Some Family Law Actions Are Exempt From
Five-Year Rule

by Jane S. Preece

Civil litigators are keenly aware of the five-year rule. Under the rule, actions not brought to trial within five years are dismissed. Code of Civil Procedure Section 583.310. The purpose of the rule is to make sure cases get tried before the evidence gets old and memories fade.

Civil litigators are keenly aware of the five-year rule. Under the rule, actions not brought to trial within five years are dismissed. Code of Civil Procedure Section 583.310. The purpose of the rule is to make sure cases get tried before the evidence gets old and memories fade.

Perhaps because it is nonsensical to dismiss actions when the identical action can be brought the same day, there is a tendency to ignore the rule in family law cases. Therefore, it is not unusual to see family law cases being litigated that are more than 5 years old.

This is appropriate as parties can stipulate to ignore the five-year rule. Section 583.330. For many parties, it makes sense to stipulate so they can avoid paying filing fees and other expenses incidental to filing new actions.

However, the continued adjudication of old family law cases may be less common now. The Los Angeles County family law court is looking at its caseload with an eye to dismissing cases that have exceeded their five-year life. This task is daunting to the court because of the many family-law-specific exceptions to the rule.

For example, "exit orders" (custody orders entered when the Juvenile Court terminates its jurisdiction) are filed as family law cases and appear to be exempt from the five-year rule. Dissolution cases with "status only" divorces, or with unterminated child- and spousal-support orders, also are exempt from the rule. Section 583.161.

Unknown to many litigants, no exception to the rule exists for cases with merely temporary custody or visitation orders.

The most complicated exception to the mandatory dismissal statute concerns child-support orders. Cases with child-support orders may be excepted from mandatory dismissal after five years. Determining whether a case is exempt is complicated, requiring an analysis of statutory and case law and the facts of the case.

The statutory exception to the rule applies to dissolution cases where a support order exists that has not terminated. Section 583.161. This means that if a dissolution case has nothing but a temporary current spousal- or child-support order, the case should not be dismissed under the rule merely because it never was brought to trial.

By its terms, the statutory exception for current child-support orders applies only to dissolution actions. However, two cases extended that exception to paternity actions (the usual type of action filed by unmarried parents to obtain child-support and custody orders).

Thompson v. Thames, 57 Cal.App.4th 1296 (1997), held that the 1975 legislation that abolished distinctions in the legal treatment of children based on birth status required that the exception for child-support orders in dissolution actions apply to child-support orders for children of unmarried parents.

County of Orange v. Quinn, 97 Cal.App.4th 956 (2002), reached the same result based on Family Code 3601, which says that a child-support order continues until "terminated" even if it is not brought to trial within five years.

The exception to the five-year rule ends when a support order terminates. Does this mean that unpaid child support becomes uncollectable when the case is dismissed after the child grows up? An affirmative answer to this question came this year in County of Orange v. Rosales, 99 Cal.App.4th 1214 (2002).

The facts of Rosales are fairly simple. In 1990, a temporary order was made requiring Freddie Rosales to pay $694 a month to support his three children. In 1995, his parental rights were terminated. In 1999, the county obtained a default judgment against him for more than $94,000. When the county attempted to enforce its judgment, Rosales moved to have the action dismissed. His motion was granted.

The Court of Appeal upheld the trial court. The court distinguished Quinn because, in Quinn, the child was a minor, and the child-support order had not terminated.

However, Rosales' situation was different. His child-support order had terminated in 1995 when his parental rights were terminated. Because Rosales' child-support obligation terminated in 1995, the Court of Appeal held that the rule applied and that the trial court properly had dismissed the case.

Thus, Rosales saved himself a lifetime of indebtedness because of the county's delay in obtaining a judgment and because of the timely and fortuitous termination of his parental rights.

The key difference between Rosales and Quinn was that when Rosales brought his motion, no current obligation of support existed, while when Daniel Quinn brought his motion, he had a current obligation of support. These two cases demonstrate the importance of knowing when a child-support order terminates and properly timing a motion to dismiss.

By statute, a child-support order terminates if the child marries, turns 18 and graduates high school, turns 19, dies or is emancipated. Family Code Sections 3901 and 4007. By case law, a support order terminates when a parent's parental rights are terminated. County of Ventura v. Gonzales, 88 Cal.App.4th 1120 (2001).

One recent case, which was not certified for publication, said that an order terminated when the parent obligated to pay child support obtained custody of the child. County of Orange v. Lawrence, G028923 (filed, Aug. 23, 2002). Clearly, there are many ways a child-support order can terminate, and creative practitioners might find others.

Moreover, if the time when an action can be brought to trial is "tolled," a party has an additional six months to bring the matter to trial. Section 583.350. This tolling statute extends the time to bring the case to trial for six months after the child-support order terminates. Lakkees v. Superior Court, 222 Cal.App.3d 531 (1990). This shows the importance of thinking carefully about timing a motion to dismiss.

In California, there could be hundreds of cases where temporary child-support orders have terminated, no judgment was entered and five years and six months have run since the action was filed. There are probably many other cases where the clock is ticking. The best advice to an obligated parent might be to sit tight and let time run out.

Moreover, given the huge number of child-support orders that are not paid and the tendency for some counties and private litigants to only obtain temporary orders, there may be orders being enforced right now that could be vacated under the rule. Private attorneys and family law facilitators would be wise to start looking for them.

Attorneys also should think twice about the common family law practice of obtaining temporary orders and letting the case sit without withdrawing as counsel. Malpractice liability could result when parents learn that their unpaid child support is uncollectable.

The complicated determination of when a child-support order is "terminated" shows the daunting task that the family law court has in determining which cases should be dismissed for exceeding their five-year life.

Even if the court establishes a simple rule of not dismissing cases with support orders, inevitably, mistakes will be made because it is easy to overlook orders. Many support orders are buried in long, handwritten, barely legible stipulated orders or set forth in tiny type on cluttered minute orders.

Notifying the parties that cases are being considered for dismissal will not prevent errors, as most family law litigants represent themselves and, by nature, are transient. Many will not receive the court's notices, and those that do usually will not understand them. When mistakes are made, inevitably, motions will be brought to vacate the dismissals resulting in additional burdens on the court's time.

Jane S. Preece is the directing attorney of the Family Law Unit at the Legal Aid Foundation of Los Angeles.

The commentary originally ran in the Friday, December 6, 2002 edition of the Daily Journal.

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