Wilson v. Bodine

• Decision Date: 05 July 2012
• Docket Number: No. G045728.,G045728.
• Citation: 12 Cal. Daily Op. Serv. 7761,2012 Daily Journal D.A.R. 9397,207 Cal.App.4th 768,143 Cal.Rptr.3d 803
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF Mark O. WILSON and Tamara S. BODINE. Mark O. Wilson, Appellant, v. Tamara S. Bodine, Respondent.

207 Cal.App.4th 768
143 Cal.Rptr.3d 803
12 Cal. Daily Op. Serv. 7761
2012 Daily Journal D.A.R. 9397

In re MARRIAGE OF Mark O. WILSON and Tamara S. BODINE.
Mark O. Wilson, Appellant,
v.
Tamara S. Bodine, Respondent.

No. G045728.

Court of Appeal, Fourth District, Division 3, California.

July 5, 2012.

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 424.

[143 Cal.Rptr.3d 804]

Brian G. Saylin, Orange, for Appellant.

No appearance for Respondent.

OPINION
O'LEARY, P.J.

[207 Cal.App.4th 770]Mark O. Wilson (Father) and Tamara S. Bodine (Mother) had a child prior to their marriage. The sole issue presented in this appeal is what effect, if any, does the act of marriage have on a prior child custody support order entered in a paternity action when the child's parents were unmarried. The trial court ordered Father to pay child support arrearages for a period of time before the marriage, and also for a period of time after Father and Mother separated as married persons. Father appeals the latter portion of the order, asserting it was legal error for the court to rule the marriage did not extinguish the right to child support. We conclude the paternity order was nullified (not extinguished or abated) when Father married Mother. The support order is reversed in part and the matter is remanded for the trial court to calculate the exact sum of arrearages incurred prior to the marriage.

I

Mother and Father were unmarried when their son, J.W., was born in August 2001. In July 2002, Mother obtained a child support order based on a voluntary declaration of paternity (hereafter the Paternity case).¹ The court construed the declaration of paternity as a judgment of paternity and recognized it as the basis for making child custody, visitation, and support orders. The court awarded Mother sole legal and physical custody of J.W. and granted Father reasonable visitation. Father was ordered to pay $1,600 monthly child support.

[207 Cal.App.4th 771]Mother and Father's daughter, G.W., was born in June 2003. The parents married on December 31, 2005, and separated two years later on January 30, 2008. Mother filed a petition for dissolution of marriage on March 17, 2008, and Father filed a response in April 2008 (hereafter the Divorce case). The matter was bifurcated and on January 30, 2009, the court entered a status only dissolution judgment.

On June 17, 2010, Father filed an ex parte order to show cause (OSC) in the Paternity case seeking modification of child support and a determination of arrears. In his declaration, Father stated the Department of Child Support Services (DCSS) told him he owed over $150,000 in arrears, which included the time he was living with and married to Mother. He noted they currently shared a 50 percent

[143 Cal.Rptr.3d 805]

timeshare with both children, and he asked the court to determine child support based on the current custody arrangement.

Mother filed a response, asserting Father owed somewhere between $85,000 and $90,000 in child support arrears for the period of March 1, 2002, through July 23, 2010. Mother explained she obtained the paternity child support order in 2002, after Father refused to help provide for his son, despite making over $85,000 a year. She declared Father did not pay the full amount of the child support order in 2002 or 2003 when they lived apart. Mother said she gave credit to Father for having paid support while they lived together and then subsequently married from October 2005 to January 2008.

A hearing was set for July 29, 2010. On that day the court found Father owed $1,600 per month for the period of March 1, 2002, to June 30, 2003. The court reserved the issue of retroactivity to July 2010 (i.e., the amount of arrearages for the period of separation after the marriage) and continued the matter to October 28, 2010.

