A. (2015)

234 Cal.App.4th 894, 896 [same as to orders under section 2030].) 

Under sections 2030 and 2032, the trial court may make a need-based 

award of attorney fees and costs where the making of the award and its 

amount are just and reasonable given the relative circumstances of the 

parties. (§§ 2030, 2032, subd. (a).) But petitioner did not request need-based 

attorney fees and costs below, and we decline to consider her request for the 

first time on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com. 

(1983) 34 Cal.3d 412, 417 [issues not raised in the trial court cannot be raised 

for the first time on appeal].)

Under section 271, a “court may base an award of attorney’s fees and 

costs on the extent to which the conduct of each party or attorney furthers or 

frustrates the policy of the law to promote settlement of litigation and, where 

possible, to reduce the cost of litigation by encouraging cooperation between 

the parties and attorneys.” Petitioner seeks to overturn the court’s denial of

sanctions because she is not as financially secure as respondent and because 

respondent filed a motion requesting a Jackson credit. However, the 
17

financial need of the party seeking sanctions is irrelevant to a section 271 

request. (Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter 

Group 2019) ¶ 14:235.) Further, while there was no authority applying

Jackson in circumstances identical to this case, the court did not abuse its 

discretion in refusing the sanctions request, as respondent’s motion had a 

sound factual and legal basis. Finally, petitioner does not support her 

argument with citations to the record or attempt to establish how, apart from 

filing the request for a credit, respondent frustrated the promotion of 

settlement or increased litigation costs. 

DISPOSITION

The trial court’s order is affirmed.

_________________________

BROWN, J.

I CONCUR:

_________________________

POLLAK, P. J.
1

TUCHER, J., Dissenting: 

I respectfully dissent from that portion of the court’s opinion that 

extends the concept of a “Jackson credit” to authorize, for the first time, what 

might instead be called a “Jackson refund.” (See Jackson v. Jackson (1975) 

51 Cal.App.3d 363 (Jackson).) Here, the trial court ordered Ms. Siva 

(Mother) to refund child support she received for a period of months before 

anyone filed a request to modify the parties’ permanent child support order. 

If Mr. Siva (Father) had ceased paying child support when their daughter 

moved into his home, the trial court could have awarded a Jackson credit 

against the resulting arrearages, but instead Father continued paying and 

only later sought to require Mother to refund the money. I view the trial 

court’s order that Mother repay Father more than $18,000 in child support—

amounts she lawfully received at a time when no request for orders was 

pending—as contrary to law. Statutes governing child support allow courts 

discretion in enforcing a child support order, which discretion authorizes 

Jackson credits. But the statutes do not allow retroactive modification of a 

child support order during a period before any petition to modify is filed, 

which in my view precludes the Jackson refund ordered here.

Determination of child support “ ‘is a highly regulated area of the law, 

and the only discretion a trial court possesses is the discretion provided by 

statute or rule.’ ” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283 

(Cheriton).) “[C]ourts are required to calculate child support in accordance 

with the mathematical formula set forth in the statute,” a process so complex 

it is usually delegated to a computer. (Id. at p. 284, citing Fam. Code, § 4055; 

all undesignated code references are to the Family Code.) Although the 

statute refers to the formula as a “guideline” (§ 4055), “adherence to the 

guidelines is mandatory, and the trial court may not depart from them except 
2

in the special circumstances enumerated in the statutes.” (Cheriton, at 

p. 284.)

State and federal law also constrains courts in modifying a child 

support order, once made. The majority’s opinion acknowledges many of 

these statutes. For example, section 3653 provides in relevant part: “An 

order modifying or terminating a support order may be made retroactive to 

the date of filing of the notice of motion or order to show cause to modify or 

terminate, or to any subsequent date.” (§ 3653, subd. (a), italics added.) But 

“a support order may not be modified or terminated as to an amount that 

accrued before the date of the filing of” such papers. (§ 3651, subd. (c)(1).) 

Nor may a support order “be set aside . . . simply because subsequent 

circumstances caused the support ordered to become excessive.” (§ 3692.) 

