Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Browder A. Willis III, Judge. Super. Ct. No. D335946.
IRION, J.
Janice L. Vance, formerly Janice L. Colton, appeals a family court order updating child support arrearages and ordering that those arrearages continue to be paid under a 2002 order at the rate of $1,000 per month. Vance asserts the court erred when it made an order regarding arrearages and attorney fees without requiring Roland C. Colton, her former husband, to file an income and expense declaration. She also asserts the family court abused its discretion in setting an installment payment plan for arrearages that was unreasonably low when balanced against the significant amount of unpaid arrearages and Colton's income. We determine her appeal lacks merit and affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the court's own motion, we take judicial notice of the prior appeal in this case (In re Marriage of Colton (Sept. 30, 2004, D042043) [nonpub. opn.]). (Cal. Rules of Court, rule 8.1115 (all further rule references are to these rules).)
In December 1991, Colton filed for dissolution of the parties' 16-year marriage. In July 1992, he was ordered to pay $1,276 child support per month for each of the six children of the marriage; however, due to an error made in the computation of Colton's income, the monthly sum was later reduced to $1,145 per child. In May 1993, the parties stipulated that Colton would pay $6,000 per month in child support.
In 2002, Vance sought an arrearages order for unpaid child support. On November 19, the family court ordered Colton to pay Vance $245,090 in arrearages, at the rate of $1,000 per month until all arrearages, plus accrued interest, were paid in full, and "[i]n the event . . . [Colton] misses any two such payments, the entire remaining balance is immediately due and payable." Colton appealed, and this court affirmed the family court's order.
Almost five years later, Vance filed an order to show cause ("motion") asking that the arrearages judgment be updated to include a current interest calculation; that a "new judgment" be entered for $431,657.20, the amount owing as of February 28, 2007, and that the judgment be made immediately due and payable; and that Colton be required to maintain life insurance as security for unpaid support. Vance's declaration filed in support of the motion clarified she was "not seeking a payment plan" and would need to seek other ways to enforce the judgment. Vance asserted, "[B]ased upon what I know of [Colton's] earnings and assets, Colton should have and could have paid off a portion of the arrears." She asked for a $3,500 contribution toward her attorney fees, as she was required to seek court intervention to update arrearages and obtain a new judgment. Vance's moving papers do not mention the 2002 arrearages payment order.
Colton opposed Vance's motion, arguing that: her calculation of interest was incorrect; there was no legal basis for ordering security for support payments as the children were no longer minors; Vance's attempt to make the arrearages judgment immediately due and payable would set aside the court's 2002 payment order; and there should be no contribution to Vance's attorney fees.
The family court ruled the calculation of interest should be "based on the judgment of the court from 2002"; that the request to update the judgment to $431,657.20 was appropriate; and that the amount was "to continue to be paid" at the rate of $1,000 per month. In making its ruling the court stated, "[T]here's no legal basis to make it a judgment as long as the payments are being made"; "that's the previous order and he's not delinquent in that thousand dollar payment." The family court clarified it was not precluding Vance from collecting the arrearages using other available means, stating, "I think if you have another vehicle available to you to collect the $431,000 you certainly — I'm not precluding you from doing that. But the order is that he only has to pay by order of the court $1,000 a month." Finally, the court ordered Colton to maintain a life insurance policy as security for payment of unpaid support and to contribute $3,000 toward Vance's attorney fees.
Vance appeals.
II
DISCUSSION
On appeal, Vance makes two arguments. First, she contends that since support and attorney fees were at issue, Colton was required by rule 5.128 to file an income and expense declaration so that the court could determine the amount that Colton was able to pay toward satisfying arrearages. Second, Vance asserts the court abused its discretion in setting a monthly payment schedule that was unreasonably low when compared to the large amount of outstanding arrearages and Colton's income. Before addressing these contentions, we pause briefly to review the basic rules regarding child support arrearages and their enforcement.
A. Child Support Arrearages and Their Enforcement
Delinquent child support payments accrue postjudgment interest under the rules applicable to installment judgments. Like all money judgments, child support orders accrue postjudgment interest at the legal rate, currently 10 percent. (Code Civ. Proc., § 685.010.) Unless the judgment provides otherwise, interest accrues as to each support installment when it becomes due and payable, and continues to accrue for as long as the arrearages remain unpaid. (In re Marriage of McClellan (2005) 130 Cal.App.4th 247, 251; In re Marriage of Hubner (2004) 124 Cal.App.4th 1082, 1089.)
