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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




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                                              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

abused its discretion when it did not join Monica Silvestre, the mother, to the action; it

included basic allowances for housing and subsistence in calculating Pascual’s income; it

denied Pascual’s motion to set aside his voluntary declaration of paternity; and it did not

make necessary findings.

       Plaintiff County—the County of San Bernardino, Department of Child Support—

generally disputes these contentions but agrees that the case may be remanded to

determine whether Pascual is entitled to a hearing on his motion to set aside the paternity

declaration. We agree the trial court did not abuse its discretion but the judgment is

reversed and the case remanded to address Pascual’s challenge to his voluntary

declaration of paternity and any related issues.

                                             II

                   FACTUAL AND PROCEDURAL BACKGROUND

       In April 2011, County filed a complaint against Pascual seeking child support for

Joseph, who was born in April 2002. The complaint alleged that the parents were

Pascual and Silvestre, who had both signed a Voluntary Declaration of Paternity. The

complaint sought monthly support of $808, beginning May 1, 2011, and the payment of

health insurance and requested that Silverstre be added as a party. Pascual’s gross

monthly income was $4,426.

                                              2
       Pascual filed an answer in August 2011, responding that his actual income was

less than stated in the complaint and he was entitled to credit for past child support.

       In October 2011, County filed a notice of motion for judgment asking Silvestre not

be added as a party because she was incarcerated. The motion also sought child support

to be paid to Suzanne Wise, a cash-aided “non-needy caretaker,” beginning May 1, 2011.

(Welf. & Inst. Code, § 11477, subd. (a)(1)(ii).) Wise was Joseph’s maternal

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.)

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                                              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

Reconciliation Act of 1996, § 362(a), 42 U.S.C.A. § 659(h)(1)(B)(ii); 5 C.F.R.

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



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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.



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