Espinosa v. Department of Child Support
Services
Filed 4/2/13 Espinosa v. Department of Child Support
Services 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
GEORGE Q. ESPINOSA,
Plaintiff and Appellant,
v.
DEPARTMENT OF CHILD
SUPPORT SERVICES,
Defendant and Respondent.
C063114
(Super. Ct. No. 07CS00698)
Plaintiff
George Espinosa, in propria persona, appeals from a judgment of the trial court
denying his petition for writ of
administrative mandate. Plaintiff
contends defendant Department of Child Support Services (DCSS) erred in denying
him relief from efforts by the Family Support Division of the Placer County
District Attorney’s Office, as the Local Child Support Agency (LCSA), to
collect child support arrears from his social security disability
benefits. We disagree and affirm the
judgment.
Facts
and Proceedings
On October 23,
1984, JoAnn Espinosa (JoAnn) filed a petition in the Placer County
Superior Court to dissolve her marriage with plaintiff. On December
20, 1984, that court entered default judgment of dissolution,
awarding physical custody of the
couple’s five minor children to JoAnn and ordering plaintiff to pay child
support of $100 per month per child until each child reaches the age of
majority. The judgment also required
plaintiff to pay spousal support of $150 per month for seven years or until
JoAnn remarries, whichever occurs first.
In January 1988, the LCSA obtained a
the Placer County Superior Court in the amount of $19,500, based on assignment
of JoAnn’s right to collect child support to Placer
County pursuant to Welfare and
Institutions Code section 11477.
In 1991, the LCSA stopped charging plaintiff for ongoing
child support obligations, because supplemental social security benefits being
received by JoAnn on behalf of the children due to plaintiff’s disability
(derivative SSA payments) exceeded plaintiff’s support obligation to those
children.
On June 15, 1999, plaintiff filed in the
County Superior Court a declaration for modification of support in which he
claimed irregularities in the original dissolution proceeding. In particular, plaintiff asserted he had
never been served with process and JoAnn failed to disclose the family home and
other property as marital assets.
Plaintiff also claimed the county failed to prove “paternity,
separation, ability to pay, amount and receipt of public assistance.†Plaintiff further sought relief from the
judgment on the basis that he had not been gainfully employed since 1983.
On July 14, 1999,
plaintiff moved in the Placer County Superior Court to quash the writ of
execution previously issued. Plaintiff
also obtained an order to show cause regarding support, in which he again
claimed the LCSA had failed to prove paternity, his ability to pay support, or
the amount of public assistance received by his ex-wife. He also contested the amount of support
arrears sought.
On July 21, 1999,
the United States Social Security Administration sent plaintiff notice that
$100 per month would be deducted from his disability benefits to satisfy the
writ of execution issued by the Placer County Superior Court.
The following month, the Placer County Superior Court
granted plaintiff’s motion to quash the writ of execution. Regarding support arrears, the court
indicated: “[Plaintiff’s] motion
regarding child support and spousal support is also treated as a request to
determine arrearages. A ruling on this
motion is deferred pending [plaintiff’s] filing an additional motion to set
aside the Dissolution. . . .â€
On September 21,
1999, plaintiff and JoAnn entered into a stipulation that all child
and spousal support arrearages are waived. The stipulation states: “Payments made under Social Security Act met
support amounts.†Three days later,
plaintiff filed in the Placer County Superior Court a request for dismissal of
child and spousal support arrearages.
The record contains no indication as to how the court ruled on that
request.
On February 12,
2006, plaintiff filed a request for hearing with the DCSS. In his 21-page, handwritten request,
plaintiff asserted various claims, including fraud in connection with the
original dissolution judgment as to service of process, the listing of
property, and service of the judgment.
Plaintiff also asserted JoAnn never filed a motion for support, support
could not be ordered retroactively, he did not receive notice of the support
obligation until 1999, the order quashing the writ of execution eliminated all
support arrears before 1988, all support arrears were satisfied by social
security payments to the children, and spousal support was waived. Plaintiff further asserted the county
improperly ceased charging support in 1991 without providing him due process
and violated the Americans with
DCSS issued its decision on plaintiff’s request on June
15, 2006. DCSS concluded it had no
jurisdiction to adjudicate any claims regarding the validity of the underlying
dissolution judgment. DCSS also rejected
plaintiff’s claim that all arrears up to 1988 had been eliminated by the order
quashing the writ of execution.
According to DCSS, such arrearages can be eliminated only by
payment. Finally, DCSS concluded
plaintiff had been credited with all social security payments received by the
children to the extent permitted by law.