Meanwhile in the Divorce case, on September 1, 2010, the court signed and entered a partial final judgment resolving the issues of custody, visitation, and property division based on the parties' stipulation. The parties agreed to joint legal custody and to equally share physical custody of the children. Father and Mother waived any rights to spousal support. The court ordered Father to make an equalization community property payment of $25,000 at the rate of $250 per month. The issue of child support was reserved.

On October 28, 2010, the court held a hearing on the issue of child support. The court noted the Paternity case and the Divorce case were being “related for hearing purposes.” The parties and the DCSS were represented by counsel.

At the hearing, the parties discussed the 2002 paternity child support order. Mother's counsel acknowledged the support order was “abated” from July [207 Cal.App.4th 772]2003 to January 2008 because the parties were living together and Father was providing support by having the child in his home. Mother clarified the issue was whether support was owed after the date of separation in February 2008 to the present. She also requested the court determine support arrears for the period of July 2002 (when she obtained the support order) to September 2003 (the month before they moved in together). Counsel for DCSS did not take a position on any of the issues, stating DCSS only sought clarification from the court.

Father argued that following their separation the parents shared physical custody of the children, and the guideline child support would only be $42. He argued the 2002 child support order of $1,600 was based on Mother having 100 percent physical custody and was extinguished by the marriage. Mother responded the 2002 paternity support order was in full force and effect as a matter of law until further order of the court, the child's emancipation, the child's attainment of majority, or the child's death. She noted none of these events had occurred.

Both parties discussed at length our Supreme Court's opinion Davis v. Davis (1968) 68 Cal.2d 290, 66 Cal.Rptr. 14, 437 P.2d 502( Davis ). In that case the parties were married, obtained a dissolution judgment providing for child support, remarried, and then dissolved the second marriage. ( Id. at pp. 290–291, 66 Cal.Rptr. 14, 437 P.2d 502.) The court held the remarriage extinguished the child support order entered in the first divorce action. ( Id. at p. 292, 66 Cal.Rptr. 14, 437 P.2d 502.) The court held the child's mother could not

[143 Cal.Rptr.3d 806]

collect support payments for the 36–month period between the separation that followed the remarriage and a second child support ordered entered in the second divorce action. ( Id. at pp. 292–293, 66 Cal.Rptr. 14, 437 P.2d 502.) Father argued this case was exactly on point. Mother disagreed and maintained paternity orders should be treated differently than divorce decrees.

At the end of the hearing, the trial court entered a temporary child support order that Father pay Mother $42 per month. It reserved the issue of retroactivity of the child support obligation. The court ordered Father to pay $250 per month on the arrears accrued in the Paternity case (but did not calculate the total sum owed). The parties were ordered to provide new income and expense declarations as well as paycheck stubs.

The next hearing on child support was held on April 21, 2011. The trial court determined the Davis case was not controlling. On the record and in its minute order the court stated, “This court is persuaded that the child support order made as a result of the paternity action remains even after the marriage.” The court determined it retains jurisdiction over the paternity child support order “until the child reaches 18 [years old], or the order is modified by the court or [the child] graduates high school and is over 19.” The trial [207 Cal.App.4th 773]court ruled Mother could seek arrears from the date of separation until June 2010 (when Father filed an OSC seeking modification of the 2002 support order).

At the hearing, the court also considered whether there should be ongoing child support between the parties now sharing joint physical custody with a 50 percent timeshare. The court considered Mother's testimony and the income and expense declarations. It took the matter under submission stating it would make two separate determinations of child support: (1) from July 2010 to the end of the year, and (2) from January 2011 to the present. Father's counsel requested a statement of decision.

On July 18, 2011, the court prepared a statement of decision and issued its ruling on child support. The court again explained the Davis case was inapplicable because it involved a married couple and that “court denied the mother's request for arrearages between the time of the first divorce and the remarriage.” The trial court determined this case was different because it involved “unmarried parents who lived together on and off, then married and separated thereafter.” It reasoned the Davis court relied on...