Marriage of Martinez

Filed 11/30/05 Marriage of Martinez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of SUSAN and HUMBERTO MARTINEZ. JAY WIECK, as Trustee, etc., Respondent, v. HUMBERTO MARTINEZ, Appellant.

B179490 (Los Angeles County Super. Ct. No. ED029778)

APPEAL from an order of the Superior Court of Los Angeles County, Robert P. Applegate, Commissioner. Reversed and remanded.

Barbara Jean Penny, Bernard Grossman, and Dennis A. Damiano for Appellant.

Holmes & Holmes and Linda T. Barney for Respondent.

BACKGROUND

On January 14, 2002, Susan Martinez filed a petition for dissolution of her marriage to appellant, Humberto Martinez.[1] On September 26, 2003, a partial judgment was entered upon the parties’ stipulation with regard to the custody and support of their only minor child, as well as spousal support, the division of property and debt, and a judgment against Humberto for support arrearages in the sum of $21,459. The partial judgment reserved jurisdiction over termination of marital status and permanent support.

Both parents were to have joint legal and physical custody of their daughter, with Humberto to have primary responsibility for the care, custody and control of the child, subject to visitation by Susan on Tuesday nights, alternate weekends, and specified holidays. The judgment also provides: “Temporary orders for child support shall remain in full force and effect until the matter is submitted to the Court at a future trial, which is to be scheduled, with the Court to have jurisdiction to retroactively modify said support to August 5, 2002.” In a nearly identical provision, jurisdiction was retained to modify spousal support retroactively to August 5, 2002.

Shortly before trial was scheduled to begin on the reserved issues, the parties stipulated to vacating the trial date, subject to being reset upon noticed motion, and agreed that the family court would continue to retain jurisdiction to modify support retroactive to August 5, 2002. Nine days later, Susan’s attorney notified the court that Susan had died on May 29, 2004, and requested that James Jay Wieck, the successor trustee of Susan’s living trust, be substituted in as petitioner in the dissolution action, and that the court set a hearing to make a preliminary determination with regard to what reserved issues were abated by Susan’s death. The court granted both requests.[2]

It was trustee’s position that all reserved issues were abated by Susan’s death, including the expressly reserved retroactive modification of child support. Humberto agreed that dissolution of the marriage was moot, but asked the court to proceed on the issue of child support modification, representing that he has had sole responsibility for the child for two years, and that Susan’s living trust provided nothing for the child, leaving everything to Susan’s stepmother.

On September 20, 2004, the family court held that its jurisdiction had terminated by operation of law due to Susan’s death, and that it had no power to make any further orders in the case. Trustee moved for a new trial or a clarification of the order, asserting that the order went too far, and should have been limited to the reserved issues, while confirming its continued jurisdiction to enforce the partial judgment entered on September 26, 2003. Trustee contended that it would be inequitable to deny him the right to enforce the temporary support order, because Humberto had not paid the support, and was in arrears by approximately $48,000.

Humberto requested the court to reconsider the matter, and submitted a declaration stating among other things, that he has been the primary custodial parent and sole provider of the child’s financial, educational, and other needs since April 16, 2002, that Susan had very little contact with the child, exercised her visitation rarely, and never attended school functions, and that Susan was addicted to alcohol and prescription drugs. In addition, he stated that the trial had been taken off calendar at Susan’s request due to her illness.

On December 27, 2004, the family court granted trustee’s motion for clarification of its order, substituting the following for the original conclusion: “‘Petitioner’s death has abated each of the reserved issues. The court’s jurisdiction to make any further orders in this case has terminated by operation of law, except that the court retains jurisdiction to take action to enforce rights adjudicated before the death of Petitioner. These rights include, but are not limited to, adjudicated rights arising out of the Partial Judgment filed on 9-26-03 and the temporary spousal and child support orders contained in the Order After Hearing on Petitioner’s Order to Show Cause filed on 8-5-02.’”