On June 8, 2007, plaintiff filed a petition for writ of
mandate with the court below challenging the decision of DCSS. In the petition, plaintiff asserted support
arrears had been calculated incorrectly and DCSS otherwise erred in rejecting
his various claims.
On July 17, 2008, plaintiff moved in the same court for
an order setting aside the 1984 dissolution judgment issued by the Placer
County Superior Court. On September 5,
the trial court denied this motion, explaining it had no jurisdiction to set
aside a judgment entered by another court.
On May 22, 2009, the trial court ruled on plaintiff’s
petition. The court explained it had no
jurisdiction to overturn the dissolution judgment and concluded the
appropriate. On July 31, the court
entered judgment against plaintiff.
Plaintiff appeals from that judgment.
Discussion
I
Family Code section 17450
In a nutshell, the present matter is a challenge to child
support arrears sought by LCSA as reimbursement for welfare benefits received
by JoAnn on behalf of the children during a period when plaintiff was not
making the child support payments ordered in the 1984 dissolution
judgment. Plaintiff claims primarily
that he was not given credit for the full amount of derivative SSA payments
received by the children due to his disability.
As we shall explain, plaintiff is wrong.
Family Code section 5246 authorizes an assignment of
earnings, including disability benefits, to satisfy support arrearages. (Further undesignated statutory references
are to the Family Code.) Subdivision
(d)(2) of that section reads: “If the
underlying court order for support does not provide for an arrearage payment,
or if an additional arrearage accrues after the date of the court order for
support, the local child support agency may send an order/notice to withhold
income for child support that shall be used for the purposes described in this
section directly to the employer which specifies the updated arrearage amount
and directs the employer to withhold an additional amount to be applied toward
liquidation of the arrearages . . . .†Subdivision (d)(3) in turn reads: “Notwithstanding paragraph (2), if an obligor
is disabled, meets the SSI resource test, and is receiving Supplemental
Security Income/State Supplementary Payments (SSI/SSP) or, but for excess
income as described in Section 416.1100 et seq. of Part 416 of Title 20 of the
Code of Federal Regulations, would be eligible to receive SSI/SSP, pursuant to
Section 12200 of the Welfare and Institutions Code, and the obligor has
supplied the local child support agency with proof of his or her eligibility
for and, if applicable, receipt of, SSI/SSP or Social Security Disability
Insurance benefits, then the order/notice to withhold income issued by the
local child support agency for the liquidation of the arrearage shall not
exceed 5 percent of the obligor’s total monthly Social Security Disability
payments under Title II of the Social Security Act.â€
Plaintiff contends the LCSA was barred from collecting
arrearages by section 17450, subdivision (c)(2), which reads: “If an obligor is disabled, meets the federal
Supplemental Security Income resource test, and is receiving Supplemental
Security Income/State Supplementary Payments (SSI/SSP) . . ., and the obligor
has supplied the local child support agency with proof of his or her
eligibility for, and, if applicable, receipt of, SSI/SSP or Social Security
Disability Insurance benefits, then the child support delinquency shall not be
referred to the department for collection, and, if referred, shall be
withdrawn, rescinded, or otherwise recalled from the department by the local
child support agency. The department
shall not take any collection action, or if the local child support agency has
already taken collection action, shall cease collection actions in the case of
a disabled obligor when the delinquency is withdrawn, rescinded, or otherwise
recalled by the local child support agency . . . .â€
Section 17450 has no bearing on the present matter. It is part of an article added to the Family
Code in 2004 titled Delinquent Child Support Obligations and Financial
Institution Data Match (FIDM), which established a statewide system for
obtaining payment of child support arrears by levying on banks accounts of
obligors. (Stats. 2004, ch. 806,
§ 6, p. 6152.) In
of Hopkins (2009) 173 Cal.App.4th 281, a
case relied upon by plaintiff, the Court of Appeal concluded “an obligor who is
disabled and is eligible for or receiving either SSI/SSP or SSDI payments, or, who but for the federal SSI resource
test would be eligible to receive SSI/SSP payments, is exempt from levy†under
Family Code section 17450. (
exempt from levy under the FIDM system does not mean he or she is also exempt
from a wage or benefits garnishment under section 5246. In Hopkins,
the local department levied on the obligor’s bank account to satisfy support
arrearages. However, at the same time,
the department was receiving an assignment of $150 per month form the obligor’s
disability benefits. (
was improper under section 17450.
