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In Re the Marriage of Jocelyn R. Jackson and Jeffrey B. v. Jeffrey B. Pipes

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


April 12, 2011

IN RE THE MARRIAGE OF JOCELYN R. JACKSON AND JEFFREY B. PIPES. JOCELYN R. JACKSON, APPELLANT,
v.
JEFFREY B. PIPES, RESPONDENT; ANITA RYDER, RESPONDENT.

(Super. Ct. No. 00FL00259)

The opinion of the court was delivered by: Blease, Acting P. J.

Marriage of Jackson and Pipes

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother Jocelyn R. Jackson appeals from a postjudgment order directing her to pay paternal grandmother Anita Ryder $1,213 per month in child support. She contends the trial court lacked authority to order her to pay child support to Ryder because Family Code section 3951, subdivision (a)*fn1 specifies that "[a] parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent's child, without an agreement for compensation." In the alternative, mother claims the order must be reversed because maternal grandmother Penny Watson's income was not included in the calculation of child support.

Ryder initially responds that mother's appeal is untimely because mother failed to appeal from an earlier order directing mother to pay Ryder back child support, and mother forfeited the issue by failing to raise it in the trial court. In the alternative, Ryder asserts mother's claim lacks merit because Ryder's support of H.J. was not voluntary and mother expressly agreed to pay guideline support as ordered by the court. As for the court's failure to include Watson's income in the calculation of child support, Ryder contends mother's claim is "premature because the support order was specifically made retroactively modifiable after discovery on that point and [mother] has neither conducted the discovery nor brought any motion to modify the child support order re [Watson]."*fn2

We shall conclude the appeal is timely. We shall assume, without deciding, that mother did not forfeit her claim by failing to timely raise it below and conclude it lacks merit because mother expressly agreed to pay guideline support as ordered by the court. As for the failure to include Watson's income in the calculation of support, we shall conclude the claim is premature. Accordingly, we shall affirm the trial court's April 24, 2009, order directing mother to pay Ryder $1,213 in child support beginning November 1, 2008.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father Jeffrey B. Pipes divorced in 2000, and mother was granted legal and physical custody of their then three-year-old daughter, H.J.

In April 2005, Ryder and Watson jointly moved to join the custody action and sought "ongoing and regular visitation" with H.J. Thereafter, Ryder and Watson were joined as claimants to the action.

On December 21, 2005, the court entered a "Stipulation and Order Re: Custody, Visitation, Child Support, Arrearages," which provided, among other things, that: H.J. would live with Ryder from February 1, 2006, until the end of the school year on June 10, 2006, while mother relocated from Sacramento to Paso Robles; and mother was not required to pay Ryder child support during the period H.J. resided with Ryder. In April 2006, before H.J. was to join mother in Paso Robles, mother's "parenting time" was suspended and mother was ordered to complete an in-patient chemical dependency treatment program.

In December 2006, Ryder filed a motion seeking "guideline" child support from mother.*fn3 She also sought to modify the December 21, 2005, order insofar as it specified that mother was not required to pay child support to Ryder while H.J resided with Ryder from February 1 to June 10, 2006. In her responsive declaration, mother "consent[ed] to guideline support." She did not mention section 3951, subdivision (a), nor did she oppose paying child support to Ryder on any other basis. Rather, she urged that "[a]ny child support orders should also apply to father."

On January 24, February 21 and 22, 2008, the issues of custody and visitation were tried to the court. In its written order, filed April 21, 2008, the trial court found "that granting custody to a parent would be detrimental to [H.J.] and granting custody . . . in part to nonparents is required to serve [H.J.'s] best interests pursuant to Family Code Section 3041." Accordingly, the court ordered that "[t]he parties shall have modified joint legal custody" and "shall share [H.J.'s] physical custody in such manner as to assure frequent and continuing contact with each parent and with the grandmothers." Specifically, Ryder was granted primary legal and physical custody, while mother's parenting time was comprised of holiday weekends and school breaks. Watson was granted reasonable visitation with H.J.

A hearing on financial issues, including child support, was continued to October 9, 2008. Prior to the hearing, the court entered a "Family Law Stipulation and Order," providing that: mother owed Ryder $24,488 in back child support through October 31, 2008; mother would pay Ryder $400 per month towards the arrears by the 10th day of each month, beginning November 1, 2008; and the court would reserve jurisdiction over the issue of ongoing support for the period beginning November 1, 2008. The court's "Findings And Order After Hearing" was filed on November 21, 2008. Certain issues, including prospective child support, were continued to February 3, 2009. Mother did not appeal from either the October 9 or November 21, 2008, order.

On February 3, 2009, the court heard argument on the issue of prospective child support and ordered mother to pay guideline child support to Ryder in the amount of $1,213 per month, beginning November 1, 2008, subject to retroactive modification based on, among other things, discovery related to Watson's income. The court issued its "Findings And Order After Hearing" on April 24, 2009.

