Vince v. City of Orange

Filed 2/19/10 Vince v. City of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Nicholas S. Chrisos, County Counsel, and Wendy J. Phillips, Deputy County Counsel, for Defendant and Appellant.

Law Office of Kevin F. Harrison and Kevin F. Harrison for Plaintiff and Respondent.

* * *

Introduction

The Orange County Department of Child Support Services (DCSS) appeals from a writ of mandate, issued by the Orange County Superior Court, ordering DCSS to stop its actions enforcing a support order. The support order had been entered by the Los Angeles County Superior Court, but never registered with the Orange County Superior Court.

We affirm. Unless DCSS first complies with the registration provisions of Family Code section 5600 et seq., DCSS is not authorized to enforce a support order entered by a court in another county as if it had originally been entered by the Orange County Superior Court. A writ of mandate was the proper means for ensuring DCSSs compliance with the Family Codes rules regarding enforcement of support orders entered in other counties.

Statement of Facts and Procedural History

On June 3, 1969, an interlocutory judgment of divorce was entered by the Los Angeles County Superior Court, terminating the marriage of Dennis L. Vince and Donna Mae Vince.[1] Dennis and Donna had one child. In the judgment of divorce, Dennis was ordered to pay Donna $25 per week for child support (the Los Angeles County support order).

Donna began receiving public assistance from Orange County for the minor child no later than 1975. Donna requested in writing on several occasions between 1978 and 1981 that DCSS continue collection and enforcement efforts on her behalf.

Dennis began making voluntary payments to DCSS on August 3, 1992. Dennis stopped making those payments on November 7, 1996. In May 1998, DCSS filed a petition in Florida to enforce welfare reimbursement. (Dennis lived in Florida then, and continued to live there in 2008.) DCSS received payments from Dennis through Florida beginning in October 1999.

In April 2008, Dennis filed a petition for writ of mandate or prohibition in Orange County Superior Court. Dennis claimed he had fully reimbursed Orange County for the public assistance benefits paid to Donna, and claimed Donna had waived her right to child support in an agreement signed in 1970. Dennis sought a peremptory writ commanding DCSS to stop garnishing his wages and stop support enforcement actions against him, and ordering reimbursement of all money collected by DCSS in excess of its claim for welfare assistance reimbursement. Following briefing and a hearing, the trial court took the matter under submission.

The court issued a tentative decision on October 7, 2008. The parties provided written comments to the tentative decision. On December 12, 2008, the court issued an amendment which, together with the tentative decision, was deemed to be a statement of decision. On the same date, the court issued a writ of mandate. DCSS timely appealed from the judgment.

Discussion

I.

Standard of Review

A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person. (Code Civ. Proc.,  1085, subd. (a).) The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested. (Id.,  1086.)

In reviewing the trial courts ruling on a writ of mandate under Code of Civil Procedure section 1085, the Court of Appeal ordinarily determines whether the courts factual findings are supported by substantial evidence. [Citation.] However, when, as here, the question involves the trial courts interpretation of a statute and the legal meaning of a written instrument on undisputed evidence, the question is one of law, subject to de novo review. [Citation.] (Kelly v. County of Los Angeles (2006) 141 Cal.App.4th 910, 918‑919.)

II.

DCSS Was Required to Register the LosAngelesCounty
Support Order in the OrangeCountySuperior Court
Before Attempting to Enforce It.

A. The Relevant Statutes

In exchange for providing funding for public assistance, the federal government requires states to provide services related to the establishment, modification, or enforcement of child support obligations. (42 U.S.C.  654(4)(A).) California meets this requirement through its Department of Child Support Services and the local child support agency in each county, which are charged with promptly and effectively collecting and enforcing child support obligations. (Fam. Code,  17500, subd. (a); see  17400, subd. (a) [Each county shall maintain a local child support agency, as specified in Section 17304, that shall have the responsibility for promptly and effectively establishing, modifying, and enforcing child support obligations, including medical support, enforcing spousal support orders established by a court of competent jurisdiction, and determining paternity in the case of a child born out of wedlock].) DCSS is the local child support agency for Orange County. (OrangeCounty Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806.)

DCSS may enforce a support order if a child is receiving public assistance, or if the parent to whom support is due requests that enforcement services be provided. (Fam. Code,  17400, subd. (a).) One of the statutory procedures for enforcement of a support order is registration of an order obtained in a different county. A local child support agency or obligee may register an order for support or earnings withholding, or both, obtained in another county of the state. (Id.,  5600, subd. (a).)[2]

The procedure for registering a support order issued by another California county is set forth by the statute as follows: (a) When the local child support agency is responsible for the enforcement of a support order pursuant to Section 17400, the local child support agency may register a support order made in another county by utilizing the procedures set forth in Section 5602 or by filing all of the following in the superior court of his or her county: [] (1) An endorsed file copy of the most recent support order or a copy thereof. [] (2) A statement of arrearages, including an accounting of amounts ordered and paid each month, together with any added costs, fees, and interest. [] (3) A statement prepared by the local child support agency showing the post office address of the local child support agency, the last known place of residence or post office address of the obligor; the most recent address of the obligor set forth in the licensing records of the Department of Motor Vehicles, if known; and a list of other states and counties in California that are known to the local child support agency in which the original order of support and any modifications are registered. [] (b) The filing of the documents described in subdivision (a) constitutes registration under this chapter. (Fam. Code,  5601, subds. (a), (b).)

