Attorney Father, Whose Wife Had Passed, Claimed He Entered Into A Strictly No Strings Attached Arrangement With College Student Mother In Exchange For Money. She Claims Otherwise.
A child with special needs, who suffers from cerebral palsy and chronic lung problems, is at the center of this He Said/She Said in Monterey County Dept. of Child Support Services v. P.H., Case No. H043351 (6th District, February 28, 2019) (unpublished). Petitioner Mother and Respondent Father had met online. Father claims they entered into an approximate 4-month long, no-strings-attached arrangement in exchange for his monthly payments to her of $600 per month. He claims Mother was responsible for, and confirmed she was taking, birth control, and that he was responsible for providing her with evidence that he did not have a sexually transmitted disease. She claims they had a 6-7 month long dating relationship, that she had made it clear she was looking for long-term commitment, and that he provided her $800-$900 per month to assist with her expenses. Father claims the arrangement ended over a dispute as to whether he was getting what he paid for. She claims the relationship ended and he stopped giving her money when she became pregnant.
Nonetheless, after the child was born, Mother petitioned the court to establish paternity, for child support, and attorney fees of $5,000. Father did not object to, and repeatedly failed to comply with, the trial court’s order for genetic testing. The court then made its own paternity finding, concluding him to be the father of the child, pursuant to Family Code section 7551 (based on Father’s refusal to participate in the court-ordered genetic testing).
With regard to child support, Father claimed he had been a stay-at-home dad while his now-deceased attorney wife worked full-time, had last received a paycheck in 1988, had since been a self-employed civil appellate attorney taking only the odd job here and there, and had only earned a gross average of $500 per month every year since 2008. Ultimately, the trial court determined it to be in the child’s best interest to consider Father’s earning capacity in lieu of actual income for determining child support. To that end, the court imputed $4,583 per month to Father based on employment ads and general salary amounts/evidence for new attorneys in the area that were presented at the hearing.
Finally, the trial court ordered Father to pay Mother $3,000 (in monthly installments of $1,000) of the $5,000 in attorney fees she had requested pursuant to Family Code sections 2030 (needs-based) and 271 (sanctions-based for misconduct), without designating any portion of the award to either section.
On appeal, Father challenged the Parentage Judgment – claiming the trial court did not consider the “rights of others” in determining parentage, and erred in considering only the child’s rights rather than his. The 6th District disagreed – viewing section 7551 as a discovery sanction, and concluding that the trial court correctly considered the “rights of others,” meaning the rights of those persons who are entitled to the “probative value of the blood test evidence,” not the rights of the party or “wrongdoer” who refuses to submit to the genetic test as ordered – that the rights of the child supported entry of the Parentage Judgment based on Father’s failure to undertake the court-ordered genetic testing. The 6th District also did not agree with Father’s argument that substantial evidence did not support the trial court’s determination that imputing income was in the child’s best interest, but agreed that substantial evidence did not support the amount of income imputed to Father. On that issue, the 6th District found the trial court had abused its discretion, and remanded back to the trial court for further proceedings.
As for the award of attorney’s fees, the 6th District affirmed the trial court’s order. Although they agreed with Father, that section 2030 does not apply to actions for determination of parentage, they determined that there are similar needs-based statutes found throughout the Family Code that do apply – citing section 7605 – with the principle that the best interests of the child governs. Further, they found substantial evidence that Father had notice that Mother would seek attorney fees based on the parties’ relative financial circumstances, and that substantial evidence concerning the parties’ circumstances also supported the award. Based on the 6th District's findings on the needs-based award, it did not address Father's arguments concerning section 271 for sanctions-based fees.