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In re Marriage of Schopfer

July 7, 2010

IN RE THE MARRIAGE OF BARBARA AND WILLIAM C. SCHOPFER.
WILLIAM C. SCHOPFER, APPELLANT,
v.
DANIEL BONEBRAKE, RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Jerilyn L. Borack, Judge. Affirmed. (Super. Ct. No. 96FL01642).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PUBLICATION

Following the death of his ex-wife, William C. Schopfer (father) shared custody of his daughter, Jennifer, with her stepfather, Daniel C. Bonebrake (stepfather). Pursuant to a court order, father also paid stepfather $900 each month in child support. Four months before Jennifer was expected to graduate from high school, however, and a month before she was to turn 18, father moved to reduce his child support obligation to zero. The trial court denied his motion.

On appeal, father contends the trial court erred in denying his request to modify support because under subdivision (a) of Family Code section 3951*fn1 and Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021 (Rodriquez), "the court lacked authority, as a matter of law, to [order] third party support absent an express agreement." Father also contends that because Jennifer was no longer a minor, neither he nor stepfather had "primary physical responsibility" for her for any period of time and therefore, under Edwards v. Edwards (2008) 162 Cal.App.4th 136 (Edwards), it was error for the trial court to "maintain the previous guideline support order when timeshare could no longer be calculated."

We reject both arguments. First, we conclude neither section 3951(a) nor Rodriquez required the trial court to modify father's child support obligation to zero because, as the trial court found, father agreed to pay guideline child support to stepfather a year earlier, when the court made the order for $900 per month in support, and thus section 3951(a) was satisfied. Second, we conclude that a guideline child support order made during a child's minority that remains in effect after the child's 18th birthday because the child is a full-time high school student need not be modified simply because neither party has custody of the child after she turns 18. Accordingly, we will affirm the trial court's order denying father's motion.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Barbara Schopfer (now deceased) were the parents of Jennifer, born August 17, 1990. From the case No. and title, it appears mother commenced this proceeding to dissolve the marriage in 1996. Judgment was presumably entered sometime thereafter, and mother apparently married stepfather after that.

In 2004, mother apparently assumed sole physical custody of Jennifer,*fn2 and father was ordered to pay mother $297 per month in child support.

In August 2006, mother died. At that time, a motion by father relating to custody and visitation was pending. Meanwhile, father continued to make his child support payments for six weeks after mother's death.

In October 2006, about the time father stopped paying child support, stepfather filed his own motion relating to custody and visitation.*fn3 Both custody motions were resolved in December 2006, when the court gave joint legal and physical custody of Jennifer to father and stepfather. At that time, both parties acknowledged Jennifer was living with stepfather, and the order provided that father's custodial time with her was subject to her agreement.

In the months that followed, Jennifer did not spend any time with father. Probably based on this fact, stepfather sought the assistance of the Department of Child Support Services (the department) in securing child support from father, and in April 2007 the department filed a motion for child support on behalf of stepfather.

In his response to that motion, father did not mention section 3951(a), nor did he oppose paying child support to stepfather on any other basis. Instead, he specifically requested that the court order him to pay stepfather $872 per month in guideline child support.

At a hearing in June 2007, the court ordered father to pay stepfather $900 per month in child support beginning in May 2007 (with arrears back to October 2006). The court's guideline support calculation was based on Jennifer spending 100 percent of her time with stepfather and zero percent with father (just as father's proposed guideline support calculation had been).

In August 2007, at the recommendation of Jennifer's therapist and drug counselor, stepfather enrolled Jennifer in boarding school in Oregon. Father approved of the placement.*fn4 Following Jennifer's enrollment, stepfather was in contact with Jennifer's counselors on a weekly or biweekly basis, consulting with them on her academic and behavioral progress. Additionally, stepfather spoke with Jennifer about her activities by telephone at least weekly. Between October 2007 and February 2008, he visited with her on three weekends, and in June 2008 Jennifer spent a week at home with him. During this time, father had no physical contact with Jennifer. ...


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