Opinion
H043539
09-28-2017
E.V., Plaintiff and Appellant, v. C.G., Respondent; MONTEREY COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. PT1239)
Appellant E.V. seeks review of an order requiring her to pay child support for her daughter S.E.G. to the Monterey County Department of Child Support Services (DCSS) on behalf of S.E.G.'s father, C.G. Appellant contends that she was improperly denied an evidentiary hearing by the commissioner whose recommendations the court adopted in its order, and who thus deprived her of due process and the opportunity to attend mediation on issues pertaining to custody of S.E.G. We find no error and must therefore affirm the order.
C.G., though technically a party in this appeal, has not filed a brief responding to appellant's contentions.
Background
From early 2004 through June 2014 appellant had sole physical custody of S.E.G. and received child support from C.G. In June 2014, S.E.G., then 16, decided that she wanted to move to Texas to live with C.G. and his wife. S.E.G.'s older sister had been living there since October 2013. Appellant agreed to suspend the receipt of child support payments for the 2014-2015 school year while S.E.G. lived in C.G.'s home. Appellant's understanding was that neither parent would seek financial assistance from the other.
On June 18, 2015, DCSS moved to modify child support from an October 2010 order for $958 per month paid by C.G. to appellant. DCSS now requested that appellant incur a child support obligation of $515 per month, pursuant to Family Code section 17400. DCSS attached C.G.'s income and expense declaration showing his income derived from service as a noncommissioned officer in the United States Army. C.G.'s home was then occupied by S.E.G., her older sister, C.G.'s wife, and their two-year-old daughter. Appellant's income was calculated by DCSS based on her employer's report to the National Directory of New Hire for the 2014 year. S.E.G. had visited with appellant for two weeks in December 2014 and one week in March 2015; accordingly, DCSS calculated her visitation frequency at 2 percent.
All further statutory references are to the Family Code unless otherwise indicated.
Appellant opposed DCSS's motion for child support. She alternatively requested "No child support due to other parent and that this matter be set for custody hearing." Attached to her response was correspondence between her counsel and Victoria Davis, a DCSS attorney, in which appellant's counsel maintained that appellant, not C.G., had sole custody.
The hearing was originally set for August 4, 2015. C.G. requested a telephonic appearance at the motion hearing, which was accordingly reset for September 2, 2015. However, appellant's counsel, Hugo N. Gerstl, was not notified of the rescheduled proceeding, apparently because he was not the attorney of record. When he and appellant appeared in court on August 4, they learned from Davis about the September 2 date. At that time, Gerstl had an arbitration scheduled for August 24 in another case, which was expected to last for two days. It took longer, however, and at the end of the third day, August 26, the arbitrator continued the matter for the second time to his next available day, September 2.
On August 27, 2015, Gerstl left voice mail for Davis, explaining that he had a conflict and requesting "that she advise Commissioner Baker of the situation and that we continue the hearing to a mutually convenient date." Davis was out of town and did not receive the message until the night before the September 2 hearing. Gerstl "assumed that the matter would be taken care of, particularly since the arbitration hearing provided me with a 'bulletproof excuse' for not being at the September 2 hearing."
On the day of the hearing, Davis informed the commissioner about the message she had received from Gerstl. The commissioner, however, was unpersuaded. The hearing took place as scheduled and she filed her "Findings of Fact and Recommendations of Commissioner" on September 16, 2015. Two days earlier Gerstl had filed appellant's demand for a "long-cause evidentiary hearing" before a judge and a request for an order for mediation concerning "timeshare" with S.E.G. In that document appellant asserted that C.G. was planning to take S.E.G. to Italy, where he was going to be assigned; as the custodial parent, she argued, she did not consent to this unilateral move and should not have "insult be added to injury" by being ordered to pay child support for S.E.G., who would be 18 the following January, less than four months later.
The commissioner recommended that appellant's demand for an evidentiary hearing be deemed "untimely and/or without merit," and that a recalculated amount of $514 per month be allocated to appellant as child support for S.E.G. The commissioner noted that appellant had filed no written opposition to C.G.'s request for telephonic appearance, that appellant had not requested a continuance from the court, that continuances were granted "at the discretion of the Court—not the parties," and that appellant's response to DCSS's motion contained no substantive opposition. Appellant's "only argument appeared to be that although the child was with Father, the child would be coming back to her home sometime in the future. That speculation is an insufficient reason to delay calculation of child support."
