Opinion
B158232.
11-24-2003
In re the Marriage of BONNIE and JESUS AGUAYO. BONNIE L. AGUAYO, Respondent, v. JESUS A. AGUAYO, Appellant.
William F. Byers for Appellant. Law Office of Alan Goldberg and Alan M. Goldberg for Respondent.
Jesus A. Aguayo (Jesus) appeals a postjudgment order denying his request to terminate an existing child support order requiring him to pay $625 per month to Bonnie L. Aguayo (Bonnie).
As is customary in family law cases, we refer to the parties by their first names for purposes of clarity and not out of disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1; Askew v. Askew (1994) 22 Cal.App.4th 942, 947, fn. 6.)
Jesus and Bonnie entered into a stipulated judgment wherein he agreed to pay child support for the two children born of Bonnies previous marriage. The essential issue presented is whether the trial court properly denied Jesuss request to litigate the paternity of the children in an attempt to be relieved of his obligation under the stipulated judgment to pay child support.
Jesuss obligation to pay child support was established by the stipulated judgment and is res judicata. The order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Francisco Aguayo (Francisco) and Bonnie were married on May 24, 1985. They had two children, Jesse, born February 6, 1985, and Alexis, born February 28, 1987. On January 11, 1990, judgment of dissolution was entered (the first judgment), terminating the marriage.
Bonnie then married Jesus, Franciscos brother. This marriage likewise ended in a judgment of dissolution (the second judgment), filed June 10, 1998.
In the second judgment of dissolution, which was pursuant to stipulation, Jesus agreed to pay Bonnie $625 per month in child support, to "continue until the minor children reach the age of 18, and are not in school, marry, die, or become emancipated, or further order of the Court." In this regard, the second judgment further provided: "The Court finds [the parties] are fully informed of their rights concerning child support; The child support is agreed to without coercion or duress; The judgment is in the best interests of the children involved . . . ."
With respect to the division of community property, the judgment also provided, inter alia, that Bonnie bear "[a]ny and all financial responsibility for the SBA loan[.]"
Bonnie subsequently discharged the SBA debt in bankruptcy. On March 9, 2001, the Internal Revenue Service intercepted Jesuss federal income tax refund to collect the debt.
On May 29, 2001, Jesus filed an order to show cause, seeking to terminate the existing $625 per month child support order, as well as reimbursement and further division of community debt.
Jesuss supporting declaration stated: Bonnie had agreed, and the stipulated judgment ordered, that she take full financial responsibility for the SBA loan. Due to Bonnies nonpayment, the IRS intercepted his tax return, collecting $5,998 from him. Therefore, he requested reimbursement of that amount, together with interest and attorney fees. Additionally, Bonnie had been using credit cards taken out in their names during the marriage, which were not accounted for and divided at the time of dissolution. "Further, I would like the Court to terminate the order to pay child support as indicated in the Stipulated Judgment. The reason for this is that the children are not mine, they are my brothers children and I had only signed the agreement to support them because I felt guilty for marrying my brothers former wife. [Bonnie] can verify that they are indeed my brothers children and, the Court can see from the front page of the Petition that the children were born outside of the dates of [the] marriage." (Italics added.)
In opposition, Bonnie argued that Jesus was not entitled to an order terminating support and that parentage was an irrelevancy. Bonnie asserted that Jesus had held himself out as the childrens father. Further, Jesus had voluntarily assumed the responsibility for his brothers children, and the status quo should not be disturbed.
On February 27, 2002 the matter came on for hearing. The order states the trial court "grant[ed] [Jesus] a right to reimbursement for the debts paid on behalf of [Bonnie] pursuant to paragraph 5(6) of the judgment. [Jesuss] Request to litigate the issue of Paternity of the minor children is denied."
Jesus filed a timely notice of appeal from the order.
The order is appealable as an order after final judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).)
CONTENTIONS
Jesus contends: Francisco, and not he, is the presumed father of the children pursuant to Family Code sections 7540 and 7541; the rebuttable presumptions contained in section 7611, subdivision (b), that may result in a man being presumed to be the father of a child are not found in the instant case; Jesus is not estopped to deny that he is the father of the children; if paternity has not truly been litigated, then the court failed in its duty to deal with the issue of paternity here; and even though Jesus signed a stipulated judgment to pay child support, this stipulated judgment is not a determination of paternity and may be deemed invalid because the waiver of the right to litigate the issue was not knowingly and willingly waived.
All further statutory references are to the Family Code, unless otherwise indicated.
DISCUSSION
1. Trial court properly held Jesus is barred from litigating the paternity of the children; the stipulated judgment obligates Jesus to pay child support and is now res judicata.
In an attempt to be relieved of his obligation under the stipulated judgment to pay child support, Jesus sought, by way of his order to show cause, to litigate the issue of the childrens paternity and to establish that Francisco is their biological father. The trial court properly denied Jesus the relief he requested. The stipulated judgment is res judicata and Jesus is bound thereby.
a. Res judicata: general principles.
