Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Glenda Veasey, Commissioner. Los Angeles County Super. Ct. No. SWD101555
Ralph T. Evans, for Appellant.
Rehm & Rogari and Joanna Rehm, for Respondent.
RUBIN, ACTING P. J.
Darlene Richardson (wife) appeals from the April 13, 2006, order awarding her child support arrearages in the total amount of $11,748.73 with interest at the legal rate commencing February 28, 2001. Wife contends the trial court erred in not ordering interest to begin accruing at the time each child support payment was due but unpaid, pursuant to Code of Civil Procedure section 685.020, subdivision (b). We agree.
All undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Wife and Peter James Richardson (husband) were married in October 1986. They had two daughters; one born in 1987 and the other in 1988. In a judgment of dissolution filed on September 30, 1988, the parties were awarded joint legal custody of the children; wife was awarded sole physical custody; and husband was ordered to pay wife $250 per month, per child, commencing August 1, 1988 (the California order).
Beginning in approximately August 1994 and continuing until February 2000, the children apparently lived with husband in Nevada. During that time, husband commenced an action in the Family Division of the Nevada state court, in which he obtained an order that no child support was due wife (the Nevada action). In February 2000, the Nevada court dismissed the Nevada action for lack of subject matter jurisdiction and ordered the children “transferred pursuant to any preexisting order in California.”
On December 11, 2000, Commissioner Veasey awarded wife sole physical custody of the children and ordered husband to pay child support in the amount of $937 per month, commencing July 15, 2000.
A. The March 27, 2001 Order
In a motion filed February 14, 2001, wife sought, among other things, child support arrearages in the amount of $65,979.23, plus additional accrued interest. Husband argued that his support obligations for August 1994 through February 2000 should be “equitably forgiven” because the children lived with him in Nevada during that time and he was operating in good faith under a Nevada court order that he had no duty to pay child support. He did consent to an order “establishing Child Support arrearage in the amount of $11,164.00, subject to set-offs.” Husband calculated the sum of $11,164 as follows:
· $7,118 (arrearages for December 1993 through June 1994)
· $2,197 (arrearages for March 2000 though July 15, 2000)
· $1,849 (arrearages for July 15, 2000 through February 2001)
· $11,164 (total)
In addition to the $11,164 in arrearages, husband conceded that he owed wife $115 for the children’s medical expenses but maintained he was entitled a set off of $538.50 for excessive travel expenses relating to visitation.
Commissioner Veasey agreed with husband and in an order filed on March 27, 2001, awarded wife “total arrearages due and owing through February 28, 2001, after offset, [in the amount of] $10,740.50. . . [,]” calculated as follows:
· $11,164 (all unpaid child support)
· $115 (unpaid medical expenses)
· ($538.50) (off-set for travel expenses)
· $10,740.50 (total)
B. The May 31, 2001 Order
Wife sought reconsideration of the March 27th order on the grounds, among others, that the court had miscalculated arrearages and failed to “assess the mandatory interest on the child support arrearage at ten percent (10%) per annum.” Excluding the time the children were with husband in Nevada, wife calculated arrearages in the amount of $12,171.73, not including interest, as follows:
· $7,118 (arrearages for December 1993 through June 1994)
· $2,197 (arrearages for March 2000 through July 15, 2000)
· $2,856.73 (arrearages for July 15, 2000 through February 2001)
As to this time period, husband’s calculations were based on support payments of $782 per month, wife’s were based on payments of $937 per month.
· $12,171.73 (total)
Wife separately calculated interest on the arrearages in the amount of $5,136.57 (comprised of $4,863.90; $137.25; and $135.42, for each of the respective time periods). Wife argued that interest commenced accruing as to each child support payment on the date the payment became due, continued to accrue so long as the payment remained unpaid, and the court was without authority to reduce the amount of statutory interest. (In re Marriage of Perez (1995) 35 Cal.App.4th 77, 81 (Perez); (Cal. Const., art. XV, § 1; § 685.010, subd. (b); § 685.020, subd. (b).)
