Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. D95-04330
Kline, P. J.
Introduction
Michael Evanson in propria persona appeals from the August 29, 2005, order (August order) of the Contra Costa County Superior Court setting aside and vacating a July 15, 2005, child support order (July order) based on “clerical and/or judicial error,” granting, in part, appellant’s motion to modify a March 16, 2005, court final order (March order) regarding child support, and recalculating child support payable to respondent Kari Barstow-Evanson for several periods beginning in October 21, 2000, and going forward.
Appellant contends: (1) the trial court had no legal basis to set aside and vacate the July order; (2) the court acted in excess of its jurisdiction when it modified the existing March order in ways unrelated to the issues raised in appellant’s modification motion; and (3) that the court abused its discretion in refusing to impute the same childcare costs as hardship deductions to both parties. Appellant also requests this court to vacate that part of the March 16, 2005, award granting attorney fees of $10,000 to respondent’s attorney and to remand to the trial court based on “fraud upon the trial court and newly discovered evidence.” Appellant further seeks to have us award him attorney fees and costs accrued on appeal and in the trial court as a sanction under Family Code section 271.
Respondent counters, among other things, that this appeal is untimely and should be dismissed We affirm in part and reverse in part.
FACTS AND PROCEDURAL BACKGROUND
On March 26, 1997, the marriage of the parties was dissolved, following a petition for dissolution filed on August 24, 1995. There followed numerous disputes regarding custody of the parties’ two daughters, Kali and Samantha, and numerous court orders regarding custody and child support. Orders relevant to this action begin with an order after hearing filed March 16, 2005.
March Order
That order set forth the history of the case, detailed “relevant custodial periods”; granted appellant’s motion to modify an existing order of June 15, 2004, and modified the June 15, 2004, order in numerous respects. Addressed in that March order, among other things, were issues related to reimbursement of uncovered health care expenses made by the parties since September 1999, reimbursement of educational expenses, health care costs incurred in the future, correction of the amount of appellant’s other taxable income for the tax year 2002; and calculation of child support for various custodial periods beginning March 22, 2001 (the court noting that the issue of child support had been abated and not raised by the parties from September 1999 until March 22, 2001). That order imputed income to respondent, with a hardship deduction of $1,100 for child care costs for her young child/children. Appellant was ordered to pay respondent child support of $1,415.00 per month from January 1, 2003, until further court order. Appellant was also ordered to pay respondent’s attorney fees of $10,000. No appeal was taken from this order.
Based upon the child support guidelines arrived at through use of the Dissomaster, the court ordered child support payable by appellant to respondent as follows:
On April 1, 2005, appellant filed a motion to “vacate and amend” the March order (Code Civ. Proc., § 663, subd. (1)). The motion was brought on the ground that since their divorce, appellant and respondent had each had a newborn child with a different partner (specifically, appellant’s daughter was born in December 2001, and respondent’s child was born in June 2001 and not in March 2001 as calculated) and the March order had not considered the correct months of birth of these newborn children. In its March order, the court had allowed each party a one-half hardship deduction for these children and had allowed respondent child care expenses of $1,100, as a hardship deduction. Appellant sought to have the court consider the newborn children’s birth dates when calculating the hardship deduction and “to equally credit each party child care expenses of $1,100.00 and recalculate child support” accordingly. On May 25, 2005, respondent filed her opposition to the motion. Respondent agreed that her first child with her current husband was born in June 2001 (and not March 2001 as the court had apparently calculated) and that an adjustment for that three-month period was proper. Respondent objected to the allowance of childcare expenses as a hardship deduction to appellant, arguing there was no evidence that appellant had incurred such expenses and also raised issues related to medical billings.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
June 9, 2005 Hearing
On June 9, 2005, the court heard appellant’s motion to vacate and amend the March order. At that hearing, respondent’s counsel stipulated that respondent’s first child with her current husband was born in June 2001 and that appellant’s child was born in December 2001, although he had not been given a hardship deduction for this child until January 2002. The parties agreed that the court had previously required issues such as those raised by respondent with respect to medical billings were to be mediated. The parties then addressed the issue of the court’s having given a child care hardship deduction of $1,100 to respondent, but not appellant. Respondent contended that there was no evidence that appellant had ever incurred child care expenses with respect to his new child. The court asked appellant to provide a declaration or some other evidence that he had incurred child care expenses. The court stated that when it received such information, “then I will allow that as well.” As to respondent’s argument that any childcare hardship deduction should be allocated proportionally to appellant’s actual payment of the expense, the court also stated that, “I will decide that when I see the evidence.” The parties also argued about overdue child support payments from appellant and appellant’s checks to respondent bouncing. The court denied respondent’s request for attorney fees in connection with the motion.
