Marriage of Gregory, In re
| Decision Date | 15 May 1991 |
| Docket Number | No. A046798,A046798 |
| Citation | 281 Cal.Rptr. 188,230 Cal.App.3d 112 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re the MARRIAGE OF Sandi Marie GREGORY and Thomas Paul Gregory. CONTRA COSTA COUNTY, Appellant, v. Thomas Paul GREGORY, Respondent. |
Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Josanna Berkow, Deputy Atty. Gen., San Francisco, for appellant.
Patricia Berkowitz, Child Support Collections Legal Center, Berkowitz Professional Corp., Concord, for respondent.
The county challenges the trial court's ruling that a child support order terminated upon the death of the custodial parent.
The order of the trial court is reversed.
In 1975, Sandi Marie Gregory filed a petition to dissolve her marriage to Thomas Paul Gregory. The couple agreed that Sandi Gregory would receive custody of the couple's two children, Abbe, born March 17, 1969, and Thomas, born January 13, 1972. The trial court set the amount of child support at $125 per month per child beginning March 1, 1976, "continuing until the age of majority or until emancipation of said children...." Payments were to be made to the county, and the district attorney was directed to enforce the support obligation so long as Sandi Gregory received public assistance. The court entered the final judgment of dissolution of marriage in 1977.
Sandi Gregory received Aid to Families with Dependent Children (AFDC) from the county from the time of the support order until her death in August 1981. During this period of time, Thomas Gregory made almost no child support payments and a substantial arrearage accumulated. Sandi Gregory and the county made several unsuccessful attempts to collect the arrearage, and, according to the county, Thomas Gregory owed $15,757 for past due child support at the time of Sandi Gregory's death.
Following Sandi Gregory's death, the children went to live with their maternal grandparents, who were appointed guardians of the children. The grandparents requested and received AFDC benefits for the children.
The county continued without success its efforts to collect child support and the arrearage from Thomas Gregory. Meanwhile, in May 1984, the children became ineligible for further AFDC benefits.
In April 1988, the county filed an order to show cause, and this time Thomas Gregory responded and requested that the court determine the child support arrears, "if any." (Emphasis in original.) He filed an income and expense declaration showing his total gross annual income during the previous 12 months as $51,455. The county asserted that Thomas Gregory owed $29,893 as of December 31, 1988, pursuant to the existing support order.
In an order dated May 24, 1989, the trial court found, inter alia: (1) the child support order terminated by operation of law upon the death of Sandi Gregory; (2) Thomas Gregory's obligation to support his children did not terminate, but that that obligation would have to be enforced through some other proceeding; and (3) the county could collect any arrearage existing at Sandi Gregory's death to the extent that there had been an assignment of her rights giving the county an interest in the arrearage.
The county appeals.
The county contends that a child support obligation established by a dissolution of marriage decree survives the death of the custodial parent. The county argues that the children did not have to take affirmative action to preserve their right to continued support following their mother's death, but that instead Thomas Gregory had the burden to move to modify the support obligation if the circumstances so warranted.
Parents have a statutory obligation to support their children. (Civ.Code, §§ 196, 196a, 206, 242, 4700.) 1 "When a child support agreement is incorporated in a child support order, the obligation created is deemed court-imposed rather than contractual...." (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947, 126 Cal.Rptr. 805, 544 P.2d 941.) The obligation to pay child support pursuant to a court order generally continues until the child reaches age 18 or until the happening of any contingency specified in the court order. (§ 4700, subd. (c); see also § 4704.5.) 2
Here, the support order specifically provided for support to continue until the children reached the age of majority or until their emancipation, whichever occurred first. Neither of these events occurred during the time periods relevant to this appeal.
It appears no California court has considered the effect on a support order of the death of the custodial parent, but it has been established that court ordered child support survives the death of the noncustodial parent and becomes a charge upon his or her estate. (Taylor v. George (1949) 34 Cal.2d 552, 556, 212 P.2d 505; Stein v. Hubbard (1972) 25 Cal.App.3d 603, 605, 102 Cal.Rptr. 303.) The county cites several other events which do not automatically alter a support order: bankruptcy (11 U.S.C. § 523(a)(5)); emancipation of the child, unless the order so provides (In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 730, 146 Cal.Rptr. 675); or a custodial parent's interference with the noncustodial parent's visitation rights (In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1253, 267 Cal.Rptr. 642). Further, parents cannot agree between themselves to modify or terminate a support order. (Armstrong v. Armstrong, supra, 15 Cal.3d at p. 947, 126 Cal.Rptr. 805, 544 P.2d 941).
One court that has considered this issue is the Colorado Supreme Court. In Abrams v. Connolly (Colo.1989) 781 P.2d . 651, that court held that when a noncustodial parent's support obligation has been incorporated into a dissolution decree under Colorado law, the child support obligation continues beyond the death of the...
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