Metropolitan News-Enterprise

Monday, July 9, 2012

Page 1

Marriage Terminated Earlier Child Support Order, C.A. Rules

By KENNETH OFGANG, Staff Writer

A child support order entered as part of a paternity judgment terminated when the parties married, the Fourth District Court of Appeal has ruled.

Div. Three ruled Thursday that Mark O. Wilson, while liable for support arrearages that preceded his marriage to Tamara S. Bodine, was erroneously ordered to pay arrearages the trial court found to have accrued under the same order after the couple married.

The case was sent back to the Orange Superior Court for recalculation of the arrearages in accordance with the ruling.

Presiding Justice Kathleen OLeary, writing for the court, explained that Wilson and Bodine were unmarried when their son was born in August 2001. Wilson filed a voluntary declaration of paternity, on the basis of which Bodine obtained custody and visitation orders and a $1,600 monthly child support order.

A second child, a daughter, was born In 2003. Bodine and Wilson married in 2005 and separated in January 2008. A divorce judgment was entered in 2009 as to status only; issues related to the children were not resolved.

Modification Sought

In 2010, Wilson sought a child support modification in the paternity case, saying the Department of Child Support Services was claiming more than $150,000 in arrears, including for the time he and Bodine were married and living together. He noted that the couple was sharing custody of the children equally.

Bodine responded that Wilson owed her between $85,000 and $90,000 in support arrears from March 2002 through July 2010. She said he did not pay support when there were living apart in 2002 and 2003, or after they separated in 2008.

Orange Superior Court Commissioner Duane T. Neary found Wilson liable for support arrears of $1,600 per month for March 2002 through June 2003, reserving the issue of arrearages for the post-marital separation period. Before that issue was heard, judgment was entered in the divorce case, by stipulation, dividing their property, granting joint legal and physical custody, and reserving the issue of child support.

Neary then held a hearing, noted that the divorce and paternity cases were related for hearing purposes, and ruled that Wilson was liable for child support under the paternity judgment for support arrearages accruing between the date of separation and the date Wilson sought modification.

Little Authority

OLeary, however, writing for the Court of Appeal, said that while there is little authority on the issue, the appropriate rule is that a child support order imposed on an unmarried parent terminates if and when the parties marry.

She cited Davis v. Davis (1968) 68 Cal.2d 290, which involved a couple that married, divorced, remarried, then separated and divorced again. The high court held that the support obligation under the first divorce decree ended when the parties remarried, so the mother could not collect arrearages for the period from the date the parties separated during the second marriage to the entry of a new support order in connection with the second divorce.

Davis, OLeary noted, was cited by the North Dakota Supreme Court Schaff v. Schaff (N.D. 1989) 446 N.W.2d 28. On facts similar to those in the case before the Court of Appeal, Leary said, the North Dakota court found that there is no reason to distinguish between a child support order entered in a divorce case and one entered in a paternity action.

In concluding that marriage prospectively ends existing support obligations between the parties, regardless of whether they were married to each other previously, the court cited the equality of rights of married and unmarried parents and the similarity of paternity and divorce actions, finding no 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 on the parents subsequent remarriage to each other.

The opinion, OLeary said, is well reasoned and consistent with California law.

The case is Wilson v. Bodine, G045728.

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