Opinion
A126837 Contra Costa County Super. Ct. No. D040-03526
09-12-2011
JANET S., Plaintiff and Respondent, v. A. A., Defendant and Appellant, CONTRA COSTA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
INTRODUCTION
Respondent Janet S. moved in the Contra Costa County Superior Court to modify a June 19, 2009 child support order and for monetary sanctions against appellant A. A. Appellant took that opportunity to attempt to attack the determination of his paternity and the attorney fees and costs as sanctions awarded by the court against him on December 21, 2007, as well as to contest child support amounts previously set by the court, including those having accrued as a result of the paternity finding. The trial court addressed the two issues raised in Janet S.'s modification motion, but applied the doctrine of res judicata to preclude appellant from attempting to relitigate orders and judgments previously issued against him. In this appeal, appellant, who is in propria persona, purports to appeal not only from the court's order on the modification motion, but from the December 21, 2007 judgment and from prior orders in the case. We shall affirm.
BACKGROUND
We note at the outset that appellant's briefing is woefully lacking. His opening brief contains no citations to pages in the record before us. After the Department pointed out this failing, as well as appellant's repeated failure to provide legal support for the claims he raised and urged us to treat this lack as a waiver, appellant included a few citations to the record and some case citations in his reply brief.
We recognize that appellant is selfrepresented on appeal. However, as Eisenberg admonishes, "[a] selfrepresented party on appeal 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys . . . . Thus, as is the case with attorneys, pro per litigants must follow correct rules of procedure.' [Citation.]" (Eisenberg et al, Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:7, p. 92 (Eisenberg), citing Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
In July 2004, Janet S. filed a petition to establish parental relationship, for child support and child custody against appellant. She maintained she and appellant had a relationship from 1993 to 1994, and that appellant was the father of her child born in 1994. Appellant denied he was the father and argued that the father was another man to whom Janet S. had been married at the time her child was born. There followed lengthy and protracted proceedings over more than three years. The Contra Costa County Department of Child Support Services (Department) intervened in the action in August 2005 and filed its own motion for adjudication of paternity at that time. In April 2007, appellant purported to appeal from a trial court order denying his motion to dismiss, directing paternity testing, and setting a trial date in the matter. On June 4, 2007, we dismissed the appeal on the ground that "[t]he challenged rulings are interlocutory in nature and, as such, are not appealable."
Thereafter, on December 21, 2007, following a contested hearing, the trial court issued a judgment in favor of Janet S., finding as follows: Janet S. had come to this country in the mid-1980's. She married Nathaniel J. in 1985 and they lived together for about five months, but had not seen each other since. That marriage was declared null and void by the court on July 8, 2002. The child was born in 1994. Appellant and Janet S. had sexual intercourse many times during the probable period of the child's conception. Nathaniel J. had been excluded from paternity through genetic testing. The court found the conclusive presumption of paternity of Family Code section 7540 was inapplicable because, among other reasons, there was no marriage and Janet S. and Nathaniel J. had neither cohabited nor had sexual intercourse since 1985. The court also found that appellant had repeatedly failed to comply with court orders and had refused to participate in genetic testing. The court found that appellant was the child's father. It awarded Janet S. $17,330 in attorney fees as sanctions pursuant to Family Code section 271, and $188.06 in costs. The judgment also provided that "[c]hild support continues to be reserved to the date of the summons and complaint."
Appellant moved the court to reconsider the December 21, 2007 order, and the court denied that motion on December 16, 2008.
