Filed 7/5/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of MARK O. WILSON and
TAMARA S. BODINE.
MARK O. WILSON,
G045728
Appellant,
(Super. Ct. No. 08D002397)
v.
OPINION
TAMARA S. BODINE,
Respondent.
Appeal from an order of the Superior Court of Orange County, Duane T.
Neary, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part,
reversed in part, and remanded.
Brian G. Saylin for Appellant.
No appearance for Respondent.
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.
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.
1
On our own motion, we took judicial notice of the entire trial court file in
the Paternity case and the martial dissolution case, and viewed them electronically, to
have a more complete picture of the status of the case. (Evid. Code, § 452, subd. (d).)
2
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 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.
3
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 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 (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.) The court held the remarriage extinguished the
child support order entered in the first divorce action. (Id. at p. 292.) The court held the
child‟s mother could not 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.) Father argued this case was exactly on point.
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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 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
5
together on and off, then married and separated thereafter.” It reasoned the Davis court
relied on out-of-state authority to hold “the remarriage had extinguished the prior support
orders from the first divorce, stating „remarriage of the parties generally terminates a
divorce court‟s jurisdiction over the parties and their minor children.‟ Unlike Davis,
there is no [marital] dissolution terminating jurisdiction. [¶] The child support order of
2002 was made pursuant to a petition for paternity, custody and support. Pursuant to
Family Code section 3901 [subdivision] (a), the duty of child support continues to
„unmarried child who has attained the age of 18 years, is a full-time high school student,
and who is not self-supporting, until the time the child completes the 12th grade or attains
the age of 19 years, whichever occurs first.‟ A valid order was made in 2002 and the
duty to comply with that order was not extinguished by the 2005 marriage.”
Furthermore, the court explained why it rejected Father‟s argument he was
not responsible for child support after 2008 because J.W. was in his physical custody at
least 50 percent of the time. It stated, “The court finds this would constitute a retroactive
modification of support.” The court noted support arrearages may be forgiven during the
time the child is in the sole custody of the obligor parent (e.g. In re Marriage of Trainotti
(1989) 212 Cal.App.3d 1072), but in this case there was no change in sole custody from
Mother to Father. It concluded retroactive support modification would be inappropriate.
And finally, the court refused to award Father equitable relief from his responsibility
under the earlier order. It explained, “The evidence fails to show that he substantially
met or exceeded his responsibilities under the 2002 [child support] order. This court
exercises its discretion against granting equitable relief. [Father] failed to comply with
the 2002 order. The court finds [he] comes before the court with unclean hands.”
The court stated its ruling on the child support for 2010 and 2011 were
contained in the attached California Guideline Calculator (CGC). It added, Father must
pay “$100 per month on undetermined arrears commencing August 1, 2011.”
6
The attached CGC forms stated Mother was required to pay Father $500
per month in support for the 2010 tax year, and $123 per month for the 2011 tax year.
We found nothing in the record, and Father fails to cite to any document, showing the
court ruled the total amount of arrears owed from (1) July 2002 to September 2003
(before the couple‟s marriage) or (2) from January 2008 to July 2010 (after the marriage).
On appeal, Father challenges the arrears relating to period after he, as a married person,
separated from Mother.
II
Did Father‟s marriage to Mother nullify the support provisions of the prior
paternity decree? While no California case has considered this exact question, Father
relies upon a decision he claims is closely analogous, involving a divorced couple who
remarried each other and subsequently sought a divorce. (Davis, supra, 68 Cal.2d
at p. 292.) The rule announced by the Supreme Court in that opinion, is the same rule
developed in other jurisdictions, that in the case of divorced parents who remarry each
other, their remarriage nullifies the divorce court‟s order for child custody and future
installments of child support. (Id. at p. 290; see also Greene v. Iowa Dist. Ct. (Iowa
1981) 312 N.W.2d 915; In re Marriage of Root (Mo.Ct.App. 1989) 774 S.W.2d 521
(Root); Scheibel v. Scheibel (Neb. 1979) 284 N.W.2d 572.)