From what we can gather on the
limited record before us, there has been no attempt to levy on any bank account
or other property of plaintiff. This
matter involves instead a levy on plaintiff’s disability benefits to satisfy
support arrears. Neither section 17450
nor Hopkins has any bearing on such
levy.
II
Failure to Calculate Arrears
Plaintiff contends DCSS failed to give him credit for
derivative SSA payments received on behalf of the children during the period
when the LCSA was not charging him support.
As noted above, the LCSA stopped charging support in 1991, because
derivative SSA payments received by JoAnn on behalf of the children exceeded
plaintiff’s support obligation.
Plaintiff argues neither DCSS nor the trial court gave him the proper
credit for derivative SSA payments, since neither made a determination of the
amount of arrearages owed.
We fail to see how the fact that neither DCSS nor the
trial court determined the amount of arrearages, if in fact that is true,
proves they failed to give him proper credit for derivative SSA payments
received. The issue below was not simply
one of accounting for payments received but whether, as a matter of law,
plaintiff was entitled to credit for excess derivative SSA payments received
during the relevant period. The LCSA ceased
charging plaintiff for support obligations once the amount of derivative SSA
payments exceeded his monthly support obligation. From that point forward, no further amount
was added to the accumulated arrears. However,
plaintiff contends he was entitled to have the excess of derivative SSA
payments over support obligations credited toward his accumulated arrears. But, as DCSS ruled, the law applicable at the
time did not permit such credit. And, as
we explain below, DCSS was correct in this conclusion. Thus, there was no occasion for DCSS or the
trial court to recalculate arrears.
III
DCSS and Trial Court Proceedings
Plaintiff contends he was denied
trial court. In particular, plaintiff
asserts that, during the hearing on his petition for writ of mandate, the court
did not review the findings of the administrative
hearing board and, in fact, did not even have those findings before
it. According to plaintiff, the issue
presented in the administrative matter was the proper accumulation and
calculation of arrearages, but the trial court “summarily ruled against
[plaintiff] without applying proper case law.â€
Plaintiff argues DCSS improperly dismissed his claim on the basis of
California Code of Regulations, title 22, section 120201, subdivision
(a)(3)(A), which precludes agency jurisdiction where a challenge to the amount
of support arrearages is in fact an attempt to seek relief from enforcement of
the underlying child support order.
Plaintiff misreads the record. In his request for a hearing before the DCSS,
plaintiff asserted fraud on the part of his ex-wife with respect to the
dissolution judgment. As he had done
many times before, plaintiff asserted he had not received service of process or
service of the judgment and JoAnn failed to disclose certain property. He also claimed JoAnn had never filed a
motion for support and support could not have been ordered retroactively. Finally, plaintiff asserted he had not
received notice of his support obligation until 1999. All of these claims went to the validity of
the underlying dissolution judgment, which included the support obligation. DCSS properly ruled on those claims,
concluding it had no jurisdiction over the underlying judgment. Only the Placer County Superior Court has
jurisdiction over such matters.
On the issue of credit for derivative SSA payments
received on behalf of the children, DCSS ruled:
“The evidence further established that the LCSA credited [plaintiff’s]
account with the derivative Social Security benefits received by the
children. The crediting of these
payments were [sic] consistent with
Family Code Section 4504(b) and FSD Letter No. 96-07 as set forth above. To this extent, the complaint is
denied.†As recited earlier in the DCSS
decision, FSD Letter No. 96-07, dated February 8, 1996, provided that, although
credit must be given for monthly payments made pursuant to Family Code section
4504, any excess above the amount of support owed “cannot be applied toward
futures or arrears.â€
Section 4504 requires that derivative SSA payments
received by a custodial parent due to the retirement or disability of the
noncustodial parent shall be credited toward
this section, and its predecessor, former section 4705, provided that payments
received “each month†shall be credited toward the amount ordered to be paid
“for that month.†(Stats. 1979, ch. 69,
§ 1, p. 172; Stats. 1996, ch. 912, § 2, p. 5153.) In 2004, section 4504 was changed to delete
the language limiting credit to the month received, thereby permitting credit
of any excess toward arrearages. (§ 4504, subd. (b); Stats. 2004,
ch. 305, § 4, p. 3234.)