Humberto filed a timely notice of appeal from the order of November 10, 2004, clarified on December 27, 2004.

DISCUSSION

Humberto contends that the family court erred in concluding that it had no jurisdiction to hear the reserved issue of retroactive modification of child and spousal support, while retaining jurisdiction to enforce the same support order without modification. We agree.

The family court relied upon several authorities provided by trustee, all holding that “[a]s between the parties to a dissolution action, the death of one party before entry of an order dissolving the marriage abates the action [and] the court is deprived of jurisdiction to make further orders concerning property rights, spousal support, costs or attorney fees.” (In re Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1575; see, e.g., In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1229; Kinsler v. Superior Court (1981) 121 Cal.App.3d 808, 812; In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651; McClenny v. Superior Court (1964) 62 Cal.2d 140, 144; Bevelle v. Bank of America (1947) 80 Cal.App.2d 333, 334.)

We agree that under these authorities, the family court was without jurisdiction to dissolve the marriage or to enter an order for permanent or increased spousal support. But the death of a spouse after entry of a stipulated judgment with regard to property division does not prevent the enforcement of the terms of the judgment, since contract rights survive death. (See Darter v. Magnussen (1959) 172 Cal.App.2d 714, 718-719.)[3]

The parties entered into a contract providing that spousal and child support would continue in a previously ordered amount, subject to retroactive reduction to a specified date. That agreement was made part of the judgment. Thus, Humberto’s right to a retroactive reduction upon proof was adjudicated and may be enforced by the family court, even though evidence must be taken to determine the amount. (See In re Marriage of Lisi, supra, 39 Cal.App.4th at pp. 1576-1577.)

Child support presents a more complex issue. With regard to the child support order, trustee now relies upon the same authorities that he provided to the family court, even though none reached any issue pertaining to continuing jurisdiction to modify child support.

Like the parties to this appeal, we have found no reported opinion in which modification of child support was sought after the death of the obligee parent, but before the entry of the judgment dissolving the marriage, and we agree that the controversy must be resolved by analogous authority. Here, however, trustee and the family court relied upon authority which is not applicable. Since a parent’s obligation to pay child support survives the parent’s death, the authorities upon which the family court relied have no application to child support, and relate only to termination of jurisdiction over the marital status and rights incidental to marriage. (Kress v. Kress (1963) 219 Cal.App.2d 173, 175; Code Civ. Proc., § 377.20.)

Even after jurisdiction to award spousal support has terminated, the power to award child support continues. (McReynolds v. McReynolds (1963) 218 Cal.App.2d 683, 685; cf. In re Marriage of Katz (1988) 201 Cal.App.3d 1029, 1038.) And the family court’s jurisdiction to modify a child support order continues after the death of a parent. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151 (Drake).)

Trustee contends that Drake holds that such jurisdiction continues only if judgment has first been entered dissolving the marriage. Since Susan died before the marriage was dissolved, he reasons, jurisdiction terminates. He has apparently relied upon the following language in Drake: “[T]hroughout [the child’s] minority, . . . the family court retains jurisdiction to modify such child support orders after entry of a marital status judgment.” (Drake, supra, 53 Cal.App.4th at p. 1151.) Trustee must have imagined the word only placed in that sentence, making jurisdiction continue only after entry of a judgment dissolving the marriage. But if any word were to be inserted to make the sentence more clearly state the holding of that case, it would be even, which would make the sentence read, “the family court retains jurisdiction to modify such child support orders [even] after entry of a marital status judgment.” (Ibid.)

In fact, the parents’ marital status is irrelevant to their duty to support their minor children. (See Davis v. Davis (1968) 68 Cal.2d 290, 291.) Whatever the marital relationship, “quite obviously it cannot alter the fact that the mother and father are the parents of their offspring. Therefore the duty to support . . . exists independently of the marriage status, and is a continuing obligation ‘during the minority of any of the children of the marriage.’ [Citation.]” (Bernard v. Bernard (1947) 79 Cal.App.2d 353, 358; Fam. Code, §§ 3900-3901, 4000-4001.)

