Opinion
F084450
08-04-2023
ERICA FARMER, Respondent, v. SHAWN COLLINS, Appellant, KERN COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Real Party in Interest.
Shawn Collins, in pro. per., for Appellant. No appearance for Respondent. Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Maureen Onyeagbako and Ricardo Enriquez, Deputy Attorneys General, for Real Party in Interest.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BFD-20-005008. Cynthia L. Loo, Commissioner.
Shawn Collins, in pro. per., for Appellant.
No appearance for Respondent.
Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Maureen Onyeagbako and Ricardo Enriquez, Deputy Attorneys General, for Real Party in Interest.
OPINION
SNAUFFER, J.
Shawn Collins appeals a court order requiring him to pay monthly child support. He raises numerous claims, generally contending the court abused its discretion or lacked jurisdiction. We affirm.
BACKGROUND
In August 2019, a Los Angeles court awarded "primary physical custody" of Collins's daughter to her mother, Erica Farmer. (Farmer v. Collins (Dec. 23, 2021, B302578 [nonpub. opn.], review den. Mar. 16, 2022, S272994) 2021 WL 6072224 at *2.) The court, at the same time, "reserve[d] jurisdiction over the issue of child support." Collins appealed the judgment to the Second District Court of Appeal.
We judicially notice the appellate court opinion in case number B302578. (Evid. Code § 452, subd. (d).)
Meanwhile, in January 2020, Kern County Department of Child Support Services ("DCSS") registered the Los Angeles County support order in Kern County. Collins quickly moved to vacate registration pursuant to Family Code section 5603. He primarily contended section 5603 demands vacatur if "an appeal from the order is pending ...." (§ 5603, subd. (b).)
Undesignated statutory references are to the Family Code.
After several and various filings, in August 2020 the court ruled an appeal was pending and "the automatic stay" "pursuant to Code of Civil Procedure section 916, subdivision (a)" "remains in effect." It accordingly granted an "order staying enforcement of Paragraphs 14 and 15 of the judgment." Those paragraphs related to reserving jurisdiction over child support, health care payments for the child, and Collins providing monthly "documentation reflecting his gross income for that month."
The various filings included briefs, declarations and responses, evidentiary objections, and requests for sanctions.
In July 2021, DCSS filed a supplemental complaint seeking to establish child support. The complaint requested Collins to pay $71.00 per month in child support "based on his known [monthly, year-to-date] income of $723.00[.]" The figure was based on Collins's "[u]nemployment [c]ompensation[.]"
Collins moved to quash, alleging Kern County was an improper venue because neither he nor Farmer and their daughter resided in the county. Farmer opposed, claiming courts retain jurisdiction to modify child support pending appeal. Collins responded by stating he agreed to pay the requested $71.00 per month child support but "disagree[d] as to the calculation of arrearages," citing section 4009. The court denied the motion to quash in January 2022.
Collins originally disputed jurisdiction but later clarified he meant to challenge venue.
In February 2022, DCSS moved for judgment on child support. This time it requested $478.00 per month based on presumed income. Meanwhile, the Second District Court of Appeal affirmed the judgment in the underlying case, ruling against Collins. Remittitur issued in March 2022.
Back in Kern County, in April 2022, the parties filed income and expense declarations related to DCSS's request for judgment. Collins continued to resist child support payments, objected to "radically increase[d] arrearages ... that no person making less than $150,000/year would be able to comply," and claimed zero income. He also claimed "no showing of a significant change of circumstances merit[ed] the modification of the [j]udgment."
Documents in the record, presumably generated by DCSS, indicate Collins was required to pay Farmer $587.00 in current guideline, monthly child support. This number was calculated from Collins's monthly "[s]elf-[e]mployment [i]ncome" of $3,039.00.For a previous two-month period, guideline support was calculated at $424.00 based on Collins's monthly "[u]nemployment [c]ompensation" of $1,859.00.
The record does not disclose the source for this income.
After a hearing at which all parties were present, the court entered judgment consistent with the documents describing guideline support. Beginning August 1, 2021, and through September 30, 2021, Collins was ordered to pay "guideline child support ... in the amount of $424.00 per month." Beginning October 1, 2021, Collins was ordered to pay $587.00 guideline child support per month. Payment on arrears was set at "$50.00 per month, commencing" June 1, 2022.
There is no judgment-hearing transcript in the record and the judgment itself does not indicate whether the judgment hearing was transcribed. No other order related to the judgment hearing appears in the record.
DISCUSSION
Collins raises five claims on appeal: 1) the court "erred in retroactively applying arrearages to a date well before the motion was filed;" 2) the court violated his due process rights at the judgment hearing; 3) the court "abused its discretion by deviating from guideline presumed income in their [sic] support award;" 4) the court "erred in failing to quash;" and 5) the court "erred in failing to vacate registration[.]" As explained below, we disagree and affirm.
