Kathryn S. v. Philip G.

Filed 8/25/08 Kathryn S. v. Philip G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Adam Wertheimer, Judge. Affirmed as modified.

Kathryn S. (Mother) appeals a postjudgment order requiring her to pay Philip G. (Father) child support for their three children and $5,000 in attorney fees. On appeal, she contends the trial court erred by: (1) denying her request to cross-examine Father; (2) imputing income to her and awarding excessive child support without substantial evidence; (3) ordering that her child support payments be offset against Father's child support arrears obligation; and (4) awarding Father attorney fees of $5,000.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Mother apparently filed a paternity action against Father requesting a determination that Father was the father of her three minor children and also filed a related order to show cause (OSC) requesting that Father be ordered to pay child support for them.^[1] After Father admitted his paternity of the children, the trial court entered a judgment of paternity and ordered him to pay Mother $1,837 per month in child support and $250 per month toward child support arrears. It also ordered Father to pay Mother $5,000 toward her attorney fees.

In 2003, the trial court issued an order increasing Father's child support obligation to $3,742 per month. It also ordered him to open a child support trust account and deposit funds equal to one year of child support to guarantee his payment of support. Subsequently, the trial court found him guilty of contempt for violation of that order and imposed a 25-day sentence, but suspended execution of that sentence pending his appeal.^[2]

In August 2004, Father filed for, and obtained, a temporary restraining order against Mother on behalf of their minor child Jourdan. In September, Father filed an OSC for modification of child support and equitable offset based on the fact Jourdan was now living with him.

On February 25, 2005, the trial court issued an order modifying child support, requiring Mother to pay Father $583 per month for Jourdan, and Father to pay Mother $1,522 per month for their two other minor children, Remy and Lauren (who continued to live with Mother), for a net obligation of Father to pay Mother $939 per month.

On June 15, the trial court issued an order transferring physical custody of Remy and Lauren from Mother to Father based on Mother's noncompliance with its visitation orders. On June 28, Father filed an OSC for modification of child support based on the fact that all three children were now living with him.

On July 8, the trial court found that Mother and Father had reached a settlement of $22,250 as the amount of child support arrears owed by Father. The court ordered Father to pay Mother $200 per month toward that arrears obligation. On August 24, the court stated that, based on the parties' arrears settlement, it appeared that "the contempt issue has been dealt with."

On October 21, Mother filed a motion to set aside the parties' settlement regarding the amount of Father's arrears obligation. On December 9, the trial court denied Mother's motion to set aside the settlement, but continued the hearing on Father's motion for modification of child support until February 17, 2006. Pending that continued hearing, the court suspended Father's obligation to pay $200 per month toward his arrears obligation.

On February 17, Mother failed to appear at the continued hearing on Father's motion for modification of child support. The trial court nevertheless proceeded with the hearing and ordered Mother to pay child support for their three children, which payments were to be offset each month against Father's arrears obligation.

On May 5, Mother filed a motion to set aside the court's February 17 order. On November 30, the trial court issued an order setting aside the February 17 order. In so doing, the court advised Mother that its set-aside order would not come without a consequence and that it would award Father attorney fees incurred in opposing her motion, which award would be credited or set off against his arrears obligation.

On March 9, 2007, the trial court conducted a new evidentiary hearing on Father's OSC for modification of child support. Based on social security benefits received by Mother, the court ordered her to pay child support in various monthly amounts retroactive to June 2005, which monthly payments were to be offset against Father's arrears obligation until satisfied and thereafter were to be paid monthly to Father through the San Diego County Department of Child Support Services (SDCDCSS). The court ordered that, effective January 1, 2007, Mother's child support obligation was $726 per month. The court terminated Father's obligation to establish a child support security account. The court also awarded Father attorney fees of $5,000 for Mother's conduct regarding setting aside the February 17, 2006, order, which amount was to be deducted from the amount of Father's arrears obligation.

On May 31, 2007, the trial court issued its written order based on its March 9 findings and orders.

Mother, in propria persona, timely filed a notice of appeal challenging that order.^[3]

DISCUSSION

I

Trial Court's Denial of Mother's Request to Cross-Examine Father

Mother contends the trial court erred by denying her request to cross-examine Father at the March 9, 2007, evidentiary hearing.