On February 19, 2009, mother filed a motion for reconsideration of the court's February 3, 2009, order, arguing for the first time that the trial court lacked authority to order her to pay child support to Ryder under section 3951, subdivision (a). Ryder opposed the motion. There is no indication in the record as to when, or if, the court ruled on the motion.

Mother appeals from the court's April 24, 2009, order.

DISCUSSION

I

The Trial Court's Order Did Not Run Afoul of Section 3951 Because Mother Expressly Agreed To Pay Child Support To Ryder Mother contends the trial court erred in ordering her to pay child support to Ryder pursuant to section 3951, subdivision (a), which provides that "[a] parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent's child, without an agreement for compensation."

As a preliminary matter, we reject Ryder's assertion that mother's appeal is untimely because she "failed to appeal from the October 9, 2008 order imposing her obligation to pay past child support and establishing the [trial] [c]court's jurisdiction to order future child support . . . ." The October 9, 2008, order was appealable. (Code Civ. Proc., § 904.1, subd. (a)(1); Fam. Code, § 3554.) Thus, mother's failure to appeal that order precludes her from challenging the trial court's authority to order her to pay $24,488 in back child support. (Code Civ. Proc., § 906 ["The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken."] However, her failure to appeal that order does not preclude her from challenging the April 24, 2009, order directing her to pay prospective child support to Ryder in the amount of $1,213 per month.

We next turn to Ryder's contention that mother forfeited her challenge to the trial court's authority based on section 3951, subdivision (a) by failing timely to raise the issue in the trial court. Mother admits she failed to raise the issue in opposition to the motion for child support but argues we should exercise our discretion and consider her argument because the issue "presents a pure question of law on undisputed evidence regarding a noncurable substantive defect . . . ."

Generally speaking, "an appellate court ordinarily will not consider an alleged erroneous ruling where an objection could have been, but was not, raised before the trial court." (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699.) This rule, however, does not apply when the theory raised for the first time on appeal is a pure question of law applied to undisputed facts. (Id. at pp. 699-700.) Mother urges that her claim implicates the trial court's jurisdiction, and thus, is a legal issue that may be raised for the first time on appeal. Assuming, without deciding, that mother did not forfeit the issue by failing to raise it in the trial court, it fails on the merits.

Mother does not dispute that she has a duty to support H.J. (§ 3900.) Rather, she contends that she is not bound to discharge that duty by paying child support to Ryder because Ryder's support of H.J. was voluntary, and Ryder "never claimed there was an express agreement for payment of child support by the mother . . . ." We need not determine whether Ryder's support of H.J was "voluntary" for purposes of section 3951, subdivision (a) because, as we shall explain, mother expressly agreed to pay guideline support to Ryder.

Section 3951, subdivision (a) "and its predecessor [section] . . . have long been interpreted to deny compensation in intrafamily support arrangements . . ., unless the parties have an express agreement for support." (Plumas County Department of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021, 1028 (Rodriquez).) There was such an agreement here.

In December 2006, Ryder filed a motion seeking guideline support from mother. In her response to Ryder's motion, mother expressly "consent[ed] to guideline support." Accordingly, the trial court's order did not run afoul of section 3951, subdivision (a). (See In re Marriage of Schopfer (2010) 186 Cal.App.4th 524, 530.) Rodriquez, relied on by mother, is of no assistance because, unlike here, there was no agreement for support in that case. (161 Cal.App.4th at p. 1028.) That Ryder "never claimed there was an express agreement" is of no consequence where mother failed to raise the issue in opposition to Ryder's motion for child support, and Mother expressly agreed to pay guideline support to Ryder.

II

Mother's Claim Concerning The Trial Court's Failure To Include Watson's Income In Calculating

Guideline Support Is Premature

Should we determine, as we have, that the trial court had the authority to order mother to pay Ryder child support, mother contends the order still must be reversed because the trial court failed to "include [Watson's] income in the total net disposable income calculation." Ryder responds that mother's "argument and appeal are premature because the support order was specifically made retroactively modifiable after discovery on that point and [mother] has neither conducted the discovery nor brought any motion to modify the child support order re [Watson]." We agree.

At the February 3, 2009, hearing on the issue of prospective child support, mother complained that Watson failed to respond to a subpoena directing her to produce certain financial information, and that Watson's income was not included in the calculation of child support. In response to mother's argument, the trial court ruled that its order would be subject to retroactive modification based on additional discovery, if any, including Watson's financial information. The record does not disclose any efforts by mother to obtain Watson's financial information following the February 3, 2009, hearing, or any attempt by mother to modify the court's order in light of such information. Unless and until mother seeks to modify the trial court's order as contemplated by the order itself, her claim concerning the failure to include Watson's income in the calculation of child support is premature. Should mother bring a motion to modify the support order, and should the trial court enter an order decreasing support retroactively, the trial court has discretion to order that mother be repaid any overpayment as provided in section 3653.

DISPOSITION

The April 24, 2009, order directing mother to pay Ryder $1,213 per month in child support beginning November 1, 2008, is affirmed. Ryder shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)&(2).)

We concur: HULL, J. BUTZ, J.


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