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Nguyen v. Van (In re Marriage of Nguyen)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
May 28, 2021
No. H044902 (Cal. Ct. App. May. 28, 2021)

Opinion

H044902 H045159

05-28-2021

In re the Marriage of ANH DAO NGUYEN and MIKE VAN. ANH DAO NGUYEN, Respondent, v. MIKE VAN, Appellant, SANTA CLARA 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2014-1-FL-169508)

Appellant Mike Van (Van) seeks review of two orders denying his requests to waive child and spousal support arrears owed to respondent Anh Dao Nguyen (Nguyen). Intervener and respondent Santa Clara County Department of Child Support Services (DCSS) attempted to enforce arrears on Nguyen's behalf. Van alleges the trial court improperly enforced an order issued in February 2015, which he believes was subsequently modified. Finding no error, we affirm the orders denying Van's request to waive arrears and denying his claim of exemption.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. History of Child and Spousal Support Orders

Nguyen and Van married in 2007; Nguyen filed a petition for dissolution in 2014. Shortly after filing for dissolution, Nguyen filed a request for orders seeking sole physical custody of the parties' two children, as well as guideline child and spousal support, and other relief. In an order filed in February 2015 (the February 2015 order), the trial court ordered Van to pay to Nguyen $2,633 per month in child support, and $1,810 per month in temporary spousal support; the court "reserve[d] jurisdiction on temporary spousal support in regards to any possible issues for reallocation or reimbursement." The court calculated support based on Van earning $10,675 per month in wages and salary, and having 2% timeshare with the children; Nguyen had no income at the time.

Four days after the trial court filed the written order reflecting its child and spousal support orders, Van filed a request to terminate spousal support, in addition to seeking other relief. Van soon amended his request, stating he had lost his job, and thus asked the court to further modify child support and spousal support. Nguyen agreed the court could modify child and spousal support to reflect the parties' changed circumstances; she requested guideline support awards based on the parties' current incomes, as Nguyen had started working 10 hours per week. Nguyen also asked the court to order Van to look for work.

At a hearing in April 2015, the trial court ordered both parties to make reasonable good faith efforts to find employment, warning the parties that failure to comply could result in the court basing support on the party's "ability to earn" regardless of whether or not he or she was actually employed. The parties agreed "to modify the current child support order"; the court ordered the parties' attorneys to meet and confer to recalculate the amount, and reserved retroactivity on child support. The court referred the parties to a settlement officer conference (SOC). The minute order indicated that all existing orders would remain in effect except as modified by the order. The trial court issued a written order reflecting the court's oral pronouncements in September 2016 (the September 2016 order).

Van was represented by counsel at the April 2015 hearing. The attorney substituted out of the case shortly thereafter, leaving Van to represent himself. Van continued to represent himself throughout the proceedings at issue in these appeals; he also represents himself on appeal.

"At an SOC and Status Conference with the FCSO, the Family Court Settlement Officer (FCSO) or temporary judge will assist the parties to settle or to streamline all non-custody or visitation issues or to assist in determining the issues for trial." (Super. Ct. Santa Clara County, Local Family Rules, rule 6(C)(1).)

Subsequently the trial court held several hearings to review the parties' employment efforts, finding Van was in compliance with the seek work order, and requiring him to continue looking for work. The trial court did not issue new child or spousal support orders at any of the employment efforts review hearings.

As the review of the parties' employment efforts proceeded, Van filed another request to modify child and spousal support in September 2015; he asked the court to recalculate child support based on his unemployment benefits and asked to terminate spousal support. Van alleged that, at the April 2015 hearing, Nguyen's attorney promised to work with Van's then-attorney to recalculate support, but left the courthouse without meeting with Van's attorney. Van attempted to contact Nguyen's attorney to recalculate support, to no avail. Thus, Van used the support calculator available on the State of California's child support services website to determine the amount he believed was appropriate based on his unemployment benefits; Van believed that the court had ordered a reduction in support at the April 2015 hearing. Van deducted amounts for expenses related to the community residence. Van argued that by cashing his checks, Nguyen agreed to the amounts he was paying for support.

At a hearing in November 2015, the trial court again ordered the parties to a SOC. It denied Van's request to modify child and spousal support without prejudice, reserving jurisdiction if the SOC was not successful. The court indicated that all previous orders remained in effect except as modified at the hearing.

Shortly after the trial court denied modification of child and spousal support, Van filed a request for an order requiring Nguyen and her parents, who lived with Nguyen in the family residence, to pay Van half of the rental value on the home. In January 2016, the trial court denied Van's request that Nguyen make rental payments to him.

