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In re Marriage of Murray8/26/2002
the mortgage payments in lieu of spousal support. However, the court later ordered wife to reimburse the community for the home's rental value during the period of her exclusive occupancy. She challenged this order on the ground it amounted to a retroactive modification of husband's spousal support obligation. The appellate court agreed and reversed the order.
" ... The trial court's authority to consider `all the circumstances' in determining whether to order compensation [for a spouse's exclusive use of a community asset] does not include the authority to award reimbursement if it concludes that a prior temporary support order was too generous. Civil Code section 4357 [now Fam. Code, § 3603] provides that a temporary support order `may be modified or revoked at any time except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.' (Italics added.) This statute has been construed to prohibit retroactive modifications of temporary support. [Citation.] Had the trial court awarded husband compensation for wife's use of the family residence on the ground that the prior orders had been too generous, its action would be invalid as a retroactive modification of those prior orders." (Garcia, supra, 224 Cal.App.3d at pp. 895-896, fn. omitted.)
The case cited in Garcia for this last proposition is In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728. In Van Sickle, wife appealed from an interlocutory judgment of dissolution that, among other things, ordered her to reimburse husband, from her share of the community property, for all the payments he had made to her under prior orders for temporary spousal support. Husband had not filed a "notice of motion or order to show cause to modify or revoke" any of these prior support orders (former Civ. Code, § 4357, now Fam. Code, § 3603); rather the court had ordered the reimbursement on its own to equalize the division of community property. That is, there was no earlier modification request to which the reimbursement order related. Therefore, the court concluded the order "was in effect an impermissible attempt to modify the pre-existing temporary spousal support orders retroactively. [Citations.]" (Id. at p. 740. Compare with In re Marriage of Johnson (1983) 143 Cal.App.3d 57, 63-64 [directing trial court to reconsider earlier order for temporary spousal support where wife had made several subsequent motions for modification on ground husband had failed to fully disclose his income and assets].)
Likewise, in Keck v. Keck (1933) 219 Cal. 316, the court reversed an order that offset husband's obligation for accrued temporary support payments, due under a prior order, against wife's indebtedness to him. "It is settled that a decree for alimony may be modified as to installments to become due in the future. As to accrued installments it is final." (Id. at p. 320. Accord, In re Marriage of Ludwig (1976) 58 Cal.App.3d 744, 749-750; Vick v. Superior Court (1965) 239 Cal.App.2d 105, 108. But see Gay v. Gay (1905) 146 Cal. 237, 242-243; Larsen v. Larsen (1951) 101 Cal.App.2d 862, 865 [an award of temporary spousal support may include a lump-sum payment for past living expenses when necessary to enable supported spouse to further prosecute case and support him- or herself on the amount of support to be paid in the future].) The court in Keck went on to note: "It is by virtue of the finality of alimony decrees as to past due installments that the Supreme Court of the United States has held that an alimony decree of one state is within the full faith and credit clause, and must be recognized in the courts of another state." (Keck, 219 Cal. at p. 321, referring to Sistare v. Sistare
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