Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. BY625742, Marc J. Kopeikin, Juvenile Court Referee.
G.C., in pro. per., for Defendant and Appellant.
County of Los Angeles Child Support Services Department, Lisa M. Garrett, Chief Attorney and Tammy Nakada, Staff Attorney for Plaintiff and Respondent.
BIGELOW, J.
The prevailing defendant on a motion to set aside a default and default judgment filed the present appeal (in pro. per.) to challenge a perceived deficiency in the scope of the trial court’s order granting relief. We affirm the order.
FACTS
In May 2002, County of Los Angeles Child Support Services Department (CSSD) filed a “Complaint Regarding Parental Obligations,” alleging that K.S. and G.C. were the parents of C.R.S., born October 1986, and that G.C. owed $1,692 in unpaid child support. The complaint further requested a court order directing G.C. to pay current monthly child support in the amount of $423.
Almost two years later (in March 2004), a process server purportedly served G.C. with a summons and complaint by delivering the documents to an individual identified as “D. Jackson,” at an address on Brookhurst Street, in Anaheim. At the time of purported service of process, and at all times relevant to this case, G.C. was actually incarcerated in San Quentin State Prison.
On August 10, 2004, CSSD filed a request to enter G.C.’s default, together with a declaration in support of a default/uncontested judgment. On the same day, the trial court entered a “Judgment Regarding Parental Obligations.” The judgment included a finding that G.C. was the parent of C.R.S., and ordered G.C. to pay approximately $1,000 in unpaid child support for the period February 2002 through May 2002, and current monthly child support in the amount of $254, beginning from June 2002. The judgment directed G.C. to make all payments to the “Court Trustee” at a post office box in Los Angeles.
In March 2006 and March 2007, the United States Department of the Treasury applied G.C.’s income tax returns to the judgment for child support obtained by CSSD. In September 2007, Bank of America notified G.C. –– at an address in Folsom –– that it was required by law to honor an order to withhold $9,592.60 from his savings account to apply to the child support judgment.
On October 31, 2007, G.C. filed a Judicial Council form request for an order to show cause (OSC) regarding “modification” of the child support judgment obtained by CSSD. G.C.’s request for an OSC asked the trial court to “stop all payments,” and for an order that “[a]ny and all monies taken from [his] bank account and income tax [checks] be returned to [him]...” at San Quentin State Prison. In a declaration in support of his requests, G.C. claimed that he “was never served [with] any papers in relation to child support,” and that he had been in the custody of the Department of Corrections beginning in December 1998. Upon receiving G.C.’s documents, the trial court agreed to set the matter for a hearing, and, in December 2007, CSSD filed a response in which it stated that any funds already collected pursuant to the child support judgment could not be ordered returned to G.C., but not challenging G.C.’s claim that he had not been served with the action. On January 30, 2008, G.C. filed a motion to set aside his default and the default judgment entered against him in August 2004.
At a hearing on April 21, 2008, the trial court considered G.C.’s requests for relief. G.C. “appeared” at the hearing by way of a telephone conference call from San Quentin State Prison. During the hearing, the trial court, G.C. and counsel for CSSD discussed the idea of saving –– by stipulation –– the portion of the judgment concerning paternity, with the issue of the child support “financials” addressed separately. During the course of those discussions, the trial court stated that it did not have the authority to order the return of any money which had already been collected on the child support judgment. When G.C. continued to maintain that he did not understand how his money could have been taken in the first place when he had not received notice of the action and continued to state that he did not understand how any money taken under such circumstances could not be ordered returned, the trial court decided to grant G.C.’s motion to set aside the default and the default judgment both as to paternity and the child support issues and to proceed as though G.C. had never been properly served. At the same time, the court advised G.C. that the court would “reserve” the issue of whether it had the power to order the return of any money collected on the child support judgment prior to the time it was vacated. The court advised G.C. that he was “going to have to file a separate motion” addressing the issue.
Rather than file a motion in the trial court, G.C. filed a notice of appeal from the court’s orders made on April 21, 2008.
DISCUSSION
G.C. contends the trial court “made no decision on the issue of returning the money already taken for child support.” We reject G.C.’s contention for at least two reasons. First, G.C. declined the trial court’s invitation to file a motion addressing the issue of whether the court had the power to order any money returned to G.C., and, thus, G.C. has invited any error which may have resulted from the trial court’s failure to “make a decision.” Second, assuming that G.C. is actually arguing that the trial court erred by ruling that it did not have the power to order the return of money already collected on the child support judgment which was vacated, the authorities cited by G.C. do not support his contention that money had and received on a final judgment may be ordered returned upon an order vacating that judgment.
We reject CSSD’s contention that G.C. has appealed from a nonappealable order. An order setting aside a default and default judgment is appealable as an order after final judgment. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 287.)
We offer no opinion on Cole’s entitlement to the money in question.
G.C. cites two authorities, neither of which is applicable in his situation. Family Code section 4009 provides that, where a parent is ordered to pay child support, but the complaint was not served within 90 days after the complaint for child support was filed, and the parent did not intentionally evade service, the date for the commencement of the parent’s child support obligation shall be effective no earlier than the date of service of the complaint. This code section has nothing to do with the issue of restitution of money after a judgment for child support has been vacated. In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, is equally off the mark. In Goosmann, the Sixth District Court of Appeal reversed an order awarding retroactive child support because it was infected with procedural error. Goosmann, like Family Code section 4009, has nothing to do with the issue of restitution of money after a judgment for child support has been vacated.
In summary, G.C.’s arguments and legal authorities have not met his burden on appeal of showing the trial court erred. We express no view regarding the remedies, if any, which may be available to G.C. to recover money collected on a judgment for child support which has now been vacated.
DISPOSITION
The trial court’s order dated April 21, 2008, is affirmed.
We concur: FLIER, Acting P. J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
To the extent CSSD’s argument is construed to mean that G.C. may not appeal because he is not an “aggrieved party” under the order granting his motion to set aside his default, we are satisfied that his assignment of error that money “wrongly” taken from him was not returned under the order is sufficient to allow his appeal to be heard.