In June 2016, DCSS gave notice that it would be providing services regarding current support and support arrears.

Although the record does not indicate how DCSS came to participate in these proceedings, in its respondent's briefs, DCSS alleges Nguyen requested that it provide services, pursuant to Family Code section 17400. Van does not dispute that contention in his reply briefs.

In September 2016, Van asked the trial court to enforce the child support recalculation he believed was ordered in April 2015. He claimed that he received a bill from DCSS seeking payment of $4,442 for support owed in July 2016. However, Van believed that he did not owe any support, based on the recalculation he contended the trial court ordered in April 2015. Van argued that the April 2015 order was meant to recalculate support based on the parties' mutual unemployment. Van asked the trial court to waive any "unreasonable spousal and child support money being past due or will be due . . .," pursuant to the April 2015 order, and requested that the court allow him to continue paying the amount he had been paying since April 2015.

Pursuant to Family Code section 4251, subdivision (a), the trial court assigned Van's request to a child support commissioner, given DCSS's involvement in the case. At a hearing in November 2016, the commissioner issued a seek work order as to Van, and ordered the parties to provide income and expense declarations and paystubs prior to the next hearing, which the court scheduled in late February 2017. The court reserved its jurisdiction to retroactively modify support. The court specified that all prior orders remained in effect except as specifically modified by the court. The court held several additional hearings on Van's September 2016 request; at each, the court continued to reserve jurisdiction to issue retroactive support orders, without specifically modifying the February 2015 order. In October 2017, after issuing the orders that are the subject of this appeal, the trial court denied Van's request to modify child support, finding that he was not compliant with the employment efforts order.

"All actions or proceedings filed by a party other than the local child support agency to modify or enforce a support order established by the local child support agency or for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances. . . ." (Fam. Code, § 4251, subd. (a).)

B. Van's First Request to Waive Arrears and Claim of Exemption

In December 2016, Van filed a request for order to waive child support arrears. He reiterated his belief that the April 2015 order allowed him to recalculate the child support he owed based on his unemployment income. Van notified the court that he had previously sought to modify support; while he referenced the hearing in November 2015, he did not indicate that the trial court had denied his request without prejudice. Van complained that DCSS had tried to collect on the arrears allegedly owed under the February 2015 order, and had issued an order to "withhold [his] income sources," all of which were negatively impacting his life. Van asked the court to waive his child and spousal support arrears, and "honor" the April 2015 order.

Although Van referred to an order withholding his income sources, the record indicates the only enforcement effort DCSS made was an order levying one or more of Van's bank accounts. There is no evidence DCSS obtained an income withholding or wage assignment order.

Prior to the hearing on Van's request to waive child support arrears, DCSS attempted to collect the arrears via a garnishment order sent to Van's bank; in response, Van served a claim of exemption, alleging he needed the funds in his checking and retirement accounts "to provide life support[]." Van did not specify the statute under which he was claiming the accounts to be exempt; nor does it appear he attached the financial statement form required by the Judicial Council form he used to make his exemption claim. DCSS opposed Van's claim of exemption, contending the accounts were not exempt, and thus the court should not consider any hardship claim, as Code of Civil Procedure section 703.070 only allows consideration of the needs of the judgment debtor if the subject property is exempt. (Code Civ. Proc., § 703.070, subd. (c).) Nor did DCSS believe Family Code section 17453 applied, as Van was not in compliance with an order to pay his arrears. Even if the court determined the accounts were exempt, DCSS argued the trial court should allow garnishment from the accounts because Van had accrued over $25,000 in arrears and was able to pay his expenses despite reporting no income.

"[I]f property sought to be applied to the satisfaction of a judgment for child, family, or spousal support is shown to be exempt . . ., the court shall, upon noticed motion of the judgment creditor, determine the extent to which the exempt property nevertheless shall be applied to the satisfaction of the judgment. In making this determination, the court shall take into account the needs of the judgment creditor, the needs of the judgment debtor and all the persons the judgment debtor is required to support, and all other relevant circumstances." (Code Civ. Proc., § 703.070, subd. (c).)

If a support obligor is in compliance with an order to make scheduled payments on child support arrears, the obligor's earnings are being withheld pursuant to an income withholding order that includes an amount for past-due support, and/or at least 50 percent of the obligor's earnings are being withheld, the obligor can seek an exemption based on financial hardship. (Fam. Code, § 17453, subd. (j)(1) & (3).)

