Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. F-030896
Dondero, J.
This lengthy and protracted dissolution litigation appears before us again, this time for review of the trial court’s denial of petitioner Susan Navratil’s motion for reconsideration (Code Civ. Proc., § 1008) of a prior order that directed her to pay respondent Mark Navratil for a share of child care expenses for their daughter. We conclude that the trial court abused its discretion by denying the motion for reconsideration. We therefore reverse both the denial of the motion for reconsideration and the prior order that granted Mark reimbursement.
For the sake of clarity and convenience we will refer to the parties by their first names.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Our recitation of the facts is somewhat hampered by the lack of a complete record on appeal. For instance, while we have before us Susan’s motion for reconsideration and the prior minute order which imposed upon her the obligation to pay a share of child care expenses, the record does not include the moving papers related to Mark’s motion for reimbursement for child care expenses. Due to the truncated record we will recite some of the underlying facts from the opinion in a prior appeal in this case. (In re Marriage of Navratil; Navratil v. Navratil (Sept. 13, 2004, A103483) [nonpub. opn.].)
The original judgment of dissolution was filed on February 3, 1998, but reserved judgment on the issues of child and spousal support. After a hearing on March 27, 1998, the court ordered Mark to pay to Susan spousal support in the amount of $855 per month, and child support for the parties’ daughter Sarah in the amount of $705 per month. The order also specified that any child care expenses incurred by either party for that party to be employed “shall be paid pursuant to Family Code section 4061(b) with 55% of the childcare expense paid by respondent and 45% paid by petitioner.” The order further provided that if Mark incurred child care expenses he was entitled to “automatically deduct 45% of the expense from the $705/month child support.”
On October 30, 1998, the court found that a “change in circumstances” justified a modification of existing child and spousal support orders. Mark was granted sole physical custody of Sarah, and Susan was ordered to pay Mark “$938 as and for child care and child support.” Mark’s spousal support obligation was reduced to $383 per month, with the “net” of $554 to be paid by Susan to Mark on the first day of each month, commencing in December of 1998.
The parties continued to have joint legal custody of Sarah.
On June 3, 2003, in response to Mark’s motion for modification of the existing spousal support order, the court found that Susan “did not meet requirements as previously ordered of Family Code Section 4505, ” and terminated “all spousal support permanently and forevermore.” (In re Marriage of Navratil, supra, A103483, at pp. 4, 5.) The court also ordered Susan, pursuant to section 271, to pay respondent’s counsel the sum of $2,500 for attorney fees. (In re Marriage of Navratil, supra, A103483, at pp. 2–3)
On July 28, 2009, a contested hearing was held before a court commissioner on Mark’s request for reimbursement for medical care and child care expenses incurred from April of 1999, through May of 2000, in the amount of $4,050. Susan asserted that her child support obligation following the modified order in October 1998, “included a contribution towards child care, ” although she did not present the modified order to the court. The commissioner denied Mark’s claim for reimbursement for medical expenses, but granted him reimbursement from Susan of child care expenses for the cost of summer YMCA camp in the amount of $1,440, plus interest from June 1, 2000 – that is, Susan’s 45 percent share of the total child care expenses of $3,200.
As we have mentioned, we do not have the moving papers in the record before us; we have only the reporter’s transcript of the hearing on the motion.
Susan filed a motion for reconsideration on August 31, 2009, based on the claim that Mark “already collected child care” from her pursuant to the October 30, 1998 order, which was not available to the court at the prior hearing on Mark’s motion for reimbursement. Susan pointed out that she satisfied the child support order until April of 2008, with monthly automatic withdrawals “directly out of her retirement, ” as specified in the order. She also declared in her motion that she was “not able to provide the October 30, 1998 Order to the Court” at the prior hearing because the entire file was not made available to her by the clerk’s office. The commissioner found that Susan failed to demonstrate “new facts or new law that was not available” at the prior hearing, as required by Code of Civil Procedure section 1008 (section 1008), and denied her motion for reconsideration. This appeal followed.
At the hearing on Mark’s request for reimbursement the court had before it only the order of March 27, 1998. The October 30, 1998 order was attached as an exhibit to Susan’s motion for reconsideration.