On June 19, 2009, appellant and Janet S. appeared before the trial court on the child support question. The court took judicial notice of the December 21, 2007 judgment of paternity. At the June 19, 2009 hearing, appellant for the first time mentioned he was paying child support in Santa Clara County and that such fact had not been included in the child support calculations. The court required him to show proof of payment for years before 2008, and gave him 30 days to verify payment of support for this other child back from 2004 through 2008 and to serve the Department and Janet S. The court issued its order setting child support, taking into account appellant's claimed other child support payments and finding in part that the parties "actually agree to the income, deductions, expenses and timeshare set forth in the . . . Guideline Calculation [Results] Summary . . . attached [to the order]." In accordance with the support calculation, appellant was ordered to pay child support with a start date of August 11, 2004. The order also provided: "Subject to written verification of actual child support paid in the Santa Clara case for the period of 8/11/04-12/31/07, to be filed and served by Father on both Mother and [the Department] by 7/22/09. Should [appellant] fail to timely file verification of payment of the other child support, the court reserves retroactive modification of these orders and sanctions if found appropriate." On June 22, 2009, the clerk of the court served appellant with the minutes and order from the June 19, 2009 hearing.
In August 2009, respondent Janet S. moved to modify the June 19, 2009 child support order by retroactively modifying the amount owed in arrearages and for monetary sanctions against appellant for his alleged failure to verify the other child support payments as previously ordered. Appellant A. A. took that opportunity to attack the determination of his paternity and the attorney fees and costs as sanctions awarded by the court against him in December 21, 2007, as well as to contest the income calculations and child support amounts set by the court.
On September 15, 2009, the court issued its order on Janet S.'s modification motion, finding that appellant had produced timely verification to the Department, but had failed to serve Janet S. The court chastised both appellant, for failing to serve Janet S. as a "repeated pattern in this case," and also Janet S., for failing to check with the Department before filing the motion for modification and for sanctions. The court found that appellant's response was "yet another attempt to relitigate the prior orders [and] judgment of this court. These matters are res judicata and will not again [be] reviewed." The court confirmed all prior orders, effectively denying Janet S.'s motion.
On October 15, 2009, appellant filed this appeal from the order of September 15, 2009, and purported to "incorporate" orders of June 19, 2009, December 16, 2008, December 21, 2007, March 29, 2007, and February 22, 2007.
DISCUSSION
I. The December 21, 2007 Judgment Determining Paternity and Awarding Sanctions Against Appellant May Not Be Challenged on This Appeal A. Res judicata
"When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." (Rest.2d Judgment, § 27, p. 250.) " 'Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, "precludes relitigation of issues argued and decided in prior proceedings." [Citation.]' [Citation.]" (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82, fn. omitted; see Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Our review of the res judicata question is de novo. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 399.) B. Paternity judgment
In determining whether res judicata applies, the initial question is whether the December 21, 2007 judgment of paternity was final and on the merits for purposes of application of the doctrine. We conclude that it was.
"An appealable judgment or order is a jurisdictional prerequisite to an appeal. (Code Civ. Proc., § 904.1; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)" (County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1343 (Arzaga).) A final judgment in a paternity action is appealable. (Fam. Code, § 7636 .) This action was initiated by Janet S.'s filing of a petition to establish parental relationship in accord with the Uniform Parentage Act (Fam. Code, § 7600 et seq.), which provides in relevant part: "The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for actions brought pursuant to Section 270 of the Penal Code." (Fam. Code, § 7636.) That Janet S. also sought child support and child custody, and that the court reserved jurisdiction over the child support determination, did not render the paternity judgment interlocutory under the "one final judgment rule." (Code Civ. Proc., § 904.1.) The time for appealing that determination is long past.
The Department intervened in the action as permitted by Family Code sections 7634 and 17400, and also sought a paternity determination. "[T]he Legislature has expressly designated a court's order for parentage in a local agency action for child support as a final determination. When a local child support agency brings an action for support of a child, as here, '[a] final determination of parentage may be made in [the] action . . . as an incident to obtaining an order for support.' (Fam. Code, §17404, subd. (a).) In such a case, the final determination is appealable. (City and County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 53-54, fn. 2.)" (Arzaga, 152 Cal.App.4th at p. 1344.)
"The local child support agency may, in the local child support agency's discretion, bring an action under this chapter ["Determination of Parent and Child Relationship"] in any case in which the local child support agency believes it to be appropriate." (Fam. Code, § 7634, subd. (a).)
