Written by attorney Anthony Payman Azemika

A California Appellate Court has ruled that a Father must pay child support to stepfather.

A California Appellate Court has affirmed a Trial Court which had denied Father’s motion to reduce to zero the child support that he paid to his child’s stepfather. According to the Appellate Court, Father had specifically agreed to pay guideline child support to stepfather and was obligated to support his child until the child graduated from high school or turned 19 years-old. In the case of In re Marriage of Schopfer, Mother gave birth to Father’s child on August 17, 1990, during the parties’ marriage. Mother filed for divorce in 1996, and sometime after the divorce judgment, she married stepfather.

In 2004, Trial Court granted the sole physical custody of the child to Mother, and ordered Father to pay child support of $297 per month. Mother died in August of 2006. Father continued to make child-support payments for another six weeks, then stopped.

In October 2006, stepfather filed a motion for custody of or visitation with child, who had been living with him throughout his marriage to Mother. In December of 2006, after combining stepfather’s motion with a pending custody and visitation motion filed by Father, Trial Court granted Father and stepfather joint legal and joint physical custody of child. However, Trial Court order that Father’s custodial time will be determined with child’s agreement.

After child had no contact with Father for several months, stepfather asked the Department of Child Support Services (DCSS) to file an action for child support against Father, which DCSS did in April of 2007. In response to that action, Father specifically requested that Trial Court order him to pay guideline support, which he calculated at $872/mo.

At June 2007 hearing, Trial Court calculated guideline amount based on timeshare of zero for Father and 100% custody for stepfather (as had Father), and ordered Father to pay child support of $900 per month to stepfather retroactive to October of 2006.

In August of 2007, following recommendation of child’s therapist and drug counselor and with Father’s approval, stepfather enrolled child in an Oregon boarding high school. While child was in boarding school, stepfather regularly consulted child’s counselors to keep track of her academic and behavioral progress, and spoke with child by phone every week. Stepfather also spent three weekends with child between October 2007, and February 2008, and the child spent a week with stepfather in June of 2008. Child planned further visits in August of 2008, and September of 2008, and intended to return to stepfather’s home after she graduated from high school in December of 2008. Meanwhile, Father had no physical contact with child.

In July of 2008, Father filed an Order to Show Cause, asking Trial Court to reduce his child-support obligation to zero. Relying on the case of In re Marriage of Rodriguez (2008) 161 Cal.App.4th 1021 [CA Family Code Section 3951(a) precludes child-support payment to other parent or relative for voluntary support except on prior agreement], Father argued that he had no statutory obligation to pay child support to a non-parent custodian such as stepfather, and that the existing order was inequitable because child’s tuition was being paid from Mother’s estate funds and child had turned 18 years-old. In opposition, stepfather contended that Father’s child-support obligation should not cease until child either graduated from high school or turned 19 years-old, and asserted that child’s tuition was paid in part with Father’s child-support payments.

When Trial Court asked parties to submit additional briefing on relevance of recently-issued opinion in In re Marriage of Edwards (2008) 162 Cal.App.4th 136 [guideline inapplicable where neither parent has timeshare with child who relocates to college and attends on full scholarship], Father argued that the Edwards case supported his request for zero order, while stepfather contended that the Edwards case was factually distinguishable from this case.

In September of 2008, after further argument, Trial Court found that the Rodriguez case was factually distinguishable, that Father had agreed in responsive pleadings to pay guideline support as previously ordered, and that child’s attendance at boarding school had no effect on Father’s child-support obligation.

Father appealed, but in an opinion on rehearing, the California Appellate Court has affirmed the Trial Court’s decision. The Appellate Court has ruled that (1) Father’s specific request that he be ordered to pay guideline child support (made in response to stepfather’s motion) is compensation agreement within the meaning of California Family Code Section 3951(a) provision that parent is not required to compensate third-party for voluntary support of child absent prior compensation agreement; (2) stepfather’s support of child may be deemed voluntary because Trial Court did not rule on Father’s motion to modify until after child turned 18 years-old and neither party had custody of her (stepparent has no legal duty to support adult child of deceased wife); (3) both case of Rodriguez and Edwards are factually distinguishable from this case; (4) the fact that child was living at an out of state boarding school did not alter Father’s statutory responsibility to pay child-support for her until she either graduated from high school or turned 19 years-old; and (5) stepfather’s continuing contact with child while she attended boarding school and during vacations supports a finding that stepfather was still responsible for child, despite her being away at school. The California Appellate Court has therefore ruled that Trial Court did not err in refusing to reduce Father’s child-support obligation to zero or by requiring Father to pay stepfather until the child has graduated from high school or has turned 19 years-old.

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