A

During the March 9, 2007, evidentiary hearing, the trial court denied Mother's request to cross-examine Father, explaining: "You didn't provide the prior notice." In so doing, the court presumably was referring to San Diego County Superior Court Rules, rule 5.5.8(H),^[4]which provides:

"It is the general policy of this court to consider only the papers filed with the court when granting or denying applications for orders. . . . Oral testimony will generally not be received. . . . Written notice of the intent to present oral testimony must be served on the opposing party at least five court days before the scheduled hearing. The notice must state the name of the intended witnesses and the subject matter of the witnesses' testimony.

" . . . If the intended oral testimony will be cross-examination of the opposing party, . . . the party who wishes to conduct the cross-examination must set forth in a written declaration the reasons for requesting cross-examination, and that declaration must accompany the notice of intent to present oral testimony.

"Failure to give the required notice will generally result in a denial of the request for oral testimony. Even if such notice is given, the taking of oral testimony is solely at the discretion of the court." (Italics added.)

The court also may have been referring to Code of Civil Procedure section 2009,^[5]which allows trial courts to decide motions and OSC's upon declaration alone and grants trial courts "discretion to allow or exclude oral testimony in amplification or impeachment of the declarations filed by the parties." (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483; cf. Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1355.)^[6] Section 2009 provides: "An affidavit may be used . . . upon a motion." Section 2009 has been "construed as empowering the trial court to determine motions upon declarations alone and to allow the court discretion to refuse oral testimony. [Citation.]" (Reifler, at p. 483.)

B

Mother apparently argues the trial court abused its discretion by denying her request to cross-examine Father at the March 9, 2007, evidentiary hearing. Trial courts have discretion whether to allow or exclude oral testimony at a hearing on a motion or OSC. (Reifler v. Superior Court, supra, 39 Cal.App.3d at p. 483.) "The feature that distinguishes a proceeding on OSC from a trial is the summary nature of the OSC proceeding, which the court is empowered to decide on the basis of written evidentiary materials without taking live testimony. [Citations.]" (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 467; see also Velez v. Smith (2006) 142 Cal.App.4th 1154, 1160 ["trial court is empowered to determine motions upon affidavits, and has the discretion to refuse oral testimony"]; California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405 [trial court had broad discretion to hold an evidentiary hearing and decide motion based on declarations and other documents, rather than on live, oral testimony].) Cope v. Cope (1964) 230 Cal.App.2d 218 concluded the trial court did not abuse its discretion by denying a wife the opportunity to cross-examine the physician who submitted an affidavit in support of her husband's opposition to her motion for reconsideration of its interlocutory judgment of divorce. (Id. at pp. 222-223, 235.) We conclude the trial court had discretion to deny Mother's request to cross-examine Father, and did not abuse its discretion.

Because the trial court has discretion to allow oral testimony at the OSC evidentiary hearing, we conclude that, in the circumstances of this case, the court did not abuse that discretion when it denied Mother's request to cross-examine Father. A local trial court rule requires that a party give five days' advance written notice of an intent to present oral testimony at a hearing on a motion or OSC. (Rule 5.5.8(H).) Furthermore, if that party intends to cross-examine the opposing party, that written notice must be accompanied by a written declaration in which the party states the reasons for requesting cross-examination of the other party. (Rule 5.5.8(H).) In this case, the record supports the trial court's implied finding that Mother did not comply with either requirement before requesting to cross-examine Father at the March 9, 2007, hearing. Mother did not give five days' advance written notice of her intent to cross-examine Father, or file a written declaration stating her reasons for requesting to cross-examine him. Based on Mother's failure to comply with the local trial court rule, we conclude the court did not abuse its discretion in denying her request (first made during the March 9 hearing) to cross-examine Father.

