Cooper v. O'ROURKE

Opinion

DOSSEE, J.

This is an appeal from an order terminating child support upon a finding by the trial court that the child’s mother was intentionally frustrating the father’s efforts to maintain contact with the child. Contra Costa County, to whom the child support payments had been paid, appeals, arguing that mere interference with visitation, without concealment of the child, is not a sufficient ground to terminate child support. We agree, and we reverse the order.

Factual and Procedural Background

In 1984 respondent Michael V. O’Rourke was ordered to pay $200 per month as child support for his daughter Victoria, who was bom in 1983 to

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Carol Ann Lee. The payments were to be made to the County of San Mateo. In October 1991, after O’Rourke brought a contempt action against Lee, the parties agreed to a visitation schedule. The court’s order provided, among other things, that neither party would remove Victoria from California without giving the other party 30 days’ written notice.

Lee married and now uses the name Cooper. Cooper and O’Rourke continued to disagree about visitation, and in 1992, after mediation, the San Mateo County Superior Court issued a new visitation order. The order contemplated that Cooper would be moving to Virginia, and the order set out alternative visitation schedules for O’Rourke depending upon when the move occurred. The order did not require notice to O’Rourke before a move occurred.

At some point Cooper, her new husband, and Victoria began living in Contra Costa County, and O’Rourke made his support payments to the Contra Costa County District Attorney’s office of family support services. In March 1993, O’Rourke filed a motion in San Mateo County Superior Court to terminate child support on the ground that Cooper had moved to Florida with Victoria without giving him 30 days’ notice as required by the court order of October 1991. The Contra Costa County District Attorney opposed the motion on behalf of Cooper. At the hearing on the motion, held on May 21, 1993, O’Rourke testified that Cooper had moved to Florida in February 1993, after telling him, first, that she was staying in San Ramon, and, second, that she was moving to Forestville (California). O’Rourke learned of the move to Florida only when Cooper called him from “halfway across the United States.” He had no address or telephone number to reach Victoria. Not until minutes before the hearing began did O’Rourke obtain Cooper’s address and telephone number, which were provided by the district attorney.