"Family Code section 17404, subdivision (a), provides in full: 'Notwithstanding any other statute, in any action brought by the local child support agency for the support of a minor child or children, the action may be prosecuted in the name of the county on behalf of the child, children, or a parent of the child or children. The parent who has requested or is receiving support enforcement services of the local child support agency shall not be a necessary party to the action but may be subpoenaed as a witness. Except as provided in subdivision (e), in an action under this section there shall be no joinder of actions, or coordination of actions, or cross-complaints, and the issues shall be limited strictly to the question of parentage, if applicable, and child support, including an order for medical support. A final determination of parentage may be made in any action under this section as an incident to obtaining an order for support. An action for support or parentage pursuant to this section shall not be delayed or stayed because of the pendency of any other action between the parties.' " (Arzaga, supra, 152 Cal.App.4th at p. 1344, fn. 3, italics added.)
The December 21, 2007 judgment determining appellant was the child's father was a final, appealable order. As such, it is entitled to res judicata effect. (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1065 [final judgment of paternity is entitled to res judicata effect].)
In our June 4, 2007 dismissal of his purported appeal from the trial court's order denying his motion to dismiss the paternity and child support action, directing paternity testing, and setting a trial date in the matter, we stated that the challenged rulings were "interlocutory" and, as such, " not appealable." Appellant argues our dismissal supports his challenge to the December 21, 2007 judgment as a nonappealable, interlocutory order. Appellant is mistaken. At the point of appellant's previous appeal, no paternity determination had been made. The trial court's denial of his motion to dismiss the paternity and support action, and his challenges to the court's pretrial rulings, were clearly interlocutory rulings, unlike the final determination of paternity that occurred thereafter on December 21st.
We conclude appellant is precluded from challenging the paternity determination on this appeal. C. Sanctions
Appellant is also precluded on this appeal from challenging the court's award of attorney fees as sanctions in the December 21, 2007 paternity judgment. The award of attorney fees as sanctions under Family Code section 271 was appealable immediately. (Code Civ. Proc., § 904.1, subd. (a)(11) and (12); see Eisenberg, supra, ¶ 2:82, p. 2-49 [interlocutory judgment or order directing the payment of monetary sanctions by a party is immediately appealable if the amount exceeds $5,000].) Appellant's attempt to untimely appeal that determination by incorporating it into this appeal must fail.
Code of Civil Procedure section 904.1 provides in relevant part: "(a) . . .An appeal, other than in a limited civil case, may be taken from any of the following: [¶] . . . [¶] (11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000). [¶] (12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)."
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II. Child Support
Appellant contends on appeal that his child support should be reduced in the following respects: (1) Child care costs should be removed from the period 2004 to 2008, as he contends Janet S. was not receiving employment-related childcare during this time and after the child became 12 years old in 2006 she was legally permitted to stay by herself. (2) Appellant's income should have been set at $3,500 in the June 19, 2009 calculations of child support order based on his income and expense declaration of December 2, 2008, and the court treated his delays in producing desired financial documents more harshly than Janet S.'s delays when it determined his income. (3) Appellant's income should be reduced by $330 per month for office rent from July 1, 2005 to December 31, 2006. (4) His income should be reduced by his automobile-related expenditures that were not included in the financial statements. (5) The support calculations for 2004-2007 "used slightly higher values of income for [appellant] than should have been used. The adjusted gross income should have been used (of course with the self employment tax added back into it)." (6) The start date for his support payments should be no earlier than May 4, 2005. Appellant contends the original 2004 case was dismissed by a previous judge and that the case was refiled by Janet S. on May 4th. (7) The start date for support payments should be no earlier than the date Nathaniel J. rebutted the presumption of paternity. (8) Support payments should not begin yet, because Janet S. failed to meet conditions set by a previous judge for rebutting Nathaniel J.'s paternity. (9) Appellant should not have to make payments if Nathaniel J.'s paternity is established by the presumption of Family Code section 7611, subdivision (a). (10) Support payments should be made by Nathaniel J. rather than appellant as it was too late to rebut the presumption of paternity in Nathaniel J. (11) Appellant estimates Janet S.'s income to be over $10,000 per month.
