Child Support and Change of Custody of a Minor Without Court Order. Case Law Study.

 

Case: Change of custody of a minor by mutual agreement without court order.

On occasion, for multiple reasons, the custody of a minor, whether temporary or permanent, may be modified de facto by the parents without having previously initiated a judicial modification of measures proceeding.

In these cases, a minor begins to reside with the non-custodial parent.

Let us consider an example:

Mr. Pablo and Ms. Paula divorce, having two minor children from the marriage. In the mutual consent divorce proceeding, the regulatory agreement is approved, stipulating that custody will be attributed exclusively to Ms. Paula, establishing the corresponding visitation regime in favor of the father, Mr. Pablo, who must pay the amount of 500 euros each month (250 for each child) as child support.

Subsequently, for the benefit of the minor, the parents agree to modify the custody arrangement, with the minor moving to reside indefinitely with the father, without executing any agreement or initiating a judicial modification of measures proceeding.

Mr. Pablo chooses to stop paying child support, understanding that he is currently the one bearing the minor’s maintenance expenses.

However, several months after the modification of the living arrangement, the mother claims the child support for the minor who is with the father.

Without modification of measures: Is opposition to enforcement in a claim for support permissible?

The question raised is whether cohabitation with the recipient of support may be alleged by the non-custodial parent as grounds for opposition to enforcement, based on a possible situation of unjust enrichment in favor of the spouse not obligated to pay.

Grounds for Opposition. Judicial Titles.

While it is true that the grounds for opposition to enforcement are limited by the Civil Procedure Act (art. 556), thus constituting a numerus clausus, it is no less true that there is a body of case law that admits the possibility that grounds other than those provided in the Act may be alleged.

The grounds for opposition on substantive matters in judicial titles (in judicial, arbitral, or mediation decisions) shall be:

• Payment or compliance with what was ordered in the judgment, provided it is documented.
• The expiration of the enforcement action.
• Agreements or settlements that have been reached to avoid enforcement, provided they are recorded in public documents.

Case Law: Child Support and Opposition to Enforcement for Unjust Enrichment.

Although not among the grounds limited by the Civil Procedure Act, according to the following case law, the allegation of this ground for opposition to enforcement is permitted, along with others that, if not upheld, may constitute abuse of rights. In sum, what the Provincial Court rulings seek is to prevent situations of abuse of rights and unjust enrichment in favor of the parent not obligated to pay.

Provincial Court of Barcelona, Section 18. Order of 07/06/1999

“Indeed, the minor child of the marriage has been living with the father since before the mother initiated the enforcement proceedings at issue here, with her full knowledge and consent, and since the child support obligation is established based on who holds custody, having voluntarily changed custody and the father now having it, there is no longer a basis for the support obligation in favor of the mother, as it is the parent who has custody who bears the child’s needs, and therefore the mother’s claim that the father continue to pay her a certain amount for this purpose cannot succeed, as this would imply, as the Judge “a quo” rightly indicates, unjust enrichment through payment of what is not due“.

Provincial Court of Barcelona, Section 18. Order of 21/10/2010 and Provincial Court of Barcelona, Section 18 Order of 24/07/2014

“Since the daughter did not reside with the mother during the months for which child support is claimed, but rather with the father, such that he bore the daughter’s support needs during the months claimed, the claim made by the mother, with clear abuse of rights, should not be upheld, as this would create a situation of unjust enrichment in favor of the creditor and against the person obligated to pay, a situation that is contrary to the general principle contained in Article 7 of the Civil Code as it constitutes abuse of rights that cannot merit protection before the courts“.

Provincial Court of Barcelona, Section 18. Order of 22/02/2002

“Maintaining the obligation to pay the support, having proven that the child is working, would create a situation of unjust enrichment in favor of the creditor and against the person obligated to pay, a situation that is contrary to the general principle contained in Article 7 of the Civil Code as it constitutes abuse of rights that cannot merit protection before the courts“.

Provincial Court of Huelva, Section 1. Order of 16/11/2012

“It is perfectly possible for the defendant to allege, as grounds for opposition, against an enforcement claim filed for non-payment of child support, the fact that the adult beneficiary child does not meet the conditions set forth in Article 93.2 of the Civil Code—in this case that he has his own income—it not being possible to demand compliance with an obligation that is already outside the scope of the judgment sought to be enforced when resolving the opposition, because otherwise it would constitute a clear abuse of rights proscribed by the legal system under Article 7.2 of the Civil Code, and would constitute unjust enrichment for the claimant“.

Provincial Court of Seville, Section 2. Judgment of 10/01/2005 (JUR\2005\140538)

“Having proven that the child of the marriage, beneficiary of the child support paid by the plaintiff, moved to live with the latter from January 2003 (except for occasional visits to his mother), and a judgment having been issued by the Court of First Instance No. 6 (Family) dated July 15 of the same year modifying the measures relating to child support, it is evident that the initial recipient and administrator of such support amount has experienced a patrimonial advantage that in turn entails an impoverishment of the plaintiff who is also based on the fact of living with his child during the aforementioned period of time providing him with what is necessary for his food and sustenance. The basis for the defendant’s receipt of such support amount (her cohabitation with the beneficiary) disappeared, and since she has not proven that she delivered it to her child or used it to cover his support, unjust enrichment occurs on her part that leads to the granting of the appeal filed and the claim made”.

Provincial Court of Seville, Section 5. Order of 22/01/2004

“The defendant opposed on the grounds that he had indeed not paid half of the child support, specifically the portion corresponding to his son Luis Enrique, because from earlier dates his son had lived with him, and continued until he moved to the residence that Mr. Luis Enrique had acquired […]. The person obligated to provide support may, at his option, satisfy it either by paying the support or by receiving and maintaining in his own home the person entitled to it, as established in Article 149 of the Civil Code, a right of choice that, as has been repeatedly stated by case law, is not absolute, because as the Judgment of November 25, 1985 (RJ 1985, 5908) states, it must be subordinated to there being no impediment, whether legal or moral. In the present case, that impossibility did not exist, because the son moved to the father’s residence in October 1997 until mid-1999. In conclusion, it can be affirmed that the father provided support in his residence, therefore the claim should not be upheld because he chose to provide it directly. Since mid-1999 the son has had his own income, despite which the father deposits sixty thousand pesetas monthly, both incomes that allow him to acquire his own residence on March 12, 2001.

All these facts, together with the lack of standing on the part of Ms. Diana given that her son, from a date well before she specifies the beginning of the debt, did not live with her, must conclude in the complete dismissal of the claim made, including that relating to the month of March 2002, in which the full amount of child support is claimed“.

Conclusions.

Although the grounds for opposition to enforcement are set forth in Article 556 of the Civil Procedure Act, there is case law doctrine that admits grounds other than those limited in said provision, in favor of a full application of the Superior Values of the Legal System, specifically JUSTICE proclaimed in Article 1 of the Constitution. Thus, the situation of unjust enrichment and abuse of rights produced as a consequence of an excessively restrictive application of a provision would be deemed contrary to law.

In any case, it would be advisable to modify and adapt our Civil Procedure Act, so that opposition based on unjust enrichment, at least in this type of factual situation, has express regulation and, thus, procedural law aligns with the Value of JUSTICE and the social and family reality that is increasingly flexible and changing, particularly in cases such as change of custody of a minor without court order.

 

Blanca Sánchez Pérez Abascal

Author: Blanca Sánchez Pérez Abascal

Area: Family Lawyers

Date: January, 2018