D.H. v. B.G. (In re Marriage of D.H.)
| Decision Date | 17 January 2023 |
| Docket Number | D079801 |
| Parties | In re the Marriage of D.H. and B.G. v. B.G., Respondent. D.H., Appellant, |
| Court | California Court of Appeals Court of Appeals |
Order Filed Date: 2/6/2023
APPEAL from an order of the Superior Court of San Diego County, No D474390 Adam Wertheimer, Commissioner. Reversed and remanded with directions.
Antonyan Miranda, Anthony J. Boucek and Timothy Miranda for Appellant.
No appearance for Respondent.
It is ordered that the opinion filed herein on January 17, 2023, be modified as follows:
The entire paragraph beginning on the bottom of page 7 () and continuing on page 8 is deleted and replaced with the following:
The Family Code expressly contemplates the relief Father was seeking. In connection with temporary child support orders section 3601, subdivision (a) states that a child support obligation may "terminate[] by operation of law pursuant to Sections 3900, 3901, 4007, and 4013." (Italics added.) Section 3901 itself makes no distinction between temporary and final child support orders. This supports Father's contention that a final child support obligation similarly terminates by operation of law under section 3901, subdivision (a) once the child is 18 and no longer a full-time high school student. Section 4007 further provides that upon the happening of a specified contingency, such as emancipation, "the obligation of the person ordered to pay support terminates on the happening of the contingency[]" and the payor may receive a refund for overpayments, which is precisely the relief Father requested. (See § 4007, subds. (a) &(b).)
Immediately before the last sentence of the first full paragraph on page 9 (beginning with "Accordingly, we conclude . . ."), the following sentence is inserted:
For this reason, Mother's reliance on cases involving retroactive modification or termination of accrued child support is misplaced. (See, e.g., S.C. v. G.S. (2019) 38 Cal.App.5th 591, 599 [].)
The second sentence of the full paragraph on the middle of page 24 (beginning with "Rather, Father obtained . . .") is deleted and replaced with the following:
Rather, Father obtained evidence in the fall of 2020 suggesting to him that A.G. was no longer a full-time student, so he sought a refund through the channel provided by subdivision (b) of section 4007.
The second sentence of the paragraph beginning on the middle of page 26 (beginning with "Under Family Code section 4007 . . .") is deleted and replaced with the following:
Family Code section 4007, subdivision (a), authorizes the court to order the custodial parent to notify the other parent of the occurrence of a contingency under section 3901 that would terminate his child support obligations.
There is no change in judgment.
The petition for rehearing is denied.
After D.H. (Mother) and B.G. (Father) divorced, Father was obligated to pay $10,000 per month in child support for the parties' youngest child, A.G., subject to Family Code section 3901.[1] Section 3901, subdivision (a)(1), provides that child support continues for an unmarried child who has turned 18 years old, is a full-time high school student, and is not self-supporting, until he or she finishes 12th grade or turns 19 years old, whichever happens first.
Father filed requests for orders (RFOs) seeking (1) a judicial determination that his child support obligation had terminated and (2) a refund of overpaid support-both on the basis that A.G. had turned 18 and was no longer enrolled as a full-time high school student after June 2020. Father also sought sanctions against Mother pursuant to section 271. The trial court declined to impose sanctions, but granted Father's other requests, finding that A.G. was no longer a full-time high school student as of July 1, 2020, and ordering Mother to refund overpaid amounts of child support.
On appeal, Mother argues that the court erred by: (1) misinterpreting the meaning of "full-time" in section 3901; (2) finding that A.G. was not a "full-time" high school student; (3) terminating child support retroactively; (4) implicitly finding a material change of circumstance to justify modifying child support; (5) relying on unadmitted evidence; and (6) improperly shifting the burden of proof to Mother on Father's RFOs.[2]
We conclude that "full-time" in Family Code section 3901 generally has the same meaning as set forth in Education Code section 48200 regarding compulsory education for minor children: "the length of the schoolday [designated] by the governing board of the school district in which the residency of either the parent or legal guardian is located." (Ed. Code, § 48200.) Because the trial court did not apply this definition, we reverse the court's order and remand for further proceedings and additional discovery, if necessary, so that the court may make appropriate findings and enter a new order consistent with this opinion. We reject Mother's remaining arguments.
