Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVFS0017320
RAYE, J.Appellant Jimmy Lee Gettings, appearing in pro. per., appeals the denial of his 2006 motion to set aside a child support order entered in October 2003 and the denial of his 2006 recusal request. In essence, appellant is attempting to reduce his support obligation because his ex-wife purportedly interfered with his visitation and lived rent-free in his house. We need not resolve the merits of his appeals because a litigant appearing in pro. per. is bound by the procedural rules of court, and his motions were untimely and procedurally defective. We remand the case, however, to the trial court to reconsider appellant’s application for a waiver of court fees. In all other respects, we affirm.
FACTS
Appellant’s ex-wife began receiving public assistance from Shasta County in August 2001. In March 2003 the Shasta County Department of Child Support Services (Department) filed a complaint to obtain $1,117 in child support from appellant and served him in August 2003. Appellant defaulted, and a final judgment was entered on October 31, 2003.
In April 2004 the Department filed an order to show cause for contempt. Appellant filed a timely response. In July 2004 appellant filed a motion to reduce child support. Upon request of the Department, the court dismissed the order to show cause for contempt. Appellant’s motion to reduce child support was denied.
In July 2005 appellant filed a motion to enjoin the Department from placing liens on his real property to secure alleged support arrears and attached a copy of an order entered in his dissolution action in Sacramento giving him credit against child support for the value to the children of residing rent free in his separate property dwelling. The child support commissioner ruled that appellant was entitled to credit against his child support arrears for the rental value of the family residence where the children lived from May 17, 2001, to August 24, 2004.
In February, March, April, and June 2006 appellant filed applications to set aside the October 2003 support order. He alleged that his former spouse had moved and refused to disclose her new address, and prevented him from talking to his daughters on the telephone. He asserted he was entitled to some monetary compensation and the fair value of his loss of contact was “at minimum five years of child support.” He also alleged “Shasta County has created fraud by entering court and allowing the court to set a monthly child support payment of $1117 per month.” The same child support commissioner denied all his motions and applications.
Appellant then filed a motion to recuse the commissioner, alleging she was prejudiced against him. At the same time, he requested a waiver of court fees. The commissioner denied the recusal request as untimely and pointed out that he had failed to use the mandatory Judicial Council forms. She denied the request for a waiver without a hearing on the ground the application was incomplete and untimely. The confidential waiver request is not contained in the record.
DISCUSSION
Appellant did not move to recuse the commissioner until after the commissioner had denied four different applications in 2006 to set aside a 2003 child support order. Family Code section 3691 defines the grounds and time limits for a motion to set aside a support order. Whether the motion is predicated on fraud, perjury, or lack of notice, the action or motion must be brought “within six months after the date on which the complaining party discovered or reasonably should have discovered” either the fraud, perjury, or the existence of the support order. (Fam. Code, § 3691.)
On May 14, 2004, appellant filed a response to the Department’s order to show cause. Thus at least by that date he had reasonable, if not actual, notice of the support order and the Department’s representation of his earnings. Pursuant to the express provisions of Family Code section 3691, therefore, he was required to move to set aside the support order by November 2004. His multiple attempts in 2006 far surpassed the statutory deadline.
In any event, his motions were deficient on the merits. He insists he was entitled to a reduction in support because his ex-wife interfered with his telephone contact with their children. But, as the Department points out, enforcement of a noncustodial parent’s duty of support for minor children is not affected by a failure of the custodial parent to implement visitation rights. (Fam. Code, § 3556; Moffat v. Moffat (1980) 27 Cal.3d 645, 651; In re Marriage of Comer (1996) 14 Cal.4th 504, 517.)
Appellant insists that the duty of support is suspended when a custodial parent actively conceals the minor children. “[I]mproper conduct by the custodial parent does not prevent the county from obtaining reimbursement from the noncustodial parent for public assistance payments made for the support of the child. [Citation.] That holding is not dependent on whether the individual child is still a minor, since the funds reimbursed are not used to support the noncustodial parent’s child. Instead, the reimbursement is needed to ‘ensure that public funds will be available for distribution to other families with similar needs.’ [Citation.]” (In re Marriage of Walters (1997) 59 Cal.App.4th 998, 1004-1005.) Appellant has made no showing that his ex-wife no longer qualified for public assistance. Even if he did, his daughters remained minors and entitled to the past-due support. Under any of the theories presented, appellant loses procedurally and substantively.
Nor did he file a timely motion to recuse the commissioner on a mandatory form with the requisite affidavit. Even more fundamentally, the order denying his recusal motion is nonappealable. (Code Civ. Proc., § 170.3, subd. (d).) The denial can be reviewed only by writ of mandate because court commissioners are treated as judges for purposes of the statute. (Code Civ. Proc., § 170.5, subd. (a).)
Not only did he fail to file a writ of mandate, but he also missed the 10-day deadline. The denial was served on appellant on August 25, 2006. As a result, the time for filing the writ expired on September 11, 2006 (Code Civ. Proc., §§ 170.3, subd. (d), 1013, subd. (a)), but his notice of appeal was not filed until September 12, 2006.
As a pro. per. litigant, appellant is frustrated by what he perceives to be a grave injustice. Because his pro. per. status does not excuse him from following published rules of court, family law statutes, or from using mandatory Judicial Council forms, he has failed to properly raise his grievances. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1074, fn. 7.) He has presented no viable claim that a 2003 support order can now be vacated or that a commissioner who ruled on four different applications should be recused after those rulings have been filed.
The Department concedes that the commissioner erred by denying appellant’s requests for a waiver of the trial court filing fees and costs without considering the statutory criteria that govern such applications, and without providing him a hearing or the opportunity to provide additional information to support his request. Whenever an application to proceed in forma pauperis is denied, the trial court is required to provide a written statement detailing the reasons for the denial and to schedule an evidentiary hearing where there is a substantial evidentiary conflict. (Gov. Code, § 68511.3, subd. (a)(1).)
The commissioner appellant sought to recuse denied the fee waiver request and made handwritten notes on the order stating “application incomplete” and “no hearing req’d.” The record does not contain a written statement of the reasons for the denial. Because the application and the financial statement that supported it are confidential documents, we cannot ascertain whether appellant applied as an applicant with a monthly income of 125 percent or less of the current monthly poverty line (Cal. Rules of Court, rule 3.52(a); Gov. Code, § 68511.3, subd. (a)(6)(B)) or as an applicant who could not proceed with litigation without using money for necessities (Cal. Rules of Court, rule 3.52(b); Gov. Code, § 68511.3, subd. (a)(6)(C)). His prior income and expense declaration would suggest that he qualifies for the waiver, but in the absence of written findings or a request to provide additional information, we cannot make a definitive determination. Accepting the Department’s invitation, we remand the waiver request to the trial court to proceed according to the relevant Government Code provisions and the applicable rules of court.
DISPOSITION
Appellant’s request for waiver of the trial court filing fees and costs is remanded to the trial court with directions to proceed in accordance with the applicable Government Code provisions and California Rules of Court. In all other respects, the orders are affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: DAVIS, Acting P.J., NICHOLSON, J.