Child support may be ordered during the pendency of any proceeding for the dissolution of marriage or legal separation of the parents. (Fam. Code, § 3600.) And either or both parents may be ordered to pay child support in “any proceeding where there is at issue the support of a minor child . . . .” (Fam. Code, § 4001, italics added.) Thus, one parent may bring an independent action against the other for child support. (Kresteller v. Superior Court (1967) 248 Cal.App.2d 545, 549.) But once the family court has taken jurisdiction over the parents in the dissolution action, it has primary, continuing jurisdiction over the support of the parties’ children, and no subsequent independent action may be brought. (Ibid.) Similarly, upon the death of the obligor parent under a child support order of the family court, any modification must be sought in the family court, not the probate court. (Kress v. Kress, supra, 219 Cal.App.2d at pp. 173-174.)

Even where the final judgment of dissolution has made no provision for child support, the family court retains jurisdiction to conduct supplemental proceedings for that purpose. (Krog v. Krog (1948) 32 Cal.2d 812, 816-817; see Estate of Smith (1927) 200 Cal. 654, 661.) “‘Once acquired in a proceeding where child support is in issue, . . . superior court jurisdiction over child support ordinarily continues . . . .’” (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469, original italics.)

“‘[T]he entry of a decree of divorce . . . , in so far as it relates to the custody, care, and maintenance of the minor children of the parties thereto, is not a finality, but over whom, during their said minority as well as over their parents, the trial court retains a continuing jurisdiction which is as complete as that possessed by it prior to the entry of said final decree . . . . “As it seems to us, the true basis upon which the power to modify the decree . . . rests is that out of the marital relation springs a new relationship, viz., that of parent and child . . . . The courts may decree that the marital tie shall be absolutely severed and the parties be placed, so far as the law is concerned, in the same situation that they occupied prior to the solemnization of the marriage ceremony; but they cannot alter or modify the fact that a father is the parent of his offspring. . . . The court, therefore, acting upon this relationship as one of the things brought to it by the divorce action, has the power to modify or alter its decree so long as there are minor children under the protection of the court.”’ [Citation.]” (In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1041, original italics, quoting Moore v. Superior Court (1928) 203 Cal. 238, 242-243.)

Trustee contends that upon entry of the partial judgment, Susan obtained a “vested property right” to all child support which accrued under the judgment, without reduction. Again, he relies upon authority relating to the division of marital property. (See, e.g., McClenny v. Superior Court, supra, 62 Cal.2d at p. 144.) He also refers to authority relating to costs or attorney fees recoverable for previously adjudicated matters. (See, e.g., In re Marriage of Lisi, supra, 39 Cal.App.4th at pp. 1576-1577; Newhall v. Melone (1962) 199 Cal.App.2d 121, 124.)

Susan cannot have had a “vested property right” in a child support order, since a child support order cannot “be considered a judgment in the sense of its being a final adjudication of the rights and duties of the parent and the minor child. It was not intended to and does not operate to crystallize or limit the duty of the parent to support his minor child, but merely defines the extent of his duty during the life of the order. [Citations.]” (Rosher v. Superior Court (1937) 9 Cal.2d 556, 559.)

Trustee also relies upon In re Marriage of Lackey (1983) 143 Cal.App.3d 698, 706, which merely holds that a deceased parent’s judgment for arrearages does not vest in the child. It does not hold that a judgment for arrearages may not be modified after the death of the obligee parent, or even discuss that issue.[4]

Finally, trustee relies upon In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 140-141 (Utigard), which pointed out that “[a]ccrued support arrearages are treated as a judgment for money [citation] and a writ of execution issues as a matter of right as the amounts become due and are unpaid [citation] . . . .” (See Fam. Code, § 5100.)

