Modification: In re Marriage of D.H. and B.G.

In re the Marriage of D.H. and B.G.

D.H.,

Appellant,

v.

B.G.,

Respondent.

No. D079801

(Super. Ct. No. D474390)

California Court of Appeal

Fourth Appellate District

Division One

Filed February 6, 2023

ORDER MODIFYING OPINION

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on January 17, 2023, be modified as follows:

The entire paragraph beginning on the bottom of page 7 (beginning with "The relevant provisions of . . .") and continuing on page 8 is deleted and replaced with the following:

The Family Code expressly contemplates the relief Father was seeking. In connection with temporary child support orders, section 3601, subdivision (a) states that a child support obligation may "terminate[] by operation of law pursuant to Sections 3900, 3901, 4007, and 4013." (Italics added.) Section 3901 itself makes no distinction between temporary and final child support orders. This supports Father's contention that a final child support obligation similarly terminates by operation of law under section 3901, subdivision (a) once the child is 18 and no longer a full-time high school student. Section 4007 further provides that upon the happening of a specified contingency, such as emancipation, "the obligation of the person ordered to pay support terminates on the happening of the contingency[]" and the payor may receive a refund for overpayments, which is precisely the relief Father requested. (See § 4007, subds. (a) & (b).)

Immediately before the last sentence of the first full paragraph on page 9 (beginning with "Accordingly, we conclude . . ."), the following sentence is inserted:

For this reason, Mother's reliance on cases involving retroactive modification or termination of accrued child support is misplaced. (See, e.g., S.C. v. G.S. (2019) 38 Cal.App.5th 591, 599 [applying rule against retroactive modification of a child support order for "payments that have already accrued"].)

The second sentence of the full paragraph on the middle of page 24 (beginning with "Rather, Father obtained . . .") is deleted and replaced with the following:

Rather, Father obtained evidence in the fall of 2020 suggesting to him that A.G. was no longer a full-time student, so he sought a refund through the channel provided by subdivision (b) of section 4007.

The second sentence of the paragraph beginning on the middle of page 26 (beginning with "Under Family Code section 4007 . . .") is deleted and replaced with the following:

Family Code section 4007, subdivision (a), authorizes the court to order the custodial parent to notify the other parent of the occurrence of a contingency under section 3901 that would terminate his child support obligations.

There is no change in judgment.

The petition for rehearing is denied.

McCONNELL, P. J.