July Order
On July 15, 2005, a declaration was filed by appellant detailing his childcare arrangements and expenses for his young daughter born in December 2001. Also on July 15, 2005, an “Amended Order After Hearing” was filed. Prepared by appellant’s counsel, the order was signed by Judge Craddick on July 7, 2005, and contained the clerk’s stamped notation: “HELD 10 DAYS PER LOCAL RULE 12.” The order stated that it “amends the Order After Hearing filed on March 16, 2005,” and that at the June 9, 2005, hearing the “court granted [appellant’s] request to reconsider the child support calculations by applying the months of birth for [appellant’s] child (December 2001) and [r]espondent’s two children (June 2001 and September 2003), in the computation and grant [sic] [appellant’s] request for a hardship deduction in the sum of $1,100 per month for childcare expenses for his child commencing February 2002.” There followed findings and orders, many of which tracked exactly those of the March order (including a statement that the “verbal ruling denying the Motion to Set Aside/Vacate the June 15, 2004 Order is confirmed”), and one stating that the “Motion to Modify the Order of June 15, 2004 is granted, and the Order shall be modified to reflect rulings on:” reimbursement of health care expenses and imputation of income to respondent, with various hardship deductions to each party. The order changed the dates of the applicable hardship deductions, apparently to reflect the correction of the dates of birth of the parties’ new children with other partners. It also granted appellant “a hardship deduction of $1,100 for childcare costs for his young child commencing February 2002 forward.” Awards of child support for various periods from March 22, 2001, forward followed, based on attached Dissomaster calculations. The periods did not track those of the March order and, except for the period from October 21, 2001 through November 31, 2001, they uniformly resulted in lower child support payable from appellant to respondent. The March order had awarded child support of $1,415 per month from January 2003 until further order. The July order modified that to an award of $971 per month from January 1, 2003 through August 31, 2003, and $1,024 from September 1, 2003, until further order of the court.
August Order Vacating July Order and Modifying Prior Order
On August 29, 2005, the court issued an order setting aside the July order “because of another clerical and/or judicial error in believing that there was no opposition and automatically signing the order.” This order related that “[appellant’s] request to reconsider child support calculations by applying the months of birth for his child (December 2001) and [r]espondent’s two children (June 2001 and September 2003), and [appellant’s] request for a hardship deduction for child care expenses commencing February 2002 was granted at the hearing and the parties were allowed the opportunity to present written argument relating thereto.” This order, like the July order it vacated, erroneously refers to the order of June 15, 2004, rather than to the March order; however, it states that the “Motion to Modify the Order of June 15, 2004 is granted, in part.” (Italics added.) It continues: “After review of [appellant’s] further arguments, child support payable . . . is recalculated for the following time periods and set as follows: [¶] a. For the relevant time periods, each party will be allowed one-half hardship deduction for each of his/her new children. Income will not be imputed to Respondent, and neither party will be allowed daycare expenses for their new children.” (Italics added.) There followed specification of child support amounts for various custodial periods from October 21, 2000 forward. These calculations were based upon attached Dissomaster calculations. The resulting child support awards were the same as or close to the amounts awarded by the March order, but included child support beginning in October 21, 2000, and thus including support for a five-month period before March 22, 2001, that the March order had ruled “abated.” The August order directed appellant to pay respondent monthly child support of $1,415 from January 1, 2003 through August 31, 2003, and $1,414 from September 1, 2003, until further court order.
The August order stated that based upon the Dissomasters for the time periods involved, child support from appellant to respondent was “recalculated for the following time periods and set as follows:
On September 16, 2005, appellant moved to set aside the August order as a void judgment. The motion was brought pursuant to statutes providing for vacating a void judgment (§§ 473, 663). It appears from the clerk’s docket that that motion was ruled upon on January 26, 2006. On December 15, 2006, appellant filed a notice of appeal from the August order. Thereafter, respondent moved to dismiss the appeal as untimely. We denied that motion, reserving the question of what other orders might be challenged on this appeal to our consideration of the merits.
