El DoradoCounty Dept. Child Support v. Ellinwood
Filed 12/3/09 El Dorado County Dept. Child Support v. Ellinwood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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EL DORADO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. JEFFERY TROY ELLINWOOD, Defendant and Respondent; KIMBERLY A. WILFONG, Objector and Appellant. | C060318 (Super. Ct. No. PFS20040067) |
In December 1994, a default judgment was entered in Sacramento County finding Jeffery Troy Ellinwood to be the biological father of Kimberly A. Wilfongs daughter, born March 7, 1990. That same judgment found Ellinwood was unemployed and reserved jurisdiction over the issue of child support. Ellinwood did not receive a copy of that judgment.
Over the next five years, Ellinwood, who lived in Idaho, periodically gave Wilfong money to support their daughter. Then, in August 1999, Ellinwood and Wilfong met for dinner and Ellinwood agreed to pay Wilfong $200 each month in child support. Wilfong did not tell Ellinwood that she and their daughter were receiving public assistance.
Ellinwood continued to pay support to Wilfong for the next five years, though it was not always the $200 they had agreed upon. In March 2004, El Dorado County Department of Child Support Services (DCSS), registered in El Dorado County, a copy of the Sacramento County October 5, 1994, minute order, which later became the December 1994 default judgment. Ellinwood received a copy of that registration, along with the minute order, at his residence in Texas.
Three years later, DCSS filed a motion to modify the judgment for reserved child support. In July 2007, Ellinwood was ordered to pay to Wilfong $507 each month for child support beginning August 1, 2007, and reserved the right to make the order retroactive.
DCSS then filed an amended notice of motion seeking to make the order of support retroactive to 1994. Wilfong asked that the order be made retroactive to 1990. Following an evidentiary hearing, the trial court ruled that the 1994 judgment set child support at zero. Accordingly, the court ruled any order for child support could only be made retroactive to March 27, 2007, the date DCSS filed its initial motion to modify support.
The court thus affirmed its prior order compelling Ellinwood to pay $507 per month in child support but made the order retroactive to March 27, 2007. Wilfong appeals from that order.
DISCUSSION
Wilfong raises the following issues on appeal: (1) Can the court lawfully and in all fairness forgive child support arrearages, including overdue and unpaid child support?; and (2) Does a court even need to reserve on a child support order case? We affirm.
Wilfongs claim that the trial court forgave . . . seventeen (17) years of child support due from March 1990 to March 2007, is without merit. Prior to July 31, 2007, there was no order compelling Ellinwood to pay child support. Without an order for child support, arrearages do not accrue. (Fam. Code, 4722, 17524-17526.) Thus, there were no arrearages to forgive.
Wilfongs second claim does not advance her request for additional support. The question, whether a court needs to reserve jurisdiction on the issue of child support is of no moment. The reality is the court has the discretion to do so and, in this case, did -- repeatedly. Accordingly, there was no error.
Wilfong also asks this court to do a check on the validity of the $507.00 a month support ordered by the trial court, order Ellinwood to repay their daughter the $8,000 he used to pay his attorneys fees, and order Ellinwood to reimburse Wilfong for money spent to resolve this case. None of these requests are well-taken.
First, there is no reporters transcript of the hearing in which the trial court ordered Ellinwood to pay $507 per month in child support. Accordingly, we must conclusively presume evidence was presented that is sufficient to support the courts findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
These restrictive rules of appellate procedure apply to Wilfong even though she is representing herself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) On the record in this appeal, we find no error with regard to the amount of child support ordered.
Second, Wilfong claims Ellinwood paid his legal bills with money he had saved for their daughters future. She would like this court to order him to return that money. Wilfong misunderstands the role of this court. Even if Wilfongs claim was supported by the record, it is not within our power to make such orders.
Third, Wilfong seeks reimbursement for money she spent pursuing this action. Costs on appeal are awarded to the prevailing party pursuant to California Rules of Court, rule 8.278. Because Wilfong did not prevail in this appeal, she is not entitled to her costs on appeal. She will, however, be obliged to pay Ellinwoods.
DISPOSITION
The judgment is affirmed. Wilfong shall reimburse Ellinwood for his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
BUTZ , J.
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