Interest accrues only on the overdue installments under the initial support order, whether temporary or final, and whether or not it is contained in a judgment. An order to fix arrearages under the initial support order or establishing a periodic payment plan to liquidate arrearages under the initial support order is not a new installment judgment for support that itself accrues interest. (Fam. Code, § 155 [abrogating a contrary holding in Dupont v. Dupont (2001) 88 Cal.App.4th 192, 201-202]; In re Marriage of McClellan, supra, 130 Cal.App.4th at pp. 251-252.)
"Accrued child support arrearages are treated like a money judgment. (In re Marriage of Perez [(1995) 35 Cal.App.4th 77,] 80.) Generally, a money judgment is enforceable for 10 years after entry, but the enforcement period may be extended by renewal of the judgment. ([Code Civ. Proc., ]§§ 683.020, 683.120, subd. (a).) A judgment for child support is exempt from the renewal requirement. It is enforceable until paid in full, even after the child reaches 18 years. ([Code Civ. Proc., ]§ 683.130, subd. (c)(1); Fam. Code, §§ 4502, 4503.)" (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1057.)
Though unnecessary, renewal of a child support judgment is of economic benefit to the judgment creditor. When an installment money judgment is renewed, the amount of the lump sum renewed judgment includes past due installments, costs and accrued interest. (§ 683.150, subd. (c).) Thus, renewal allows for compounding of interest. (See 8 Witkin, Cal. Procedure (3d ed. 1985) Enforcement of Judgment, § 30, p. 50; In re Marriage of Thompson, supra, 41 Cal.App.4th at p. 1057.)
Courts have no discretion to waive or forgive any part of a support arrearages debt. Thus, arrearages may not be retroactively modified. (Fam. Code, § 3651, subd. (c); County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327.) This rule also applies to accrued interest on unpaid support arrearages. (In re Marriage of McClellan, supra, 130 Cal.App.4th at p. 251.)
However, Family Code section 290 grants the family court "broad discretion to select appropriate enforcement remedies and terms; and, in exercising that discretion, to take the equities of the situation into account." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 18:1.5, pp. 18-1 to 18-2; Fam. Code, § 290 ["A judgment or order made or entered pursuant to this code may be enforced by the court by execution, . . . or by any other order as the court in its discretion determines from time to time may be necessary"].) Consequently, courts have recognized a distinction between a prohibited retroactive modification or elimination of the amount of arrearages and a permissible exercise of the court's discretion to determine the extent to which the arrears are collectible or should be enforced. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 18.13.)
Having these rules in mind, we now turn to a discussion of Vance's contentions on appeal.
B. While Colton Should Have Filed an Income and Expense Declaration Prior to the Hearing on Vance's Motion, the Error Does Not Require Reversal.
Vance contends that since her motion involved support and attorney fees, rule 5.128 required Colton to file a current income and expense declaration with the court. She claims the court should have required Colton to file an income and expense declaration so that it could determine what amount he could pay toward liquidating arrearages, and its failure to do so resulted in reversible error. We disagree.
Rule 5.128 provides in relevant part: "(a) A current Income and Expense Declaration . . . when such form is appropriate, . . . must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. 'Current' is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue."
Vance's motion sought to renew the arrearages judgment, obtain a "new" judgment without a payment plan, and obtain security for unpaid child support and attorney fees. As we have previously noted, since a request for an order fixing arrearages under the initial support order or judgment does not create a new installment judgment for support, there was no legal basis for the court to grant Vance's request for a new judgment. The initial support judgment remained in place and was enforceable, until paid in full. Further, as we will point out later, Vance's motion did not seek to increase or otherwise modify the payment plan under the 2002 order. Thus, under Vance's pleading, the only support-related issue the court was called upon to make was how much interest had accrued, as a matter of law, on the overdue and unpaid child support installments. That task called for a mere mathematical calculation by the court; Colton's income and expense declaration was not "relevant" to that determination.
Vance's citation to In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, a case involving a request for modification of child and spousal support, is not controlling. Neither is In re Marriage of Jacobs (1981) 126 Cal.App.3d 832 relevant to resolution of Vance's appeal, as that case involved retroactive modification of a support order after remand.
We agree with Vance however, that Colton's income and expense declaration was "relevant to the court's determination" whether to issue an order for Colton to maintain life insurance as security for family support and to contribute to Vance's attorney fees. The error was harmless, however, as the court granted Vance both security for unpaid support and a contribution to her attorney fees.
Vance's motion sought a contribution of $3,500 toward attorney fees; the court awarded Vance $3,000 in fees, which we determine to be the amount the court impliedly found reasonable. Below, Vance did not object to the amount of fees awarded and has forfeited her appellate claim that the award should have been greater.
C. Vance's Motion Did Not Seek Modification of the 2002 Arrearages Payment Order. As Such, She Has No Appellate Claim as to the Adequacy of the Monthly Payment.
