Filed 7/21/17 County of El Dorado v. M.B. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(El Dorado)
----



COUNTY OF EL DORADO,

Plaintiff and Respondent,

v.

M.B.,

Defendant and Appellant,

C.F.,

Respondent.
C080993

(Super. Ct. No. PFS20120146)




When a child who was conceived, born, and lived in Germany was six years old, the German Institute for Youth Human Services and Family Law (German Institute) sent a support petition to the State of California requesting assistance in seeking child support from her father, M.B, who resides in California. Pursuant to the Uniform Interstate Family Support Act (UIFSA) as adopted by the California Legislature, the trial court entered a paternity judgment and ordered M.B. to pay child support. M.B. appeals the trial court’s denial of his motion to set aside the judgment he filed two years after the judgment was entered. He asserts the trial court lacked subject matter jurisdiction and he is entitled to have the judgment set aside because he presented evidence that another German became the child’s presumed father by taking care of her along with his own biological daughter. Because both arguments are completely without merit, we affirm.
FACTS
In July of 2005 when he was 20 years old, M.B. moved to Germany for seven months. He had a relationship with C.F. and by the time he left Germany C.F. was pregnant. C.F.’s divorce from her husband, from whom she had been separated since 2003, was final in August of 2005. She gave birth to a baby girl in August of 2006, but by then M.B. had returned to California. He traveled back to Germany to help with the baby and lived with C.F. for about six months. When the relationship ended, C.F. moved in with another man, Stefan, and M.B. moved back to California.
In 2008 C.F. began receiving public assistance in Germany for M.B.’s daughter. The El Dorado County Department of Child Support Services (the Department), at the German Institute’s request, sought to establish a judgment of parentage, child support, and health care coverage for the child and arranged for genetic testing for M.B., C.F., and the child. Genetic testing indicated a 99.99 percent probability of paternity. M.B. objected to the admissibility of the genetic testing.
M.B. served C.F. with a request for admissions, special interrogatories, and a request for a production of documents. C.F. provided various documents and in her responses stated she moved in with Stefan in February 2007, when M.B.’s daughter was six months old, because M.B. was physically violent toward her. She further stated she lived with Stefan for three years, had a daughter with him, that M.B.’s daughter calls Stefan “Dad,” and that since their separation, when Stefan picks up his daughter for visitation, he also takes M.B.’s daughter. But Stefan is not her biological father and he does not pay child support for her. He never adopted her. She denied that Stefan held M.B.’s daughter out as his child. C.F. acknowledged that no orders regarding support or visitation had been issued, a fact confirmed by the child support specialist who declared that nothing had been filed in the German court concerning paternity or support.
Prior to a hearing on August 26, 2013, M.B. had stipulated to paternity. During the hearing, however, he indicated he was no longer interested in stipulating to paternity. He objected to the genetic testing because he did not have the advice of counsel before submitting to the genetic test.
The trial court, having read all of M.B.’s papers, found that everything indicated he was the child’s father. Following argument, the court found M.B. is the child’s biological father, and therefore, was obligated to support her. The court held that it had subject matter jurisdiction to hear the action because M.B. is in California, a child exists, and California has an agreement with Germany with regard to support matters. Moreover, M.B. had the required contacts with California for the trial court to exercise personal jurisdiction over him because he lives, works, and has a family in the state, thereby availing himself of the benefits of the laws of California.
The court rejected M.B.’s arguments that Stefan is the presumed father because the evidence did not show that Stefan held the child out as his own, that family members thought she was his child, or that the schools and community thought the child was his daughter. The court was not persuaded that Stefan’s generous gesture of including M.B.’s daughter in his summer visitation with his own daughter was an affirmative act holding her out as his own. The court ordered M.B. to pay child support in the amount of $251 per month commencing November 1, 2013, to set aside $425 each month in a travel fund, and to pay $25 monthly toward payment of his arrearages of $12,168.