"The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. [Citations.] The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. [Citations.] The doctrine also serves to protect persons from being twice vexed for the same cause. [Citation.]" (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811.)
Res judicata applies when (1) the issues decided in the prior proceeding are identical to those in the second litigation; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior adjudication. (Citizens for Open Access etc. Tide, Inc., v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)
Jesus, against whom the doctrine is being asserted, was a party to the underlying dissolution proceeding as well as to the instant order to show cause. Further, the underlying dissolution proceeding resulted in a stipulated judgment, which was a final judgment resolving the merits of the parties claims. Therefore, the only question here is whether the dissolution proceeding and the instant order to show cause involved the same issues.
b. The stipulated judgment resolved the issue of Jesuss liability for child support, which is the same issue he sought to relitigate by way of the order to show cause.
On the order to show cause, in an attempt to be relieved of the child support obligation to which he previously stipulated, Jesus raised the issue of paternity, asserting that he has no duty to pay child support because Francisco, not he, is the natural father of the children. The bar of res judicata applies, even if the issue of paternity was not actually litigated in the underlying dissolution proceeding.
"`If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . . The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. [Citations.] (Sutphin v. Speik (1940) 15 Cal.2d 195, 202 .)" (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.)
Jesus certainly could have raised the issue of paternity in the dissolution proceeding to resist any claim by Bonnie for child support. Accordingly, the stipulated judgment is res judicata on the issue of Jesuss obligation to pay child support. Therefore, in ruling on the order to show cause, the trial court properly denied Jesuss request to litigate the issue of paternity for the purpose of terminating the child support order.
c. Jesuss various arguments are meritless.
Much of Jesuss opening brief addresses the issue of the childrens paternity as if there were no stipulated judgment requiring him to pay child support. Jesus argues, inter alia, that the presumption under section 7611, subdivision (b), that a man is the natural father of a child if he and the childs natural mother were married to each other and the child is born during the marriage, is inapplicable. Jesus also contends he is not estopped to deny that he is the father of the children.
It is only in part V of his opening brief that Jesus addresses the impact of the stipulated judgment requiring him to pay child support. Jesus asserts the stipulated judgment is not a determination of paternity and may be deemed invalid because he did not knowingly and willingly waive the right to litigate the issue. The argument is meritless.
In support of his position, Jesus cites County of Los Angeles v. Soto (1984) 35 Cal.3d 483, which states: "It is therefore essential to the validity of a judgment entered pursuant to [Welfare and Institutions Code] section 11476.1 that the defendant understand the consequences of the agreement and ensuing judgment, and be aware of his right to a hearing at which the County is required to prove paternity and at which the defendant may present a defense with the assistance of counsel. Only if the record reflects this understanding is the judgment immune from a collateral attack." (Id., at p. 490.)
Welfare and Institutions Code section 11476.1 was repealed in 1999 and superseded by section 17416, within the Family Code. (Historical and Statutory Notes, 74A Wests Ann. Welf. & Inst. Code (2001 ed.) foll. § 11475.8 et seq., p. 170.) Section 17416 relates to enforcement of support by a local child support agency and is not pertinent here.
In any event, Jesuss claim he did not knowingly and willingly undertake to pay child support flies in the face of the record. The stipulated judgment on its face reflected that Jesus understood the consequences thereof and that Jesus knowingly and willingly obligated himself to pay child support. The stipulated judgment included the following recital: "The Court finds [the parties] are fully informed of their rights concerning child support; The child support award is agreed to without coercion or duress[.]" Thus, in entering into the stipulated judgment, Jesus expressly acknowledged that he was knowingly and willingly agreeing to pay child support. Accordingly, Jesus cannot collaterally attack the judgment and avoid his child support obligation on the ground he was not duly advised of his rights.
Further, the fact Bonnie did not fulfill her obligation to pay the SBA debt did not entitle Jesus to be relieved of his obligation under the stipulated judgment to pay child support. It has long been the law in this state that a minors right to child support and maintenance may not be limited or contracted away by the parents. (County of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849.) Therefore, Bonnies failure to pay the SBA debt does not entitle Jesus to be relieved of his obligation to pay child support.
In sum, the trial courts resolution of the order to show cause was correct. The trial court properly denied Jesuss request to litigate the issue of paternity of the minor children, but permitted him to seek reimbursement for the debts he paid on Bonnies behalf.
Bonnie did not cross-appeal to challenge the trial courts ruling recognizing Jesuss right to seek reimbursement.
DISPOSITION
The order is affirmed. The issue of the amount of attorney fees Jesus is to pay Bonnie for responding to this appeal is remanded to the trial court for its determination. (§ 2030, subd. (c);In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 756.) Bonnie shall recover costs on appeal.
We concur: CROSKEY, J., KITCHING, J.