Much has been said about the need for a child support obligor to immediately file a motion to modify support when his or her circumstances change, otherwise, they are on the hook for the current support order until it is changed. Also, if the court modifies a support order due to the unemployment of the parent, the court can make the order retroactive to the date the motion is served on the other party.

A recent case however, made use of the court's discretion to find good cause not to make the order retroactive. Marriage of Leonard, C.A. 6th, No. Ho26717, June 15, 2004. In this case, the father was laid off from his job (with an income of $15,000 per month) and filed a motion to reduce his child support a few days later. The court reduced his child support obligation five months later from $2,200 to $423 per month, but did not make the order retroactive. The father appealed.

The appellate court affirmed the trial court, finding good cause existed not to make the order retroactive, and speaking to the needs of the children. Here, the needs of the children outweighed the financial burden upon the father. Although the father had no current income, he had assets of $676,000, much less than the mother's. The mother also showed that her expenses exceeded her income and if the order was made retroactive to the date of service, it would have left the children with no support for five months, as father would have been given a credit for the support he continued to pay while the hearing was pending.

The court adhered to the states' principles found in Family Code 4053, which states that the parent's actual income is taken into account, but also that each parent should pay according to his or her ability to pay. The message still remains the same: don't delay, file a motion to modify immediately. Each case is different with respect to ability to pay and the needs of the children.

For more information contact Reape – Rickett, A Professional Corporation located at 23929 Valencia Blvd. Suite 404 in Valencia, CA 91355. (661)288-1000.