Contra Costa County Dept. Child Suppport Serv. v. Abdul-Olateju




Filed 9/7/11 Contra Costa County Dept. Child Suppport Serv. v. Abdul-Olateju CA1/4




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CONTRA COSTA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. KAREEM ABDUL-OLATEJU, Defendant and Appellant.

A130564 (Contra Costa County Super. Ct. No. F0800804)

Appellant Kareem Abdul-Olateju, also known as Kareem O. Abdul, appeals in pro per from an order (1) denying him the opportunity to relitigate a challenge to the personal service of the original paternity complaint in June 2008, on grounds of res judicata; and (2) establishing a child support arrearage of $16,785.41 as of June 30, 2010, interest included. We affirm the order.
I. BACKGROUND
In April 2008, the Contra Costa County Department of Child Support Services (Department) filed a complaint against appellant[1] alleging that he was the father of a child born in 2004 and seeking to establish support for the child commencing May, 2008. A professional process server personally served appellant on June 13, 2008, with copies of the summons and complaint, proposed judgment, blank answer form, financial statement, and blank medical insurance forms, and a California child support handbook. On July 9, 2008 a proof of service, signed under penalty of perjury by the process server, was filed. The proof of services does not list the address of the party served. Instead, it states: “The address/place of service is on file with the [Department] shown above pursuant to Family Code 17212(b)(3) and may be released only upon an order from the court pursuant to Family Code 17212(c)(6).”
The trial court entered judgment by default on July 23, 2008. Pursuant to the judgment the court found that appellant was the parent of the minor child, ordered him to pay child support in the amount of $1,407 per month commencing May 1, 2008, mandated that he provide and maintain health insurance for the child, and ordered him to pay 1/2 of reasonable uninsured health care expenses.
Appellant, through his attorney, moved to set aside the default judgment on September 9, 2008. He asked the court to order genetic testing to confirm paternity, stating he knew the mother and she informed him he was not the father. Additionally, appellant said he had never been known by the name Kareem O. Abdul, and was never served with the petition or summons. On October 3, 2008 appellant submitted an ex parte request asking that the attachment of his wages for support be suspended. Therein he also declared that his name was Kareem Olateju, he had never been known by the name Kareem O. Abdul, he had not been served with the summons and complaint, and had not resided at the address listed on the proof of service since January 1, 2007. He declared the attached proof of service reflected he was served at 3603 Bissell Ave., Richmond. As stated above, the attached proof of service does not identify any address. Appellant asked that the Department produce the process server in court to testify and be subject to cross examination.
Appellant appeared with his attorney at the hearing on his motion to set aside. Based on appellant’s testimony that mother told him he was not the father, the court suspended further child support collection “pending further hearing” and ordered the Department to hold funds already garnished. The matter was continued to January 26, 2009 at which time the court acknowledged that appellant’s full name was Kareem Abdul-Olateju and ordered him to complete genetic testing and continued the matter to May 11, 2009.
At the May 11, 2009 hearing, the court received genetic testing results showing a paternity index in excess of 913,000 to 1. The court lifted the stay on enforcement of the previous child support order, which it confirmed and continued at $1,407 per month, and continued the hearing for resolution of the remaining items. At the continued June 29 hearing, the court denied appellant’s motion to set aside the judgment, ruling there was no evidence to substantiate it. It also denied appellant’s request for a second independent genetic test, crediting mother’s testimony that she had sexual intercourse with only two men during the probable period of conception, and the other man was excluded by a private paternity test. Neither party appealed from this order.
Thereafter on July 9, 2009 appellant moved to modify child support. The hearing took place on July 30, 2009, with both parents testifying. The trial court reduced support to $681 per month effective July 10, 2009, and ordered appellant to pay arrears in the initial amount of $119 per month beginning August 1, 2009 and increasing to $219 per month on August 1, 2010. Neither party appealed from this order.
Then on May 21, 2010, again appellant noticed a motion to modify support, but in his supporting declaration appellant asked the court to quash the June, 2008 service of the original paternity complaint and vacate the back pay order. Appellant again said he did not live at the address where “the service was made at the time.” Ruling on his motion on June 22, 2010, the court held that appellant “previously raised claims of improper service as well as non-paternity in his September 9, 2008 motion . . . filed with the assistance of counsel. The question of service and paternity is res judicata. These matters have been previously raised and his motion was denied.” The court deemed the pending motion as one to ascertain arrears, and accordingly ordered the Department to prepare an arrears audit. That audit, submitted in July, 2010, showed unpaid child support arrears of $16,785.41 through June 2010. Appellant challenged the Department’s audit, claiming the initial support order of $1,407 was excessive; he should not be charged any support for the months during which he had no knowledge of the pending paternity action, namely the time between the purported service and the first garnishment of his wages; and he should have been credited for amounts that were garnished at the $1,407 amount that “should have been $681.”
