Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 00D003353, James L. Waltz, Commissioner. Dismissed. Request for judicial notice. Granted in part and denied in part.
Tung Luong, in pro. per., for Appellant.
Min Wang, in pro. per., for Respondent Min Wang.
Edmund G. Brown, Jr., Attorney General, Karin S. Schwartz, Acting Assistant Attorney General, Paul Reynaga and Mary Dahlberg, Deputy Attorneys General, for Respondent Orange County Department of Child Support Services.
OPINION
FYBEL, J.
Introduction
In June 2005, the trial court entered an order establishing the amount of Tung Luong’s child support arrearages. In August 2006, the Orange County Department of Child Support Services (the County) applied ex parte for a nunc pro tunc order to correct a clerical error in the arrearages order to reflect that the obligee of the order was Luong’s ex-wife, Min Wang, not the County. The family court granted the application, and entered the corrected order nunc pro tunc. Luong appeals either from the order granting the application or from the corrected order. Because the court properly corrected a clerical error, and because the order was entered nunc pro tunc to the original date of the arrearages order, Luong’s appeal is either from a nonappealable order or untimely; in either case, it must be dismissed.
Statement of Facts and Procedural History
In a prior opinion (In re Marriage of Luong & Wang (June 22, 2006, G036472) [nonpub. opn.]), we set forth the relevant facts as follows:
“Luong and Min Wang were married in 1996, had one son born in 1998, and separated in 1999. Luong filed for divorce on April 7, 2000. Judgment of dissolution was entered November 3, 2003; a marital settlement agreement (MSA) was attached to and incorporated in the judgment. The MSA provided that Luong would pay Wang $700 per month in child support, retroactive to June 1, 2001.
“The Orange County Department of Child Support Services intervened in the dissolution proceeding on August 19, 2004, pursuant to Family Code section 17400, subdivision (k), in order to enforce Luong’s child support obligations. On December 15, 2004, Luong moved to set aside the MSA on the ground it was obtained by fraud. On February 15, 2005, the trial court set aside the MSA due to a ‘misunderstanding.’ The order specified, ‘[t]he new child support order shall be effective for the same period of the judgment.’
“On March 8, 2005, the trial court ordered Luong to pay $379 per month in child support (the support order). On June 2, 2005, the court established Luong’s child support arrearages at $8,702.74 for the period of June 2001 to May 2005 (the arrearages order). On July 20, 2005, Luong filed an order to show cause for modification of the support order and the arrearages order. After several continuances, on October 25, the court took the matter off calendar for failure to comply with the ‘Court’s order at last hearing to amend pleadings.’
“On November 8, 2005, Luong filed an order to show cause for modification of the arrearages order. The court denied Luong’s request on December 8 in an order reading simply, ‘[m]otion for reconsideration is denied.’
“On December 15, 2005, Luong filed a notice of appeal from the court’s October 25 and December 8, 2005 orders.”
In our prior opinion, we (1) concluded the two orders from which Luong appealed were not appealable orders, (2) concluded we could not construe Luong’s appeal to be taken from another, appealable order or judgment, and (3) dismissed Luong’s appeal. (In re Marriage of Luong & Wang, supra, G036472.)
In this appeal, Luong filed a request for judicial notice “of all the issues raised in the prior proceeding and record in case number G036472.” To facilitate our review of this appeal, we will take judicial notice of the clerk’s transcript in appeal No. G036472. To the extent Luong asks us to take judicial notice of the issues raised in that appeal, we deny the request.
On August 9, 2006, the County filed an ex parte application to amend the arrearages order to reflect that the obligee of the arrearages order was Wang, the custodial parent, not the County. The declaration in support of the application stated the listing of the County as the obligee was “a clerical error” because Wang had never received public assistance, meaning the County was not entitled to the arrearages. The trial court granted the County’s application and amended the arrearages order nunc pro tunc. Luong appealed from “an order/judgment entered on AUGUST 9, 2006.” It is unclear whether Luong intended to appeal from the order granting the County’s ex parte application, the amended arrearages order, or both.