“The rationale for the rule is that if the parties to a divorce decree remarry
each other, they no longer have separate rights of custody and separate obligations for
future support; rather, the same joint rights to custody and joint obligations for future
support which antedated the divorce are resumed. [Citation]. In Root . . ., supra,
774 S.W.2d at [page] 523, the Missouri Court of Appeals aptly explained: „It would be
absurd to hold that once parents remarry each other and the family is again intact and
residing in the same household, the former noncustodial parent must pay future
installments of child support to the other parent per the past divorce decree. That is to
7
say, the remarriage should terminate the former noncustodial parent‟s duty to pay any
child support that would have become due after the remarriage.‟” (Schaff v. Schaff
(N.D. 1989) 446 N.W.2d 28, 31 (Schaff).) The remarriage of parties to a divorce nullifies
the prior divorce decree with respect to child custody and support. (In re Mitchell
(Ill.App. 2001) 745 N.E.2d 167, 170, citing In re Marriage of Parks (Ill.App. 1994) 630
N.E.2d 509, 511 [prior decree is not “void,” but merely unenforceable].)
In the Davis opinion, the Supreme Court agreed with out-of-state authority
holding, “if the parties again intermarry child custody and support orders as between
themselves are thereupon terminated, as well as the jurisdiction of the court to enforce
such orders, and that this is true whether or not the parents subsequently divorce again.”
(Davis, supra, 68 Cal.2d at p. 293.) It reasoned a court‟s jurisdiction over custody and
support continues after a divorce decree, but if the parties remarry they no longer have
separate rights of custody and “„the basis for the court‟s further jurisdiction ceases.‟”
(Id. at p. 292.) However, the court also cautioned, both parents continue to have a duty to
support their children: “[P]arents are under a continuing legal duty to support their minor
children independently of the marriage status.” (Id. at p. 291.)
In the case before us, the trial court determined a distinction should and
could be drawn between the effect on a paternity judgment of the child‟s parents‟
subsequent marriage to each other and the effect on a divorce decree on the parents‟
subsequent remarriage to each other. It reasoned that unlike a family court‟s limited
jurisdiction over a divorce decree, the court‟s jurisdiction to enforce a paternity order
does not cease as a matter of law until the child “has attained the age of 18 years, is a
full-time high school student, and who is not self-supporting, until the time the child
completes the 12th grade or attains the age of 19 years, whichever occurs first.” (Fam.
Code, § 3901.)2 It found no authority holding a parent‟s marriage to the child‟s
2
All further statutory references are to the Family Code, unless otherwise
indicated.
8
biological parent affects the court‟s jurisdiction. Moreover, the court noted Father could
have filed an OSC to abate or extinguish the obligation due his level of support (or stated
another way, satisfaction of the support obligation) occurring as a natural result of the
marriage. Because Father waited until July 2010 to file anything in the Paternity case,
the court held the paternity order would remain in effect until that date.
A nationwide search reveals there is but a small body of legal authority
regarding nullification of prior child support orders. In Father‟s briefing below (and on
appeal), he failed to discuss a well reasoned decision by Supreme Court of North Dakota
(Schaff, supra, 446 N.W.2d at p. 32.) that cited the California Supreme Court‟s Davis
opinion and concluded no distinction should be drawn between the effect marriage has on
a paternity decree versus a divorce decree of child support. The facts of Schaff are
similar to the case at hand. The parties in the Schaff case had a child prior to their
marriage. (Schaff, supra, 446 N.W.2d at p 29.) A paternity judgment was entered
against the father, and he was ordered to pay child support (in the form of a lump-sum
annuity payment that specified it could not be modified or revoked). (Ibid.) Sometime
later the couple married, and the child continued to receive her annuity support payments
but turned the money over for payment of family expenses. (Ibid.) During a subsequent
divorce proceeding, issues involving the previous child support order were raised.
Specifically, Mother sought additional child support above the amount ordered in the
paternity decree. (Id. at pp. 29-30.)
The Schaff court determined the factual scenario before it was like that of
divorced parents who remarry each other. The court recognized that “[g]enerally, when
divorced persons remarry each other, their remarriage nullifies the divorce court‟s order
for child custody [citation], and future installments of child support. [Citations.]”