DISCUSSION
Susan argues that the trial court commissioner erred by denying her motion for reconsideration. She claims that the court granted Mark’s motion for reimbursement of child care expenses based on the superseded March 27, 1998 child support order, which ordered Mark to pay $705 per month in child support, and divided child care expenses 55 percent to Mark and 45 percent to Susan. Her complaint is that the commissioner failed to acquire from the file or consider the modified child support order of October 30, 1998, which provided that Susan was obligated to pay “$938 as and for child care and child support.” She therefore asserts that the court “abused its broad discretion” and acted “in excess of jurisdiction” by failing to reconsider the order that reimbursed Mark for child care expenses.
We commence our review by observing that Susan is correct in her claim that the court granted reimbursement to Mark pursuant to a superseded order. Mark was seeking reimbursement for child care expenses he paid for YMCA camp from April of 1999 through May of 2000. Before those expenses were incurred, the child support order of March 27, 1998, which the court relied on to grant reimbursement to Mark, had been supplanted in October of 1998 by an order which entirely modified the parties’ child support obligations: Mark was granted sole physical custody of Sarah, and Susan instead of Mark was ordered to pay $938 per month for both “child care and child support.” (Italics added.) Both Mark’s child support obligation and the division of child care expenses specified in the March 27, 1998 order were superseded and no longer in effect. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 566; In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 717–718.) The governing child support order was the one dated October 30, 1998. As we read that order, Susan’s monthly payments satisfied her obligation to contribute to both child support and child care expenses incurred by the parties. Any contributions by Susan to child care expenses were subsumed in her monthly payments over the years. Therefore, Mark was not entitled to additional reimbursement for his out-of-pocket child care expenses.
We also observe that Mark’s request for reimbursement for unpaid child care expenses from over nine years before was subject to a laches defense. (See In re Marriage of Vroenen (2001) 94 Cal.App.4th 1176, 1183; In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1156–1157; In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1356, 1363.) “ ‘ “The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.” ’ [Citations.]” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1418.) As a pro per litigant Susan did not refer to the term laches to defend Mark’s claim, but she did argue in substance that she was prejudiced by his lengthy delay in seeking reimbursement and the fact that the court file did not include the quite dated but still applicable October 30, 1998 order pursuant to which she made child care payments.
We further conclude that Susan was entitled to relief from the commissioner’s erroneous consideration of the inapplicable child support order. Her motion for reconsideration was based on section 1008, subdivision (a), which “provides that ‘... any party affected by [an] order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.’ To be entitled to reconsideration, a party should show that (1) evidence of new or different facts exist, and (2) the party has a satisfactory explanation for failing to produce such evidence at an earlier time.” (Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160–1161; see also In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.) “A motion for reconsideration will be denied absent a strong showing of diligence.” (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 202.) “[T]he trial court may not grant the motion unless it satisfies the requirements of section 1008.” (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 723, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7.) “We review the denial of a motion under section 1008 for abuse of discretion.” (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 42.)
The order granting Mark reimbursement was filed and served on Susan on August 25, 2009. Her motion for reconsideration was timely filed within 10 days thereafter on August 31, 2009.
In addition, Susan made the requisite showing of new facts and diligence. While Susan was aware of the existence of the October 30, 1998 order – and, in fact presented argument based on it at the prior hearing – she was not aware that the document itself was missing from the court’s file. The applicable October 30, 1998 child support order was not before the court, and as part of Susan’s motion for reconsideration was a new or different fact that was critical to the resolution of Mark’s request for reimbursement of child care expenses. Further, Susan was certainly justified in believing that in ruling on Mark’s request for reimbursement the commissioner would be in possession of the October 30, 1998 order that should have been in the court file – or at least that the commissioner would obtain the order once she directed attention to it. She thus offered a reasonable explanation for failing to produce the order at the hearing. Susan also acted diligently by promptly moving for reconsideration and presenting the order as an attachment to her motion. Moreover, the trial court had the inherent authority to reconsider its prior, erroneous ruling even if no new or different state of facts was presented by Susan. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469–1470; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313–1314; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450; Bernstein v. Consolidated American Ins. Co. (1995) 37 Cal.App.4th 763, 774; People ex rel. Dept. of Transportation v. Ad Way, Inc. (1992) 8 Cal.App.4th 309, 313–314.) The commissioner therefore abused his discretion by denying Susan’s motion for reconsideration.
DISPOSITIION
The denial of Susan’s motion for reconsideration is reversed. The case is remanded to the trial court with directions to grant Susan’s motion for reconsideration and deny Mark’s motion for reimbursement of child care expenses.
Appellant is awarded costs on appeal.
We concur: Marchiano, P. J., Margulies, J.