Appellant testified at the November 5, 2010 hearing that he agreed the audit reflected the payments he made; the court noted that he did not offer evidence of additional payments not delineated on the audit. Further, the court reiterated that as set forth in its June 22, 2010 order and findings, it had previously denied appellant’s motion to set aside which challenged service, genetic testing, and computation of support. The paternity judgment had already been confirmed and appellant’s trio of assaults on it were res judicata. On the pending issue of child support arrears, the court found that appellant owed $16,785.41 inclusive of interest through June 2010.
This timely appeal followed.
II. DISCUSSION
A. Challenge to Service
Appellant first charges that entry of judgment based on a disputed proof of service obtained by what he calls extrinsic fraud amounted to a denial of his due process rights. By now it is abundantly clear that appellant previously litigated this issue to finality and principles of collateral estoppel preclude its review in this appeal.
Collateral estoppel, also known as issue preclusion, applies under these circumstances: “First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Machado v. Superior Court (2007) 148 Cal.App.4th 875, 886.)
All of these requirements are present here. Appellant, against whom preclusion is sought, was a party to the former proceeding. His September 2008 motion to set aside the July 2008 judgment of paternity specifically raised the issue of lack of service of the complaint. The court denied his motion to set aside on June 29, 2009 for lack of substantiating evidence, following a hearing at which both parents gave testimony. The June 29 order was not appealed and is therefore final.
Appellant argues that the trial court never ruled on his challenge to service, the written findings are too vague to come within any rule of issue preclusion, and the language of the order “focused exclusively on the issues of paternity.” Appellant is wrong. The written order contains the following decisive and complete paragraph: “There is no evidence to substantiate Father’s motion . . . to set aside the . . . Paternity Judgment that is hereby confirmed.” This handwritten paragraph is followed by two separate handwritten paragraphs dealing with the lab report findings and father’s request for an independent genetic test. Nonetheless the first paragraph clearly states there was no evidence to substantiate the motion, which we know raised the personal service issue.
Appellant also maintains that since he provided a sworn statement that he did not live at the address where service was alleged to have occurred, contrary to the court’s conclusion there was some evidence to substantiate his motion. First, as we noted above, pursuant to Family Code section 17212, the proof of service does not reveal where service was effected. Thus, his declaration did not stand for what he claims it established. More to the point, Father has not provided a transcript of the hearing. Therefore, the judgment is not subject to evidentiary challenge and it is presumed the evidence supports the judgment and findings of the court. (In re Marriage of Stutz (1981) 126 Cal.App.3d 1038, 1042.) Because appellant is prosecuting this appeal solely on an appendix, we presume the existence of any condition of facts and every presumption consistent with the validity of the judgment, rather than facts or presumptions which will defeat it. (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454; In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 145.) This presumption is buttressed by the subsequent June 22, 2010 order by the same commissioner who, just one year prior, had heard and decided the motion to set aside. In the latter order the commissioner set forth in detail the relevant case history, and specifically found that father raised the claim of improper service in his September 9, 2008 motion to set aside, and that motion had been heard and denied and could not be relitigated.
Similarly, where, as here, appellant could have but did not request a statement of decision,[2] the doctrine of implied findings governs our review. Guided by this doctrine, we infer that the trial court made all factual findings necessary to support the judgment, and we indulge all intendments and presumptions in favor of the judgment. (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-59.) Applying the doctrine of implied findings, the court necessarily found that appellant had been properly served.
B. Support Arrears
The Department’s audit of support payments made by appellant revealed an arrearage of $16,785.41 through June 30, 2010. The court accepted this amount, finding that appellant did not offer evidence of any additional payments. Now appellant argues that the July 30, 2009 reduction of support from $1407 per month to $681 per month, due to the fact that he had another child subject to court-ordered child support, should have been made retroactive to the filing of his set aside motion on September 30, 2008.
Family Code section 3651, subdivision (c)(1) provides that, except for circumstances not pertinent here, “a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” On July 30, 2009, the trial court reduced support to $681 per month effective July 10, 2009. Appellant testified at the hearing but did not appeal that order. Not only is it too late to challenge the effective date of the reduction, appellant presents no legal argument explaining how, in light of the above statute, the court purportedly erred in choosing this effective date. His argument fails.
III. DISPOSITION
We affirm the order.




_________________________
Reardon, Acting P. J.


We concur:


_________________________
Sepulveda, J.


_________________________
Rivera, J.



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