Furthermore, even assuming the trial court retained discretion to allow Mother to cross-examine Father despite her noncompliance with the local trial court rule requiring advance notice, we nevertheless would conclude the trial court did not abuse its discretion in denying her request to cross-examine him. Although Father was allowed to cross-examine Mother, he apparently was allowed to do so because he included her name on his witness list that he filed with the court three days prior to the hearing.^[7] Mother does not cite, and we are not aware of, any case holding that in an evidentiary hearing on a motion or OSC if one party cross-examines the other party, the other party, in turn, has the right to cross-examine the first party, despite that party's noncompliance with advance witness notice rules. Therefore, the court retained discretion to deny Mother's request to cross-examine Father. Furthermore, in the circumstances of this case, the trial court reasonably concluded that it could more efficiently examine Father regarding his law practice business income and deductions, which presumably were the subjects of Mother's requested cross-examination of Father. In Mother's opening appellant's brief, she asserts she sought to cross-examine Father because he "provided incomplete financial records and included reimbursable costs as an expense . . . ." In denying her request to cross-examine Father at the March 9, 2007, hearing, the trial court noted it had "practiced law for a lot of years," presumably implying it was in a better position than Mother to efficiently examine Father regarding the expenses he claimed for his law practice business. Accordingly, the court examined Father regarding those expenses. In so doing, we cannot conclude the court abused its discretion either by denying Mother's request to cross-examine Father or by directly examining Father itself. Mother does not carry her appellate burden to show otherwise.^[8]

Alternatively, Mother appears to argue the trial court denied her constitutional right to due process of law or right to a fair hearing when it denied her request to cross-examine Father. However, she does not cite, and we are not aware of, any case that holds due process of law requires that a party be permitted to cross-examine an opposing party at a hearing on a motion or OSC. Because she has not provided any substantive legal analysis to support her conclusory assertion that the court denied her right to due process of law and/or right to a fair hearing, we deem she has waived that argument for purposes of appeal. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 367, fn. 7; People v. Stanley (1995) 10 Cal.4th 764, 793; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) In any event, we note Mother was allowed to present documentary evidence and argue at the March 9, 2007, hearing. Therefore, she was not denied her constitutional right to an opportunity to be heard and present evidence at that hearing. We conclude Mother was not denied her constitutional right to due process of law or right to a fair hearing.

II

Evidence to Support Child Support Order

Mother contends the trial court erred by imputing income to her and awarding excessive child support without substantial evidence. She argues that although she received only $989 per month in social security disability payments, the court found she received $1,416 per month of income.

Mother testified at the OSC evidentiary hearing that she received $989 per month in social security disability payments beginning in February 2007.^[9] Her income and expense declaration also showed she received those payments. However, Mother admitted at the hearing that she also received payments of social security derivative benefits for her three children. The record shows Mother received $492 per month in those additional social security benefits beginning in January 2007.^[10]

The trial court found that Mother received income of $1,481 per month beginning in January 2007, which amount presumably consisted of the social security payments, described above, that Mother received of $989 and $492 per month, for a total of $1,481 per month.^[11] In calculating that income amount for Mother, the trial court stated: "[T]his is based solely on your social security." The court therefore presumably calculated Mother's income based solely on the monthly social security payments that she received, both for herself and derivatively for her three children. In so doing, the trial court did not "impute" income to her, but rather based her income on payments she actually received. To the extent Mother asserts the trial court imputed income to her based on "loans" or other payments she may have received from her mother (or otherwise), the record does not support that assertion.

Furthermore, to the extent Mother asserts there is insufficient evidence to support the trial court's calculation of her income, we conclude the evidence discussed above provides substantial evidence to support the trial court's finding regarding income Mother received. The trial court properly considered all social security payments received by Mother as income she received. (Fam. Code,  4058, subd. (a)(1).) Although Mother argues that she no longer receives, and has not received since March 2007, payments of derivative social security benefits for her three children, the record on appeal does not contain any evidence to support that assertion. Because at the time of the March 9, 2007, hearing the evidence showed Mother, and not Father, received the monthly payments of derivative social security benefits for their three children, Mother's assertion is unsupported by the record on appeal and does not show there is insufficient evidence to support the trial court's order. To the extent there has been a change of circumstances since the March 9 hearing (e.g., change from Mother to Father of payments of children's derivative social security benefits), any requested modification of the trial court's order regarding Mother's child support obligation should be presented to the trial court by means of an OSC seeking a modification of that order based on change of circumstances.

III

Setoff of Mother's Child Support Payments

Against Father's Child Support Arrears Obligation

Mother contends the trial court erred by ordering that her child support payments be offset against Father's child support arrears obligation.