Vance asserts the family court abused its discretion in setting an installment payment for liquidating arrearages that was unreasonably low when balanced against the amount of arrearages owed and Colton's income. Citing In re Marriage of Everett (1990) 220 Cal.App.3d 846, Vance claims the court was required to consider Colton's income and obligations in setting the arrearages payment, but was precluded from doing so since it did not have a current income and expense declaration. She claims the $1,000 per month payment on arrearages was approximately 5 percent of Colton's income five years earlier and did not come close to meeting even the monthly interest on the arrearages.
Colton responds that the trial court did not set a new payment plan, but continued his payment obligations under the 2002 arrearages order. He asserts that on appeal Vance seeks to overturn and reverse a final order issued by the court more than five years ago, with which he was fully compliant. Colton claims that even if the 2002 payment order were able to be modified, Vance never argued that the payment should be increased and she is barred from making an appellate claim as its adequacy.
While we agree with this last contention and find it dispositive, because of the parties' apparent confusion about enforcement and modification of child support arrearages, we believe it incumbent upon us to briefly review the applicable rules.
Colton seems to suggest a payment order on arrearages once issued cannot be modified. Vance seems to believe that an order updating arrearages gives the court the authority to issue a "new judgment" on the updated sum. Neither position is correct.
As we have stated, because accrued arrearages are treated like a money judgment, courts may not retroactively modify or terminate the arrearages. In this sense, the 2002 arrearages order of the family court is indeed a final, nonmodifiable order, as Colton claims.
Also, to the extent Vance contends the amount of the payment was insufficient when issued, she is barred from making the claim as she did not file a cross-appeal of the 2002 family court order.
However, courts have discretionary authority under section 290 of the Family Code to make various orders regarding the enforcement or manner of payment of arrearages judgments. An order for monthly payments on arrearages is such an order. An installment payment order on arrearages leaves intact the underlying support order and any accrued arrearages, and does not violate the statutory policy prohibiting the retroactive reduction of arrearages. Installment payment orders may be modified and do not bar alternate enforcement efforts (Fam. Code, § 5100 [providing for issuance of writs of execution or notices of levy on child support arrearages orders "[n]otwithstanding Section 290"]).
Family Code section 290 provides: "A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary."
The family court appeared to recognize Vance's ability to enforce the arrearages judgment using other means stating, "I think if you have another vehicle available to you to collect the $431,000, you certainly — I'm not precluding you from doing that." On appeal, during oral argument, counsel for Vance pointed out that the trial court went on to state that the parties should seek prior approval for issuance of a writ of execution. Although this statement is not reflected in the minute order or the order after hearing, we note that section 5100 does not require preapproval of alternate enforcement efforts and the trial court was incorrect to suggest otherwise. Therefore, the trial court's statement is not controlling.
These points were made clear by In re Marriage of Everett, supra, 220 Cal.App.3d 846. There, the family court ordered the husband to pay down arrearages of $15,676 at the rate of $35 per month. Our colleagues in the First District rejected the wife's contention that the order constituted an "impermissible retroactive modification of a final order," explaining that "the order requiring [the husband] to pay down arrearages at the rate of $35 per month is not a retroactive modification of the arrears but rather an exercise of the court's equitable discretion to enforce its orders." (In re Marriage of Everett, at pp. 854-855 [relying on former Civ. Code, § 4380, the precursor to Fam. Code, § 290].) The court based this conclusion on the fact that "[t]he order does not operate to forgive or compromise the outstanding debt nor does it preclude future modification or future enforcement efforts by way of execution, interception and the like." (Id. at pp. 855-856, italics added.) The court noted that until further enforcement proceedings, the support debtor's compliance with payments ordered would prevent him from being held in contempt of court. (Id. at p. 856.)
Thus, to the extent the 2002 order included an installment payment plan issued under Family Code section 290, Vance could have clearly sought to have the order prospectively modified. But, she did not do so. Vance's failure to seek modification of the 2002 payment order precludes her claim for appellate relief that the family court abused its discretion in continuing the prior payment order. (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844 [the general rule is that an appellate court will consider only such points as were raised in the trial court, and this rule precludes a party from asserting, on appeal, claims to relief not asserted or asked for in the court below].)
Nothing precludes Vance from now asking the family court for modification of its 2002 payment order. Vance also may seek a writ of execution on the judgment. (Fam. Code, §§ 5100, 5104.) Once issued, the burden falls to the judgment debtor to present reasons why the writ should be recalled. (Jackson v. Jackson (1975) 51 Cal.App.3d 363, 368; In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182; Slevats v. Feustal (1963) 213 Cal.App.2d 113, 119-120.) As the trial court noted, Vance may have other avenues to obtain satisfaction of the outstanding arrearages. She may not, however, obtain appellate relief on the record before us.
DISPOSITION
Affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.