Child Support and Restraining Order: Trial Court Jurisdiction to Make Child Support Orders Survives the Dissolution of a Temporary Restraining Order

Child Support and Restraining Order: Trial Court Jurisdiction to Make Child Support Orders Survives the Dissolution of a Temporary Restraining Order

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).)

Recent Case: 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 were filed.

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 ordered dismissed.”

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.

DCSS appealed.

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 protective order.

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.