Opinion
A099904.
7-21-2003
COUNTY OF ALAMEDA, Plaintiff and Respondent, v. HARRY J. WILLIBY, Defendant and Appellant.
Harry Williby appeals from an order entered July 10, 2002, denying a motion to vacate an order entered March 15, 2000, that denied a claim of exemption from a child support order. We affirm.
PROCEDURAL BACKGROUND
On October 13, 1994, the Family Support Division of the Alameda County District Attorneys Office (hereafter County) filed a complaint to establish appellants paternity of a two-year-old child and to secure a child support order. The limited record on appeal reveals that on June 21, 1996, the County and appellant stipulated to a modification of the child support order providing for monthly payments of $ 75, based on the fact that appellant was then unemployed and receiving unemployment benefits.
On February 22, 2000, and February 28, 2000, appellant filed separate petitions for an order to show cause regarding a claim of exemption from a bank levy. The petitions disclosed that on February 1, 2000, the Franchise Tax Board Child Support Collections Program had levied the sum of $ 3,350.93 in appellants checking and savings accounts with the Bank of America. Appellant claimed, "The monies levied in my bank account are funds I borrowed to secure housing and the basic necessities of life. The funds were also borrowed to pay for the storage of the only personal property I currently own (public storage)."
The petitions came up for hearing on March 15, 2000, before Sue Alexander, a court commissioner. The reporters transcript of the hearing provides the only record of the proceedings. Appellant represented to the court that the funds in the bank accounts came from a loan. He explained, "I borrowed that money to live in the place I live now." The court denied the petition on the ground that the money was applied to "a necessity of life," i.e., child support, and the source of the funds was not exempt.
Appellant informed the court he was arrested on an unrelated matter on May 12, 2000, and has remained incarcerated since that time. On June 12, 2002, he filed a motion to vacate the order denying his claim of exemption at the hearing on March 15, 2000. The motion asserted two separate grounds for vacation of the order: He was not notified he could object to a commissioner acting as a judge in his case, and the funds levied from his account represented a student loan that was exempt from levy.
The motion to vacate came up for a hearing in the superior court on July 10, 2002. Appellant was not present, but the Countys counsel informed the court that appellant wished to appear by phone. The court responded that it was "obvious" the motion was too late and no argument was needed. The court concluded, "I11 just so rule that its too late for me to review any action by the Commissioner, at this point, period. . . . And I am aware of the law that applies to prisoners, and we have to do what is necessary to assure that the prisoners rights are protected, but this is not even an arguable issue; it is just way too late. So ordered."
DISCUSSION
A. Family Code Section 4251, Subdivision (b)
Appellant bases this appeal on the theory that the order denying his claim of exemption is void because the child support commissioner failed to comply with Family Code section 4251, subdivision (b) (hereafter section 4251(b)) and California Constitution, article VI, section 21.
Section 4251(b) provides: "The commissioner shall act as a temporary judge unless an objection is made by the local child support agency or any other party. The Judicial Council shall develop a notice which shall be included on all forms and pleadings used to initiate a child support action or proceeding that advises the parties of their right to review by a superior court judge and how to exercise that right. The parties shall also be advised by the court prior to the commencement of the hearing that the matter is being heard by a commissioner who shall act as a temporary judge unless any party objects to the commissioner acting as a temporary judge." Family Code section 4251, subdivision (c) provides that, in the event of an objection, the commissioner "may hear the matter and make findings of fact and a recommended order." Within 10 days, a judge of the superior court may ratify the recommended order unless the order is in error or a party objects to the order. In both such cases, the judge shall schedule a hearing de novo.
The statute implements the more general provisions of California Constitution, article VI, section 21, which provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause."
Appellant seeks to invoke the principle that the court has authority to set aside a void judgment at any time. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) He argues that the failure to give the statutory notice prescribed by section 4251(b) brings the case within a line of authority holding judgments to be void for failure to give a litigant notice of a hearing in which they were entered (e.g., Morgan v. Clapp (1929) 207 Cal. 221, 224, 277 P. 490; Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal. App. 3d 549, 554, 198 Cal. Rptr. 838). Alternatively, he relies on a precedent more closely in point, In re Frye (1983) 150 Cal. App. 3d 407, 197 Cal. Rptr. 755, holding that an order of contempt issued by a commissioner was void in the absence of compliance with "the constitutional requirement of a stipulation of the parties litigant. " (Id . at p. 409.)
Appellant also cites a depublished opinion, In re Marriage of Monge (2001) 93 Cal.App.4th 911, on which we are not authorized to rely. (Cal. Rules of Court, rule 977.)
As a factual predicate for the assignment of error, appellant relies chiefly on the transcript of the hearing on March 15, 2000, which does not show any advisement pursuant to section 4251(b). In a declaration in support of his motion to vacate, appellant states he "entered into no stipulation to have the matter heard by a commissioner of the court." However, the record reveals he secured an order shortening time for the hearing on March 15, 2000, that identified Sue Alexander as a commissioner.