Discussion
A court may, at any time, correct a clerical error in a judgment or an order, whether the error was made by the court, the clerk, or counsel. (Code Civ. Proc., § 473; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 69, pp. 597-598.) In this case, the attorney for the County declared, under penalty of perjury, the naming of the County rather than Wang as the obligee of the arrearages order was a clerical error. The determination that an error in a judgment was a clerical one is primarily for the trial court, “and its conclusion as to this issue will not lightly be set aside.” (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 358.) Here, the ex parte application declared the error was a clerical one; the trial court signed the order submitted with the ex parte application and the nunc pro tunc arrearages order. These actions show the court had concluded the error was, in fact, a clerical one.
Courts have repeatedly held that a judgment or order misnaming a party may be corrected as a clerical error. (Boust v. Superior Court (1912) 162 Cal. 343, 345-346 [trial court was required, even after appeal, to amend judgment to name correct party]; Thomson v. L.C. Roney & Co. (1952) 112 Cal.App.2d 420, 425-426 [judgment amended to name correct judgment debtor]; Davis v. Rudolph (1947) 80 Cal.App.2d 397, 405-406 [where judgment named incorrect plaintiff/judgment creditor, proper procedure was to correct judgment to name proper plaintiff/judgment creditor].) Luong’s first contention, that the arrearages order could not be amended, is incorrect.
Because the nunc pro tunc order corrected a clerical error, it is not an appealable order. “When a judgment has been modified, an appeal must be taken from the original judgment if the change was a clerical one, and from the modified judgment if the change was material and substantial. ‘[I]f a party can obtain the desired relief from a judgment before it is amended, he must act – appeal therefrom – within the time allowed after its entry. If the amendment materially and in a substantial respect affects the judgment and the rights of a party against whom it is rendered, and a party desires relief therefrom, he must appeal from the corrected judgment . . . .’ [Citation.] Changes which correct errors, mistakes and omissions made through inadvertence, but do not involve the exercise of the judicial function, are considered corrections of clerical errors that leave the original judgment intact. [Citation.]” (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743-744.)
To the extent Luong’s appeal is from the August 9, 2006, order granting the County’s ex parte application, it is from a nonappealable order, and the appeal must be dismissed. On the other hand, if Luong intended to appeal from the arrearages order, as corrected nunc pro tunc, his appeal is untimely and must be dismissed.
Similarly, Luong’s contention that the nunc pro tunc order materially modified the arrearages order fails. As the authorities, ante, demonstrate, changing the name of a party in the judgment to reflect to whom the child support arrearages are actually owed is the correction of a clerical error, not a material change in the judgment.
Luong also contends the doctrines of law of the case, collateral estoppel, and res judicata barred the County and Wang from seeking to modify the arrearages order. Again, as the cases cited, ante, show, amendment to correct a clerical error is permitted at any time, even after an appeal is completed. Because the modification corrected a clerical error only, the equitable doctrines cited by Luong are inapplicable.
Luong next argues the nunc pro tunc order was procedurally defective because it violated Family Code section 3651, subdivision (c)(1), which reads: “Except as provided in paragraph (2) and subdivision (b), a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” Again, Luong’s argument is dependent on his misreading of the nunc pro tunc order as an order making a material change in the terms of the arrearages order, when in fact the nunc pro tunc order modified a clerical error. Section 3651, subdivision (c)(1) is simply not implicated by the nunc pro tunc order.
Finally, Luong argues the nunc pro tunc order violates Family Code section 4009, which provides: “An 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.” We reiterate that the nunc pro tunc order did not create a child support obligation; it corrected the arrearages order to substitute the name of the correct obligee for the incorrect one.
Disposition
The appeal is dismissed. Respondents to recover costs on appeal.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.