I. Arrearages
The trial court ordered Collins to pay child support beginning August 1, 2021. Collins claims DCSS filed its judgment motion in February 2022, rendering the August 2021 date invalid.
DCSS argues Collins was served with a complaint on August 1, 2021, validating the court's order. We agree.
Section 4009 states "[a]n original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service."
Collins does not dispute service. Rather, he claims the court was limited to ordering the initial $71.00 requested. This contention merits closer inspection.
The original $71.00 per month request was based on Collins's $723.00 unemployment compensation in July 2021. The ordered $424.00 per month was based on updated figures indicating Collins's unemployment compensation increased to $1,859.00 between August and October 2021. Accordingly, the record contains evidence justifying the court's order but not enough information to conclude the court erred.
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) Collins has not satisfied this burden.
To the extent Collins contends DCSS perpetrated a fraud on the court by fabricating his income, we receive his contention with concern. Nothing in our careful review of the record, however, suggests DCSS did in fact fabricate evidence. We reject Collins's arrearages claim.
II. Due Process
Collins claims the trial court "violated [his] due process rights by allowing DCSS to calculate child support figures at the time of trial without prior notice[.]" DCSS asserts Collins "received proper notice and an opportunity to be heard . . .." We find no due process error.
"Procedural due process requires that a party be given notice and an opportunity to be heard when a government action threatens deprivation of liberty or property." (Southern California Gas Company v. Public Utilities Commission (2023) 87 Cal.App.5th 324, 340; Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325.) Based on the record, Collins was given both notice and an opportunity to be heard.
The problem on appeal is there is no transcript to review. It is impossible for us to find, as Collins urges, "DCSS ... suppl[ied] new figures at the hearing, without allowing [Collins] to view the calculations in order to challenge errors in the figures used and present arguments."
For example, no order or filing in the record indicates Collins objected on this basis. Nor does any filing in the case support a finding DCSS indeed proffered an eleventh-hour request. There is no motion to reconsider or other filing in the trial court mirroring Collins's appellate complaint.
Two guideline-support-calculation documents in the record-the two the trial court apparently based its order upon-do include the date "2022-04-19," which is the date corresponding to the hearing. It is unclear to what the date refers; most likely it is the date the calculation was generated or printed. The documents are not file stamped. Most importantly, the documents are contained in the record without reference to any other filing or document. The record is inadequate to conclude the date on the calculation documents is the date Collins first received notice.
On this record, because there is no reporter's transcript, we must presume the court's orders were valid. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574-575 (Elena S.).) In other words, the record does not overcome this presumption.
In the court's register of actions, minutes relating to the judgment hearing indicate Collins was "duly sworn and testifie[d]." It does not disclose an objection on any basis and, based on the record, Collins did not later attempt to memorialize an objection. On this point, Collins claims the court "issued a 'Policy Regarding Normal Availability and Unavailability of Official Court Reporters'" just one day before the judgment hearing. According to him, the policy made it impossible to request a court reporter in time for the hearing. Again, the record contains neither the policy nor any evidence Collins requested a court reporter for the hearing.
III. The Court Did Not Abuse Its Discretion in Ordering Support
The court ordered Collins to pay child support based on his self-employment income and unemployment compensation. He now argues the court "abused its discretion by accepting figures which violated the guidelines support requirements as established by" statute. In essence, he contends the court should have ordered support based on presumed income "pursuant to Family Code §17400(d)(2)" because he had in fact no income.
"If the support obligor's income or income history is unknown to the local child support agency ... income shall be presumed to be the amount of the minimum wage, at 40 hours per week, established by the Industrial Welfare Commission pursuant to Section 1182.11 of the Labor Code unless information concerning the support obligor's income is provided to the court." (§ 17400, subd. (d)(2).)
The record suggests otherwise. Notwithstanding Collins's repeated protests he lacked income, the record discloses both self-employment income and unemployment compensation. Admittedly, there is no detail beyond the bare figures. Again, however, absent a reporter's transcript or other evidence in the record establishing affirmative error, we must presume the court's orders are correct. (Elena S., supra, 247 Cal.App.4th at pp. 574-575.) That presumption is not overcome in this case.
Section 4058, subdivision (b)(1), permits the trial court to, "in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that the parent spends with the children." "When determining the earning capacity of [a] parent" in this manner, "the court shall consider the specific circumstances of the parent, to the extent known. Those circumstances include, but are not limited to, the parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings levels in the local community, and other relevant background factors affecting the parent's ability to earn." (§ 4058, subd. (b)(2).) Here, we note the record appears undisputed Collins possesses a real estate license. Indeed, in a tax return he listed his occupation as "Real Estate Agent[.]" He also had stable housing while claiming his rent, groceries, utilities, etc., were all "paid by others[.]"
