The state owes me money

[laurel9257]

riverside county california, husband recieved "request for support" in 1992 for kid that wasn't his. He contested and the state suspended the case pending DNA. 2 years later the state refiled unbeknounst to him; and subsequently declared him the paternal father, thus support began accruing. He was made aware of the situation in 2000 during a credit review. He went to court and they told him that they had notified him by mail of their intent to declare him the father and since their letters never came back to them (county) that the notification was definite despite the fact that he was never served. An attorney filed kidnapping charges against the mother who had left the state and refused to return, and upon her return a DNA test was finally performed. When the DNA test came back negative for paternity the state discontinued future payments however $17,000 in back pay never went away and we finally had to pay it in order to move on. My question is how can I get this money back? Attorney says we can't sue the mother even though the bio father was living with her while she was collecting welfare and racking up a debt for us! And Riverside County will only speak to us if we have illegitimate children for whom we need support collected.

[seniorjudge]

riverside county california, husband recieved "request for support" in 1992 for kid that wasn't his. He contested and the state suspended the case pending DNA. 2 years later the state refiled unbeknounst to him; and subsequently declared him the paternal father, thus support began accruing. He was made aware of the situation in 2000 during a credit review. He went to court and they told him that they had notified him by mail of their intent to declare him the father and since their letters never came back to them (county) that the notification was definite despite the fact that he was never served. An attorney filed kidnapping charges against the mother who had left the state and refused to return, and upon her return a DNA test was finally performed. When the DNA test came back negative for paternity the state discontinued future payments however $17,000 in back pay never went away and we finally had to pay it in order to move on. My question is how can I get this money back? Attorney says we can't sue the mother even though the bio father was living with her while she was collecting welfare and racking up a debt for us! And Riverside County will only speak to us if we have illegitimate children for whom we need support collected.

You will have to sue the state. And tack on some punitive damages.

[Clair Bonner]

READ ALL THE WAY TO THE END

Family code § 7645.
For purposes of this article, the following definitions shall
apply:
(a) "Child" means the child of a previously established father, as
determined by the superior court in a judgment that is the subject
of a motion brought pursuant to this article, or as a matter of law.
(b) "Judgment" means a judgment, order, or decree entered in a
court of this state that establishes paternity, including a
determination of paternity made pursuant to a petition filed under
Section 300, 601, or 602 of the Welfare and Institutions Code, or a
voluntary declaration of paternity. For purposes of this article,
"judgment" does not include a judgment in any action for marital
dissolution, legal separation, or nullity.
(c) "Previously established father" means a person identified as
the father of a child in a judgment that is the subject of a motion
brought pursuant to this article.
(d) "Previously established mother" means a person identified as
the mother of a child in a judgment that is the subject of a motion
brought pursuant to this article.


7646. (a) Notwithstanding any other provision of law, a judgment
establishing paternity may be set aside or vacated upon a motion by
the previously established mother of a child, the previously
established father of a child, the child, or the legal representative
of any of these persons if genetic testing indicates that the
previously established father of a child is not the biological father
of the child. The motion shall be brought within one of the
following time periods:
(1) Within a two-year period commencing with the date on which the
previously established father knew or should have known of a
judgment that established him as the father of the child or
commencing with the date the previously established father knew or
should have known of the existence of an action to adjudicate the
issue of paternity, whichever is first, except as provided in
paragraph (2) or (3) of this subdivision.
(2) Within a two-year period commencing with the date of the child'
s birth if paternity was established by a voluntary declaration of
paternity. Nothing in this paragraph shall bar any rights under
subdivision (c) of Section 7575.
(3) In the case of any previously established father who is the
legal father as a result of a default judgment as of the effective
date of this section, within a two-year period commencing with the
enactment of this section.
(b) Subdivision (a) does not apply if the child is presumed to be
a child of a marriage pursuant to Section 7540.


