Clara v. Edwards
Filed 2/21/13 County of Santa Clara v. Edwards CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
COUNTY
OF SANTA CLARA,
Plaintiff and
Respondent,
v.
GREGORY D. EDWARDS,
Defendant and Appellant.
H037402
(Santa Clara
County
Super. Ct.
No. DA026924)
Gregory D.
Edwards appeals from an adverse September 2011 order in favor of the County
of Santa Clara, which entity
appeared through its Department of Child
Support Services (Department). (See
Fam. Code, § 17304 [requiring each county to establish a department of
child support services “responsible for promptly and effectively establishing,
modifying, and enforcing child support obligationsâ€].)
owed the sum of $169.50 in child support arrearages, rejecting his claim that
he had made substantial overpayments for back child support. It also rejected his claim that the
Department’s accounting of child support payments was significantly in
error.
On appeal,
Edwards argues that he established below that the Department’s accounting of
child support arrearages was significantly in error, and that it had improperly
levied on his bank account in 2010 to collect back child support. We conclude that there was
court’s express and implied factual findings and that it did not abuse its
discretion in denying the relief sought by Edwards. We will therefore affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
On January 17, 1995, the County
of Santa Clara filed a motion
seeking an order of child support from Edwards.
Edwards acknowledged that he was the father of the girl. On February
7, 1995, the court issued an order of child support which fixed a
monthly obligation of $347, along with the payment of arrearages determined to
be $3,470.00 to be paid at the rate of $100 per month.
On July 19, 2010, Edwards filed an application for an order
to show cause, seeking a modification of his child support obligation and
requesting reimbursement for “overpayment for over ten years†in an unspecified
amount. (Capitalization omitted.) The essence of his contention was that he had
been making support payments to two states, California
and Nebraska, “covering the same
period of time.†(Capitalization
omitted.) After a hearing on September 1, 2010, the court ordered
the Department to provide a responsive declaration which would include an
accounting.
At the continued hearing on January 5, 2011, the Department
provided an accounting. After argument,
the court again continued the case, indicating that there were two remaining
issues of concern: (1) the child’s
emancipation date; and (2) whether any support payments made by Edwards to Nebraska
were properly credited in the Department’s accounting.
A further hearing took place on April 12, 2011, in which the court
received into evidence exhibits offered by both parties. After the parties submitted the matter, the
court issued an order on May 9, 2011,
in which it found that Edwards had been overcharged for child support and
interest and that he was entitled to a credit of $13,509 as of April 30, 2011.
The Department filed a request for
a statement of decision or, alternatively, a motion for new trial, pursuant to
Code of Civil Procedure section 657, subdivision (6).
25, 2011, the court granted the Department’s motion for new
trial. On September 1, 2011, following a short-cause trial occurring
two days earlier, the court issued its order finding that Edwards owed back
child support of $169.50 as of May 31,
2011 (the Order). In so
holding, the court adopted an audit of the account previously prepared by the
Department and introduced as an exhibit.
Edwards filed a timely appeal of the Order.
DISCUSSION
I
Noncompliant Brief
Before addressing any substantive
issues that may have been raised by Edwards in this appeal, we are compelled to
identify the serious procedural deficiencies existing in his filing with this
court. Edwards’s opening brief is not
compliant with the California Rules of Court.
requisite summary of the relevant procedural history of the case, including a
plain statement of “the nature of the action, the relief sought in the trial
court, and the judgment or order appealed from,†all as required by rule
8.204(a)(2)(A). Similarly, the brief
fails to include a plain statement of appealability, i.e., that “the judgment
appealed from is final, . . .â€
(Rule 8.204(a)(2)(B).) More
significantly, the opening brief
contains no citation to the record in support of Edwards’s assertions of fact
and his recitation of procedural matters allegedly occurring below, in
violation of rule 8.204(a)(1)(C). (
177 Cal.App.4th 771, 800-801 [failure to include citations to appellate record
in brief may result in forfeiture of claim].)
We will disregard any factual assertions made by Edwards which are not
contained in the record. (See rule
8.204(a)(2)(C); McOwen v. Grossman (2007)
153 Cal.App.4th 937, 947.)
Edwards’s challenges, unsupported
by citations to the record, are wide-ranging.
This court has gleaned, based in part upon the respondent’s brief filed
on behalf of the Department, that Edwards’s central challenge is to the
September 1, 2011 Order in which the court rejected his claim that he was
entitled to reimbursement of substantial funds he claims were overpaid by him
for child support arrearages.