At a May 15, 2001, hearing, Commissioner Veasey agreed with wife that arrearages for the period July 15, 2000 through February 2001, should be based on support payments of $937 per month, not the $782 amount used by husband. Regarding interest, Commissioner Veasey engaged in the following colloquy with counsel: “THE COURT: . . . [T]he court doesn’t calculate the interest. The orders, whatever the orders of arrearages are are entitled to legal interest under . . . [the code], the court doesn’t have to calculate the interest. And it was based on from when the payments are due. But from everything I have seen, the court is not required to say with legal interest thereon is automatic, but the court’s order does include with legal interest thereon. [¶] [HUSBAND’S COUNSEL]: And we’ll stipulate to that, Your Honor. We never contended that it wouldn’t bear interest, and I think our response indicated that. [¶] THE COURT: But I don’t have any of those fancy programs. [¶] [HUSBAND’S COUNSEL]: You don’t have the D.A. program? [¶] THE COURT: Yeah. I don’t get those up here. . . . [¶] [WIFE’S COUNSEL]: So counsel and I can calculate the interest and make sure we agree on that and that interest will be on all the arrears owed. [¶] THE COURT: Yes. [¶] As to the motion for reconsideration, the court on that issue, the court does not believe that reconsideration is necessary; however, for clarification purposes, the court indicates that any order it makes with respect to amount due for money judgments or amount due for support arrearages are with legal interest thereon pursuant to the code.”
In pertinent part, the written order, filed May 31, 2001, provides: “[Wife] is entitled to legal interest on the arrearage owed by [husband] to her. Any order the court makes with respect to amounts due for support arrearages will be with legal interest thereon.” According to the order: “[Wife’s] total arrearages due and owing through February 28, 2001, after offsets, are $11,748.73 with interest at the legal rate.” (Italics added.) The order calculates this sum as follows:
· $12,171.73 (arrearages)
· $115 (medical expenses)
· ($538.50) (set off of for travel expenses)
· $11,748.73 (total)
This calculation was slightly incorrect; the correct amount is $11,748.23.
C. The April 13, 2006 Order
On May 19, 2005, husband filed an OSC seeking, among other things, a “Judicial Determination of No Child Support Arrearages.” In his supporting declaration, husband averred: “In May 2004, I owed [wife] certain child support arrearages representing unpaid child support from May 2001 through May 2004. [¶] In May 2004, I prepared a loan calculation report which established that I owed to [wife] on May 1, 2004, the sum of $6,166.54 representing all past child support arrearages plus interest. . . . [¶] In order to fully and completely pay off all arrearages which I owed and in order to put the arrearage issue behind me, I paid [wife] $9,000 on May 5, 2004. . . . [¶] Pursuant to the check which I wrote on May 5, 2004, there is currently no unpaid child support arrearages owed to [wife].” Wife opposed the OSC and requested that the court appoint a CPA to correctly calculate arrearages.
At the December 15, 2005, hearing, Commissioner Veasey observed that the May 31st order, which was prepared by wife’s counsel, set forth a specific amount “[a]nd if at the time of the hearing there had been a specific amount of interest over and above that that should have been added, that should have been put in the order by [wife].” There followed this colloquy: “[WIFE’S COUNSEL]: Is Your Honor aware of the fact the moment somebody doesn’t pay their child support, legal interest accrues? [¶] THE COURT: That does not change the fact that the order says a certain thing – thing, and I can’t change the order four years later. [¶] [WIFE’S COUNSEL]: Is Your Honor aware that this order only talks about total arrearages due and owing through February 28, 2001, after offsets and does not put in the word ‘total arrearages and interest due?’ [¶] THE COURT: The court is aware that it doesn’t say that. So there’s an ambiguity in the order, and the ambiguity under the law has to be taken in the light most favorable to the party not preparing the order.” The written statement of decision filed on April 13, 2006, states: “. . . An order was entered on May 31, 2001, . . . that [wife] is entitled to legal interest on the arrearages owed by [husband] to her. The [husband’s] total arrearages due and owing from February 28, 2001, after offsets are $11,748.73 with the interest at the legal rate. [¶] The court finds it is bound by the language of the existing order which says that what was due as of February 28, 2001, was $11,748.73 with interest at the legal rate on that amount. [¶] It appears to the Court that there may be an error in the language or the drafting of the written order. It does say that arrears are entitled to legal interest, but it also says that x is the amount that is due as of such-and-such a date, and legal interest will accrue on that amount, and the Court can’t go back and change an order from four years ago. [¶] The Court is aware that the order only talks about total arrearages due and owing through February 28, 2001, after offsets and does not put in the word ‘total arrearages and interest due.’ The court finds an ambiguity in the order and the ambiguity under the law has to be taken in the light most favorable to the party not preparing the order. [¶] The Court finds that it does not know if the amount of $11,748.73 does or does not include interest, because it does not know what adjustments were made up or down on what the arrears without interest were due at the time of the hearing of the motion for reconsideration.” Based on these findings, the trial court concluded: “[T]he total amount owing as of February 28, 2001 was $11,748.73 and legal interest can be calculated on that amount from that date forward based on the declining balance of that pending on what payments were made by [husband].”