I. Appealability of the August Order
As a threshold matter, respondent contends that the instant appeal is not timely. We rejected this claim on appellant’s motion to dismiss, and we do so once again. On August 29, 2005, Judge Craddick set aside the July 2005 order because of “clerical and/or judicial error in believing that there was no opposition and automatically signing the order” prepared by appellant’s attorney, modified the March order and recalculated child support accordingly. On the same date, August 29, 2005, the clerk’s certificate of mailing of the order after hearing was sent to the attorneys for the parties. This notice triggered the 60-day appeal period of California Rules of Court, rule 8.104 (formerly rule 2). On September 16, 2005, appellant moved to set aside the August order as a void judgment. The motion was brought pursuant to statutes providing for vacating a void judgment, sections 473 and 663.
All further rule references are to the California Rules of Court.
Pursuant to rule 8.108 (former rule 3(b)), service and filing of a valid and timely motion or notice of intention to move to vacate a judgment within the rule 8.104 normal appeal deadline extends the time for any party to appeal the judgment until the earliest of the following three dates: “(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move—or motion—is filed; or [¶] (3) 180 days after entry of judgment.” (Rule 8.108(b), italics added.)
Although respondent states the motion was denied, she claims the motion was ruled upon on January 26, 2006, after the appeal was filed. The record does not show denial by any date that would affect the appeal period. Consequently, appellant had 90 days from the date of filing his motion to vacate within which to appeal. He filed his notice of appeal on the 90th day, December 15, 2006. The merits of the motion to vacate are irrelevant to these time periods. As Eisenberg points out, “[t]here is no [rule 8.108(b)] extension unless the motion to vacate was procedurally valid (see [rule 8.108(b)]). This means the motion must have been based on some recognized ground for vacation—i.e., it must have been a statutory motion under [section] 473 or [section] 663, or a nonstatutory motion based on extrinsic fraud or mistake. (See [rule 8.108(b)] . . .).]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 3:82, pp. 3-33 to 3-34.) The motion here was brought pursuant to sections 473 and 663 and appears on its face to be a procedurally valid motion. Any claim that the motion was baseless does not affect the analysis and is irrelevant to the question of the timeliness of the appeal as, “the substantive merit of a motion to vacate made on recognized grounds has no bearing on the propriety of a Rule 8.108(b) extension. (See rule 8.108, Adv. Comm. Comment).” (Eisenberg, supra, at p. 3-34.)
Alternatively, respondent contends that appellant’s opening brief raises issues exceeding the scope of this appeal. Specifically, she argues that the sole issue that appellant has raised in his notice of appeal is whether the court had the ability to set aside the July order for clerical error and to enter a different order on August 29, 2005. She argues that appellant may not in this appeal seek relief from attorney fees, stipulate to birth dates for children not of the marriage, or impute the hardship deduction for childcare expenses of $1,100 to appellant.
Appellant has challenged the August order. That order amends the final March order—erroneously referred to therein as the June 15, 2004 order. Appellant’s challenge is to the entire August order. Nothing in the notice of appeal appears to limit appellant’s challenge to the question of whether the court abused its discretion in setting aside the July order for clerical error. However, as will be explained hereafter, to the extent the August order purports to modify the March order of the court retroactively rather than prospectively, in respects not involving clerical error, it is voidable.
II.
Appellant appears to recognize that the trial court had the power to correct a judgment where there has been clerical error, but argues that the court did not have the authority to “amend the final order of March 16, 2005 under the theory of clerical or judicial error pursuant to [section] 473.” We conclude that the court had the power to vacate the July order in its entirety where it was signed by the court and entered as a result of clerical error.
“ ‘A court of general jurisdiction has the power, after final judgment, and regardless of lapse of time, to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that the records will conform to and speak the truth. [Citations.]’ (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 69, p. 597.) This inherent power is confirmed by statute. Section 473, subd[ivision] (d) states: ‘The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed.’ (See 7 Witkin, supra, § 69, p. 597.)” (Ames v. Paley (2001) 89 Cal.App.4th 668, 672-673; see In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶¶ 16:170 to 16:173, pp. 16-51 to 16-52.)