After the March 9, 2007, evidentiary hearing, the trial court ordered Mother to pay child support in various monthly amounts, retroactive to June 2005, which monthly payments were to be offset against Father's child support arrears obligation until satisfied and thereafter were to be paid monthly to Father through SDCDCSS. In ordering that Mother's monthly child support payments be offset against Father's arrears obligation rather than be paid directly to Father, the trial court did not abuse its discretion. Setoff orders in child support cases similar to the setoff order in this case have been affirmed. (See, e.g., Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 862.) A trial court has discretion to determine the manner in which a child support judgment will be enforced. (Id. at pp. 858, 861.) In this case, as in Keith G., "[a]llowing the setoff would not frustrate the purpose of either support order. Instead, the setoff exchanges support payments by mother for those owed by father." (Id. at p. 860.) The setoff order in this case does not extinguish either Mother's or Father's past or future child support obligations, but merely directs the manner in which each parent's obligation is enforced. The Family Code does not preclude setoff orders of child support obligations. (Id. at p. 859.)

Furthermore, the equities of this case do not weigh against the setoff order. The record shows Father has sufficient income (i.e., $6,090 per month) to provide for the three children of whom he now has custody without directly receiving Mother's monthly child support payments. The setoff allows Father to satisfy his child support arrears obligation to Mother without reducing his current income, which will be used to currently provide for their three children. Also, the setoff allows Mother to satisfy her child support obligation without using part of her limited social security income (at least until Father's arrears obligation is satisfied). The record supports an inference that the trial court weighed the equities and "fashioned a common-sense remedy that does not harm" the three children and does not reward Father for his child support arrears obligation. (Id. at p. 862.) In so doing and ordering the setoff, we conclude the trial court did not abuse its discretion.

Mother argues the trial court erred by ordering the setoff because she then would be paying "double" child support to Father. She apparently bases her argument on the assertion that Father, and not she, is currently receiving monthly payments of the children's derivative social security benefits. However, at the time of the March 9, 2007, evidentiary hearing, there was no evidence presented showing that was the case. Rather, at that time Mother was receiving payments of those benefits. Accordingly, the trial court did not err by attributing to Mother her receipt of monthly payments of those benefits and calculating her child support obligation based, in part, on that income. To the extent there has been a change of circumstances since the March 9 hearing (e.g., change from Mother to Father of payments of children's derivative social security benefits), Mother should seek to modify the trial court's order regarding her child support obligation by means of an OSC requesting a modification of that order based on change of circumstances. Absent any evidence in the record on appeal that Father, and not Mother, was receiving those payments in March 2007, we conclude Mother has not carried her burden on appeal to show she is paying Father double the amount of her child support obligation.

IV

Attorney Fee Award to Father

Mother contends the trial court erred by awarding Father attorney fees of $5,000 for her conduct in obtaining the order setting aside the February 17, 2006, order, which amount was to be deducted from Father's arrears obligation as of the November 30 set aside order.

A

In awarding Father attorney fees, the court cited section 473 and stated Mother's set-aside motion "caused the litigation to be significantly increased, the amount of paperwork filed and work put into this to be increased" without a significant difference in the ultimate decision on Father's OSC. Although Mother argues the trial court erred in awarding Father $5,000 in attorney fees because it did not consider her needs and ability to pay per Family Code section 3557, that statute is inapplicable to Father's request for an award of attorney fees for Mother's conduct regarding the set-aside order.^[12] Section 473, subdivision (b), provides that a "court may, upon any terms as may be just, relieve a party . . . from [an] . . . order . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. . . . The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." Section 473, subdivision (c), provides that a court may also impose a penalty of up to $1,000 on the offending attorney or party and grant such other relief as appropriate. At the hearing on Mother's motion to set aside the February 17, 2006, order, the trial court, citing section 473, warned her "there would be an award of attorney fees for the set-aside." Based on this record, we conclude the trial court did not abuse its discretion when it granted Mother's set aside motion and then awarded Father attorney fees of $5,000 for compensatory legal fees and costs incurred in appearing at the February 17, 2006, hearing (at which Mother did not appear) and subsequently opposing Mother's section 473 motion to set aside the order issued after her nonappearance at that hearing. ( 473, subd. (b).) Furthermore, the court did not abuse its discretion to the extent part of that attorney fee award (i.e., up to $1,000) was imposed as a penalty or sanction for Mother's conduct. ( 473, subd. (c).) Accordingly, Mother has not shown the trial court erred by awarding Father attorney fees of $5,000.

