Marriage of Wilson & Bodine: Marriage of parents automatically extinguishes order of child support contained in prior paternity order.
By Garrett C. Dailey, Family Law Specialist
FACTS: C1 born to H and W 8/01, prior to their marriage. H signed a voluntary declaration of paternity. W obtained $1,600/mo. child support (c/s) order in 7/02. C2 was born 6/03. Parties married 12/05 and separated 1/08. H had 50% custody of C1 and C2. In 6/10, H filed OSC in the paternity case to determine c/s arrears. DCSS took position he owed $150,000 for c/s from 7/02 to date.
W limited her request for arrears under c/s order in paternity case to time before parties started living together pre-marriage and time after 1/08 DOS. Relying on Davis v. Davis (1968) 68 Cal.2d 290, H argued that marriage extinguished prior c/s order. Trial ct. disagreed, finding paternity orders distinguishable. DCSS expressed no opinion, only wanting clarification. Trial ct. found H liable for child support arrears for both periods, although it did not liquidate the amount of the arrears. H appealed only as to the period after DOS in marriage and Court of Appeal reversed.
HELD: Marriage of parents automatically extinguishes order of child support contained in prior paternity order.
Davis held that when divorced parents remarry each other, their remarriage nullifies the divorce ct.’s order for child custody and future installments of c/s because “ ‘the basis for the court’s further jurisdiction ceases.’ ” (Davis v. Davis, supra, 68 Cal.2d at p. 292.)
Marriage of Wilson & Bodine: Subsequent Marriage Effect on Paternity
Although no CA case had applied this rule to paternity orders, the court adopted the reasoning of Schaff v. Schaff (N.D. 1989) 446 N.W.2d 2, 32:
“ ‘We are not persuaded that there is a 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 of the divorced parents’ subsequent remarriage to each other. The paternity action, as well as the divorce action, each involves a determination of the separate rights and liabilities of parents for their children. While a paternity action and a divorce action establish the separate rights and liabilities of parents, those parents’ subsequent marriage or remarriage establishes anew the parents’ joint rights and liabilities for custody and support of their children replacing their former separate rights and liabilities. We believe that the rationale of the divorce cases regarding the resumption of joint rights to custody and joint obligations for future support upon remarriage should govern this case. Accordingly, we hold that when parents of a child born out-of-wedlock marry each other, the child custody and future support provisions of the paternity judgment are nullified and replaced by the law governing the rights and obligations of married parents to their children. If those parents subsequently seek a divorce, the divorce laws are then applicable to the determination of child custody and support.’ ” (In re Marriage of Wilson & Bodine, supra, 207 Cal.App.4th at pp. 776-777.)
No Case Made Out for Child Support Arrearages
Thus, the Court held that the parties’ marriage extinguished the paternity child support order and thus there could be no arrearages pursuant to it after the parties’ marriage.
“The marriage or remarriage by those parents automatically creates joint rights and liabilities for custody and support of the child and extinguishes any preexisting order of child support entered for the child’s benefit. Upon the termination of the marriage or a second marriage between parents, custody and support issues will be visited anew.” (In re Marriage of Wilson & Bodine, supra, 207 Cal.App.4th at p. 777.)
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Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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