Marriage of O'Connell, In re

• Decision Date: 11 May 1978
• Citation: 146 Cal.Rptr. 26,80 Cal.App.3d 849
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Pamela L. and James E. O'CONNELL. Pamela L. O'CONNELL, Appellant, v. James E. O'CONNELL, Respondent. Civ. 15946.

Page 26

146 Cal.Rptr. 26

80 Cal.App.3d 849

In re the MARRIAGE OF Pamela L. and James E. O'CONNELL Pamela L. O'CONNELL, Appellant, v. James E. O'CONNELL, Respondent.

Civ. 15946.

Court of Appeal, Third District, California.

May 11, 1978.

James A. Brennan, Sacramento, for appellant.

Lopes & Eustis, Manuel E. Lopes, Sacramento, for respondent.

REYNOSO, Associate Justice.

We are called upon to determine the effect of an order declaring minor children free from custody and control of a parent (Civ. Code, § 232) upon that parent's obligation to support the children. Appellant Pamela L. O'Connell was the petitioner in a dissolution proceeding against respondent James E. O'Connell. She appeals from an order of the trial court terminating the child support payments awarded in the decree of dissolution.

An order under Civil Code section 232 does not, as a matter of law, automatically terminate the child support obligations. It is a relevant consideration in a motion to reduce or terminate the support payments. That is all. All other matters generally considered by the court, including the needs of the children, are important. The trial court entered its order terminating the child support payments apparently based exclusively on the existence of Civil Code section 232. The record shows consideration of no other factors. Accordingly, we reverse and remand.

While Pamela wants child support she urges the view that, as a matter of law, James can enjoy no visitation rights under any circumstances. We disagree. We hold that the court still has the authority to enter an order permitting James to visit the children. He is a person (parent or otherwise) who has an interest in the children.

An interlocutory judgment of dissolution of a marriage was entered in the marriage of Pamela and James O'Connell. That 1970 judgment provided that the care, custody and control of the two minor children of the marriage be awarded to Pamela, subject to James' right of reasonable visitation. James was ordered to pay $50 per month per child, a total of $100 per month, for the support and maintenance of the minor children and $50 per month for the support and maintenance of Pamela. In December 1970, a final judgment of dissolution of marriage was entered, incorporating the terms of the interlocutory judgment.

Six years of conflict between Pamela and James followed.

The year after the interlocutory, in November 1971, James was adjudged guilty of contempt for his refusal to make child support payments, and was sentenced to 30 days in the county jail. The court found the arrearage to be $2,844.05.

One-and-one-half-year later, in February 1973, Pamela filed a completely separate action. She petitioned to declare the minor children free from James' custody. The parties entered into a written stipulation giving Pamela sole custody. Thereafter, Pamela's section 232 petition was granted. Accordingly, she received sole custody in the section 232 proceedings. Of course, she already had custody pursuant to the interlocutory decree. The husband, however had been given reasonable visitation rights in the dissolution decree.

Thereafter, on August 27, 1973, the parties and their attorneys entered into a stipulation providing that the amount of support arrearage in the dissolution case was then $5,851.00. It was further provided that spousal support would be reduced to $1 per month and that child support would be paid through the office of the District Attorney of Sacramento County, Domestic Relations Division. James agreed to pay $40 per month in reduction of the support arrearage. The court adopted the stipulation and order on September 6, 1973.

On May 14, 1974, James turned to the section 232 decree. He filed a motion to set aside the stipulation he had signed giving Pamela sole custody. And he sought to set aside the section 232 decree granting sole custody to Pamela. The court denied the motion in July 1974.

James returned to the dissolution action. He filed a motion to modify child support payments. This motion, the last of several custody and support motions, was filed in January 1976. Later he filed an amended order to show cause in an effort to modify child support payments or in the alternative to gain reasonable visitation rights. In support of his motion James filed a declaration in which he stated he signed the stipulation for sole custody with Pamela's assurance that he would not be denied visitation rights. However, after entry of the order Pamela had told him that she was going to be remarried and would start a new life. James requested the court to terminate his support payments in "fairness and equity."

The court denied the motion for reasonable visitation and granted the motion to terminate child support payments. It is from this order that Pamela takes her appeal, contending that the order under Civil Code section 232 (declaring the children free from the custody and control of James) terminated his right of visitation but left unaffected his obligation of support.