It is an elementary principle of appellate procedure that "the appellant has the burden of affirmatively demonstrating error by providing an adequate record. [Citations.] A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal. App. 3d 1043, 1051, fn. 9, 263 Cal. Rptr. 104; 4 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, p. 562.) Similarly, "it is settled that: 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. " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193.)
In the case at bar, we see distinct statutory and constitutional issues. We consider that a purely statutory error, arising from failure to comply with a particular directive of section 4251(b), may be reviewed by a harmless error standard and waived by failure to raise it in a timely fashion. This kind of technical error plainly does not raise issues of personal jurisdiction or due process and is therefore not governed by the line of authority on which appellant relies relating to judgments entered without notice to the affected party. On the other hand, the decision in In re Frye is authority that noncompliance with constitutional requirement of a stipulation in California Constitution, article VI, section 21, renders an order void. The existence of a stipulation must be determined by application of contract principles. (In re Frye, supra, 150 Cal. App. 3d at p. 409.) An implied-in-fact stipulation may exist despite a lack of strict compliance with section 4251(b).
On the present record, we are unable to determine the existence or nature of the error appellant asserts. Appellants conclusory statement that he did not enter into a stipulation does not remove the possibility of an implied-in-fact stipulation or directly address compliance with section 4251(b). The fact that appellant was not informed of his right to object during the hearing on his motion does not preclude the possibility he was apprised of the right by other means, such as posted notices, a collective announcement to all litigants appearing at that session of the court, references to the commissioners role in papers connected with the case, or a court handout or flier. We know only that the commissioner identified herself properly in signing the order to shorten time for the hearing.
Though In re Frye, supra, 150 Cal. App. 3d 407, presents certain parallels to the present case, it is clear the court had before it a more complete record than we possess here. We are unwilling to find constitutional error on the basis of the limited record and conclusory declaration on which appellant bases his motion. While we are cognizant of our obligation to extend equal treatment to proper litigants (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985, 884 P.2d 126; In re Marriage of Cordero (2002) 95 Cal.App.4th 653, 659, fn. 5; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), this obligation does not require the court to infer error that is not affirmatively shown in the record.
B. Right of Incarcerated
Litigant
Appellant next complains he was denied the right to appear at the hearing on July 10, 2002. He claims to have "served and filed a request to appear by telephone on said matter pursuant to California Rules of Court, rule 298." The denial of this request, he argues, constituted a breach of procedural due process (see Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1073; Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 23-24; Conservatorship of Moore (1986) 185 Cal. App. 3d 718, 725, 229 Cal. Rptr. 875) and denied him the meaningful access to the courts guaranteed to "all persons, including prisoners" (Payne v. Superior Court (1976) 17 Cal.3d 908, 914, 132 Cal. Rptr. 405, 553 P.2d 565; see also Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 203-207, 216 Cal. Rptr. 425, 702 P.2d 583; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-794).
The record on appeal, however, does not contain any request for a telephonic appearance or other paper addressing appellants right of access to the courts as an incarcerated litigant. We find no more than a handwritten annotation "telephone appearance" inserted below the case number of his notice of motion to vacate and a representation of the Countys own attorney that appellant wished to appear telephonically. The determination of the appropriate method of affording incarcerated civil litigants access to the courts lies within the discretion of the trial courts. There is no unconditional right to personal or telephonic appearance. (Yarbrough v. Superior Court, supra, 39 Cal.3d at p. 207.) The record here reveals that appellant failed to properly present to the trial court a compelling reason to provide a telephonic communication on this belated motion. We therefore find no abuse of discretion.
C. Child Support Obligation
Appellant raises other objections to enforcement of his child support obligation that may be summarily answered. (1) He argues the County appropriated funds from a federal educational loan, but he failed to present this claim at the hearing on March 15, 2000, and he includes in the present record no more than a single document that falls well short of proof of the claim. (2) He pleads the unfairness of attempting to collect child support from an indigent prisoner, but his remedy is to apply for a modification of the child support order rather than to persist in attacking a bank levy executed more than three years ago. The decision in State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123 contains nothing that might be construed as imposing on the County an affirmative duty to modify a child support order. (3) He maintains that the 10 percent interest charged on child support arrearages is usurious (County of Los Angeles v. Salas (1995) 38 Cal.App.4th 510, 513; Code Civ. Proc., § 685.010), but the interest rate is not in conflict with California Constitution, article XV, section 1, which regulates interest rates exceeding 10 percent. Appellants complaint regarding the unfairness of this interest charge must be addressed to the Legislature.
D. Attorney Fees
Lastly, we see no merit in appellants request for an award of attorney fees under Code of Civil Procedure section 1021.5. Atherton v. Board of Supervisors (1986) 176 Cal. App. 3d 433, 222 Cal. Rptr. 56 holds that the statute does not authorize an award of attorney fees to a nonlawyer acting in propia persona.
Appellants request for judicial notice is granted.
The order subject to appeal is affirmed.
We concur: Marchiano, P. J., Stein, J.