In Re Marriage of Bailey

*507 Opinion

Walter Ronald Bailey (father) appeals from an order requiring Carol Lynn Bailey (mother) to pay one-half of the minor’s dental expenses but otherwise denying father’s request for child support. Father contends that under the circumstances of this case the trial court had no discretion to refuse to award child support pursuant to the Agnos Child Support Standards Act of 1984. 1 We agree and shall reverse the order.

Facts and Procedural History

Todd William Bailey, born July 13, 1970, is the minor child of the parties. On November 22, 1982, the parties entered into a stipulation providing for joint legal custody of Todd, with physical custody in the father. No provision for child support was made.

On October 20, 1986, father filed an order to show cause seeking child support for the minor. Mother filed a responsive declaration requesting that she not be ordered to pay child support.

After hearing, the court ordered existing orders to remain in effect, and ordered mother to pay one-half of the minor’s dental expenses not covered by insurance, to a maximum of $50 per month. From this order, father appeals.

Discussion

Father contends the trial court had no…

Although I concur in the judgment (order), I write separately on the topic of husband’s representation by the district attorney.

In the underlying proceeding seeking to modify a dissolution decree and order to invoke the provisions of the “Agnos Child Support Standards Act of 1984” (Civ. Code, § 4720 et seq.), appellant husband is represented by the office of the District Attorney of San Joaquin County. The reason or justification for such representation escapes my scrutiny. Husband’s declaration reveals his gross income to be $2,603.04 per month, exclusive of any sums earned by his present wife who is employed in the office of the District Attorney of San Joaquin County. Their joint income is purported to be in excess of $4,100 per month.

The mother of the child, respondent herein, reveals a gross total income of $1,119 per month and is privately represented in this proceeding. Upon questioning at oral argument the deputy district attorney, when asked for justification for his representation of the appellant husband, referred to Welfare and Institutions Code section 11475 (more reasonably the section should have been 11475.1) and Civil Code section 4801.7. His reliance on…

I concur in the result reached in the lead opinion and in its reasoning except for one point of law that is unnecessary to the result obtained. I also disagree with the concurring opinion, which also discusses a point of law that is unnecessary to the result. I write separately out of concern that these points of law, which could easily be omitted from the opinion, are wrongly decided and will cause unnecessary confusion in the adjudication of child support cases in the trial courts. Moreover, a rejoinder to the concurring opinion is necessary because it erroneously suggests the district attorney has violated the law.

My difference with the lead opinion is in its assertion, made without analysis, that “The ‘obligated’ parent referred to in [subdivision (e) of Civil *514 Code section 4720] is the noncustodial parent from whom support is sought.” (Maj. opn., p. 509.) (All further statutory references are to the Civil Code unless otherwise noted.) I think the “obligated parent” is any parent with a legal obligation to support the child, regardless of whether the parent has physical custody.

Subdivision (e) of section 4720 is set out in the margin. 1 Read in its entirety, the…

Walter Ronald Bailey (father) appeals from an order requiring Carol Lynn Bailey (mother) to pay one-half of the minor's dental expenses but otherwise denying father's request for child support. Father contends that under the circumstances of this case the trial court had no discretion to refuse to award child support pursuant to the Agnos Child Support Standards Act of 1984. [1] We agree and shall reverse the order.

Todd William Bailey, born July 13, 1970, is the minor child of the parties. On November 22, 1982, the parties entered into a stipulation providing for joint legal custody of Todd, with physical custody in the father. No provision for child support was made.

On October 20, 1986, father filed an order to show cause seeking child support for the minor. Mother filed a responsive declaration requesting that she not be ordered to pay child support.

After hearing, the court ordered existing orders to remain in effect, and ordered mother to pay one-half of the minor's dental expenses not covered by insurance, to a maximum of $50 per month. From this order, father appeals.

(1) Father contends the trial court had no discretion under the Agnos Act to…