IV. Motion to Quash
Collins argues the "court lacked jurisdiction to hear this matter" because there "was ... an active appeal" and "jurisdiction ... was properly vested in the Second District Court of Appeals [sic] . . .." "Additionally, no party, nor the child resided in Kern County . . .."
DCSS asserts the venue claim is "barred and should . . . be dismissed" because Collins "did not list" the order denying the motion to quash "in [the] notice of appeal . . .." Technically, we agree.
"[T]he timely filing of a notice of appeal is an absolute jurisdictional prerequisite ...." (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882 (K.J.).)" 'Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from'" and "[w]e have no jurisdiction over an order not mentioned in the notice of appeal." (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.)
Here, the notice of appeal does not include the January 2022 order denying the motion to quash. The venue issue is not properly before this court.
In any event, we would find no issue with venue. Section 17400, subdivision (n) provides, as relevant, "venue" is "determined as follows: . . . Venue shall be in the superior court in the county that is currently expending public assistance" or, "[i]f public assistance is not currently being expended, venue shall be in the superior court in the county where the child who is entitled to current support resides or is domiciled." (§ 17400, subds. (n)(1), (n)(1)(A), &(n)(1)(B).) If, however, "the child becomes a resident of another county after an action ... has been filed, venue may remain in the county where the action was filed until the action is completed." (§ 17400, subd. (n)(2).)
If we liberally construed the notice of appeal to include the January 2022 order-which we do not-the claim would still fail. (K.J., supra, 8 Cal.5th at p. 883 ["Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function-to provide notice of who is seeking review of what order or judgment-so as to properly invoke appellate jurisdiction."].)
Because there is no evidence the child moved before DCSS registered the order in Kern County, we do not doubt venue was proper in Kern County. (§ 17400, subd. (n).) This conclusion would stand notwithstanding Collins's claims relating to registration, addressed post. Even if Collins is correct relative to registration, the court was not required to vacate registration; rather, it was required only to "stay enforcement of the order until the appeal [was] concluded ...." (§ 5603, subd. (b).) Accordingly, the action was properly filed in Kern County, and venue continued to remain proper until conclusion. (§ 17400, subd. (n)(2).)
Collins notes he chose not to appeal the venue order because "a cost-benefit analysis" did not justify an appeal at the time.
As for jurisdiction, Code of Civil Procedure section 916, subdivision (a), states as relevant, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." We need not decide whether the child support orders in this case were "embraced" or "affected" by the appeal in the Second District.
The court here did not issue orders for child support until after remittitur issued in the appeal. In our view, any jurisdictional claim is moot.
We do not suggest Collins's jurisdictional claims have merit. On the contrary, the law is clear trial courts may order child support while an appeal is pending. (§ 3600; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1039 (Askmo).) This is especially true where, like here, the court originally reserves jurisdiction over child support because it needs more information to fashion an order. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074-1075.)
V. Motion to Vacate
"A local child support agency or obligee may register an order for support or earnings withholding, or both, obtained in another county of the state." (§ 5600, subd. (a).) Section 5603 permits an obligor to move "to vacate the registration or for other relief." (§ 5603, subd. (a).)
"At the hearing on the motion to vacate the registration of the order, the obligor may present only matters that would be available to the obligor as defenses in an action to enforce a support judgment. If the obligor shows, and the court finds, that an appeal from the order is pending or that a stay of execution has been granted, the court shall stay enforcement of the order until the appeal is concluded, the time for appeal has expired, or the order is vacated, upon satisfactory proof that the obligor has furnished security for payment of the support ordered. If the obligor shows, and the court finds, any ground upon which enforcement of a California support order may be stayed, the court shall stay enforcement of the order for an appropriate period if the obligor furnishes security for payment of support." (§ 5603, subd. (b).)
Collins contends the court erred "by failing to vacate registration . . .." He specifically highlights the fact "the court shall stay enforcement of the order until the appeal is concluded . . .." According to him, "shall" means the court must "vacate registration . . .."
DCSS again claims Collins "did not list" the motion-to-vacate order "in his notice of appeal" and the issue is "jurisdictionally barred . . .." Again, we agree.
Perhaps more importantly, section 5603 requires a court to stay enforcement. It does not demand vacating registration. It makes clear there is a marked difference between staying enforcement and vacating registration: "the court shall stay enforcement . _ until the appeal is concluded . . . or the order is vacated . . .." (§ 5603, subd. (b), emphasis added.)
Here, the court did in fact stay enforcement. The court only issued child support orders after the appeal concluded, i.e., when remittitur issued. If we addressed the merits, we would find no fault in the court's order because superior courts retain jurisdiction to order child support even when an appeal is pending. (§ 3600; Askmo, supra, 85 Cal.App.4th at p. 1039.)
For this reason, we would reject Collins's claim equity both justifies finding nonwaiver on this issue and demands ordering support to become payable on the date remittitur issued in the Second District Court of Appeal case.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: DETJEN, Acting P. J. PENA, J.