Wife filed a timely notice of appeal.
DISCUSSION
Wife’s sole contention on appeal is that the trial court erred in ordering interest to begin accruing on husband’s unpaid child support obligation on February 28, 2001. We agree.
Pursuant to section 685.010, subdivision (a), interest accrues on the principal amount of a money judgment remaining unsatisfied. Section 685.020, subdivision (b) provides: “Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.”
Unpaid child support payments (i.e. arrearages) are treated like a money judgment payable in installments. Each unpaid installment begins accruing interest when it becomes due. (In re Marriage of McClellan (2005) 130 Cal.App.4th 247, 251 (McClellan); Perez, supra, 35 Cal.App.4th at pp. 80-81.) Once entered, a judgment for child support is per se enforceable until paid in full. Interest continues to accrue at the legal rate, and courts have no authority to waive or forgive interest accrued on past-due child support amounts. (In re Marriage of Hubner (2004) 124 Cal.App.4th 1082, 1089 (Hubner); In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 718, 722 [judgment for child support cannot be retroactively modified “as to either accrued arrearages or any interest due thereon.”]; see Fam. Code, § 3651, subd. (c)(1) [support orders cannot be modified as to amount that accrued before the date of the filing of the notice of motion or OSC to modify]; Fam. Code, § 155 [“For the purposes of Section 685.020 of the Code of Civil Procedure, only the initial support order . . . shall be considered an installment judgment. No support order or other order or notice issued, which sets forth the amount of support owed for prior periods of time or establishes a periodic payment to liquidate the support owed for prior periods, shall be considered a money judgment for purposes of subdivision (b) of Section 685.020 of the Code of Civil Procedure.”].)
Satisfaction of a money judgment for support is governed by section 695.221, which provides: “(a) The money shall first be credited against the current month's support. [¶] (b) Any remaining money is next to be credited against the accrued interest that remains unsatisfied. [¶] (c) Any remaining money shall be credited against the principal amount of the judgment remaining unsatisfied. If the judgment is payable in installments, the remaining money shall be credited against the matured installments in the order in which they matured.”
Here, despite Commissioner Veasey’s comments at the December 2005, hearing, the record is clear that the $11,748.73 award of arrearages in the May 31st order did not include interest that had accrued up to that time. Commissioner Veasey expressly said so at the May 15, 2001, hearing at which she announced the ruling and discussed that the parties would calculate the exact amount of interest.
Moreover, it is “ ‘ “ ‘a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.’ ” ’ [Citation.]” (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430.) Applying that rule here, we must presume that, on May 15, 2001, Commissioner Veasey knew and applied the rule that interest begins accruing on each unpaid child support payment when that payment became due, continues to accrue until the amount is paid, and courts are without authority to modify either the amount of the arrearages or any interest due thereon. (Hammer, supra, 81 Cal.App.4th at pp. 718, 722.) Accordingly, the only reasonable interpretation of the May 31st order is that it awarded wife child support arrearages in the total amount of $11,748.73, plus interest on each unpaid installment to be calculated in accordance with sections 685.020, subdivision (b) and 695.221. We remand the matter to the trial court to make these calculations. (See e.g., Perez, supra, 35 Cal.App.4th at p. 81.)
Husband’s reliance on Dupont v. Dupont (2001) 88 Cal.App.4th 192 (Dupont) for a contrary result is misplaced. Dupont was expressly abrogated by the 2003 amendments to Family Code section 155, which clarified that the only installment judgment in the support context is the initial support order and that subsequent orders do not stop further accrual of interest on accumulated arrearages. (McClellan, supra, 130 Cal.App.4th at p. 251.) “ ‘It is therefore the intent of the Legislature to abrogate the holding of the California Court of Appeal in Dupont v. Dupont, to reaffirm that the legislative intent is that no support order or notice issued, which sets forth the amount of support owed for prior periods of time or establishes a periodic payment to liquidate the support owed for prior periods, be considered a money judgment for the purposes of subdivision (b) of Section 685.020. . . .’ ” (Ibid. at p. 252, citing Stats. 2002, ch. 539, § 1(a), p. 2526.)
DISPOSITION
The order under review is reversed. The trial court is directed to issue a new and properly calculated child support order including interest accrued through the date of the new order. Wife is entitled to costs on appeal.
WE CONCUR: BOLAND, J., FLIER, J.