7647. (a) A court may grant a motion to set aside or vacate a
judgment establishing paternity only if all of the following
conditions are met:
(1) The motion is filed in a court of proper venue.
(2) The motion contains, at a minimum, all of the following
information, if known:
(A) The legal name, age, county of residence, and residence
address of the child.
(B) The names, mailing addresses, and counties of residence, or,
if deceased, the date and place of death, of the following persons:
(i) The previously established father and the previously
established mother, and the biological mother and father of the
child.
(ii) The guardian of the child, if any.
(iii) Any person who has physical custody of the child.
(iv) The guardian ad litem of the child, if any, as appointed
pursuant to Section 7647.5.
(C) A declaration that the person filing the motion believes that
the previously established father is not the biological father of the
child, the specific reasons for this belief, and a declaration that
the person desires that the motion be granted. The moving party is
not required to present evidence of a paternity test indicating that
the previously established father is not the biological father of the
child in order to bring this motion pursuant to Section 7646.
(D) A declaration that the marital presumption set forth in
Section 7540 does not apply.
(3) The court finds that the conclusions of the expert, as
described in Section 7552, and as supported by the evidence, are that
the previously established father is not the biological father of
the child.
(b) The motion shall include a proof of service upon the following
persons, excluding the person bringing the motion:
(1) The previously established mother.
(2) The previously established father.
(3) The local child support agency, if services are being provided
to the child pursuant to Title IV-D or IV-E of the Social Security
Act (42 U.S.C. Sec. 651 et seq. and 42 U.S.C. Sec. 670 et seq.).
(4) The child's guardian ad litem, if any.


7647.5. A guardian ad litem may be appointed for the child to
represent the best interests of the child in an action brought
pursuant to this article.


7647.7. Any genetic testing used to support the motion to set aside
or vacate shall be conducted in accordance with Section 7552. The
court shall, at the request of any person authorized to make a motion
pursuant to this article, or may upon its own motion, order genetic
testing to assist the court in making a determination whether the
previously established father is the biological father of the child.


7648. If the court finds that the conclusions of all of the
experts, based upon the results of genetic tests performed pursuant
to Chapter 2 (commencing with Section 7550) of Part 2, indicate that
the previously established father is not the biological father of the
child, the court may, nevertheless, deny the motion if it determines
that denial of the motion is in the best interest of the child,
after consideration of the following factors:
(a) The age of the child.
(b) The length of time since the entry of the judgment
establishing paternity.
(c) The nature, duration, and quality of any relationship between
the previously established father and the child, including the
duration and frequency of any time periods during which the child and
the previously established father resided in the same household or
enjoyed a parent-child relationship.
(d) The request of the previously established father that the
parent-child relationship continue.
(e) Notice by the biological father of the child that he does not
oppose preservation of the relationship between the previously
established father and the child.
(f) The benefit or detriment to the child in establishing the
biological parentage of the child.
(g) Whether the conduct of the previously established father has
impaired the ability to ascertain the identity of, or get support
from, the biological father.
(h) Additional factors deemed by the court to be relevant to its
determination of the best interest of the child.


7648.1. If the court denies a motion pursuant to Section 7648, the
court shall state on the record the basis for the denial of that
motion and any supporting facts.


7648.2. (a) This section applies only to cases where support
enforcement services are being provided by a local child support
agency pursuant to Section 17400.
(b) Upon receipt of any motion brought pursuant to Section 7646,
the local child support agency may issue an administrative order
requiring the mother, child, and the previously established father to
submit to genetic testing if all of the conditions of paragraphs (1)
and (2) of subdivision (a) of Section 7647 are satisfied.
(c) The local child support agency shall pay the costs of any
genetic tests that are ordered under subdivision (b) or are ordered
by a court for cases in which the local child support agency is
providing services under Title IV-D of the Social Security Act (42
U.S.C. Sec. 651 et seq.).
(d) Nothing in this section prohibits any person who has been
ordered by a local child support agency to submit to genetic tests
pursuant to this section from filing a notice of motion with the
court seeking relief from the local child support agency's order to
submit to genetic tests. In that event, the court shall resolve the
issue of whether genetic tests should be ordered as provided in
Section 7647.7. If any person refuses to submit to the tests after
receipt of the administrative order pursuant to this section and
fails to seek relief from the court from the administrative order
either prior to the scheduled tests or within 10 days after the tests
are scheduled, the court may resolve the question of paternity
against that person or enforce the administrative order if the rights
of others or the interest of justice so require.


