San Bernardino Cty. Dept. Child Support v. Pascual CA4/2 (2014) · DecisionDepot
San Bernardino Cty. Dept. Child Support v. Pascual CA4/2
California Court of Appeal Jul 31, 2014 No. E057498Unpublished
Filed 7/31/14 San Bernardino Cty. Dept. Child Support v. Pascual CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SAN BERNARDINO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, E057498
Plaintiff and Respondent, (Super.Ct.No. CSKS1103685)
v. OPINION
RICHARD PASCUAL,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John A. Crawley,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Law Offices of F. Adrian Muñoz and Richard S. Singer for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney
General, Linda M. Gonzalez, and Ricardo Enriquez, Deputy Attorneys General, for
Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Richard O. Pascual appeals from a judgment ordering payment of child
support, which was entered on August 13, 2012. On appeal, Pascual argues the trial court
grandmother, who had custody of him while Silvestre was incarcerated.
Pascual filed a response asking that the order not be retroactive and that the other
parent share support although Pascual acknowledged that Silvestre was serving a two-
year prison sentence.
In his supporting declaration, Pascual stated he is Joseph’s father; he was present
at the hospital when the child was born in April 2002; and he signed the birth certificate,
although he and Silvestre were separated at that time. In August 2003, Pascual enlisted
in the Army and listed Joseph as his dependent for health and dental insurance although
Silvestre refused to receive the insurance cards.
Pascual was deployed to Germany and Iraq in 2003 and 2004. In December 2004,
he arranged for money to be paid to Silvestre’s brother for Joseph’s support. Later he
gave money to Silvestre when he could locate her. In March 2005, Pascual got married
while on leave and had Joseph for a one-week visit. In June 2005, Silvestre demanded
more money and refused to let Pascual see Joseph.
In October 2006, Pascual was stationed in Barstow and hired a lawyer to assist
him with visitation. Silvestre’s father allowed Pascual to have contact with Joseph while
3
Silvestre was in jail in December 2006. After she was released, Pascual could not locate
her. From October 2009 until December 2011, Pascual was in Georgia or Iraq. In March
and June 2011, he tried unsuccessfully to find Joseph.
As part of his response, Pascual argued that the monthly amounts of $1,128 and
$325.04—which he received for BAH (Basic Allowance for Housing) and BAS (Basic
Allowance for Subsistence)1—should be excluded from child support calculations.
Pascaul’s lawyer also stated that he was filing a custody action on behalf of Pascual.
The hearing on December 16, 2011, was continued because Pascual raised an issue
about paternity. Pascual then filed an application to set aside his voluntary declaration of
paternity. He submitted another declaration, stating that he had doubted his paternity but
his own father had forced him to sign the declaration. Nevertheless, Silvestre had
thwarted his efforts to have contact with Joseph although he gave her money and enrolled
Joseph in his health insurance. At that time, Silvestre was incarcerated and Joseph was
living with his maternal grandmother.
At the hearing on March 12, 2012, the court denied as untimely Pascual’s
paternity challenge and granted judgment for a support order of $805 monthly, including
the basic allowances. The court also did not add Silvestre as a party and found that “this
is a non-needy caretaker case and the support obligation shall end when aid ends.”
1 “The BHA is a monthly payment for active military members that is intended to defray the cost of civilian housing. (37 U.S.C. § 403(a)(1).) The BSA is an additional monthly sum to subsidize the cost of meals purchased on or off base. (37 U.S.C. § 402(a)(1).)” (In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 552, fn. 4.)
4
III
ADDING SILVESTRE AS THE OTHER PARTY
The trial court’s determinations regarding an award of child support and joinder
are reviewed for an abuse of discretion. (In re Marriage of Leonard (2004) 119
Cal.App.4th 546, 555, citing In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-
283; County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 25.) Pascual
claims the trial court abused its discretion by not joining Silverstre as the other party.
Pascual’s argument fails to consider that the support order imposed by the court
was only in effect from May 1, 2011 until “aid ends”—presumably when Silvestre was
released from incarceration—which apparently occurred before March 2013—and she
regained custody of Joseph from his grandmother. It was certainly not an abuse of
discretion for the court to decide that Silvestre should not be joined as a party when she
was in prison and had no income. After she was released from prison, the support
obligation Pascual was paying to Wise would end. Therefore, Pascual’s request that this
action be dismissed may be moot if the support order has now ended.
Notwithstanding the foregoing, we also agree with the County’s argument that
Silvestre is not a necessary party under Welfare and Institutions Code section 17404
because she was not requesting or receiving support enforcement services. Instead, the
support enforcement was for the benefit of Joseph’s grandmother, his caretaker.
