Case of California Appellate District Division

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Filed 11/18/14CERTIFIED FOR PUBLICATIONIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIAFOURTH APPELLATE DISTRICTDIVISION THREEALLYSON HELGESTAD,Plaintiff and Respondent,v.GEORGE VARGAS,Defendant and Appellant.G048888(Super. Ct. No. 09P001418)O P I N I O NAppeal from an order of the Superior Court of Orange County, Paula J.Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed andremanded.Law Offices of Milo F. DeArmey and Matthew S. DeArmey for Defendantand Appellant.No appearance for Plaintiff and Respondent.***
I. INTRODUCTIONFamily law is not getting any easier. Consider this scenario: A couple livetogether and have two children. They do not marry. Then they separate. The coupleagree to a paternity action judgment which establishes the father’s paternity, his right tovisitation, and fixes a monthly monetary child support payment to be made to the motherwho will have primary physical custody of the children. Later the couple attempt areconciliation; the father moves into the residence of the children and the mother. Afterabout nine months, the reconciliation fails, and the father moves out. Issue: Can thefather obtain any credit for actual, in-the-home child support he afforded the childrenduring the nine months he lived with them and the mother?The question is one of first impression in California. (See Wright,Right toCredit on Child Support Arrearages for Time Parties Resided Together After Separationor Divorce(2002) 104 A.L.R.5th 605, 610-612 [absence of California cases] (hereinafter“ALR Annot.,Credit for Time Resided”.) Had the original order been made in a marital– as distinct from paternity – action, and had the couple simply switched custody so thatthe children went to live with the father instead of attempting reconciliation, there seemsto be no question that a line of California cases beginning withJackson v. Jackson(1975)51 Cal.App.3d363 would allow such credit. In fact, family law has developed ashorthand term for credits. They’re called “Jacksoncredits,” after the first case to allowfor them. But whether the same rules obtain in a paternity action as in a dissolutionaction has not previously been addressed.The trial court concluded the father here, appellant George Vargas, wasnoteligible for any suchJacksoncredits, because this case did not fit theJacksonpattern of achild support order which originated in a divorce proceeding, and also because therewasn’t a total reversal of custody, but rather a period of cohabitation – shared custody –in the context of an attempted reconciliation. We reverse because we believe the same2
equitable considerations that apply to support orders arising out of marital cases shouldalso apply to support orders arising out of paternity cases. We see no reason todifferentiate total changes of custody from periods of living together in the samehousehold; actual support is actual support.II. FACTSThe Orange County Superior Court no longer is able to provide courtreporters without charge, forcing these parties of limited means to resort to an “agreed”statement – rather than a reporter’s transcript – to have meaningful access to appellatereview. “The record on appeal may consist wholly or partly of an agreed statement.”(Cal. Rules of Court, rule 8.134(a)(1).) Fortunately the parties were able to agree on one,probably because the essential facts are simple: Allyson and George lived together from2005 to October 2009. During that period they had two children. Allyson and Georgeseparated in October 2009. The next month Allyson filed this paternity action(09P001418). In May 2010, the parties agreed to a judgment under which George wouldpay a certain amount in child support commencing June 1, 2010, and George would beentitled to specified visitation. The judgment was signed by a court commissioner onMay 25, 2010, and filed that day.But sometime between December 2010 and January 2011, George movedback in with Allyson and the children in her residence. During this time he paid “rent” toAllyson’s father, who owned the building (she had not been paying any rent previously).George, Allyson and the children all lived together in a family relationship from at leastJanuary 2011 until mid-August 2011. George then moved out again. George asked thecourt for a determination of his arrearages in May 2012. The order on that motion wasmade in July 2013 and included a determination George was ineligible for any credit forthe period of eight or nine months of attempted reconciliation spanning the first twothirds of 2011. George has timely appealed from that order.3
III. DISCUSSIONIn denying George credit for any actual child support he might haveprovided for the couple’s two children during the period of reconciliation and livingtogether as a family in 2011, the trial court proffered four reasons. Three of those reasonsapply categorically in such a way as to preclude even the possibility of credit for a payorparent who had moved back in with the children. The three categorical reasons were: (1)George was not entitled to “Jacksoncredits” because theJacksonline of cases allinvolvedtotalswitch-overs of custody where the previously noncustodial parent becamethe sole custodial parent.1(2) George should have brought a formal Order to Show Cause(OSC) based on changed circumstances when he moved back in with Allyson and thechildren. And (3) as a matter of statute (Fam. Code, §36022), the only relief allowed forsupport during reconciliation is when the support order is pendente lite, and this was not.The trial court also gave one factually-based reason: (4) George had to have a roof overhis own head anyway, so the fact he moved in with Allyson and the children and paidrent to her father merited no credit.We address each of these considerations below. But before those reasonscan be addressed adequately, a canvass of the relevant case law is required. No less thanthree distinct lines of California case law shed light on the problem of whetherJacksoncredits may be available in paternity cases involving reconciliations. There is also asmall body of out-of-state litigation bearing on the issue. (See ALR Annot.,Credit forTime Resided,supra, 104 A.L.R. 5th 605.) While none of these are determinative, theyinform our decision.1The “Jacksonline” consists of:Jackson, supra, 51 Cal.App.3d363,In re Marriage of Matthews(1980) 101 Cal.App.3d811,In re Marriage of Okum(1987) 195 Cal.App.3d176, andTrainotti, supra, 212Cal.App.3d1072.2All undesignated statutory references in this opinion are to the Family Code.4
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