Michael K. Berry - Page 39

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         (applying section 71(b)(1)(D) to unallocated support ordered by              
         New Jersey court; inasmuch as Mr. and Ms. Kean shared physical               
         custody of the children, “there would be no logical reason for the           
         New Jersey court to order that Mr. Kean continue to pay support or           
         for the New Jersey court to order any payment as a substitute for            
         the unallocated support” had Ms. Kean died).                                 
              We reach the foregoing conclusion without regard to whether,            
         as is apparently the case with California child support orders,              
         see In re Marriage of McCann, 32 Cal. Rptr. 2d 639, 641 (Ct. App.            
         1994), the controlling order would technically remain in effect              
         after Carmen’s death until petitioner obtained its (prospective)             
         judicial termination.  Cf. In re Marriage of Trainotti, 261 Cal.             
         Rptr. 36, 38 (Ct. App. 1989) (payee under child support order                
         sought to collect amounts that had accrued during the period                 
         between payor’s assumption of sole physical custody of the child             
         and the judicial termination of the child support order 10 months            
         later; trial court “erred by refusing to consider whether                    
         appellant [the payor] had satisfied his obligation by furnishing             
         Christopher [the minor child], with the approval of his former               
         wife, a home and support that was equal to or in excess of the               
         court-ordered amount”);30 Jackson v. Jackson, 124 Cal. Rptr. 101             

               30 Although the court may have viewed such direct                      
          expenditures as the functional equivalent of payments under the             
          child support order, neither party suggests that, for purposes of           
          the substitute payment clause of sec. 71(b)(1)(D), hypothetical             
          direct expenditures on behalf of children in one’s custody (i.e.,           
                                                              (continued...)          





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