Appellant objected to each point in the commissioner's findings and asked "that the matter be set for a new hearing before a Judge and that [appellant's] earlier request for a full evidentiary hearing be granted; [and] that the parties be referred to [mediation] as required by local ru[l]es . . . ." In a supporting declaration Gerstl explained that (1) appellant had not filed opposition to the telephonic appearance request because he was unaware of it until he appeared at the August 4 hearing; (2) he had asked Davis to procure a continuance six days before the continued hearing, relying on his experience in which continuances were "routinely granted"; and (3) a continuance would not have been prejudicial and would have allowed time for mediation to take place on the timeshare issue. Appellant asserted that if the order for child support were granted, it would be a "manifestly inequitable" "confiscation of substantial money and property" from appellant without due process of law. Appellant also sought sanctions against C.G. for seeking to "abduct" S.E.G. to Italy without appellant's consent or court order.
The court reviewed the commissioner's findings and recommendation at a hearing on March 4, 2016, attended by Gerstl, Davis, and appellant. On April 14, 2016, the court filed its order directing appellant to pay $514 per month. This timely appeal followed.
Discussion
At the outset DCSS asserts that appellant has appealed from a nonappealable order, which it represents as "the denial of a request for evidentiary hearing." The agency further calls attention to the lack of a statement of appealability in appellant's opening brief. The second point is accurate, while the first, more substantive, point is misleading at best. Appellant is clearly seeking review of an order compelling her to pay child support, not a mere interlocutory ruling denying her a hearing. Also contrary to DCSS's argument, appellant's brief does state the underlying facts and the reasons appellant believes the order should be reversed. We decline DCSS's request that we strike the opening brief and dismiss the appeal, though appellant does violate California Rules of Court, rule 8.204(a)(2) by failing to include a statement of appealability in her brief.
DCSS itself is not exempt from defective briefing. It misstates the record in several respects, such as by representing both S.E.G. and her older sister as minors and by reporting the amount it sought for child support as $958. (As noted earlier, $958 was the monthly amount to which C.G. had been bound by a 2010 child support order.) We finally observe that in stating the procedural history DCSS confuses the findings and recommendations of the commissioner with the subsequent rulings of the superior court and uses the term "custody" loosely in describing appellant's contentions below. Taken together, these missteps in DCSS's presentation of the facts and issues only make this court's review more cumbersome and do nothing to support the agency's position.
"California has a strong public policy in favor of adequate child support." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283 (Cheriton).) Thus, this state recognizes that "[a] parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life," and that "[b]oth parents are mutually responsible for the support of their children." (§ 4053, subds. (a), (b).)
Appellant contends that the trial court prejudicially erred and violated her due process rights because it "did not even address the request for evidentiary hearing, nor make any finding that Appellant suffered a default order [sic] other than through her mistake, inadvertence, surprise or excusable negligence [sic]." She further asserts a violation of section 3170 and (incorrectly cited) Monterey County Rules of Court, rule 10.06(B), which restates the requirements of sections 3170 and 3175 in the implied modification of the existing custody order without the prerequisite mediation.
None of these arguments is persuasive. Local rule 10.06(B), which restates the mediation requirements of section 3170 and 3175, pertains to custody and visitation disputes. Those statutes require mediation to be set before or concurrent with the hearing on the parents' dispute "[i]f it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested."
Rule 10.06(B) of Monterey County's Local Rules of Court states: "Family Code sections 3170 and 3175 require that when it appears on the face of a petition or application or other pleading for an order or modification of an order that custody, temporary custody, or visitation rights are contested, the matter must be set for mediation of the contested issues prior to or concurrent with the setting of the matter for hearing. The purpose of mediation is the reduction of acrimony which may exist between the parties, the development of an agreement assuring the child's close and continuing contact with both parents, and to effect a settlement of the issue of visitation rights of all parties that is in the best interests of the minor (Fam. Code, § 3161)."