(Schaff, supra, 446 N.W.2d at p. 31, fn. omitted.) The court reasoned, “if the parties to a
divorce decree remarry each other, they no longer have separate rights of custody and
9
separate obligations for future support; rather, the same joint rights to custody and joint
obligations for future support which antedated the divorce are resumed.” (Ibid.)
In holding the same rule should apply to paternity judgments, the court
relied on several points of law. First, it noted well established law that “married parents
and parents of children born out-of-wedlock have an equal right to custody and a mutual
duty of support of their children.” (Schaff, supra, 446 N.W.2d at p. 31.) Next, it
observed the Uniform Parentage Act (the Act) (N.D. Cent. Code, Ch. 14-17) was
intended to establish the rights and liabilities of parents of children born out-of-wedlock.
(Id. at pp. 31-32.) In a paternity action under the Act, the court may enter a judgment
determining each party‟s separate rights and liabilities for custody and support and the
same is true of a court entering a judgment in a divorce action. (Ibid.)
Based on the above legal authority, the Schaff court concluded, “We are not
persuaded that there is a reasonable distinction to be drawn between the effect on a
paternity judgment of the child‟s parents‟ subsequent marriage to each other and the
effect on a divorce decree of the divorced parents‟ subsequent remarriage to each other.
The paternity action, as well as the divorce action, each involves a determination of the
separate rights and liabilities of parents for their children. While a paternity action and a
divorce action establish the separate rights and liabilities of parents, those parents‟
subsequent marriage or remarriage establishes anew the parents‟ joint rights and
liabilities for custody and support of their children replacing their former separate rights
and liabilities. We believe that the rationale of the divorce cases regarding the
resumption of joint rights to custody and joint obligations for future support upon
remarriage should govern this case. Accordingly, we hold that when parents of a child
born out-of-wedlock marry each other, the child custody and future support provisions of
the paternity judgment are nullified and replaced by the law governing the rights and
obligations of married parents to their children. If those parents subsequently seek a
10
divorce, the divorce laws are then applicable to the determination of child custody and
support.” (Schaff, supra, 446 N.W.2d at p. 32, italics added.)
We conclude this well reasoned opinion is applicable to our case, applying
California‟s statutory scheme. As in North Dakota, the Act (§ 7600 et seq.) provides the
statutory framework by which California courts make paternity determinations. (§ 7570
et seq.) In California, paternity actions, like divorce actions, involve a determination of
the separate rights and liabilities of parents for their children. The marriage or remarriage
by those parents automatically creates joint rights and liabilities for custody and support
of the child and extinguishes any preexisting order of child support entered for the child‟s
benefit. Upon the termination of the marriage or a second marriage between parents,
custody and support issues will be visited anew. (§§ 3600, 4001; In re Marriage of
Wittgrove (2004) 120 Cal.App.4th 1317, 1326 (Wittgrove) [“Pending a marriage
dissolution or legal separation action where there is an issue of support of a minor child,
the court may order either or both parents to pay „any amount necessary for the support of
the child‟”].) The dissolution legal proceedings have built-in protections for the best
interest of the child. (Wittgrove, supra, 120 Cal.App.4th at p. 1326 [in implementing
statewide uniform guidelines for child support under section 4053, the court‟s “main
concern is the child‟s best interests”].) Thus, the child will not be harmed by the fact that
an earlier child support order was terminated upon the marriage or remarriage of the
parents.
In conclusion, we reverse the trial court‟s order that Father must pay
arrearages for the period from January 2008 to July 2010 based on the prior paternity
order. As stated in the Davis case, Father still had an obligation to support his children
during this time period and on remand the trial court must evaluate whether Father
satisfied his parental obligation. We affirm the trial court‟s order that Father pay
arrearages for the period of time before his marriage, when he fell short on his obligation
to J.W. (from July 2002 to September 2003). Father does not dispute this aspect of the
11
court‟s order, and we conclude it was properly based on the 2002 paternity order.
However, the court‟s order does not indicate the amount of arrearages owed. On remand,
the court must calculate this amount of arrearages.
III
The order requiring payment of arrears is affirmed in part and reversed in
part and remanded for further proceedings in accordance with this opinion. In the
interests of justice, each party shall bear its own costs on appeal.
O‟LEARY, P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
12