This marital dissolution proceeding has been pending for 20 years. The record on appeal does not include any of the pleadings or orders before 2020, but one of the family court's orders suggests that there has been a "long history of protracted, contentious and seemingly unnecessary litigation."
Mother had primary custody of the parties' youngest child, A.G. In 2019, the parties agreed that Father would pay child support at a previously set amount of $10,000 per month, but only for A.G., who was the parties' remaining minor child. A.G. turned 18 in March 2020.
Father filed RFOs in July and September 2021 seeking a determination that his child support obligations had terminated, a return of overpaid support, and sanctions under section 271. He alleged that A.G. was over the age of 18 and no longer enrolled as a full-time high school student after June 2020 so post-majority child support had terminated as a matter of law at that time pursuant to section 3901. Father sought repayment of child support he paid in July, August, and September 2020, totaling $20,000 after subtracting a $10,000 refund he had received in January 2021.
Mother submitted a responsive declaration attaching certified copies of A.G.'s high school diploma and transcript. She also requested that the court determine child support arrears, asserting that Father owed child support until A.G. turned 19 in the spring of 2021. Mother's declaration stated that A.G. had started high school at age 15 in the fall of 2017. A.G. resided solely with Mother after her 17th birthday, and she turned 18 in the spring of 2020 shortly before her junior year ended in June 2020. Father had not visited with A.G. since approximately March 2019.
After June 2020, A.G. took a summer class at Ingenuity Charter School (Ingenuity), but in September 2020, A.G. entered an inpatient treatment facility where she remained until January 2021.
According to Mother, A.G. received treatment for a chronic eating disorder for most of her teen years and did not follow a traditional school calendar as a result. During the first month of A.G.'s inpatient treatment in September 2020, she was not permitted to attend classes. A.G.'s transcript reflects that she took one class through Grossmont Adult School in the fall of 2020, and no classes during the winter from late 2020 to early 2021, while she was still in inpatient treatment. However, she took two classes in the spring of 2021 after her discharge and earned a high school diploma in May 2021 from Grossmont Adult School, four years after starting high school in the fall of 2017.
Father submitted a reply declaration in which he summarized A.G.'s transcript, listing the year and school in which she earned credits. A.G. took 50 credits her freshman year (2017-2018) at West Hills High School; 60 credits at the same school her sophomore year (2018-2019); five credits at Apex Learning over the summer of 2019; 40 credits her junior year (20192020) at River Valley and Grossmont College; five credits at Ingenuity during the summer of 2020; and a total of 20 credits her senior year (2020-2021) from Grossmont Adult School (Grossmont).
Father stated in his declaration that "[a] quick phone call to [Grossmont] confirmed that to be a full-time student . . . one must have fifteen credits per quarterly term." He asserted that because A.G. was only taking five credits for each of the first and third terms of her senior year, zero credits her second term, and 10 credits her fourth term, she was not enrolled as a full-time high school student during any term that year.
At the first hearing on Father's RFOs in October 2021, the parties agreed to have the court decide the matter on the papers without an evidentiary hearing and the court heard arguments from both sides. The court indicated that after "read[ing] all the pleadings" and "all the exhibits," its tentative ruling was that A.G. was not a full-time student after June 2020 based on Father's evidence that 15 credits constituted "full-time" at Grossmont. Mother's counsel noted that the source of that information was a statement in Father's reply declaration about what somebody told him over the phone. The court reiterated that it would not be holding an evidentiary hearing unless the parties requested one, and that the parties were otherwise agreeing to submit on the papers.
Mother's counsel went on to argue that "full-time" should mean a student who is on a trajectory to matriculate in four years, which A.G. had satisfied. Mother's counsel concluded his...
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