Appeal from an order of the Superior Court of Orange County, Duane T. Neary, Temporary Judge. (Super. Ct. No. 08D002397)
The opinion of the court was delivered by: O'leary, P. J.
CERTIFIED FOR PUBLICATION
(Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part, and remanded.
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.
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).*fn1 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.
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.
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 ...