We acknowledge that Edwards is
representing himself in connection with this appeal and therefore has not had
formal legal training that would be beneficial to him in advocating his
position. However, the rules of civil
procedure apply with equal force to self-represented parties as they do to
those represented by attorneys. (
975, 984-985.) Thus, “[w]hen a litigant
is appearing in propria persona, he is entitled to the same, but no greater,
consideration than other litigants and attorneys.†(Nelson
v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Based upon the wholly noncompliant
nature of Edwards’s brief, it would be appropriate to disregard his contentions
as having been forfeited. (See
(2011) 199 Cal.App.4th 1525, 1528-1529, fn. 1.)
We are, however, able to glean the essential claims of error Edwards
makes relative to the Order, and the Department has filled many of the gaps by
including relevant citations to the record concerning the procedural history of
this case. Furthermore, we are
appreciative of the fact that Edwards—notwithstanding geographical challenges
of living out-of-state and the difficulties of dealing with support
calculations that are admittedly complex—was an active, respectful, and
professional participant in both the proceedings below and in this appeal. Therefore, in the interests of addressing the
merits of the case—and without impliedly minimizing the significance of Edwards’s
noncompliance with appellate procedures—we will address below his contention
that the Order was erroneous.
II.
Neither party assists this court by
enunciating the standard of review applicable to this appeal. Because the standard of review “is the
compass that guides the appellate court to its decision†(People v. Jackson (2005) 128 Cal.App.4th 1009, 1018), and
“ ‘prescribes the degree of deference given by the reviewing court to the
actions or decisions under review’ [citation]†(San Francisco Fire Fighters Local 798 v. City and County of San
Francisco (2006) 38 Cal.4th 653, 667), its identification is a critical
threshold matter for this appeal.
It is a fundamental proposition
that a judgment or order is presumed correct on appeal. (In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “ ‘All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown.’ †(
557, 564.) It is appellant’s burden to
overcome this presumption of correctness, which burden includes providing an
adequate record demonstrating error. (
Practice Guide: Civil Appeals and Writs
(The Rutter Group 2010) ¶ 8:17, p. 8-5, rev. #1, 2009.) The doctrine of implied findings is “a
natural and logical corollary†to (1) the presumption of the correctness of the
judgment, (2) the fact that all intendments and presumptions are made in favor
of that correctness, and (3) appellant’s bearing the burden of demonstrating
error with an adequate record. (
150 Cal.App.4th 42, 58 (Fladeboe).) This “doctrine requires the appellate court
to infer the trial court made all factual findings necessary to support the judgment. [Citation.]â€
(Ibid.; see
Cal.3d 787, 792-793, superseded by statute on other grounds as stated in
Cal.4th 435, 438.)
An appellate court generally
reviews child support orders for abuse of discretion. (In re
Marriage of Alter (2009) 171 Cal.App.4th 718, 730.) We review the court’s factual findings made
in the exercise of its discretion to determine whether they “ ‘ “are supported
by substantial evidence and whether the court acted reasonably in exercising
its discretion†[Citation.] We do not substitute our own judgment for
that of the trial court, but determine only if any judge reasonably could have
made such an order.’ [Citation.]†(Id.
at pp. 730-731.) And in assessing
whether substantial evidence supports the trial court’s factual findings, we
consider the evidence in the light most favorable to the party prevailing
below. (Plumas County Dept. of Child Support Services v. Rodriquez (2008)
161 Cal.App.4th 1021, 1026.)
III. September 1, 2011 Order
As we discern his argument—which,
as noted, is unsupported by any record citations, contrary to the requirements
of the California Rules of Court—Edwards contends that the September 1, 2011
Order is erroneous because it does not find (1) that he was substantially
overcharged for child support arrearages erroneously claimed by the Department
to have been owing; and (2) the existence of illegal levies of his bank account
which occurred in 2010. We address these
contentions below.
A. Claimed
Overpayments
Edwards argued below that the
amounts claimed by the Department as child support arrearages were
inflated. The essence of his contention
was that the sum of $6,300 reflected in the Department’s accounting as constituting
accrued child support arrearages prior to February 1995 were erroneously
posted—that this amount was acknowledged in proceedings initiated in the State
of Nebraska as having be not been owed.
