The following case deals with an interesting issue concerning a trial court’s
jurisdiction to make child support orders in the context of a Domestic
Violence Restraining Order. While a temporary restraining order can include
child and visitation orders, the issue in this case arose when the parties
reached an agreement or stipulation before they went to hearing. The stipulation
between the parties included an agreement to dissolve the temporary restraining
order. While the temporary restraining order was issued but never served
and was later terminated by stipulation or agreement between the parties,
did the order for support survive the termination of the protective order?
Yes. It was recently held that the California trial court did have jurisdiction
to make child support orders, and that such jurisdiction survived the
“dissolution” of the temporary restraining order. (See California
Family Code Section(s) 200, 290, 6340 (a).)
Moore v. Bedard (DCSS), 13 DJDAR, 1/25/2013
On July 31, 2006, Plaintiff filed for a domestic violence prevention order
(DVPO) on form DV-100, asking the court to protect her from the father
of their three children. Plaintiff also requested orders for custody,
visitation, and child support. Because Plaintiff specifically requested
on form DV-100, child custody and visitation orders Plaintiff was required
to fill out and file form DV-105. On that form, Plaintiff requested to
modify a prior child custody order entered on August 2002. Plaintiff also
requested child support.
A hearing on the request for TRO was held on August 22, 2006. The parties
presented a stipulation. The court approved the stipulation. At Plaintiff’s
request, the temporary restraining orders were “dissolved.”
The stipulation resolved the issue of child support and other financial
issues. The court found the stipulation was in the best interests of the
minor children and that their needs would be met by payments as agreed
to in the stipulation between the parties. There was no application for
cash aid from the County.
In 2009, the Riverside County Department of Child Support Services (“DCSS”)
filed a substitution of payee form (FL-632), designating it as the payee
of child support. In both 2010 and 2011, there were enforcement actions.
On March 30, 2011, Defendant filed a request for a hearing to modify child
support. The hearing was set for May 19, 2011. Income and Expense Declarations
On May 19, 2011, an order to show cause re modification of visitation and
child support and change of venue was held. On the restraining order issue,
the minutes stated: “Court notes: There are no pending restraining
orders in this case. This case has been dismissed.”
However, on the issue of child support, the court referred the parties
to the Department of Child Support Services for modification of child
support. The Minute order specifically stated: “Entire action is
On June 16, 2011, DCSS filed a motion to vacate the order dismissing the
action. Defendant argued there was no valid support order because the
entire action was dismissed by the court.
On August 18, 2011, the trial court found it had lost jurisdiction because
the court did not issue the requested restraining order. It voided the
previously filed stipulation and orders. The court also found that while
the issue of child support was properly raised in the request for a restraining
order, the court lost jurisdiction to make a child support order because
it did not issue a restraining order. The Court dismissed the action over
objections from the DCSS.
The court expressed that because there had never been a restraining order
issued after hearing, the case was dismissed by operation of law, and
further concluded the court had no jurisdiction to continue to make support orders.
HELD: Reversed. The trial court committed error by dismissing the action
for lack of jurisdiction because it did in fact have continuing jurisdiction
to make child support orders even though the TRO was not granted.
California Family Code Section 200 states, “The superior has jurisdiction
in proceedings under this code.” Family Code Section 290 further
provides that an order made pursuant to the Family Code may be enforced
“by any other order as the court in its discretion determines from
time to time to be necessary.” A “protective order”
is defined in Fam. Code §6218 as an order issued under Fam. Code
§6320, Fam. Code §6321, and Fam. Code §6322. Judicial Council
forms, including forms DV-100 and DV-105, are required to be used when
requesting protective orders and other relief. (Fam. Code §211, Fam.
Code §221 (c).
Fam. Code §6340 (a) may issue any orders stated in sections 6320,
6321, or 6322 after notice and hearing: “If the court makes any
order for custody, visitation or support, that order shall survive the
termination of any protective order.”
The Court of Appeal found Family Code Section 6340 controlled on the issue.
The Trial Court signed and filed a TRO, which included child custody and
visitation orders on form DV-140. Although never served, the TRO was terminated
when the court approved the stipulation. As part of the stipulation, Plaintiff
agreed to drop her TRO request, and she dropped all allegations against
Defendant. Essentially, the TRO was “dissolved.” When the
Court approved the stipulation, the Court also made an order for support,
and the Court of Appeal held that that order survived termination of the
Section 6341(a) also provides for child support and maintenance orders
when a protective order is issued after a hearing under Section 6340.
This is the basis for a request for such orders on Judicial Council form
DV-105. Therefore, the court’s action ordering child support as
stipulated was held proper.
Source for Post: ©Attorney’s BriefCase BriefCase OnCall™,
Case Certified for Publication 2/15/13.