In In re Marriage of Robinson (1998) 65 Cal.App.4th 93, this court affirmed a decision of
the trial court denying any credit against arrearages for the excess of social
security benefits paid over support obligations. Applying the prior version of section 4504,
we explained: “We find Family Code
section 4504 to be unambiguous in its directive that Social Security payments
be credited against the amount ‘to be paid for that month.’ It does not authorize payments to be credited
to amounts due in prior months, nor to accrued interest on those
arrearages. Since the right to any
credit exists only by virtue of statutory authorization, it is limited to the
extent set forth in section 4504.†(
At the time plaintiff’s children were receiving
derivative SSA payments that exceeded plaintiff’s support obligation, section
4504 did not permit any credit for this excess against accrued arrears. Therefore, plaintiff was not entitled to any
such credit. Plaintiff provides no legal
argument to the contrary.
In his petition below, plaintiff asserted the calculation
of arrears by LCSA was incorrect due to lack of any motion for support in the
dissolution proceedings. Plaintiff
further asserted there had been no income and expense statement or listing of
property in connection with the dissolution
proceedings. Regarding the
challenged administrative decision, plaintiff asserted DCSS had not inspected
the documents submitted, derivative SSA payments must be credited against
support arrears, LCSA ceased charging support in 1991, laches applies to
enforcement of the dissolution judgment, LCSA is applying laws that were not in
effect at the time of the dissolution judgment, DCSS should have applied the
version of section 4504 that went into effect in 2004, and further evidence to
be presented in court will show other payments that should have been credited
against arrears.
On May 22, 2009, the trial court issued a minute order
reading as follows: “The Court reminded
[plaintiff] that this Court does not have jurisdiction to attack the 1984
judgment for child support and alimony ordered by the Placer County Superior
Court. The Court advised [plaintiff]
that his remedy in this area lies with Placer County Superior Court or the
Third District Court of Appeal.†The
order further states: “The Court found
that the administrative hearing process conducted in this matter was
appropriate.†Finally, the order
states: “The Court denied the petition
for writ of mandate for the reasons as fully stated on the record.â€
On July 16, 2009, plaintiff submitted a request for
statement of decision. The court denied
the request as untimely and moot. The
court further explained that it “stated the factual and legal basis for its
decision at the hearing.â€
The record before us does not contain a reporter’s
transcript. Hence, we do not have the
benefit of the trial court’s reasoning or the basis for its ruling. “ ‘A judgment or order of the lower
court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ †(
considered an appeal on the judgment roll.
(Crummer v.
796.) “[W]hen an appeal is based upon
the judgment roll alone a reversal cannot be ordered except for a fatal error
on the face of the judgment.†(
On the record before us, we presume the correctness of
the trial court’s judgment upholding the decision of the DCSS. On plaintiff’s claim that the agency failed
to consider documentary evidence presented, we must presume otherwise, since no
contrary evidence appears in the record.
(Evid. Code, § 664; People
v. Frye (1994) 21 Cal.App.4th 1483, 1486; People v. Young (1991)
228 Cal.App.3d 171, 186.) Regarding
LCSA’s decision to cease charging support in 1991, this proves nothing. Such cessation was based solely on the fact
the derivative SSA payments at the time exceeded plaintiff’s support
obligation. This was not a cessation of
the support obligation but a recognition that such obligation was being
satisfied by other means. As for laches,
plaintiff provides no argument in this regard.
He also fails to establish any prejudice from any delay by the agency in
seeking arrearages. And plaintiff
provides no legal basis for his assertion that the law in effect at the time
support payments were due cannot be applied to a dissolution judgment that predated
that law. Finally, as explained above,
plaintiff’s claim that he is entitled to credit against arrearages to the
extent derivative SSA payments between 1991 and 1999 exceeded his support
obligation is without merit.
IV
Reply Brief
In his reply brief, plaintiff argues for the first time
that the court below improperly denied him the opportunity to present evidence
at the hearing on his petition. We do
not normally consider arguments raised for the first time in a reply
brief. (Neighbours v. Buzz Oates
Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) At any rate, because this is a judgment roll
appeal, there is nothing in the record to support plaintiff’s claim that the
court denied him an opportunity to present evidence. In addition, plaintiff makes no attempt to
describe the evidence he sought to present or to explain its relevance to this
matter.
Plaintiff raises other issues for the first time in his
reply brief, such as a claim that the record lacks evidence that JoAnn ever
applied for welfare benefits and the LCSA did not properly conduct the
administrative proceedings. We decline
to consider these issues. (
217 Cal.App.3d at p. 335, fn. 8.) It
would be unfair to permit plaintiff to raise new issues in his reply brief and
afford defendant no opportunity to respond.
Disposition
The
judgment is affirmed. DCSS is awarded
its costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1).)
HULL ,
J.
We concur:
RAYE ,
P. J.
DUARTE , J.