Two years later, M.B. filed a motion to set aside the judgment. He argued the judgment should be set aside because the child had a presumed father in Germany at the time the paternity judgment was entered. Contrary to the express language of the statute, M.B. sought to set aside the judgment based on legislative intent and policies and the presumed father statutes. M.B. also maintained that the trial court lacked subject matter jurisdiction because the UIFSA was never intended to allow a resident of another country to obtain a parentage and support order in California based solely on the residence of the other parent. The court denied the motion to set aside the judgment of paternity with prejudice. We review the trial court’s resolution of the legal issues de novo; but to the extent its factual findings are challenged, we examine the entire record for substantial evidence and consider the evidence in the light most favorable to the Department. (Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.)
DISCUSSION
I
Jurisdiction
The UIFSA governs the establishment, enforcement, and modification of support orders in cases where any parent or child who is the subject of the support proceeding resides outside the state. (Former Fam. Code, § 4915, added by Stats. 1997, ch. 194, § 2, p. 884, repealed by Stats. 2015, ch. 493, § 2, eff. Jan. 1, 2016.) A state, as used in the UIFSA, includes a foreign country that has established reciprocity with California. (Former Fam. Code, § 4901, subd. (s)(2), added by Stats. 1997, ch. 194, § 2, pp. 878-880, as amended by Stats. 1999, ch. 83, § 51, pp. 1360-1362, repealed by Stats. 2015, ch. 493, § 2, eff. Jan. 1, 2016.) Former Family Code section 5005 explicitly granted the California Attorney General the authority to declare a foreign jurisdiction a reciprocating state. (Stats. 1999, ch. 652, § 4, p. 4662, repealed by Stats. 2015, ch 493, § 2, eff. Jan. 1, 2016.) At the time of the paternity proceedings, Germany had been declared a reciprocating state by California. (Office of Child Support Enforcement, Admin. for Children and Families, U.S. Dept. of Health and Human Services, Intergovernmental Reference Guide—California, § C1, at <https://ocsp.acf.hhs.gov/irg/profile.html?selection=STA&stateGeoBox=06> [as of June 22, 2017].) M.B. does not suggest otherwise.
Former Family Code section 4915 states that UIFSA actions include proceedings to determine parentage and establish an order for child support. (Former Fam. Code, § 4915, subd. (b)(1) & (6), added by Stats. 1997, ch. 194, § 2, p. 884, repealed by Stats. 2015, ch. 493, § 2, eff. Jan. 1, 2016; National Conference of Commissioners on Uniform State Laws, UIFSA (1996) § 301, pp. 34-35, com. to § 301, p. 35.) Former Family Code section 4919, subdivision (b) provides: “A responding tribunal of this state, to the extent otherwise authorized by law, may do one or more of the following: [¶] (1) Issue or enforce a support order, modify a child support order, or render a judgment to determine parentage . . . .” (Former Fam. Code, § 4919, subd. (b)(1), added by Stats. 1997, ch. 194, § 2, p. 885, repealed by Stats. 2015, ch. 493, § 2, eff. Jan. 1, 2016; National Conference of Commissioners on Uniform State Laws, UIFSA (1996) § 305, pp. 38-39.)
In fact, the only limitations placed on a responding tribunal’s ability to establish a paternity and support judgment for an out-of-state petitioner under UISFA are: (1) the individual or child support enforcement agency seeking the order must be located in another state (or reciprocating country); (2) no other order entitled to recognition under UIFSA can have been issued; and (3) the responding tribunal must have personal jurisdiction over the respondent obligor. (Former Fam. Code, § 4935, added by Stats. 1997, ch. 194, § 2, p. 889, repealed by Stats. 2015, ch. 493, § 2, eff. Jan. 1, 2016; National Conference of Commissioners on Uniform State Laws, UIFSA (1996) § 401, p. 54, com. to § 401, pp. 54-55.)
M.B. contends the plain language of the California statutes incorporating the UFISA into California law actually contravenes the legislative intent to restrict the responding court’s authority to enforce orders of the initiating tribunal, not to empower a responding tribunal to issue a support order for the benefit of a child or parent who has no contacts with the State of California. Not only does M.B. fail to provide any evidence of this presumed legislative intent, but he ignores the most fundamental rule of statutory construction that legislative intent is embodied in the plain language of the statute. (Estate of Thomas (2004) 124 Cal.App.4th 711, 719.) Here the statutes unambiguously give a responding tribunal the authority to issue support orders as long as none of the express limitations set forth in former Family Code section 4935 do not apply. M.B. does not argue that any of the limitations apply, and indeed, they do not.
As previously established, Germany is a reciprocating state for purposes of the UIFSA. The petition to determine parentage and to establish a support order for M.B.’s daughter came from the German Institute. There were no preexisting support orders for the child. And the court found it had personal jurisdiction over M.B. based on his general appearance in the proceedings as well as his multiple contacts as a resident and wage earner.
