Placencia v. Mooney CA2/6

Filed 9/16/15 Placencia v. Mooney CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

STEVEN PLACENCIA, 2d Civil No. B254131 (Super. Ct. No. D355151) Plaintiff and Respondent, (Ventura County)

v.

DENISE MOONEY,

Defendant and Appellant.

Steven Placencia (father) and Denise Mooney (mother) are the parents of a son born in February 2009. The parties never married. Mother appeals from a judgment determining child custody, visitation, and child support. We affirm. Factual and Procedural Background The parties lived together from son's birth until February 2013, when mother moved out of the family home. Father has two older children and mother has one older child from different relationships. In February 2013 father filed a petition to establish a parental relationship with son. He requested legal and physical custody. On May 7, 2013, the parties signed a mediated agreement on custody and visitation (not child support). The court approved the agreement. The parties were unable to agree on all matters concerning custody and visitation.

After a trial at which both parties and a mediator testified, the court issued a judgment awarding the parties joint legal custody. Using the DissoMaster computer program, the court determined that father's guideline child support obligation is $157 per month. It deviated from the guideline amount and ordered father to pay support of $100 per month. The court ordered that father is entitled to claim son as a dependent for tax purposes. The Appeal Survives Father's Death On May 27, 2015, father's counsel filed a letter informing us that his client had died on April 29, 2015. Father's counsel stated: "I wanted to bring this to the court's attention so that a determination can be made as to whether or not the appeal will survive" father's death. On June 11, 2015, we sent a letter to counsel for both parties in which we stated: "Custody and visitation issues are obviously rendered moot by [father's] death. . . . It appears that the appeal survives as to the child support issues: 'In California the rule is that the obligation of a father to support his minor child which is fixed by divorce decree or property settlement agreement, does not cease upon the father's death, but survives as a charge against his estate. [Citations.]' (Taylor v. George (1949) 34 Cal.2d 552, 556; accord, In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1106.) If you believe that any issues other than custody and visitation are rendered moot by [father's] death, you have until July 2, 2015, to serve and file a supplemental letter brief explaining why this is so." Neither party responded to our letter. "[W]e have not received any request to . . . effect a substitution[] in light of [father's] death. Under these circumstances, we have retained the original title of the case." (Konig v. Fair Employment and Housing Com'n (2002) 28 Cal.4th 743, 746, fn. 3; see Code Civ. Proc., § 377.41 ["On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative . . . ."]; Cal. Rules of Court, rule 8.36(a)