These statutes implement federal law, which requires each state to “have in 

effect laws requiring” that each installment of child support “is (on and after 

the date it is due)—[¶](A) a judgment by operation of law, with the full force, 

effect, and attributes of a judgment of the State, including the ability to be 

enforced, [¶](B) entitled as a judgment to full faith and credit in such State 

and in any other State, and [¶](C) not subject to retroactive modification by 

such State or by any other State; [¶]except that” a state “may permit 

modification with respect to any period during which there is pending a 

petition for modification . . . .” (42 U.S.C. § 666, subd. (a), italics added.) 

Although these statutes allow the trial court no discretion retroactively 

to modify the child support order for a period when no modification request 

was pending, another statute does authorize discretion regarding the 

enforcement of such an order. Section 290 provides, in relevant part, that a 

child support order or judgment “may be enforced by the court by execution 

. . . or contempt, or by any other order as the court in its discretion
3

determines from time to time to be necessary.” (Italics added.) The use of 

“may,” as opposed to “shall,” and the explicit reference to judicial “discretion” 

combine to empower trial courts to exercise equitable authority in deciding 

whether fully to enforce a child support order.

Jackson and its progeny showcase this equitable discretion in action, in 

each case addressing whether to enforce a support order with which the 

obligor did not comply. Jackson allows a trial court to quash a writ of 

execution for child support arrearages covering a period when the child lived 

full time with the obligor parent. (Jackson, supra, 51 Cal.App.3d at pp. 365–

369.) In similar circumstances but a different procedural posture, In re 

Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075 (Trainotti) allows 

judicial discretion in a contempt proceeding for unpaid child support, and 

Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 722 (Helgestad) allows 

judicial discretion in the determination of post-judgment arrearages. These 

cases, and the other cases in the Jackson line on which the majority relies, all 

address the extent to which a court will enforce an existing child support 

order, requiring payment of arrearages accrued while the child lived with the 

obligor. The cases give trial courts discretion to decide whether enforcement 

of the prior order would be equitable, or whether the obligor parent should 

instead be credited with having “directly discharged his obligation.” 

(Jackson, supra, at pp. 368–369.) The cases expressly rely on the court’s 

discretionary enforcement powers to harmonize Jackson credits with the 

statutory proscription on retroactive modification of a support order. (See, 

e.g., Helgestad, at p. 733; Trainotti, at p. 1075; Jackson, at p. 368; In re 

Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1016 [“it is within the court’s 

equitable power to deny enforcement of the arrears on equitable grounds” 

where a parent has directly supported the child].)
4

This case is different. Because Father fully complied with the existing 

child support order, there is no issue of enforcement here. Instead, Father’s 

request for a refund takes us outside the equitable enforcement powers of the 

court and into the arena of a retroactive modification. Father characterizes 

the trial court’s order not as retroactively modifying his obligation, but as 

“zeroing out” his “required payment for the months he provided in-kind 

support,” requiring Mother to “pay [him] back for overages.” This argument 

ignores that to reduce $18,000 in previously ordered child support payments 

to zero is to “modif[y] or terminate[]” Father’s obligation “as to an amount 

that accrued before” Father filed his request for orders. (§ 3651, subd. (c)(1).) 

And to order Mother to pay back this money—all of which she was entitled to 

under the court’s order when she received it—is therefore an act beyond the 

jurisdiction of the trial court. (S.C. v. G.S (2019) 38 Cal.App.5th 591, 599 

[“trial court acts ‘in excess of the court’s jurisdiction’ if it modifies support 

retroactive to any time before the filing of the obligor’s modification motion”]; 

Stover v. Bruntz (2017) 12 Cal.App.5th 19, 26 [same].) Father’s payments 

were not “overages.” They were legal obligations “entitled as a judgment to 

full faith and credit in” the courts of this state. (42 U.S.C. § 666, subd. (a); 

§ 3653, subd. (a).) 

