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C.A. Won’t Reverse Order Denying Change in Support Order Based on Legal Maxim
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday found a legal maxim to be an adequate basis for reversing an order denying a reduction in, or elimination of, court-ordered child support.
A father, Dwayne Lucious, acting in pro per, cited this maxim, contained in Civil Code §3526:
“No man is responsible for that which no man can control.”
That principle, he maintained, rendered him immune from child support obligations because the mother has sole custody of their child, “A.L,.” and he “has no control over her.”
Dato’s Opinion
In an unpublished opinion, Justice William Dato responded:
“Civil Code section 3526 is a maxim of jurisprudence intended to aid in the just application of the Civil Code….Father’s obligation to support A.L. is set forth in the Family Code, arising from the parent-child relationship without a prerequisite of control or custody…, and that statutory obligation may not be nullified by a legal maxim….In fact, Father’s lack of physical responsibility for A.L. weighs in favor of requiring him to pay child support.”
That Lucious is out of work did not require a lowering of support payments, Dato said, noting that Family Code §4058(b) authorizes imputing to a parent income that is commensurate with his or her earning ability.
The appellant also asserted that while he presented evidence of being out work, neither the County of San Diego nor his ex wife, Sharayah Horne, put forth evidence justifying keeping the present support order, for $577 per month, in place.
Burden on Father
Dato wrote:
“However, the County and Mother were not required to produce any evidence because Father, as the party seeking to reduce child support, bore the burden to show changed circumstances….Additionally, Father is effectively arguing there was insufficient evidence to permit a finding that he had the opportunity to work full-time, and we cannot consider this claim on appeal given Father’s election to proceed without a reporter’s transcript and the absence of any apparent error in the record.”
The case is County of San Diego v. D.L., D081738.
Suing Judicial Officers
The San Diego Superior Court commissioner whose order was appealed is Deborah A. Cumba.
Judge Terrie E. Roberts previously handled matters in the domestic relations case and Lucious sued her in the U.S. Southern District of California for alleged violations of his civil rights. The action was dismissed with prejudice on Dec 7, 2022, based on judicial immunity.
That doctrine also served as the basis for jettisoning his action against then-Commissioner (now Judge) Pennie K. McLaughlin based on her conduct during child support hearings.
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