Civil Code section 232 ¹ sets forth the circumstances warranting an action to declare a minor child free from parental custody and control. Subsequent sections 232.1 through 239 establish the procedures for such a declaration by the court. Civil Code section 238, a part of that statutory scheme provides: "Any order and judgment of the court declaring a minor person free from the custody and control of any parent or parents under the provisions of this chapter shall be conclusive and binding upon such minor person, upon such parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making such order and judgment, the court shall have no power to set aside, change, or modify it, but nothing in this section shall be construed to limit the right to appeal from such order and judgment."

The purpose of an action to declare the child free from parental control is to facilitate adoption of the minor child. (In re Kitchens (1953) 116 Cal.App.2d 254, 262-263, 253 P.2d 690.) "The proceedings to declare a child free from parental control do not involve problems of custody or juvenile court supervision of the subject child. They contemplate the conclusion of such custody problems and not only termination of all parental control but the severance of the relationship between the child and its parent or parents." (In re Zimmerman (1962) 206 Cal.App.2d 835, 843, 24 Cal.Rptr. 329, 334.) An order in such a proceeding results in a total severance of the natural ties between the parent and the child. (In re Susan M. (1975) 53 Cal.App.3d 300, 310, 125 Cal.Rptr. 707.)

We have misgivings as to the propriety of the court's earlier section 232 order. Civil Code section 232 is not a means to enforce child support obligations, to gain an advantage over the other parent, or to spite the other spouse. We find manifestations in the record of such unfortunate impulses by the parties. A section 232 order involves the termination of a most fundamental and basic civil right, that of the right of care, custody and management of one's own children. (In re B. G. (1974) 11 Cal.3d 679, 688, 114 Cal.Rptr. 444, 523 P.2d 244; In re Susan M., supra, 53 Cal.App.3d at p. 310, 125 Cal.Rptr. 707; see also Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551.) Nonetheless, James did not appeal from that order or from the denial of his motion to set that order aside. Thus, the matter is not before us. ²

We deal with the effect of an adverse Civil Code section 232 order against a father relative to his (1) obligation to support the children; and (2) right of visitation. We find no aid from decisional law regarding this question.

I

We turn to the support issue. Civil Code section 196 provides that the parent entitled to the custody of a child must give him support and education suitable to his circumstances. If a parent neglects to provide necessaries to a child under his charge a third person may do so pursuant to section 207 and recover from the parent. A parent is not liable to the other parent or relative for the voluntary support of his child. (Civ.Code, § 208.) Thus, absent a dissolution decree ordering support payments, the parent with custody bears full responsibility for the support of the child. (Lewis v. Lewis (1917) 174 Cal. 336, 339-340, 163 P. 42; Selfridge v. Paxton (1905) 145 Cal. 713, 716-717, 79 P. 425.) A father who does not have custody is not liable to third persons for necessaries. (Blair v. Williams (1927) 86 Cal.App. 676, 680, 261 P. 539.) In Pacific G.D. Co. v. Industrial Acc. Com. (1920) 184 Cal. 462, 466, 194 P. 1, the court, in dicta, observed that a father probably cannot avoid the obligation for support of his children by his own action resulting in denial of custody. The court added that where a divorce decree omits to order support payments, the father will remain secondarily liable for support.

A child has important rights of his own. Thus, he can maintain an action against a parent for support, despite the appointment of a guardian and denial of custody to that parent. (Fagan v. Fagan (1941) 43 Cal.App.2d 189, 191, 110 P.2d 520.) Nor is a father's duty of support extinguished by a dissolution decree awarding custody to the mother which does not award support. (Kresteller v. Kresteller (1967) 248 Cal.App.2d 545, 548-549, 56 Cal.Rptr. 771.) While parents may be bound by a mother's agreement releasing a father from liability for support of the children, neither the court nor the children are bound by the agreement. (Elkind v. Byck (1968)68 Cal.2d 453, 457, 67 Cal.Rptr. 404, 439 P.2d 316; Hunter v. Hunter (1959)170 Cal.App.2d 576, 583, 339 P.2d 247; Allen v. Allen (1956) 138 Cal.App.2d 706, 708, 292 P.2d 581.) The single most important consideration in an action for support is the need of the child. (Bierl v. McMahon (1969)270 Cal.App.2d 97, 102, 75 Cal.Rptr. 473....