“The court’s inherent power to correct clerical errors includes errors made in the entry of the judgment or due to inadvertence of the court. ‘The term “clerical error” covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected . . . .’ [Citation.] The signing of a judgment, which does not express the actual judicial intention of the court, is clerical rather than judicial error. [Citations.] [¶] Section 473 is addressed to the sound discretion of the trial court and the trial court’s order will not be disturbed absent a showing of clear abuse of discretion. [Citation.] Whether the error was clerical in nature is a matter for the trial court to determine. [Citations.] Great weight should be placed on the trial court’s declaration as to its intention in signing the judgment as the nature of the error is seldom clear from the record or other extrinsic evidence. [Citation.]” (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034.) Here, the court explained that the July order was entered as a result “of another clerical and/or judicial error in believing that there was no opposition and automatically signing the order.” Although the court characterized the order entry as either clerical or judicial error, we believe the nature of the error identified by the court—signing the judgment “automatically” in the belief that there was no opposition to it—was clerical error and justified the court’s action vacating the July order.
III.
However, the fact that the court was empowered to vacate the July order in its entirety does not end the matter. The question remains whether the August order exceeded the discretion or power of the court insofar as it retroactively modified support. The last final order in this action was the March order. It was that order that appellant sought to vacate and amend. At the June 9, 2005, hearing on that motion, respondent’s counsel stipulated that respondent’s first child with her current husband was born in June 2001 and not March 2001, as the March order had reflected (a difference of three months), and that appellant’s child was born in December 2001, although he had not been given a hardship deduction for this child until January 2002 (a one-month difference). With respect to the additional hardship deduction of $1,100 for childcare expenses sought by appellant, the court indicated it believed it should grant such a deduction, upon sufficient proof by appellant.
Family Code section 3653, subdivision (a), provides: “An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. § 666(a)(9)).” (Italics added.) A trial court, therefore, may not modify child support retroactive to a date preceding the filing date of the notice of motion or order to show cause to modify the support order. (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 844-845; In re Marriage of Everett (1990) 220 Cal.App.3d 846, 852; In re Marriage of Ford (1972) 24 Cal.App.3d 62, 65-66; see In re Marriage of Skelley (1976) 18 Cal.3d 365, 369.)
Insofar as the August order retroactively recognized the corrected birth dates of appellant’s and respondent’s children with other partners, that change was correction of a clerical error and was also the subject to stipulation of the parties at the June 9, 2005, hearing on appellant’s motion. That recitation of an improper birth date is a clerical error is recognized in the leading family law treatise. “On its own motion or motion of either party, the court can modify a judgment ‘nunc pro tunc’ to correct a clerical error appearing on the face of the judgment (i.e., misnomers, wrong initials in a name, misdescription of real property, improper birth dates, etc., or any error where the judgment as entered does not conform to the judgment directed by the court.) [Citations.]” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 16:170, p. 16-51, italics added.) Retroactive correction was properly allowed to correct such a clerical error.
However, the August 29, 2005, modification of the March 16, 2005, support order (wherein income was imputed to respondent, who was also provided a childcare hardship deduction) to provide that “[i]ncome will not be imputed to Respondent, and neither party will be allowed daycare expenses for their new children,” effected a modification of support orders retroactive to a period before the April 1, 2005 date. (Italics added.) Furthermore, the August 29, 2005, modification ordered support covering October 21, 2000 through March 22, 2001, a period during which the March order had found the support issue “abated.”
A court may not correct nunc pro tunc a judicial error resulting from an erroneous exercise of discretion, but only a clerical error in the recording of the judgment actually entered. (In re Candelario (1970) 3 Cal.3d 702, 705; Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890-891.) There is no indication in the record that the March order setting support was the result of clerical error, save for the erroneous birth dates of children of the parties with other partners. Consequently, the portion of the order modifying support for periods before April 1, 2005, other than to correct the dates of birth of the new children for purposes of the general one-half hardship deductions, was beyond the power of the court.
Clearly any error with respect to the March order regarding imputation of income and the allowance or disallowance of the childcare hardship deductions was not clerical error, but judicial error (if it be error at all). As such, the August order could modify prospectively the existing March order in respect to the imputation of income and the childcare deductions, but could do so retroactively only to April 1, 2005, the date the motion to modify the March order was filed. A fortiori the court could not by a retroactive modification provide support for a period before March 22, 2001, that it previously had found abated.