The statutes provide the obligor with the opportunity to challenge the registration: (a) An obligor shall have 20 days after the service of notice of the registration of a California order of support in which to file a noticed motion requesting the court to vacate the registration or for other relief. In an action under this section, there shall be no joinder of actions, coordination of actions, or cross-complaints, and the claims or defenses shall be limited strictly to the identity of the obligor, the validity of the underlying California support order, or the accuracy of the obligees statement of the amount of support remaining unpaid unless the amount has been previously established by a judgment or order. . . . If the obligor does not file the motion within 20 days, the registered California support order and all other documents filed pursuant to subdivision (a) of Section 5601 or Section 5602 are confirmed. [] (b) At the hearing on the motion to vacate the registration of the order, the obligor may present only matters that would be available to the obligor as defenses in an action to enforce a support judgment. (Fam. Code,  5603, subds. (a), (b).)

B. The Statement of Decision and the Writ of Mandate

In relevant part, the trial courts statement of decision reads as follows:

The Interlocutory Judgment of Divorce was granted in Donna Mae Vince, Plaintiff v. Dennis L. Vince, Respondent, Los Angeles Superior Court Case No. D 737,611, on June 3, 1969 (over 39 years ago). . . . Child support for the minor child . . . was set at $25.00 per week . . . . An Affidavit of Accrued Arrears was prepared by the Family Support Division of the Orange County District Attorney, on May 6, 1998 (Affidavit). This Affidavit contained a caption of County of Orange, Petitioner v. Dennis L. Vince, Respondent. Orange CountySuperior Court Case No. D 737,611[] (emphasis added). Apparently the Los Angeles County Superior Court case number was handwritten in on the Orange County Superior Court document. There is not any proof that an Orange County Superior Court case ever existed between these parties until this instant case was filed in 2008.

Petitioner alleges that Orange County Department of Child Support Services has issued orders to the State of Florida to collect upon this judgment. There has not been any assignment of the Los Angeles judgment to Orange County for collection and/or modification purposes. Orange County asserts that on October 1, 1973, the mother . . . applied for and was granted public assistance which commenced no later than 1975 (emphasis added). . . . [] . . . []

 . . . The Orange County Department of Child Support Services is ordered to cease and desist from any collection efforts based upon the Los Angeles Superior Court order until a proper assignment of it is received and accepted by Orange County, including filing an appropriate action in the Orange County Superior Court. After service, as required by law, upon Dennis L. Vince, all defenses available to him may be asserted. The purported Affidavit of Accrued Arrears is determined not to have any legal effect at all.

The Orange County Department of Child Support Services may enforce any appropriate collection of public welfare amounts which were expended by it, subject to any defenses which may be asserted by the Defendant.

The amendment to the statement of decision added the following:

 . . . A proper assignment of amounts owed to the County of Los Angeles may occur in various ways. A local child support agency or obligee may register an order for support or earnings withholding, or both, obtained in another county of the state. [Fam. Code Sec. 5600(a) (emphasis added)] This section is permissive, not mandatory. If the County of Orange decides to use the procedure authorized by the Family Code, Division 9, Part 5, Chapter 8, Article 9, commencing at Section 5600 for Intercounty Support Obligations, then it must comply with its requirements.

It is undisputed that on May 6, 1998, an Affidavit of Accrued Arrears was created by the County of Orange, using a caption of Superior Court of California, County of Orange, Case No. D 737,611. . . . It is further undisputed that the County of Orange never filed this document with the Orange County Superior Court and in fact the case number is the same as the Los Angeles County Superior Court case. No such case number exists in the Orange County Superior Court. It is alleged that this document is being utilized by the County of Orange to attempt to collect money from the Petitioner in another state.

The federal law sets forth minimum requirements for state programs; it does not establish the procedures to accomplish them. [Citation.] The state law referenced by the County states, in part: The local child support agency shall take appropriate action, . . . in the collection of child support enforcement. [Fam. C. Sec. 17400(a) (emphasis added)] To designate an Orange County case heading on a Los Angeles County case which has not been properly assigned or transferred for enforcement action is wrong, ineffective, and not appropriate action.

If public assistance was granted by Orange County, then it is collectible. The fact that public assistance was granted by Orange County does not constitute an automatic assignment of prior amounts of child support and/or public assistance from Los Angeles County when Orange County has decided to utilize the procedures established in Family Code Sections 5600 et. seq.