In response to DCSS's objection to his claim of exemption, Van argued that he was not a judgment debtor based on his belief that he did not or should not owe any child or spousal support arrears. Moreover, he contended that he needed the money in his checking account to pay for his "daily life basics"; the funds in the account included money that he borrowed from his sister in order to pay his expenses, as he did not have any source of earned income. He believed he was paying the appropriate amount of support, based on his own calculation following the April 2015 order, deducting for Nguyen's share of expenses. Van alleged that his retirement account was exempt because it contained pension funds that he rolled over into a money market account due to his former employer's inability to keep the funds in its bank until it was vested for payment upon his retirement.

After conducting a hearing on Van's request to waive child support arrears and the claim of exemption on February 16, 2017, the court commissioner denied all of Van's requested relief (the February 2017 order). On February 17, 2017, Van timely filed a notice of appeal from the February 2017 order.

The parties did not designate a reporter's transcript from that hearing as part of the record on appeal, although it does appear there was a court reporter present.

The appeal from the February 2017 order is designated H044902.

C. Van's Second Request to Waive Arrears

In June 2017, while the appeal of the February 2017 order was pending, Van filed a request for orders to "waive DCSS' past due money." He argued that he had been making appropriate efforts to look for work, but had yet to find employment, due in part to the "bad credit report for [his] inability to pay the demanded child/spousal debt due to [DCSS]." Van alleged that employers were not willing to hire him due to his bad credit. He wanted the court to "eliminate the current and past due money" and issue a new support order. Van noted that his September 2016 request to enforce the April 2015 recalculation of child support had not yet been heard by the court, having been continued several times.

On August 31, 2017, the child support commissioner heard Van's request. The court denied Van's request to waive the arrears, and admonished Van regarding his "excessive filings requesting the court to wipe out the arrears." The trial court issued a written order on the date of the hearing (the August 2017 order). Van filed a timely notice of appeal.

The parties did not designate the reporter's transcript from the hearing as part of the record on appeal, although it does appear a court reporter was present at the hearing.

The appeal from the August 2017 order is designated H045159.

On July 30, 2019, this court, on its own motion, ordered that appeal numbers H044902 and H045159 shall be considered together for briefing, oral argument and disposition.

Appeal number H045159 was already fully briefed at the time the court made this order. Thus, the parties filed separate briefs in each of the matters.

II. DISCUSSION

A. Forfeiture

DCSS alleges Van has forfeited his arguments regarding the February 2017 order by failing to comply with the relevant rules of court. Van represents himself in this appeal, as he did in the relevant proceedings at the trial court. As a party representing himself, Van " 'is entitled to the same, but no greater, consideration than other litigants and attorneys.' [Citations.] Accordingly, we may disregard factual contentions that are not supported by citations to the record [citation] or are based on information that is outside the record [citation]. [Fn. omitted.] We may disregard legal arguments that are not supported by citations to legal authority [citation] or are conclusory [citation]. . . . [W]e will bear in mind that an ' "order of the lower court is presumed correct." ' [Citation.] Therefore, [the appellant] has the burden of affirmatively showing any error. [Citation.]" (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.)

The Judicial Ethics Committee of the California Judges Association has opined that, "under the Code of Judicial Ethics, no reasonable question is raised about a judge's impartiality when the judge, in an exercise of discretion, makes procedural accommodations that will provide to a diligent self-represented litigant acting in good faith, the opportunity to have his or her case fairly heard. In other words, judges should understand the difficulties encountered by self-represented litigants and that it is ethical to exercise discretion to treat them differently. The judge may provide reasonable accommodations, affording latitude, being lenient and solicitous, making allowances, applying less stringent standards, and give self-represented litigants leeway and consideration." (Cal. Judges. Assn., Jud. Ethics Com., Opn. No. 76 (2018) at p. 1, <https://www.caljudges.org/docs/Ethics%200pinions/Op%2076%20Final.pdf> [as of May 28, 2021], archived at: <https://perma.cc/PEX7-GLFP>.) The liberal construction of pleadings is one reasonable accommodation the court can make. (Id. at p. 9.)

While DCSS correctly contends that the failure to provide coherently organized argument places an undue burden on both respondents and the appellate court to extract arguments and determine the applicable rule of law (see United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 152-153), we decline to deny Van's appeal outright on this basis. DCSS's own response to appeal number H044902 reveals at least some ability to discern Van's arguments. We therefore will exercise our discretion and liberally construe the pleadings to determine the basis for Van's appeal. However, where he has not cited appropriate legal authority, we cannot proceed. Nor can we consider arguments he did not raise to the trial court when it issued the relevant orders on appeal.