7648.3. A court may not issue an order setting aside or vacating a
judgment establishing paternity pursuant to this article under any of
the following circumstances:
(a) The judgment was made or entered by a tribunal of another
state, even if the enforcement of that judgment is sought in this
state.
(b) The judgment was made or entered in this state and genetic
tests were conducted prior to the entry of the judgment which did not
exclude the previously established father as the biological father
of the child.


7648.4. Notwithstanding any other provision of law, if the court
grants a motion to set aside or vacate a paternity judgment pursuant
to this article, the court shall vacate any order for child support
and arrearages issued on the basis of that previous judgment of
paternity. The previously established father has no right of
reimbursement for any amount of support paid prior to the granting of
the motion.


7648.8. This article does not establish a basis for termination of
any adoption, and does not affect any obligation of an adoptive
parent to an adoptive child.


7648.9. This article does not establish a basis for setting aside
or vacating a judgment establishing paternity with regard to a child
conceived by artificial insemination pursuant to Section 7613 or a
child conceived pursuant to a surrogacy agreement.


7649. Nothing in this article shall limit the rights and remedies
available under any other provision of law with regard to setting
aside or vacating a judgment of paternity or a voluntary declaration
of paternity.


7649.5. Notwithstanding any other provision of this article, a
distribution from the estate of a decedent or payment made by a
trustee, insurance company, pension fund, or any other person or
entity that was made in good faith reliance on a judgment
establishing paternity that is final for purposes of direct appeal,
may not be set aside or subject to direct or collateral attack
because of the entry of an order setting aside or vacating a judgment
under this article. An estate, trust, personal representative,
trustee, or any other person or entity that made that distribution or
payment may not incur any liability to any person because of the
distribution or payment or because of the entry of an order under
this article.


It would seem that since the County mailed out the notices, and despite your husband's protests concerning paternity and the receipt of the notices from the County, and since more than 2 years had passed, it was probably ruled that your husband is adjudged to be the paternal father, the County is not responsible for having charged the $17,000 to reimburse the Welfare rolls and the taxpayers.

Your husband's only recourse is to sue the woman for fraud and reimbursement.

[aaron]

Is that considered to be a viable cause of action in California? Is there any legal authority or precedent where a cause of action for such a recovery has been successful under these facts?

[Clair Bonner]

Is that considered to be a viable cause of action in California? Is there any legal authority or precedent where a cause of action for such a recovery has been successful under these facts?

Yes, and this type of problem was recognized by the courts over 100 years ago. You see, our writer explained that "notices" or "envelopes" from the County, concerning this matter, never came to his home. On the other side of the spectrum, the County said that the notices were never returned to them; thus, it is well-settled law in California that a pleading with a proof of service (as this would have been) is "deemed served" and "delivered" once the notice is placed in a mail receptacle, regardless of whether it's actually received by the recipient. So, the legal presumption is that our writer was, in fact, placed on notice but either threw the County envelopes away, or purposefully ignored the notices from the County, or moved from the original location and never placed a notice of address change.

That's not a recognized "mistake" that can be reversed under Code of Civil Procedure section 473 and California Family Code § 7648.4; rather, that's an "extrinsic" act, which is not subject to set-aside by the County, despite the fact that the County undoubtedly wanted to bring an action based upon the fraud. However, when the County received no response (because the father would have needed to be a "necessary party" to such a lawsuit against the mother), the County could take no action against the mother on its own, deemed the original judgment to be accurate, and closed its file on the matter.

And this is where Navarro comes into play. A judgment based on perjured testimony. [Pico v. Cohn (1891) 91 Cal. 129, 133, 25 P 970, 971; but see County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, 249, 14 Cal.Rptr.3d 905, 907--mother's false assertion that moving party was child's father not remediable "intrinsic" fraud but relief from default judgment of paternity and child support granted anyway] Based upon the above explanation, the County had no more duty to assist our writer.