The writ of mandate reads, in relevant part, as follows: IT IS ORDERED THAT the County of Orange through the Department of Child Support Services of the County of Orange cease and desist from any collection efforts based upon the Los Angeles Superior Court Case No. D 737611 until it complies with the requirements of Family Code Sections 5600 et. seq. by properly registering and serving the order in the Orange County Superior Court. After appropriate service of the documents upon Dennis L. Vince, all lawful defenses available to him may be asserted. [] This order does not restrict the County of Orange from pursuing collection efforts for any public assistance provided by it to Donna Mae Vince.

C. Analysis

DCSS argues that because the language of Family Code sections 5600, subdivision (a) and 5601, subdivision (a) is permissive, it follows that DCSS was not required to register the Los Angeles County support order before enforcing it. We disagree. DCSS is not compelled to try to collect, but if it does, it must comply with the appropriate statutes.

The statutory procedures governing intercounty support obligations, Family Code section 5600 et seq., provide a mechanism for a county, which did not initially enter a support order, to enforce, and even modify, the support order. To take advantage of that mechanism, however, the enforcing support agency must comply with its requirements. DCSS failed to do so here. Enforcement proceedings generally must be commenced in the court where the underlying order or judgment was rendered. [] . . . Out‑of‑state judgments and orders may be domesticated in California and thereafter enforced in California as if first entered as a California judgment or order. . . . [] Likewise, support orders may be registered between counties in California [citation], whereupon proper venue shifts to the county where the order has been registered [citation]. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2009)  18:16 to 18:16:1, p. 18‑10 (rev. #1, 2009), italics omitted.) Once properly registered, the order has the same effect as if it had originally been issued by the court of the county of registration. (Id.,  18:811.2, p. 18‑220.)

DCSS argues the registration procedures created by Family Code section 5600 et seq. are required only if the county in which the support order is to be enforced desires to modify the order. As a matter of statutory interpretation, we must reject this argument. Family Code sections 5600, 5601, and 5603 are part of a single statutory scheme and must be read and construed together. (See County of Los Angeles v. Ferguson (1979) 94 Cal.App.3d 549, 557.) None of the sections states that registration is in any way limited to situations in which modification is sought. Section 5601, subdivisions (a) and (b) state that registration is complete when certain documents are filed, none of which is a request for modification. Section 5603, subdivision (a) strictly limits the defenses that may be raised by the child support obligor to the identity of the obligor, the validity of the underlying California support order, or the accuracy of the obligees statement of the amount of support remaining unpaid. If registration were required only when modification of the original support order was sought, the statute would logically include reference to some type of defense to a modification request.

DCSS also argues the writ of mandate is an improper collateral attack on the Los Angeles County support order. To the contrary, the writ of mandate does not purport to address the validity of the Los Angeles County support order, and makes clear that DCSS may properly enforce collection of any amounts expended by it for Dennis and Donnas minor child. True, the writ of mandate emphasizes Denniss right to raise any available defenses to the Los Angeles County support order if and when DCSS attempts to register it; this simply gives both parties the rights provided to them by statute. (Fam. Code,  5603, subds. (a), (b).)

The fallacy of DCSSs arguments is demonstrated by the very documents it used to seek enforcement of the Los Angeles County support order. DCSSs documents purport to seek enforcement of an order of the Orange County Superior Court, case No. D737,611a case that does not and has never existed. The affidavit of accrued arrears dated May 6, 1998, purports to bear the case title County of Orange o/b/o Donna Mae Vince aka Donna Mae Stroyer, Petitioner, vs. Dennis L. Vince, Respondent, and to bear case No. D737,611 in the Superior Court of California, County of Orange. That case number was assigned to the divorce proceedings between Dennis and Donna in Los Angeles County Superior Court. At oral argument on appeal, DCSS conceded that the use of the Los Angeles County Superior Court case number on a document purporting to issue from or be filed in the Orange County Superior Court was an error, but claimed the error was only a clerical one.

DCSS also argues a writ of mandate was not available to Dennis because he had a plain, speedy, and adequate remedythe filing of a motion in Los Angeles County Superior Court to establish the correct amount of his arrears. The writ of mandate compels DCSS to stop its improper enforcement of the Los Angeles County support order; it does not address, much less resolve, the issue of the correct amount of Denniss arrears. DCSS does not contend Dennis had a plain, speedy, and adequate remedy to stop DCSSs enforcement actions other than the filing of a petition for a writ of mandate.

DCSS also argues the writ of mandate was improperly issued because it compels a discretionary, not a ministerial, duty. DCSS misapprehends the nature of the writ issued by the trial court. The writ of mandate does not compel DCSS to use the processes of Family Code section 5600 et seq. Rather, it compels DCSS to cease its actions enforcing and pursuing collection on the Los Angeles County support order without first complying with the procedures required by those statutes. This is a legitimate and proper use of the writ of mandate.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] We refer to Dennis and Donna by their first names to avoid confusion; we intend no disrespect.

[2] Other procedures for enforcement of a support order available to a local child support agency include, but are not limited to, earnings assignment orders (Fam. Code,  5200 et seq.), writs of execution (Code Civ. Proc.,  689.020, subd. (a)), and contempt proceedings (Orange County Dept. of Child Support Services v. Superior Court, supra, 129 Cal.App.4th at p. 801).