B

However, as SDCDCSS notes, the trial court did not have authority to order that Mother's obligation to pay Father attorney fees be offset against Father's child support arrears obligation. The court's order requiring Mother to pay Father attorney fees was based on Mother's nonappearance at the February 17, 2006, hearing on Father's OSC for modification of child support and her subsequent section 473 motion to set aside the order issued after that hearing. Because Mother's obligation to pay Father attorney fees is a personal liability owing to Father and not to their children, her obligation is not a child support debt for which setoffs of parents' mutual child support obligations may be allowed. (Williams v. Williams (1970) 8 Cal.App.3d 636, 639-640; cf. Keith G. v. Suzanne H., supra, 62 Cal.App.4th at pp. 859-862.) Accordingly, the trial court erred by ordering that Mother's obligation to pay Father attorney fees be offset against Father's child support arrears obligation. However, rather than reversing the order and remanding for the trial court to issue a new corrected order, we exercise our discretion to delete the erroneous part of the court's order and affirm the order as modified. ( 43; Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 222; Stearman v. Centex Homes (2000) 78 Cal.App.4th 611, 625; cf. People v. Smith (2001) 24 Cal.4th 849, 852-854 [regarding correction of unauthorized sentences].)

DISPOSITION

The order of the trial court is modified to: (1) delete the following language: "Therefore, the Court orders that $5,000 in fees shall be deducted from the arrears owed by Respondent to Petitioner. As the Court granted Petitioner's motion for set aside on November 30, 2006, the $5,000 shall be deducted effective that day"; and (2) replace that deleted language with the following language: "Therefore, the Court orders Petitioner to pay Respondent attorney fees of $5,000, effective as of November 30, 2006." As modified, the order is affirmed.

McDONALD, J.

I CONCUR:

HUFFMAN, Acting P. J.

I CONCUR IN THE RESULT:

IRION, J.

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^[1] Although the record on appeal does not appear to contain a copy of the petition or OSC, court minutes contained the record show the action began in 2002.

^[2] On November 30, 2007, Mother filed a motion requesting that we take judicial notice of our opinion in Snyder v. Gagnon (June 16, 2005, D043959) [nonpub. opn.] and order denying the petition in In re Gagnon (July 28, 2005, D043914). We now grant her motion for judicial notice. (Evid. Code,  452, subd. (a), 459.) However, our prior opinion and order in those cases are irrelevant to, and do not affect our disposition of, this case.

^[3] SDCDCSS, as an intervenor, has filed a respondent's brief separate from Father's brief. (Fam. Code,  17407, subd. (a).)

^[4] All further rule references are to San Diego County Superior Court Rules unless otherwise specified.

^[5] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

^[6] Cf. California Rules of Court, rule 3.1306(a), which provides: "Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown."

^[7] Although Father also did not appear to comply with rule 5.5.8(H)'s strict five-day advance notice requirement, Mother does not assert on appeal that the trial court erred by permitting him to cross-examine her at the hearing.

^[8] Even assuming the trial court abused its discretion by denying Mother's request to cross-examine Father, she nevertheless has not made any attempt to satisfy her additional appellate burden of showing that it is reasonably probable she would have obtained a more favorable result had she been allowed to cross-examine Father. (People v. Watson (1956) 46 Cal.2d 818, 836.) We therefore conclude that any error by the trial court in denying her request would be harmless error.

^[9] Prior to that month, she received $957 per month in disability payments.

^[10] Prior to that month, she received a range from $459 to $477 per month during the period of June 2005 through December 2006.

^[11] The $1,416 per month amount to which Mother refers presumably was the amount calculated by the trial court for the period of June 2005 through December 2005, when Mother received $957 per month in social security disability benefits and $459 per month in derivative social security benefits for her three children.

^[12] Family Code section 3557 generally provides for an award of attorney fees to a custodial parent or other person to whom payments should be made in any action to enforce an existing child support order or a related penalty for nonpayment of child support (or to a supported spouse to enforce a spousal support order). However, none of those circumstances were involved in Father's request for an award of attorney fees relating to Mother's section 473 motion to set aside the February 17, 2006, order.