As the court also pointed out in Utigard, enforcement of a judgment for child support arrearages is “subject to equitable consideration.” (Utigard, supra, 126 Cal.App.3d at p. 140, italics added.) A court may, for example, deny enforcement of the judgment altogether, and quash the writ of execution. (Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366-367 (Jackson).)

In Jackson, the obligor parent was permitted to show that his obligation for arrearages had been satisfied with proof that he had shouldered financial responsibility for the child in an amount exceeding the arrearages, and that the child was living with him full-time with the acquiescence of the obligee parent. (Jackson, supra, 51 Cal.App.3d at p. 368; see also In re Marriage of Okum (1987) 195 Cal.App.3d 176, 179-182 [debtor parent had assumed sole support and de facto sole physical custody of one child].) This is precisely what Humberto offered to prove in the family court.

Thus, even if we were to affirm the family court’s order retaining jurisdiction to enforce the judgment for arrearages, while rejecting jurisdiction to modify the child support order, Humberto would be entitled to seek the court’s discretion in equity to deny enforcement of the judgment altogether, or to deny enforcement of a part of it. (Jackson, supra, 51 Cal.App.3d at p. 368; In re Marriage of Okum, supra, 195 Cal.App.3d at p. 182.) Depending upon the circumstances, the result could be identical to the any reduction Humberto seeks, or it could eliminate the arrearages altogether.

The trial court is not limited in this case, however, to enforcing or quashing the enforcement of a judgment for arrearages. With exceptions not applicable here, “a support order may be modified or terminated at any time as the court determines to be necessary,” so long as it is not “modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” (Fam. Code, § 3651; see also § 3653.) Here, the parties agreed in their stipulated partial judgment that such date would be August 5, 2002, and they were scheduled to go to trial on the issue.

Agreements and stipulations regarding child support are enforceable in the family court so long as they do not compromise the parents’ statutory child support obligation or purport to divest the family court of jurisdiction over child support orders. (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 188-189.) We discern no such defect in the parties’ agreement to have the court consider a retroactive modification in this case.

Trustee is concerned that if Humberto ultimately succeeds in obtaining a reduction in arrearages, he will receive a “windfall.” He need not be concerned. If Humberto prevails at trial on the issue, it will be the result of having proven that he shouldered financial responsibility for the child in an amount exceeding the arrearages, and that he had de facto sole physical custody of her. (See In re Marriage of Okum, supra, 195 Cal.App.3d at pp. 179-182; Jackson, supra, 51 Cal.App.3d at p. 368.)

It is a compelling public policy of family law to provide for the support of children, foster their best interests, and promote familial responsibility. (Dunkin v. Boskey, supra, 82 Cal.App.4th at p. 189.) That policy would not be served by requiring Humberto to pay to Susan’s estate monies that Susan did not use for the child’s welfare, particularly if the living trust makes no provision for the child and the payment of $48,000 or more in arrearages would impair Humberto’s ability to support the child, who is still a minor. “‘Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children . . . .’ [Citation.]” (In re Marriage of Armato, supra, 88 Cal.App.4th at pp. 1037-1038, original italics, quoting Fam. Code, § 4053, subd. (l).)

DISPOSITION

The order of November 10, 2004, as clarified on December 27, 2004, is reversed and the matter is remanded to the family court for proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HASTINGS, Acting P.J.

We concur:

CURRY, J.

WILLHITE, J.

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[1] Since the two spouses share a last name and appellant was respondent below, we shall refer to the parties to the dissolution action by their first names, to avoid confusion.

[2] Henceforth, we refer to Wieck as “trustee.”

[3] In essence, trustee agrees that the family court retains jurisdiction to enforce the terms of the parties’ stipulated judgment, except for the two terms he dislikes.

[4] We do agree, however, with trustee’s assertion that he is a proper party to seek enforcement of the support order. He will also be the proper party in a modification proceeding. (See In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1109, 1111.)