Opinion
G029644.
10-31-2003
In re Marriage of ELAINE M. KERTH and KENNETH PAUL KERTH. KENNETH KERTH, Appellant, v. COUNTY OF ORANGE, Respondent.
Kenneth Paul Kerth, in pro. per., for Appellant. Bill Lockyer, Attorney General, James M. Humes, Senior Assistant Attorney General, Frank S. Furtek and Mary Dahlberg, Deputy Attorneys General for Respondent.
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To understand this appeal it is necessary to begin with the order made after hearing filed November 2, 1999. During the 1990s, the Orange County District Attorneys office had acted to collect child and spousal support from Kenneth Kerth on behalf of his ex-wife Elaine. To make a very long matter short, by 1999 there was a dispute as to what Kenneth owed. The district attorneys family support office filed an order to show cause to determine arrears.
There was a hearing on alleged arrears. At least twice at the hearing Kerths attorney had the opportunity to contest the district attorneys position that arrears totaled about $ 11,000. Each time she not only didnt contest it, but actually assented to the figure, subject only to the proviso that the figure could be reduced depending on the outcome of certain civil litigation that Kerth had pending at that time against the district attorneys office. The order filed November 2, 1999 thus states that Kerth owed child and spousal support of $11,027.50 as of July 1999, that payments on it would not exceed 25 percent of his unemployment insurance benefits or $ 300 a month if he were employed, and that "the arrears ordered are subject to pending civil litigation."
Early on there was this colloquy between Commissioner Vogl and the deputy district attorney on the case:
"The Court: Just a moment. Just a moment. You have an outstanding sum apparently claimed and unpaid in the neighborhood of 11,000 and something. [¶] Shes [Kerths attorney] offering 300 a month until circumstances change. [¶] Is that an unfair order?
"Ms. Fea: No. $300 a month is fine.
"The court: Is that what you want me to do?
"Ms. Scott [Kerths attorney]: Well, I — I would prefer that it be whatever amount unemployment pays . . . ."
Later on, the district attorney said:
"Ms. Fea: Yes. I would like the court to make a finding that, as of the end of July, 1999, the total amount arrears owing is $11,027.50.
"The Court: Subject to other litigation, that is request — granted.
"Ms. Scott: With the request that that be considered as the uncorrected order that were fighting about in civil court."
The pending civil litigation to which Kerths attorney and the November 1999 order referred was a lawsuit against the District Attorneys Family Support Division based on, as we would later characterize it, "the remarkable theory that the Support Division was statutorily obligated to seek a downward modification of a child support order when he requested the division to do so in the wake of his unemployment." As that characterization would lead one to believe, the lawsuit ended in a judgment of dismissal which was affirmed on appeal, in an opinion filed by this court June 28, 2001. In short, to the degree that the $11,027.50 arrears figure might have been reduced because it was "subject to" pending litigation, it wasnt.
Kerth never challenged the November 2, 1999 order establishing arrears. Not by appeal, not by motion for reconsideration, not by any of the ways by which a disappointed litigant might undo a trial court order. That order is now unquestionably final.
Beginning in August 2000 — almost a year after the hearing that led to the November 2, 1999 order (and more than nine months after that order was filed) Kerth filed a series of three attacks on the wage and earning assignment that was the result of the November 1999 order.
The first was a request for hearing regarding notice of wage and earning assignment, filed August 31, 2000. It claimed all arrears were fully paid as of December 1999.
The next was another request for hearing regarding wage and earning assignment, filed October 27, 2000. This one was more specific: All arrears regarding child support (as distinct from spousal support) were asserted to have been fully paid as of December 1998.
The third was a "revised request for hearing regarding wage and earning assignment & financial account intercept," filed March 23, 2001. This again asserted that child support had been paid "in full" and "no arrearages exist."
Because of a series of continuances, these three attacks were not heard until June 13, 2001. That hearing centered on the question of whether the arrearages established in the November 1999 order were res judicata. Kerths attorney acknowledged that arrears had indeed been determined in 1999. However, Kerths attorney argued that the District Attorney had no authority to collect spousal support absent the narrow instance where child and spousal support are combined into one order. That argument, with Kerth in propria persona, is now presented to us on appeal.
The typical example is a "family support" order which has the advantage of being wholly tax deductible; usually child support orders, as distinct from spousal support orders, are not tax deductible.
We must affirm. First, to the degree that the November 1999 arrearage order includes amounts for spousal support which were arguably beyond the purview of the district attorneys office to procure, the matter is res judicata. (See Hatch v. Bank of America (1960) ["`whatever issue was actually and necessarily included in a former judgment will be deemed to to have been adjudged thereby"].) The same may be said for any argument concerning overpayments, failure to be credited for pre-1999 payments, or other accounting issues which are now made in Kerths brief. (A subtext of Kerths argument is that liability for support was tolled by operation of law during periods of unemployment in the 1990s. Not so. It was his duty, if circumstances changed, to go in an seek a modification because of the changed circumstances.)
Kerth thus had his chance to challenge the validity of the November 1999 order, but he let it become final. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 ["`If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review."].) Even if Kerth had argued to the court in 1999 that the arrearage figure was overstated because the district attorney had no authority to collect spousal support, his opportunity to obtain appellate review of that issue has gone for good.
By the same token, any argument concerning accounting errors has also been waived since it was not made to the trial court. At the June 13 hearing, Kerths counsel made no arguments that Kerth had not been given credit for payments made after July 1999, or even before that date. Her focus was solely on the theory that the arrears, though res judicata, could be attacked on the theory the district attorney lacked authority to obtain any order for spousal support.
We should temper that conclusion in one respect. Even though represented by an attorney, a goodly portion of Kerths trial level paperwork is extremely hard to follow. Much of it appears to be an attack on the merits of the arrearage determination embodied in the November 1999 order. (For example, almost the entirety of the second volume of the clerks transcript are papers from the 1990s attached as an exhibit to a reply declaration.)
Finally, even if we assume that the district attorney did not have the authority to collect spousal support payments due Kerths ex-spouse, that would not be a sufficient reason to disturb a final arrearages order. The district attorneys authority, or lack of it, to collect support for an ex-spouse is not a jurisdictional matter. How could it be? We are only talking about the legal representation of one side by a given office of lawyers. Consider the hypothetical of an ordinary civil lawsuit where the attorney for one side is vulnerable to a recusal motion from the other side (perhaps for having recently represented the other side in related litigation), but no one ever makes a recusal motion. The case goes to judgment, and the judgment becomes final. Would that be a reason, more than a year after the case became final, to undo the judgment? Of course not.
The time to make a recusal motion — and to fight any adverse ruling in regard to that recusal motion — is during the case leading to the adverse judgment, not in a separate proceeding after that judgment has become final. In that regard Roth v. Parker (1997) 57 Cal.App.4th 542, 547-548 applies a fortiori. There the court held that the failure to seek timely writ review of an adverse ruling on a motion to recuse a trial judge resulted in a forfeiture of a due process attack on the judgment for judicial bias. The same logic applies to the failure to seek timely appellate review of a judgment which might have been the product of the other sides having an attorney acting outside his or her statutory authority — the due process implications are far less reaching.
The order is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR, RYLAARSDAM, J. and OLEARY, J.