Opinion
APPEAL from a judgment of the Superior Court of Plumas County No. 26778, Peter B. Twede, Family Law Commissioner.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Paul Reynaga, Supervising Deputy Attorney General, Sharon Quinn, Deputy Attorney General, for Plaintiff and Appellant.
W. Wayne Yates, Jr., for Defendant and Respondent.
THE COURT:
The opinion of this court filed March 26, 2008, in the above entitled case is modified as follows:
On page 8, before the paragraph that begins “Here, the trial court,” insert the following paragraphs and
In a petition for rehearing, the county argues that we should interpret the word “compensate” in Family Code section 3951, subdivision (a) narrowly, as referring to reimbursement for past expenses only, and hold that the statute “does not prohibit the adjudication of a request for the establishment of a prospective child support order,” such as the one at issue here. The county contends this construction of the statute is necessary because the statute applies not only to support provided by “a relative,” but also to support provided by “the other parent.” In the county’s view, if “the word ‘compensate’ in this statute” is interpreted “to prohibit a request to establish prospective child support,” then “a custodial parent voluntarily supporting that parent’s child would not be able to establish a court order for prospective child support against the non-custodial parent without the non-custodial parent’s agreement. Such an interpretation would effectively bar the local child support agencies from establishing an order for prospective child support against the non-custodial parent in the majority of their cases.”
The county insists we are bound to grant its petition for rehearing under Government Code section 68081 because “[s]ection 3951 was never raised as a defense by [Rodriquez] during trial, was not expressly cited nor discussed by the trial court in the ruling challenged on appeal, and was not proposed, argued, or briefed by either party on appeal.” The county is mistaken. Government Code section 68081 applies only where a decision is “based upon an issue which was not proposed or briefed by any party to the proceeding.” (Gov. Code, § 68081, italics added.) The issue in this case was whether the trial court erred in ruling that Rodriquez was not obliged to pay child support to her brother and sister-in-law, and Family Code section 3951 is simply a statute that bears on that issue. Government Code section 68081 does not require us to give the parties the opportunity to brief every statute (or other authority) that we may apply in deciding the issues in their case, so long as the parties have had the opportunity to brief the issues themselves. (See People v. Alice (2007) 41 Cal.4th 668, 677 [“Section 68081 does not require that a party actually ha[s] briefed an issue; it requires only that the party had the opportunity to do so”].) Accordingly, we address the county’s argument regarding Family Code section 3951 by modifying our opinion but denying the petition for rehearing.
We are unpersuaded. If Family Code section 3951, subdivision (a) were construed as barring only reimbursement for past support, the statute would be superfluous, because Family Code section 4009 already bars such reimbursement by limiting the retroactivity of child support orders. Generally, “we must strive to . . . avoid interpretations which render statutory language superfluous.” (Mundy v. Superior Court (1995) 31 Cal.App.4th 1396, 1405.) Thus, the rules of statutory interpretation support the conclusion that the application of Family Code section 3951 does not depend on when the support was (or will be) provided.
“An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service.” (Fam. Code, § 4009.)
Furthermore, the county’s concern that our interpretation of the statute will “effectively bar the local child support agencies from establishing an order for prospective child support against the non-custodial parent in the majority of their cases” is unwarranted. This is so because Family Code section 3951, subdivision (a) applies only to “voluntary” support. The county’s concern rests on the belief that a custodial parent who seeks an order for child support from the noncustodial parent -- whether in a paternity (or maternity) action or a marital dissolution proceeding -- must be treated as a parent seeking “compensat[ion] . . . for the voluntary support of the . . . child” within the meaning of section 3951, subdivision (a). Not so. Under California law, “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” (Fam. Code, § 3900.) Given that it is the legal duty of both parents to support their child, support provided by a custodial parent in actually housing, feeding, and caring for the child -- even in the absence of a court order -- cannot be deemed “voluntary.” Accordingly, when a custodial parent seeks a child support order against the noncustodial parent, the custodial parent is not seeking compensation for the “voluntary support” of the child within the meaning of Family Code section 3951, subdivision (a). (See Richter v. Houser (N.D. 1999) 598 N.W.2d 193, 197-198 [holding that an identical statute did “not prohibit the parent from collecting, on the child’s behalf, support money the other parent has a legal obligation to provide for the child”].)
Given the general duty of both parents to support their child (Fam. Code, § 3900), it might be argued that support provided by a parent is never “voluntary.” However, where a noncustodial parent has been ordered to pay a certain amount of child support and voluntarily chooses to pay more, the additional amount could rightfully be characterized as voluntary. In such a case, Family Code section 3951, subdivision (a) would bar the noncustodial parent from seeking compensation for the overpayments from the custodial parent.
Properly understood, then, Family Code section 3951, subdivision (a) bars a parent or relative from seeking compensation from the other parent for “voluntary support” of the child, absent an agreement for compensation, and this bar applies to prospective child support orders as well as to claims for reimbursement. The operative fact is not whether the support at issue was provided in the past or will be provided in the future, but whether the support at issue is (or will be) “voluntary.” Where, as here, the parent or relative seeking compensation from the other parent has no legal duty to support the child, the support at issue is “voluntary” within the meaning of the statute.
With this modification, the petition for rehearing is denied. The modification does not affect the judgment.
SIMS, Acting P.J., NICHOLSON, J., ROBIE, J.