To forestall any argument that the March order may have been similarly flawed, insofar as it may have retroactively modified various other orders, we note that there is no indication or claim that the March order was void and therefore subject to collateral attack. An order modifying support is an appealable order. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554; County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250.) No appeal was taken from the March order. Generally, if no timely appeal is taken from an appealable order, the issues determined by the order are res judicata. (In re Matthew C. (1993) 6 Cal.4th 386, 393.) “It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.” (Pacific Mut. Life. Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725.) Thus, as the March order was not void, the parties’ failure to challenge it on appeal would preclude a challenge to its validity in the context of the present appeal. (Nothing herein should be construed as a determination that the March order was flawed or in fact “voidable” in any respect other than the birth dates of the new children. We do not address that question.)
It further appears that even considered prospectively the August order went beyond the scope of the modification sought by appellant, addressed in the parties’ moving and opposition papers, or discussed at the June 9, 2005 hearing. There was no indication at that hearing that the court was soliciting or would consider additional briefing on these issues, beyond its willingness to consider appellant’s evidence of childcare expenses and perhaps information on appellant’s alleged arrears. There was no assertion by respondent at that time or in her response to the motion that she would seek to set aside that part of the March order imputing income to respondent and providing her the childcare deduction. Indeed, in her points and authorities opposing appellant’s pursuit of a childcare hardship deduction, respondent argued that the court had “correctly imputed income to [respondent], and then allowed for childcare if that was what she had to do.” With respect to the allocation of the hardship deduction to respondent, her counsel argued at the June 9 hearing, “[t]hat’s not the issue here.” It also appears likely that in signing the August order, the court may have considered that the last valid, final order was that of June 14, 2004 and not of March 16, 2005.
In these circumstances, we believe it appropriate to give the trial court an opportunity to consider once again the child support order for the period beginning April 1, 2005, in the context of the discussion contained in this opinion. We shall therefore reverse the August order insofar as it purports to modify the March order in respects other than that of correcting the birth dates of the children of the parties and the resulting effect on modifying the general one-half hardship deductions (unrelated to the childcare hardship deductions) accordingly.
IV.
Appellant also requests this court to vacate that part of the March 16, 2005, award granting attorney fees of $10,000 to respondent’s attorney and to remand to the trial court based on “fraud upon the trial court and newly discovered evidence.” As we have stated heretofore, the March order is final. The attorney fee award contained therein was appropriate. This court is not the forum in which to raise claims of fraud and newly discovered evidence. Nor do we believe that either party to this appeal is entitled to an award of fees and costs as a sanction under Family Code section 271 in connection with this appeal.
DISPOSITION
The August 29, 2005, order is affirmed insofar as it vacates and sets aside the previous July 15, 2005 order. The August 29, 2005, order is reversed insofar as it purports to modify the March 16, 2005, order in respects other than that of correcting the birth dates of the children of the parties with other partners. The matter is remanded to the trial court for further proceedings consistent with the views set forth herein. In the interests of justice, each party shall bear his or her own costs in connection with this appeal.
We concur: Haerle, J., Richman, J.
“3/22/01 through 10/21/01 shall be the amount of $1,345 per month”;
“10/21/01 through 12/31/01 shall be the amount of $1,755 per month”;
“1/1/02 through 6/30/02 shall be the amount of $2,423 per month”;
“7/1/02 through 12/31/02 shall be the amount of $1,845 per month”;
“1/1/03 to the present and continuing each month thereafter until further order of court shall be the amount of $1415.00 per month . . .” The Dissomaster reflected hardship deductions to the parties in varying amounts for each of the periods.
“a. For the relevant time periods, each party will be allowed one-half hardship deduction for each of his/her new children. Income will not be imputed to Respondent, and neither party will be allowed daycare expenses for their new children.
“b. 10/21/00 through 12/31/00 . . . [in] the amount of $1,351.00 per month . . . .
“c. 1/1/01 through 5/31/01 . . . [in] the amount of $1,367.00 per month . . . .
“d. 6/1/01 through 10/1/01 . . . [in] the amount of $1,417.00 per month . . . .
“e. 10/2/01 through 11/30/01 . . . [in] the amount of $1,755.00 per month . . . .
“f. December 2001 . . . [in] the amount of $1,696.00 . . . .
“g. 1/1/02 through 6/30/02 . . . [in] the amount of $2,416.00 per month . . . .
“h. 7/1/02 through 12/31/02 . . . [in] the amount of $1,885.00 per month . . . .
“i. 1/1/03 through 8/31/03 . . . [in] the amount of $1,415.00 per month . . . .
“j. 9/1/03 forward . . . [in] the amount of $1,414.00 per month . . . .” (Emphasis omitted.)