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Court of Appeal, Fifth District, California.

Violet Carol DAVIS, Plaintiff and Appellant, v. Joe H. DAVIS, Defendant and Respondent.

Civ. 717.

Decided: June 09, 1967

Vizzard, Baker, Sullivan & McFarland by Jere M. Sullivan, Bakersfield, for appellant. Chain & Younger, by Milton M. Younger, Bakersfield, for defendant.

Plaintiff-mother and defendant-father were divorced in 1958, but no order for support of their two minor children was made because defendant was served outside the State of California by publication. Thereafter, in April 1959, the parties agreed, in writhing, that defendant would pay plaintiff the sum of $100 per month per child until further order of the court, and that ‘the court may enter its order in respect to all matters contained in this stipulation.’ Accordingly, a child support order was made in the previously instituted divorce action.

On February 13, 1960, plaintiff and defendant remarried in the State of Nevada. Seven months after the second marriage, September 1960, defendant went to Iran to pursue his work in the oil fields. Plaintiff followed him on November 7, 1960, but returned to the United States in January 1961 so the children could resume their schooling in this country.

On November 3, 1961, plaintiff commenced a second divorce action. As defendant was still in Iran, she served him by publication. Consequently the decree of divorce did not provide support payments for the children.

Upon defendant's return to the United States, he and plaintiff again agreed that a court order could be made for child support payment, and a second order was entered November 13, 1964. Plaintiff does not contend that this order has not been complied with; she seeks to collect support payments for the period between the separation that followed the remarriage and the second support order. Her theory is that the February 13, 1960, remarriage did not nullify the April 7, 1959, child support order which had not been vacated, amended, or modified.

When the motion came on for hearing, defense counsel objected to the introduction of any evidence upon the ground the remarriage of the parties voided the prior order for child support. The trial court sustained the objection, and denied the writ of execution, upon the sole ground that the remarriage terminated the prior order for child support.

Bernard v. Bernard, 79 Cal.App.2d 353, 179 P.2d 615, holds that the duty to support a child, under the provisions of section 139 of the Civil Code, ‘exists independently of the marriage status, and is a continuing obligation ‘during the minority of any of the children of the marriage.’' Further, the duty to support ‘is unaffected by either the interlocutory or final decree and may be enforced by a proper proceeding.’ (P. 353, 179 P.2d 652, p. 628; see Rosher v. Superior Court, 9 Cal.2d 556, 559, 71 P.2d 918.)

In Allen v. Allen, 138 Cal.App.2d 706, 292 P.2d 581, the court pointed out that section 138 of the Civil Code ‘authorizes the court in a divorce action at any time, even after the final decree, to make necessary orders for the maintenance and support of the minor children,’ and then added that ‘such authority, and its exercise, cannot be limited or abridged by any agreement between the parents.’ (P. 709, 292 P.2d p. 583. Puckett v. Puckett, 21 Cal.2d 833, 839, 136 P.2d 1; Plumer v. Superior Court, 50 Cal.2d 631, 637, 328 P.2d 193.)

In Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528 (overruled on another ground in Hudson v. Hudson, 52 Cal.2d 735, 745, 344 P.2d 295), the Supreme Court held that since the legal obligation to support ‘applies to a ‘father of either a legitimate or illegitimate minor child’, the existence of the marital status is not a prerequisite to liability.' (40 Cal.2d p. 523, 254 P.2d p. 531.)

Even death of the father does not abrogate a court order for child support. In Taylor v. George, 34 Cal.2d 552, 556, 212 P.2d 505, 507, it is said:

‘In California the rule is that the obligation of a father to support his minor child which is fixed by a divorce decree or property settlement agreement, does not cease upon the father's death, but survives as a charge against his estate.’

Section 139 of the Civil code, which is concerned with provisions for the support of both a spouse and minor children, provides that as to the wife or husband:

‘Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment or order for the support and maintenance of the other party shall terminate upon the death of the obligor or upon the remarriage of the other party.’ (Emphasis added.)

Significantly enough, section 139 makes no provision for termination of an order for child support upon remarriage of either the father or the mother.

Since an order for child support is unaffected by the legitimacy of the child, by divorce proceedings, by agreement between the parties, or by death of the father, it appears that remarriage per se would not extinguish the obligation based upon an order for child support. The courts have said time and again that the obligation exists ‘independently of the marriage status.’

The support order, here, was entered by stipulation pursuant to an agreement between the father and the mother, and defendant father seems to view the mother as the beneficiary under the contract and order. Not so; she is comparable to a trustee—she is merely a conduit for the support of the child by the father. The need for support continues regardless of the marital status or agreement or disagreement between the mother and the father. Here, the father is being asked to do only that which he agreed to do, that which he was ordered to do, and that which in good conscience he should do—pay for the support of his children.

While circumstances resulting from a remarriage may be shown in a proceeding to enforce an order for child support, for example that the father has furnished food, lodging and other support in a normal familial relationship, nevertheless the remarriage does not, ipso facto, nullify an existing order for child support nor justify a refusal to hear evidence in a proceeding to enforce the order.

The uncertainty that seems to pervade discussion of this case may stem from language in Dimon v. Dimon, supra, 40 Cal.2d at page 524, 254 P.2d 528, holding that a mother seeking child support in the first instance may not obtain an order to reimburse her for past support. (Dougal v. Dougal, 143 Cal.App.2d 272, 276, 299 P.2d 404; Campbell v. Campbell, 178 Cal.App.2d 77, 82, 2 Cal.Rptr. 710.) According to Dimon, a mother may obtain an order for future support or may enforce a prior order for support, but she cannot obtain reimbursement of money voluntarily paid by her before an order for child support has been made.

Here, the mother's claim is consistent with Dimon in that she seeks to collect payments that accrued under a prior order when the father was a non-resident and failed to support the children.

The order is reversed.

STONE, Associate Justice.

CONLEY, P. J., concurs. GARGANO, J., being disqualified, did not participate.