Additionally, this court has no jurisdiction to consider the appeal of judgments or orders that have not been properly noticed by Van. Although the notices of appeal filed in appeal numbers H044902 and H045159 reference only the February 2017 and August 2017 orders issued by the child support commissioner, in his opening briefs, Van states he is appealing the September 2016 order (memorializing the oral orders made at the April 8, 2015 hearing), and an order entered October 19, 2017, in addition to the February 2017, and August 2017 orders. Van also suggests he is appealing the administrative actions of DCSS on June 20, 2016; he cites to the notice regarding payment of support and substitution of payee filed by DCSS on that date. In his reply briefs, he addresses additional orders not referenced in the notices of appeal.

While this court must liberally construe the notices of appeal (Cal. Rules of Court, rule 8.100(a)(2)), Van's notices gave no indication of his intent to seek review of anything other than the February 2017 and August 2017 orders. As there is not a final judgment in this action, this court does not review appealable orders issued by the trial court in advance of the two orders specifically designated in the notices of appeal. (Code Civ. Proc., § 906.) The trial court's February 2015 orders first setting child and spousal support, and subsequent orders denying Van's requests to modify support, were immediately appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 505-506 [order denying modification of support is an appealable order].) By failing to file a timely notice of appeal from these orders, Van waived the right to appeal them and we are precluded from reviewing their merits. (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1082 (Malatka); Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 158; see Code Civ. Proc., § 906.) We cannot consider the propriety of any of the orders other than those properly noticed in the notices of appeal filed in appeal numbers H044902 and H045159; thus, we will limit our review to the February 2017 and August 2017 orders.

B. Appealability

Pursuant to California Rules of Court, rule 8.204(a)(2)(B), an appellant's opening brief must, "[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable." Although Van includes what he entitled a "statement of appealability" in each of his appellant's opening briefs, he does not explain why either of the orders at issue is appealable. He alleges the February 2017 order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). He does not explain why the August 2017 order is appealable.

Code of Civil Procedure section 904.1, subdivision (a)(2) does not assist Van. The statute authorizes a party to appeal an order made after a judgment made appealable by section 904.1, subdivision (a)(1). At the time the trial court entered the February 2017, and August 2017 orders, the trial court had not entered a final judgment in this matter, and thus section 904.1, subdivision (a)(2) is not applicable to the orders before us.

However, the appeals are viable under Code of Civil Procedure section 904.1, subdivision (a)(10), which allows the appeal of an order made appealable by the Family Code. Family Code section 3554 allows for the appeal of a judgment or order made under Division 9 of the Family Code (§ 3500, et seq.), entitled "Support." Part 5 of Division 9 (§ 4500 et seq.) governs enforcement of orders for child and spousal support (§ 4500), including enforcement by a writ of execution or notice of levy under section 17522 [authorizing the local child support agency to collect delinquent support payments by a lien of levy] (§ 5100). Section 17522, subdivision (c) requires the local child support agency to send a statement of support arrearages to the obligor; the obligor can thereafter have the local child support agency review the arrearage determination through administrative procedures, and/or seek judicial review of the arrearages pursuant to section 17526. In his requests for orders in the trial court, Van was effectively seeking judicial determination of the arrears after DCSS sent him a statement of support arrearages. As these determinations fall within the auspices of Division 9 of the Family Code, the resulting orders from February and August 2017 are appealable under section 3554.

Subsequent undesignated statutory references are to the Family Code.

C. General Legal Principles and Standard of Review

During the pendency of a dissolution proceeding, the trial court has jurisdiction to order child and spousal support. (§ 3600.) Such an order may be "modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (§ 3603.) However, absent a statutory provision or court order specifying events that would modify or terminate a payor's support obligation, a party cannot unilaterally stop paying support ordered by the trial court, as support is a court-imposed obligation. (See §§ 3585, 3590; In re Marriage of McCann (1994) 27 Cal.App.4th 102, 107, as modified (Aug. 1, 1994).) Regarding child support, even where the parties agree to modify child support, such an agreement must be approved by the trial court; DCSS must also approve the agreement if it is providing services at the time the parties reach the agreement. (§ 4065, subds. (a), (c).)