Edwards below characterized these out-of-state proceedings as a
reflection that “Nebraska wrote off†this amount of accrued child support
arrearages and the sum therefore could not be included in the Department’s
accounting. The court rejected this
position. It found that the Department
had “proved the payments enforced by Nebraska based on the child support order
from Nebraska were credited in the [Department’s] audit.†The court held further that “Mr. Edwards did
not prove beyond [sic] a
preponderance of the evidence that he was either not properly charged and/or
properly credited with collections by the states of Nebraska, Michigan, and
California.â€
On appeal, Edwards renews the
contention that “[t]he case [in Nebraska] was ultimately resolved and Nebraska
dismissed the alleged amount owed of $6273.08 on 03/19/2007â€; and that notwithstanding
this fact, the Department had refused to “adjust [its] figures . . .†He concludes that “[t]he family court also
erred in reversing its original position . . . as the facts are clear as to the
overpayment.â€
We deem Edwards’s argument to
challenge the sufficiency of the evidence in support of the court’s factual
finding that Edwards’s support payments had been properly charged or credited
by the Department in its accounting of child support arrearages. “ ‘The rule is well established that a
reviewing court must presume that the record contains evidence to support every
finding of fact, and an appellant who contends that some particular finding is
not supported is required to set forth in his brief a summary of the material
evidence upon that issue. Unless this is
done, the error assigned is deemed to be waived. [Citation.]
It is incumbent upon appellants to state fully, with transcript
references, the evidence which is claimed to be insufficient to support the
findings.’ †(In re Marriage of Fink (1979) 25 Cal.3d 877,887; see also
a fair statement of the evidence is entitled to no consideration when it is
apparent that a substantial amount of evidence was received on behalf of the
respondentâ€].) Because Edwards has
failed to provide a summary of the material evidence on this issue, including
citations to the record, we may treat his claim of error as waived.
Even were we to consider the
contention not waived, it nonetheless lacks merit. A review of the record demonstrates that
there was substantial evidence supporting the trial court’s finding that the
Department in its accounting properly charged or credited Edwards for all
support payments. The court received
into evidence the accounting of the Department, along with a supporting payment
history which was represented as corroborating that all payments received by
the state of Nebraska were properly credited in the Department’s accounting. The court also considered evidence from the
Department, including two declarations.
Both declarants indicated that the Department properly credited in its
accounting all payments made to the state of Nebraska. Further, there was evidence submitted that
the Department did not include charges of statutory interest for child support
arrearages accruing from a prior Nebraska order because of the difficulty of
calculating this amount. We therefore
reject Edwards’s sufficiency-of-the-evidence challenge. In so holding, however, although we
acknowledge that the court properly found a small amount of child support was
still owing, the record indicates that Edwards has been a good father who has
not shirked his support obligations owed to his daughter.
B. Claim
of Improper Bank Account Levy
Edwards renews the argument made
below
Department improperly levied against his bank account to recover child support
arrearages. As we understand his
position—again, made without any citation to the record in violation of the California
Rules of Court—he asserts that in June and July of 2010, the Department
“garnished $8973.77 of . . . funds†he had received a year earlier as a
retroactive payment of social security disability payments. He claims that he became disabled in 2008 and
began receiving social security disability benefits in June 2009. He argues that under both federal law (15
U.S.C. § 1673) and California law (§ 5246), any levy of his account
should have been limited to five percent of his total monthly disability payment. The Department argues that Edwards is
procedurally barred from asserting this claim, and that, in any event, it lacks
substantive merit. We agree with the
Department on both points.
1.
Bar to Claim of Improper Levy
The levy challenged here occurred
pursuant to a statutory procedure outlined by the court in In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 815 (
of ensuring automatic payment of child support arrears by means of levying on
support obligors’ assets in financial institution accounts. Under the Financial Institution Data Match
(FIDM) system, the State DCSS provides financial institutions with the State
DCSS’s files of delinquent support obligors.
The financial institutions are required to determine if there is a match
with their own accountholders. Upon
receiving a notice or order to withhold issued by the State DCSS, financial
institutions are required to notify the obligor of the notice or order, and
withhold from the obligor’s accounts the amount of support arrears stated in
the notice or order. [Citations. ¶]
Before the funds are transmitted to the State DCSS, the obligor may file
with the local DCSS a claim of exemption based on financial hardship.â€
As the LaMoure court emphasized, it is the depository institution,
pursuant to section 17456, subdivision (b)—and not the State DCSS—which
provides the written notice of levy to the obligor. (LaMoure,
at pp. 816-817.) And “[a] court order
authorizing such a levy is not required.
The levy is founded on an existing support order, overdue support, and
the existence of an order by operation of law requiring payment of support
arrears.†(Id. at p. 819.)
Subdivision (j)(3) of section 17453
permits an obligor whose property is the subject of a levy to submit an
application for a claim of exemption, in accordance with the procedures
specified under section 703.510 et seq. of the Code of Civil Procedure. Under Code of Civil Procedure section
703.520, subdivision (a), “[t]he claimant may make a claim of exemption by
filing with the levying officer a claim of exemption together with a copy
thereof. The claim shall be made within
10 days after the date the notice of levy on the property claimed to be exempt
was served on the judgment debtor.†The
Code of Civil Procedure provides further that such claims of exemption “may be
claimed within the time and in the manner prescribed in the applicable
enforcement procedure. If the exemption
is not so claimed, the exemption is waived and the property is subject to
enforcement of a money judgment.†(Code
Civ. Proc., § 703.030, subd. (a); see also Ahart, Cal. Practice
Guide: Enforcing Judgments and Debts
(The Rutter Group 2012) ¶ 6.868, p. 6E-15 (rev. # 1 2010) [debtor generally
must assert claim of exemption “within the time and in the manner prescribed .