Furthermore, Pascual’s support obligation was calculated independently of Silvestre’s
obligation. (Welf. & Inst. Code, § 17402.) Therefore, adding her as the other party
would not have reduced the amount of Pascual’s support order. Under these
5
circumstances, it was not an abuse of discretion to deny Pascual’s request to join
Silvestre as the other party.
IV
BAH AND BAS
The trial court based its monthly support order of $805 partly on the BAH and
BAS payments of $1,128 and $325.04, which were made to Pascual as an active Army
member. (In re Marriage of Stanton, supra, 190 Cal.App.4th at p. 253.) In nonmilitary
cases, the courts have held that ordinary housing and meal reimbursements are not job-
related and are not excludable from income. (Stewart v. Gomez (1996) 47 Cal.App.4th
1748, 1755.)
Pascual’s arguments that BAH and BAS payments should be excluded from child
support calculations, which are based on federal law, were comprehensively rejected in
Stanton: “We join other courts in holding federal preemption is inapplicable to military
allowances such as BAH and BAS. The inclusion of such allowances does not do major
damage to a clear and substantial federal interest. [Citation.] ‘To the contrary, the
Department of Defense by regulation and otherwise encourages members of the armed
forces to fulfil [sic] their family commitments.’ [Citations.]” (In re Marriage of Stanton,
supra, 190 Cal.App.4th at pp. 560-561.)
Stanton also expressly rejected reliance on 42 United States Code section 659, “a
federal statute that excludes military allowances ‘payable pursuant to chapter 7 of title 37,
United States Code [(37 U.S.C.S. § 401 et seq.)], as prescribed by the Secretaries
concerned . . . as necessary for the efficient performance of duty,’ from income subject to
6
withholding in a garnishment proceeding against the United States government to satisfy
support obligations. (42 U.S.C. § 659(h)(1)(B)(ii); 5 C.F.R. 581.104(h)(2)(ii), (iii)
(2010).)” (In re Marriage of Stanton, supra, 190 Cal.App.4th at p. 556.) Stanton
concluded that federal statutes—making military allowances for housing and food
nontaxable and exempting them from garnishment—do not preempt the inclusion of such
allowances in a party’s gross income for purposes of calculating child and spousal
support. (In re Marriage of Stanton, at pp. 556-560, citing 10 U.S.C. § 101(a)(15); 26
U.S.C. §§ 134(a), 134(b)(1)(A); Personal Responsibility and Work Opportunity
581.104(h)(2)(ii), (iii) (2010); Fam. Code § 4058, subd. (a).) The trial court followed
established law and did not abuse its discretion by including BAH and BAS in its child
support calculations.
V
DECLARATION OF PATERNITY
The County agrees that, under the Servicemembers Civil Relief Act (SCRA), 50
United States Code section 501 et seq., Pascual may be able to challenge the voluntary
declaration of paternity because the limitations period for an action was tolled during the
period of his active duty military service. (50 U.S.C. § 526(a); Conroy v. Aniskoff (1993)
507 U.S. 511, 512-516.) However, the County contends Pascual’s request to set aside the
declaration under Family Code section 7575, subdivision (c), will fail on the merits. This
argument—and other arguments made by the County about what should happen on
7
remand to the trial court—are not at issue in this appeal. We do not predict what should
or will happen after remand.
We conclude that remand to the trial court is appropriate for further proceedings
regarding Pascual’s efforts to set aside the paternity declaration. Upon remand, the trial
court will also be able to address Pascual’s related contention about whether he may
claim custody based on whether his paternity is established. However, Pascual waived
his additional claims regarding the stay of the support order and any error made in
calculating the support order based on Pascual filing his taxes in California, not Georgia.
(In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
VI
DISPOSITION
The trial court’s orders are affirmed with the exception of the order denying
Pascual’s request to set aside the declaration of paternity as untimely. We remand for the
sole purpose of addressing Pascual’s challenge to his voluntary declaration of paternity.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RICHLI Acting P. J.
MILLER J.
8
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the child support order but remanded the case for the trial court to reconsider the defendant's motion to set aside his voluntary declaration of paternity, which may have been tolled by the Servicemembers Civil Relief Act.
Issues
Did the trial court abuse its discretion by failing to join the mother as a party?
Did the trial court err by including military housing and subsistence allowances in the child support calculation?
Did the trial court err in denying the defendant's motion to set aside his voluntary declaration of paternity as untimely?
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The trial court’s orders are affirmed with the exception of the order denying Pascual’s request to set aside the declaration of paternity as untimely.”
“We remand for the sole purpose of addressing Pascual’s challenge to his voluntary declaration of paternity.”