In essence, M.B. believes it is unfair and unjust to allow a California tribunal to issue a child support order on behalf of a child who has no contacts with the State of California. It is the role of the California Legislature to determine the public policy of the state and the Legislature has in clear and unequivocal terms stated that a California court, in responding to a petition to establish parentage and support by a reciprocating foreign country, can issue a support order. There is simply no statute or reasonable interpretation of a statute limiting the court’s jurisdiction to enforcement of existing child support orders as M.B. wishes the law to be. As a court, we must apply the plain language of the statutes before us and, in this case, that is an easy task. M.B. has failed to point to any statute or case to support his notion of a limited jurisdiction at odds with the express language of the Family Code sections discussed above.
II
Motion to Set Aside Paternity Judgment
Similarly, M.B. asks us to ignore the plain language of a clear statutory scheme severely limiting the circumstances under which a paternity judgment may be set aside and consider what he believes to be the intent of the Legislature and, from his point of view, what justice demands. We begin, as we must, with the express language of the pertinent statutes.
Family Code section 7646, subdivision (a) states: “Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated . . . if genetic testing indicates that the previously established father of a child is not the biological father of the child.” Section 7647 follows, reiterating the basis for vacating a judgment of paternity articulated in the previous section, namely that the court finds, on the basis of expert conclusions and the evidence, that “the previously established father is not the biological father.” (Fam. Code, § 7647, subd. (a)(3); San Mateo County Dept. of Child Support Services v. Clark (2008) 168 Cal.App.4th 834, 841.)
Family Code Section 7648.3 leaves no room for doubt. It states that the court may not issue an order setting aside or vacating a judgment of paternity where the genetic test has been completed and it did not exclude the previously established father. Here the only genetic testing done indicated that, “[t]he alleged father [M.B.], cannot be excluded as the biological father of the child . . . since they share genetic markers” and he has not introduced any further testing that excluded him as the father. Thus, he has not established a basis for vacating the judgment of paternity.
M.B. surmises a legislative intent at odds with the plain language of these statutes. Because Family Code section 7648 allows a presumed parent or previously established parent who has been excluded by genetic testing to remain the legal parent based upon the best interest of the child, M.B. argues the Legislature’s intent must have been that every child have an active parent and know that parent where possible. He insists the evidence before the court suggested that Stefan held himself out as the child’s father, while his only connection to her was a paternity test and a wage assignment. In his view, therefore, public policy dictates that it is in the child’s best interest to maintain a relationship with Stefan as the presumed father.
First, we disagree with M.B.’s premise that the evidence demonstrates Stefan held himself out as the child’s father and should be considered her presumed father. While it is true Stefan continued to visit with the child along with his own daughter, he assumed no financial responsibility for her. There is no evidence she lived with him after he separated from her mother. The mere fact that Stefan magnanimously included the child in some of the activities he engaged in with his daughter is insufficient to establish, as a matter of law, that he held himself out as her father. Thus, there is more than sufficient evidence to support the trial court’s finding that Stefan was not a presumed father.
Second, the existence of a presumed father would not create an exception to the clear language of the statute. Family Code section 7648 does not get M.B. off the hook if he can find a presumed father; rather the section is designed to eliminate the financial responsibilities the law had imposed upon a man who is not the child’s biological father. To reiterate, M.B. has presented absolutely no evidence that he is not the biological father, and thus, Family Code section 7648 can provide him no relief.
M.B. fails to differentiate the role of a court of appeal from the role of the Legislature. His argument that it is not in the best interests of a child with no contacts with the State of California, other than the fact that her biological father resides in the state, to receive financial support from him, not only rings hollow as a matter of public policy, but is at odds with the statutory scheme established by the Legislature. As a court of appeal, we must apply the law, not rewrite it. To presume the Legislature intended a scheme in direct conflict with the express language of the statutes is to transgress the clear divide between the judiciary and legislative functions.
To conclude, the trial court had subject matter jurisdiction to decide the question whether the paternity judgment could be set aside and the trial court, properly applying Family Code section 7648, denied M.B.’s motion. He has provided no justification for us to reverse the order denying M.B.’s request to vacate the paternity judgment.
DISPOSITION
The order is affirmed.

RAYE , P. J.

We concur:

BUTZ , J.

HOCH , J.