Davis v. Davis , 68 Cal. 2d 290 ( 1968 )

BURKE, J.

The issue here presented is this: After the remarriage to each other of divorced parents may either enforce against the other child support orders made in the prior divorce proceeding ? We conclude that the trial court correctly ruled that the remarriage terminated the support provisions with respect to payments thereafter accruing, and that its order should be affirmed.

In 1958 plaintiff mother secured a divorce in this state from defendant father, and was awarded sole custody of their two minor children. No order was then made for support of the children as defendant had been served outside California by publication. Thereafter, in April 1959, counsel for the respective parties entered into a written stipulation, in the divorce proceeding, that defendant would pay plaintiff the sum of $100 per month per child until further court order, 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.

In February 1960 plaintiff and defendant remarried each other. Several months later they again separated, and plaintiff thereafter instituted a second divorce action in California. As defendant was then employed in the oil fields in Iran, he was again served by publication and again the divorce decree did not provide support payments for the children.

Upon defendant’s return to California he and plaintiff again stipulated through their respective counsel that a court order could be made for child support payments. A second order was entered in November 1964. Plaintiff does not contend that defendant has not complied with this order, but she now seeks to collect support payments for some 36 months between the separation that followed the remarriage, and the second support order. Accordingly, she moved for issuance of a writ of execution based on the first support order, entered in the first divorce action.

When the motion came on for hearing the trial court sustained an objection to the introduction of any evidence, on the ground that remarriage of the parties terminated the prior order for child support, and denied the motion. This appeal by plaintiff followed.

Plaintiff, in urging her theory that the remarriage of the parties did not terminate the first child support order, cites the general principles that parents are under a continuing legal duty to support their minor children independently of the marriage status (Civ. Code, §§ 138, 139; see Rosher v. Superior Court (1937) 9 Cal.2d 556, 559-560 [71 P.2d 918] ; Dimon v. Dimon (1953) 40 Cal.2d 516, 523-524 [254 P.2d 528] [overruled on another ground in Hudson v. Hudson (1959) 52 Cal.2d 735, 744-745 [344 P.2d 295]] ; Bernard v. Bernard (1947) 79 Cal.App.2d 353, 358 [179 P.2d 625]), and fihat child support agreements between parents are subject to approval and control by the courts. (See Plumer v. Superior Court (1958) 50 Cal.2d 631, 637 [328 P.2d 193] ; Puckett v. Puckett (1943) 21 Cal.2d 833, 839 [136 P.2d 1] ; Evans v. Evans (1908) 154 Cal. 644, 645-646 [98 P. 1044] ; McReynolds v. McReynolds (1963) 218 Cal.App.2d 683, 685-686 [32 Cal. Rptr. 462].)

W4«i. these principles defendant has no quarrel, but as he states, there is no issue here as to his basic duty to support his minor children. Rather, the more precise question is the effect of the remarriage upon the child support order made in the earlier divorce proceeding.

While it appears that no California case has considered this question or one closely analogous to it, the rule as developed in other jurisdictions is that if the parties again intermarry child custody and support orders as between themselves are thereupon terminated, as well as the jurisdiction of the court to enforce such orders, and that this is true whether or not the parents subsequently divorce again. (See Lockard v. Lockard (1951) 63 Ohio L.Abs. 549, 49 Ohio Ops. 163 [102 N.E.2d 747, 748] ; McDaniel v. Thompson (Tex.Civ.App., 1946) 195 S.W.2d 202, 203-204; Jenkins v. Followell (Okla., 1953) 262 P.2d 880, 882; Dunlap v. Dunlap (1923) 88 Okla. 200 [212 P. 608, 609] ; Ex parte Phillips (1957) 266 Ala. 198 [95 So.2d 77] ; Eppes v. Covey (Fla.App., 1962) 141 So.2d 747, 748; Rasch v. Rasch (1964) 250 Miss. 885 [168 So.2d 738, 743] ; Lowe v. Lowe (1909) 53 Wash. 50 [101 P. 704, 705] ; Oliphant v. Oliphant (1928) 177 Ark. 613 [7 S.W.2d 783, 786-787] ; Cain v. Garner (1916) 169 Ky. 633 [185 S.W. 122, Ann.Cas. 1918B 824, L.R.A. 1916E 682] ; 27B C.J.S., Divorce, § 323, subd. h, p. 730; 24 Am.Jur.2d, Divorce and Separation, § 805, p. 915.)¹ Although certain of the cited cases speak only of custody, rather than of “custody and support,’’ a custody award to the mother ordinarily carries with it a support order against the father. In other eases the court has expressly referred to the support order as well. (See Lockard, McDaniel, Dunlap, Rasch, Lowe, all supra.) Thus, in Lockard, supra, it was noted (pp. 747-748 of 102 N.E.2d) that “Where a decree of divorce makes provision for the custody, care, control, and support of minor children of divorced parents, . . . the jurisdiction of the court over custody continues. . . .

“But if the parties remarry they no longer have separate rights of custody .... Instead there is a resumption of the same joint right to custody which antedated the separation and the divorce . . . [and] the basis for the court’s'further jurisdiction ceases.

“It is generally the law that remarriage of the parents terminates a divorce court’s jurisdiction over the parties and their minor children. [Citations, including Nelson, Divorce and Annulment (2d ed.) 15.40.].”

The cited decisions are consistent with the objective of reestablishment of the family for the benefit of both the children and the parties.

The order appealed from is affirmed.

Traynor, C. J., McComb, J., Peters, J., Mosk, J., and Sullivan, J., concurred.

1 In Miller v. Powell (Tex.Civ.App., 1948) 212 S.W.2d 876, cited by plaintiff, the first divorce decree between the parents placed custody of the child with a third person, with both parents ordered to contribute to support. Accordingly, the holding that the third person's rights could not be affected.by a second intermarriage of the parents or by a custody decree' in. á later second divorce action".to .which the third ^person was not a party, is not" p’ersuasivé here. It is noteworthy, however, that the court referred to the general rule that remarriage between the parties annuls the divorce and restores them to. their rights over..their children as if never divorced. (P. 879 of 212 S.W.2d.)