The majority opinion concludes these statutes and case law pose no bar 

to the trial court’s order because, applying “the theory behind Jackson and its 

progeny,” Father has effectively double-paid his child support. The majority 

appears to recognize that no case has ever awarded Jackson credits in the 

absence of arrearages, as the only cases it cites involving requests for “a 

refund or future offset” are unrelated to Jackson. (See infra, discussing In re 

Marriage of Starr (2010) 189 Cal.App.4th 277 (Starr); Y.H. v. M.H. (2018) 25 

Cal.App.5th 300 (Y.H.).) But the majority fails to reckon with the 
5

significance of this distinction between addressing enforcement of arrearages 

and ordering repayment of monies received. In my view, this difference is 

dispositive. If an obligor has not paid amounts previously ordered we are in 

the arena of enforcement, where the trial court has statutory authority for 

exercising discretion to award an offset. (§ 290.) But if an obligor has paid 

all amounts previously ordered, there is no enforcement issue and, 

accordingly, no statutory authority for offsetting in-kind contributions toward 

support of the child. Father’s obligation to pay Mother may not be 

retroactively “set aside,” or zeroed, “simply because subsequent 

circumstances caused the support ordered to become excessive.” (§ 3692.)

One might plausibly ask whether refusing to extend Jackson credits to 

affirm a Jackson refund unfairly penalizes Father for timely paying his child 

support. I do not think it does. The moment Father came to believe custody 

arrangements had sufficiently changed that it was no longer fair for him to 

continue paying Mother at the court-ordered level, he could have filed a 

Judicial Council form requesting a modification. (See 

https://www.courts.ca.gov/1196.htm?rdeLocaleAttr=en [including link to Jud. 

Council Form FL-300] [as of July 29, 2020].) The simple act of filing and 

serving this form would have put Mother on notice that any further payment 

of child support was subject to claw-back, and it would have empowered the 

trial court, consistent with sections 3651, 3653, and 3692 and federal law, to 

award a refund of child support retroactive to that date. “ ‘The Legislature 

has established a bright-line rule that accrued child support vests and may 

not be adjusted up or down. [Citations.] If a parent feels the amount ordered 

is too high—or too low—he or she must seek prospective modification.’ ” 

(Stover, supra, 12 Cal.App.5th at p. 26.)
6

Extending Jackson credits to allow for Jackson refunds blurs the 

Legislature’s bright line. It deprives parents who receive and depend on child 

support of the certainty and repose that the statutes’ bright line otherwise 

provides. And it undermines the equitable role that Jackson credits normally 

fulfill. In the context of a parent who has ceased paying child support 

because the child moved into the obligor parent’s home, the obligee parent is 

entitled under the existing order to receive such support and can appeal to 

the court for enforcement when payments cease. But if the obligee agrees 

that non-payment is equitable under the circumstances and declines to seek 

enforcement until many months have passed, Jackson credits are available to 

the obligor to defeat such a “post hoc ‘gotcha’ ” motion. (Helgestad, supra,

231 Cal.App.4th at p. 733.) A traditional Jackson credit allows the trial court 

retroactively to conform enforcement of a child support order to the parties’ 

self-help approach, under circumstances where neither party had a strong 

incentive to go promptly into court petitioning for formal modification. 

This salutary effect of a Jackson credit disappears in the context of a 

Jackson refund. Where, as here, the obligor parent continues paying courtordered support, the receiving parent has no incentive to seek modification of 

the existing order and no reason (unless the obligor parent has filed a request 

for modification) to believe she is not entitled to spend the money she 

receives. When, months later, the obligor parent requests a court-ordered 

refund, this motion is itself a “post hoc ‘gotcha.’ ” If properly restricted to the 

enforcement context, the availability of Jackson credits is consistent with the 

practical wisdom that a parent who wants a child support order to change 

should file papers requesting that change. (See Stover, supra, 12 Cal.App.5th 

at p. 26.) But a Jackson refund flies in the face of this rule. Here, both 

parties accepted the status quo for eight months, neither party seeking to 
7

modify the support order. Then, long after Mother received and likely spent 

the child support she had every reason to believe was lawfully hers, the trial 

court’s order reached back to unsettle those settled expectations. 