There can be particularly egregious circumstances where "even more important policies than the finality of judgments are at stake" and equitable relief must be granted to remedy "profound mistake" that would not otherwise be remediable under the traditional doctrine of "extrinsic" fraud or mistake. [See County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, 249, 14 Cal.Rptr.3d 905, 907- - equitable set-aside 5 years after entry of default judgment establishing paternity and ordering child support notwithstanding absence of extrinsic fraud/mistake, given state's policy that "when a mistake occurs in a child support action, the County must correct it, not exploit it"]

In contrast, where the complaining party was simply negligent in failing to prevent the alleged fraud or mistake or in contributing thereto, or failed to take advantage of discovery to fully investigate the material facts, any alleged fraud or mistake is likely to be found "intrinsic" and thus not ground for equitable relief. [Marriage of Stevenot 154 Cal.App.3d at 1069-1070, 202 Cal.Rptr. at 129]

At least in county-initiated child support proceedings, one appellate court has even approved a trial court's equitable discretion to vacate a default judgment of paternity and child support, despite the absence of statutory and traditional common law set-aside remedies under the facts, where there has been a mistake in adjudicating the defendant to be the child's biological father. [County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, 249-250, 14 Cal.Rptr.3d 905, 907--County "should not enforce child support judgments it knows to be unfounded"] However, a later decision concludes that Navarro has since been vitiated by the subsequent enactment of Ca Fam § 7645 et seq. (above). [See County of Fresno v. Sanchez (2005) 135 Cal.App.4th 15, 19-20, 37]

But, from all indications, and without a response from the alleged father, there was no legally known mistake or extrinsic fraud; i.e., for whatever reason, he never responded to the County in time, and again, in that instance, there was no further duty on the part of the County to "correct it, not exploit it." Now, the alleged father must take action on his own, and use the statutes cited above in his own action against the mother. In short, you can lead a horse to water, but you can't make it drink. The father, for whatever reason, didn't or wouldn't, drink. The alleged father is now "on his own" to attempt to "right the wrong." Of course, as a result of the alleged father's inactions, there are myriad of defenses to this type of action against the mother; e.g. laches, to name just one.

When a paternity judgment is set aside pursuant to § 7645 et seq., the court shall also vacate any order for child support and arrearages issued on the basis of the former paternity judgment. But, the previously-established father has no right of reimbursement for support paid before the set-aside is granted. [California Family code § 7648.4; County of Fresno v. Sanchez, supra, 135 Cal.App.4th at 20, 37 Cal.Rptr.3d at 195]

I hope this answers your question.

[aaron]

Voluminous though it was, of course it didn't. But thanks for trying.

[laurel9257]

If I may be so bold, I am concerned that a valid point may have been missed; my husband requested DNA which the court never obtained from the mother or child. When the case was refiled the original request for DNA should have stood since the request was merely postponed due to the mothers absence. And what of the mothers disappearance?, Is she not responsible for assisting in the court process. In addition why were the arrearages not vacated? When the attorney provided the DNA the court ceased further accrual, however the $17,000 remained on account. Also, I appreciate greatly your time and knowledge, even if nothing comes of my efforts I consider this information valuable.

[weenor]

If I may be so bold, I am concerned that a valid point may have been missed; my husband requested DNA which the court never obtained from the mother or child. When the case was refiled the original request for DNA should have stood since the request was merely postponed due to the mothers absence. And what of the mothers disappearance?, Is she not responsible for assisting in the court process. In addition why were the arrearages not vacated? When the attorney provided the DNA the court ceased further accrual, however the $17,000 remained on account. Also, I appreciate greatly your time and knowledge, even if nothing comes of my efforts I consider this information valuable.

Your husband did not respond, therefore the case was adjudicated with or without a DNA test (we don't know if DNA was taken when mom reappeared.) At any rate you have an adjudication for child support that does not go away just because it is later determined the hubby is not the father. He still has valid legal judgment against him. THen the question becomes can he sue the agency to get the money back for negligence in the absence of proof of intentional conduct? Based on the above the answer is no. In addition that cited above, the agency likely enjoys discretionary function immunity that precludes it from being sued absent proof of intentional conduct. What's left is mom for fraud, but hubby will be hindered from recovery based on the amount of time that has passed since the fraud was committed and the judgment entered. I do not know California's rule with regard to the tolling of the SOL based on discovery of the fraud. Check with a local lawyer.