Appellant raised these and other claims in his declaration in response to Janet S.'s motion to modify the June 19, 2009 child support order and for sanctions. The issues before the court on Janet S.'s motion to modify child support and for sanctions were appellant's alleged failure to comply with the court's order that he verify child support payments he had previously made for another child and that the court had included in the calculation of his child support in the June 19 order. The court found appellant had supplied the required information to the Department, but had failed to serve Janet S. with it. As the court had already credited these child support payments made to a different child in its June 19 child support order, and as appellant had supplied the required documentation, the court denied Janet S.'s motion for modification of child support and for sanctions. Appellant asserted in his declaration opposing Janet S.'s modification motion that "[v]erification of payments shows that the actual monthly payments by [appellant] have been greater than the values used in the June 19, 2009 support calculations. As such, the input payment values in the calculations should be revised upwards." Were we to treat appellant's opposition to Janet S.'s modification motion as his own request for modification of the child support judgment, this would be the only claim that was arguably responsive to the court's June 19th order that he supply verification for child support payments previously made. However, appellant does not claim on appeal that the court erred in refusing to lower his child custody payments because of previous payments he made for either this child or for a different child.
In his appellate briefs, he supplies no page citations to the record and no legal authorities supporting his assertions that the court-ordered child support payments were excessive. After the Department raised these failures in its respondent's brief as a reason to find his claims waived, appellant filed a reply brief in which he did not discuss his claims that the court erred in calculating his child support outside of the context of his challenges to the paternity judgment. He continued to fail to cite to the record or to cite any legal authorities supporting his contention that the court set his child support at too high a level. Appellant has clearly waived these contentions. (See Eisenberg, supra, ¶9.21, p. 9-6 [appellate court may treat as waived any issue that is not supported by pertinent or cognizable legal argument or proper citation of authority]; id., ¶ 9:36, p. 9-12 [when opening brief fails to make appropriate references to the record in connection with points urged on appeal, we may treat those points as waived].)
Moreover, even were we to consider the claims asserted in his opening brief, we would conclude that they could not be raised on this appeal. Assuming we could treat his opposition to Janet S.'s modification motion as his own request for modification of child support (see 1 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶5:370-5:372, pp. 5-139 to 5-140), his claims are not requests for modification in light of new circumstances, but are assertions that the court erred in calculating child support in the first place. (We note that as discussed above, all claims premised on appellant's attack on the judgment of paternity are foreclosed in any event.)
It has long been settled that child support orders are directly appealable, and that any error in making such an order can be reviewed only on an appeal from that order. Inclusion of this language reserving jurisdiction pending further action by the parties "does not render the judgment nonappealable. The judgment created enforceable rights and obligations modifiable as provided by statute. Any support judgment may be modified in light of changed circumstances. (See Fam. Code, § 3651.) In any event, even temporary support orders are appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 367-368.) The judgment in this case was final in form and substance, and thus appealable." (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359, fn. omitted [provision specifying that father's prospective move into rental housing might constitute a changed circumstance warranting modification of spousal and child support did not render support judgment nonappealable].)
Any appeal from the June 19, 2009 child support order was required to have been filed within 60 days of the clerk's mailing of a file-stamped copy of the judgment, showing the date mailed. (Cal. Rules of Court, rule 8.104(a)(1).) Here, the clerk mailed a file-stamped copy of the judgment on June 22, 2009. Appellant filed his appeal from the September 15, 2009 order denying Janet S.'s motion for modification on October 15, 2009, purporting to incorporate the June 19, 2009 order, among others. Appellant's challenge to the underlying June 19, 2009 order is untimely and cannot be considered here.
DISPOSITION
The order of September 15, 2009 is affirmed.
Kline, P.J.
We concur:
Haerle, J.
Lambden, J.