Nothing in the two cases the majority cites regarding child support 

refunds or future offsets justifies the conclusion the court reaches here. Starr

affirmed an order denying the obligor parent a refund for child support paid 

in excess of the guidelines amount. (Starr, supra, 189 Cal.App.4th at 

pp. 290–291.) In a brief discussion at the end of an opinion about other 

issues, the Starr court held that the trial court “did not abuse its discretion 

by declining [the] request for reimbursement.” (Id. at p. 291.) Any inference 

from this ruling that the trial court had authority to have instead ordered a 

refund is little more than dictum, unnecessary to the result the court 

reached. 

Y.H. is more complicated, but just as unhelpful as support for ordering 

a Jackson refund. In Y.H., a disabled veteran who applied for social security 

disability (SSDI) benefits waited six years for a decision on his application. 

(Y.H., supra, 218 Cal.App.5th at pp. 302–303.) In the meantime, he paid his 

court-ordered child support. (Id. at p. 304.) When his benefits were finally 

approved, not only did the veteran receive a lump-sum payment of accrued 

benefits, but his young daughter received a similar check representing her 

derivative SSDI benefits. (Id. at p. 303.) The child’s check was sent to her 

mother as custodial parent but was required by statute “to be applied as a 

credit to [the] noncustodial parent’s child support obligation.” (Id. at p. 305 

[discussing § 4504, subd. (b)].) Section 4504 provides the statutory basis for 

awarding a credit, and perhaps a refund of overpaid child support, in a case 

like Y.H. (Y.H., at p. 302, fn. 2.), but the code section is specific to “payments 

for the support of the child made by the federal government pursuant to the 
8

Social Security Act.” (§ 4504, subd. (b).) It offers no statutory support for a 

Jackson credit or a Jackson refund. The dispositive difference between Y.H. 

and this case is, then, that the child support refund in Y.H. was firmly 

anchored in the Legislature’s statutory scheme governing child support, 

while the concept of a Jackson refund is not.

Y.H. is inapposite for policy reasons as well. The Y.H. court was 

concerned that denying a credit for lump sum SSDI payments would have the 

perverse effect of discouraging an obligor parent who has applied for benefits 

from paying his support obligations promptly, thus causing financial harm to 

the child. (Y.H., supra, 25 Cal.App.5th at pp. 309–310.) No such concern 

exists in the context before us, as there is no risk of financial harm to the 

child from the obligor parent fulfilling his support obligations by caring for 

the child. Moreover, the obligor parent may immediately seek modification of 

child support so as to avoid having to effectively double-pay, unlike a parent 

awaiting a decision on SSDI benefits. Any motion brought by a disabled 

parent to seek a refund of some portion of a derivative lump-sum benefit 

cannot be filed until the check arrives, so it is hardly a “post hoc ‘gotcha’ ” 

motion when filed promptly thereafter. Y.H. thus avoids the practical

problems that I fear today’s opinion will cause. 

For good reason, appellate courts may be reluctant to cabin the 

discretion of trial courts, but in addressing child support “the only discretion 

a trial court possesses is the discretion provided by statute or rule.” 

(Cheriton, supra, 92 Cal.App.4th at p. 283.) Because I find no support in 

statute or rule for extending Jackson to a case where the obligor parent has 

continued paying support without requesting modification of the order, I 

conclude the trial court lacked discretionary authority to order 
9

reimbursement here. I would reverse with regard to the reimbursement 

order and affirm only as to Mother’s motion for attorney’s fees and costs. 

_________________________________

TUCHER, J.

Siva v. Siva (A157544)
Trial Court:Alameda County Superior Court

Trial Judge: Hon. Jennifer Madden

Counsel: 

Law Offices of Bradley D. Bryan, Bradley D. Bryan, for Appellant.

Ross Family Law, Renee R. Ross, Darien M. Meyer, for Respondent.