. . [or else] the exemption is waivedâ€].)
The record here is that Bank of
America gave Edwards and his wife written notice of a levy against their two
bank accounts on May 13, 2010. The bank
stated in the notice that it intended to remit on May 27, 2010, the total
amount of $7,209.77 from the bank accounts, and that any questions about the
underlying order or objections to the levy should be directed to Child Support
Collections at a telephone number indicated.
There is no evidence that Edwards submitted a written claim of exemption
to the levy, either within 10 days of the written notice or at any time
thereafter. Thus, his claim of exemption
was waived. (Code Civ. Proc.,
§§ 703.030, subd. (a); 703.520, subd. (a).)
2.
Merit to Claim of Improper Levy
Edwards argues that the 2010 bank
levy was improper because any such levy should have been limited to no more
than five percent of his gross monthly Social Security Disability payment under
section 5246. Even were the argument not
procedurally barred, it is without merit.
Section 5246 provides in part: “In lieu of an earnings assignment order
signed by a judicial officer, the local child support agency may serve on the
employer a notice of assignment in the manner specified in Section 5232. An order/notice to withhold income for child
support shall have the same force and effect as an earnings assignment order
signed by a judicial officer. An
order/notice to withhold income for child support, when used under this
section, shall be considered a notice and shall not require the signature of a
judicial officer.†(§ 5246, subd.
(b).)
not a notice of assignment served upon “an employer.â€
institution with which Edwards maintained bank accounts. Therefore, any limitations imposed under
section 5246 had no application to the challenged levy.
Edwards also contends that the bank
levy was improper under 15 U.S.C. § 1673.
This contention lacks merit.
Section 1673 of title 15 of the
United States Code, a part of the Consumer Credit Protection Act, provides for
restrictions on “the maximum part of the aggregate disposable earnings of an individual for any workweek which [may
be] subjected to garnishment . . .†(15
USC § 1673(a), italics added.) For the
purposes of the Consumer Credit Protection Act, the term “earnings†is defined
as “compensation paid or payable for personal services, whether denominated as
wages, salary, commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program.â€
(15 USC § 1672(a).) “
‘[D]isposable earnings’ means that part of the earnings of any individual
remaining after the deduction from those earnings any amounts required by law
to be withheld.†(15 USC § 1672(b).)
garnishment restrictions found in 15 U.S.C. 1673 to “earningsâ€â€”or, actually, to
the more narrow subset of the term, “disposable earningsâ€â€”it has no application
here to the funds located in Edwards’s Bank of America accounts. (See Phillips
v. Bartolomie (1975) 46 Cal.App.3d 346, 354 [garnishment restrictions of 15
U.S.C. § 1673 inapplicable to garnishment of funds deposited into checking
account by judgment debtor, the sources of which were benefits and pensions
paid under programs of Veterans Administration, Social Security Administration,
and county welfare department]; see also John
O. Melby & Co. Bank v. Anderson (Wis. 1979) 276 N.W.2d 274, 277-278
[bank accounts, although deposits are traceable to wages, are not disposable
earnings subject to garnishment restrictions under 15 U.S.C.
§ 1673].)
The trial court did not state its
reasons for rejecting Edwards’s claim that the 2010 bank levies were
unlawful. But under the doctrine of
implied findings, we will infer any factual findings necessary to the court’s
determination of the issue. (
Cal.App.4th 229, 267-268; Fladeboe,
supra, 150 Cal.App.4th at p.
58.) There was substantial evidence to
support the implied factual findings that formed the basis for the conclusion
that Edwards’s improper levy claim was without merit, both because it was
procedurally barred and because the statutes upon which he relied were
inapplicable to the circumstances of the bank levy here.
DISPOSITION
The September 1, 2011 Order is
affirmed.
Márquez,
J.
WE
CONCUR:
Elia, Acting P.J.
Bamattre-Manoukian, J.
name="_ftn1" title=""> [1] All further
statutory references are to the Family Code unless otherwise specified.
A party may move for new trial on the basis of “[i]nsufficiency of the evidence
to justify the verdict or other decision, or [where] the verdict or other
decision is against law.†(Code Civ.
Proc., § 657, subd. (6).)