Whether or not the commissioner should have granted appellant a belated evidentiary hearing on her issues pertaining to custody and the asserted "abduction" of S.E.G. to Italy, the court nonetheless properly focused on the substantive issue before it, whether appellant was obligated to pay child support for S.E.G. while she lived with C.G. As the court pointed out at the hearing, the subject of the proceeding was not a motion to change or even enforce custody; it was DCSS's motion for child support. When appellant's counsel emphasized that appellant had sole custody of S.E.G., the court reminded counsel that whether there was a custody order was irrelevant in this procedural setting because "child support is [based on] timeshare, which is separate and apart from custody . . . It's based upon the actual time a child spends with the parent." Thus, while S.E.G. was living with C.G., the court explained, he was entitled to support.
The court further rejected appellant's point that "if there is a fight coming up as to timeshare, the Local Rule and the Family Code provide for mediation for a whole bunch of things. He could have taken and moved to change it . . . ." The court again reminded counsel that the only issue before it was child support, for which mediation was not required. Appellant, the court noted, was welcome to obtain a court order for C.G. to return S.E.G. to California, but she "did not take that action." This was a separate hearing, "solely on whether . . . the child support order should move forward." For the same reason the court was unsympathetic to counsel's attempts to litigate the claim that C.G. had wrongly kept S.E.G. with him after the 2014-2015 school year ended. Rather than taking action to enforce the custody order, appellant had implicitly agreed that S.E.G. could remain with C.G. beyond June 2015.
Our standard of review, which appellant fails to acknowledge in her appellate briefs, is abuse of discretion. (Cheriton, supra, 92 Cal.App.4th at p. 282.) "The extent of the parental support obligation is left to the sound discretion of the court [citations] and the trial court's order will not be disturbed on appeal unless that discretion is abused." (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947.)
We find no abuse of discretion in the court's imposition of a support obligation on appellant. The trial court adhered to its " 'duty to exercise an informed and considered discretion,' " consistent with the statutory guidelines set forth in sections 4050-4076. Cheriton, supra, 92 Cal.App.4th at pp. 282-283.) The guideline calculations include the "H" factor, attributable to the "approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent." (§ 4055, subd. (b)(1)(D).) Here there is no question that C.G. had "primary physical responsibility" for S.E.G. for the period covering the modification motion. That a preexisting order granted physical custody to appellant did not vitiate the correct application of the statutory child support formula in this case.
Appellant indirectly suggests that C.G. had no time share with S.E.G. for a three-month period in which he was deployed overseas. This argument ignores the consistent precedent which holds that primary physical responsibility does not depend exclusively on whether the parent and the child are residing in the same place. Again, the operative word is physical responsibility, not custody. (See, e.g., In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1160 [guidelines are flexible enough to accommodate physical responsibility for disabled child not in the custody of either parent; DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1033-1034 [reversing for reconsideration of amount of primary physical responsibility by each parent]; In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 982 [no abuse of discretion by imputing child's time in boarding school to father].)
Appellant does not dispute that she acquiesced in S.E.G.'s move to C.G.'s Texas home for the 2014-2015 school year. If she had later withdrawn her assent to her daughter's choice to live in Texas, it would have been up to her to affirmatively seek enforcement of the custody order. Appellant acknowledges that she "believed there was an implied agreement between she [sic] and C.G. that if [S.E.G.] stayed in Texas and finished high school there, the status quo of no child support either way would continue." As the court explained at the hearing, however, it was not for appellant to "waive" child support or agree that neither would pay such support to the other; the obligation is a statutory one, which is unaffected by an agreement between the parents. (County of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849 ["It has long been the law in this state that a minor's right to support and maintenance by [his or her] father may not be limited or contracted away by the parents"]; accord, County of Orange v. Smith (2002) 96 Cal.App.4th 955, 962 ["any waiver of child support by [mother] must be deemed void"]; see also In re Marriage of Ayo (1987) 190 Cal.App.3d 442, 451 ["the broad powers of the courts regarding the support of minor children could be thwarted by the subterfuge of an indemnity provision in a contract between the parties"].) In other words, it was for the court to allocate the parental duty of support in accordance with each parent's income, expenses, and time share with S.E.G. Appellant does not dispute that $514 per month was correctly calculated under the statewide guidelines. Because the ultimate outcome of DCSS's motion was a proper exercise of discretion by the trial court, any error in the commissioner's denial of relief from appellant's default under Code of Civil Procedure section 473 and hear her objection pertaining to custody is moot.
Disposition
The order is affirmed. The parties to this appeal shall bear their own costs.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.