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Case of the Month Archive

June 2019

Mom feared that Dad would abduct child if she asked for more child support. . .


In affirmance, Sixth District holds that a man who provided necessities of life for the child of the woman with whom he cohabited is not entitled to reimbursement of the cost of those necessities under Fam C §3950 because the child's father regularly paid child support during the time that the child lived with his mother at the man's home.


Look v. Penovatz

(April 8, 2019)

California Court of Appeal 6 Civil H044754, 34 Cal.App.5th 61, 245 Cal.Rptr.3d 777, 2019 FA 1883, per Greenwood, PJ (Bamattre-Manoukian and Danner, JJ, concurring). Santa Clara County: Zepeda, J, affirmed. For appellant: pro per. For respondent: Peter Lindstrom, (408) 596-2946. CFLP §E.3.


In April 2006, a San Benito County trial court entered an amended judgment on reserved issues in Bela Penovatz and Wendy Rothert's divorce proceedings. The judgment required Bela to pay child support for their minor child, Christopher, born in 1997, based on a 69% timeshare for Bela and 31% for Wendy. The parents were each ordered to provide health insurance coverage for Christopher, which Bela did. In 2007, the trial court modified Bela's child support obligation to $400 per month, based on the same timeshare. Christopher lived primarily with Bela in Hollister.


In early 2011, Wendy began living with William Look, Jr. in Carmel Valley in what was essentially a domestic partnership without any formal agreement. Wendy contributed what she could to their household expenses. In August 2011, Wendy and Bela agreed that Christopher's primary residence would be with Wendy and William. Christopher lived with them until he graduated from high school in 2015 and beyond. In connection with the change in his residence, Wendy and Bela discussed increasing Bela's child support payments, but no increase was ever formalized. Meanwhile, Bela continued paying $400 per month until Christopher graduated from high school.


In February 2015, William filed a complaint against Bela, per Fam C §3950, which states that a third party who provides the necessities of life for a child whose parent neglects to provide them, according to his or her circumstances, may recover their value from the parent. He asked the trial court to order Bela to reimburse him for the necessities of life he had provided for Christopher while the young man lived at his home. After demurring unsuccessfully to that complaint, Bela filed a response. William then served him with interrogatories regarding his income and asked him to furnish copies of his last three tax returns. When Bela objected to the requests on privacy grounds, William filed a motion to compel, claiming that Bela's financial information was relevant to the issue of whether he had paid child support according to his circumstances. The trial court denied the motion to compel, finding that Bela had a right of privacy in his financial information and that William failed to show that the requested information was relevant to the claim or defense in the matter.


At a 2-day bench trial on William's Fam C §3950 request, he testified that he had discouraged Wendy from taking court action to get a child support increase out of concern for her lack of funds to pay an attorney. He was also fearful that since Christopher and Bela both have Serbian passports, Bela might take the boy to Serbia rather than pay increased guideline support. There was conflicting testimony as to whether Bela and Wendy had reached an earlier agreement for a support increase. After the trial concluded, the trial court issued a statement of decision in which it found that Wendy and Bela never formally modified the existing child support order, that Bela had always paid his child support obligation, and that he had never neglected Christopher. The court was not convinced that fear of child abduction or lack of funds to pay an attorney had precluded Wendy from seeking a child support increase. Accordingly, the trial court entered judgment for Bela.


William appealed, but the Sixth District affirmed.


Close enough for government work. . .
The justices quickly disposed of William's contention that the justices should disregard Penovatz's reply brief because lacked proper citations and page numbers and failed to properly segregate his arguments under separate headings. They acknowledged that the brief contained those errors but concluded that it was not so procedurally defective as to warrant disregarding it. With that out of the way, the panel turned to the merits of the appeal.


Blasts from the past. . .
William contended that the lower court misapplied Fam C §3950 by failing to calculate the amount of guideline child support that Bela would have paid during the time that Christopher lived with Wendy and William and then comparing it with the $400 a month that he did pay. William reasoned that his right to reimbursement should not be limited because Wendy didn't seek a child support increase, since Bela had a duty to support Christopher according to his means. The justices noted that in cases such as Blair v. Williams (1927) 86 Cal.App.676 and Lewis v. Lewis (1917) 174 Cal.336, which dealt with an earlier but substantially identical version of Fam C §3950 and are factually distinct from the matter here, courts have held that a third party has no right to reimbursement for necessities provided where the parent is paying the child support amount ordered by the trial court (which is the legal measure of the parent's liability for support of his child). Those courts reasoned that if a parent is not paying an appropriate amount of child support, the correct remedy is to seek a child support modification.


Oldies, but goodies. . .
William argued that the authorities on which the trial court relied were "'obsolete'" and "'completely out of phase with the modern law of child support.'" The panel found, however, that Blair may be old, but it has never been overruled and is not out of synch with current child support policies. Here, the justices found, Bela was "performing his duty under the law," by faithfully paying the amount of child support that the trial court had ordered. If Wendy needed more, they asserted, she should have sought a modification; her concerns about Christopher's abduction or her lack of funds to pay an attorney could have been handled by trial court orders. Summing up, the justices concluded that the lower court properly concluded that William was not entitled to reimbursement under Fam C §3950.


Rating the relevance. . .
Finally, the panel looked to see whether, as William contended, the lower court had erred by not permitting him discovery of Bela's financial information. They found that William was required to show that the information was directly relevant to the cause of action or defense and that disclosure was necessary to a fair resolution of the matter. However, the justices reasoned, the financial information was not relevant to the claim or essential to a fair resolution of the case, since William's reimbursement claim failed because of Bela's having paid the amount of child support ordered by the trial court. Accordingly, the trial court's denial of discovery was not an abuse of discretion, the panel concluded.





We can understand why William objected to the court's reliance on ancient cases; the fact that a case has not been specifically overruled doesn't automatically mean that its reasoning is not outdated, especially where, as here, the cases are factually distinct from the matter at hand. We're not so sure that, as the Blair court found, a child support order is the legal measure of the father's liability for support of his child, a phrase borrowed from the Nebraska Supreme Court back in the day. These days, child support obligors are ordered to pay a certain amount, but that is not the end of it; there are add-ons over an above that amount that are generally ordered, as the health insurance coverage was here. Be that as it may, it makes sense that a reimbursement matter under Fam C §3950 is not an appropriate vehicle for obtaining a back-door child support increase. Wendy should have sought a child support modification.



The justices seem to believe that Wendy's fear that Bela would take Christopher to Serbia could be handled by ex parte temporary orders re custody, or restraining orders against removing a child from the state. However, these orders may be examples of closing the barn door after the horse has escaped, where a parent takes action before the orders can be issued. When that happens, the left-behind parent may have to file a petition under the Hague Convention to get an order for the child's return, which adds to costs, fees, and requires additional court appearances.



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