Section 290 provides, "A judgment or order made or entered pursuant to [the Family Code] may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary." An order for child or spousal support is "enforceable until paid in full or otherwise satisfied." (§ 291, subds. (a), (g).) The trial court does not have discretion to absolve a party who owes child or spousal support from paying support arrearages or the interest on the arrearages. (See S.C. v. G.S. (2019) 38 Cal.App.5th 591, 600.)

DCSS has authority to collect child support delinquencies "in any manner authorized under state or federal law." (§ 17450, subd. (b)(1).) Section 5100 allows for the enforcement of a support order by a writ of execution or a notice of levy pursuant to Code of Civil Procedure section 706.030 or Family Code section 17522 without prior court approval. Section 5103 authorizes enforcement of support against an employee benefit plan without joining the plan as a party. (§ 5103, subd. (a).) When DCSS is enforcing a support obligation, and the "support obligor is delinquent in the payment of support for at least 30 days," DCSS may "collect the delinquency or enforce a lien by levy served on all persons having in their possession, or who will have in their possession or under their control, credits or personal property belonging to the delinquent support obligor, or who owe any debt to the obligor at the time they receive the notice of levy." (§ 17522, subd. (a).) Upon receipt of the notice of a levy, the support obligor may seek a judicial determination of arrearages pursuant to section 17526. (§ 17522, subd. (c).) Section 17526 does not provide guidance to the judicial officer conducting the determination of arrearages; it merely authorizes such a determination, requiring the party seeking the determination to provide information about the amounts ordered and the amounts paid, as well as "any other relevant information." (§ 17526, subd. (c).)

Section 290 affords the trial court broad discretion to issue orders necessary to enforce orders issued under the Family Code, including child and spousal support orders. (S.C. v. G.S., supra, 38 Cal.App.5th at p. 600.) However, the trial court must exercise its discretion within the confines of express statutory requirements. (Ibid.) We review the trial court's orders enforcing child and spousal support obligations for abuse of discretion, keeping in mind that the relevant statutes, particularly those addressing child support, limit the court's exercise of that discretion. (Id. at p. 598.) We do not disturb the trial court's exercise of discretion unless we determine the trial court has exceeded the bounds of reason and issued an order that no judicial officer would make under the same circumstances. (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 829 (LaMoure).)

Van seemingly contends this court must review the trial court's orders de novo. That would be true if there were no facts in dispute. (See S.C. v. G.S., supra, 38 Cal.App.5th at p. 598.) Here, there is a factual dispute as to whether the trial court modified child and spousal support and/or whether Van owed the amount of arrears alleged by DCSS.

We presume the orders to be correct, indulging all intendments and presumptions in favor of correctness. (LaMoure, supra, 198 Cal.App.4th at p. 829.) Van, as the appellant, has the burden to affirmatively prove an error, and thus has the burden to provide an adequate record on appeal. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) Van did not provide a court reporter's transcript or settled statement for the February 2017 or August 2017 hearings. "Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citation.] Without a record, either by transcript or settled statement, a reviewing court must make all presumptions in favor of the validity of the judgment. [Citation.]" (Ibid.)

D. The February 2017 Order

The February 2017 order resulted from Van's request to waive child support arrears, as well as his claim of exemption in response to DCSS's efforts to enforce the February 2015 order. We will address each part of the request in turn.

1. Waiver of arrears

Many of Van's arguments on appeal center on his belief that the trial court erred in denying his requests to issue new support orders after the parties agreed to recalculate support in April 2015. These arguments are not relevant to the February 2017 or August 2017 orders denying his request to waive arrears. As we have already discussed, we cannot review orders that are not appropriately part of these appeals and will not consider arguments related to those orders. Rather, we will liberally construe Van's appellate briefs to consider those of Van's arguments relevant to the February 2017 and August 2017 orders.

Van contends the trial court inappropriately failed to consider his "undue financial hardship" when it denied his requests to waive the support arrears, citing section 4320, a statute that applies only to permanent spousal support orders. Section 4320 has no bearing on child support, and no bearing on the enforcement of child support orders or Van's claim of exemption. Thus section 4320 does not assist Van here.

Van also cites section 3680, arguing that section 3651 does not support the trial court's decision. Subject to other statutory provisions, section 3651, subdivision (a), allows for the modification or termination of support orders at any time the trial court deems necessary. However, "a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (§ 3651, subd. (c)(1).) On its face, section 3651 is limited by section 3680, which sets forth the Legislature's intent that the Judicial Council create a simplified method for parents—particularly those representing themselves—to modify support orders without unnecessary expense or undue delay. Van does not explain how section 3680 demonstrates that the trial court erred when it denied Van's request to waive arrears created by the February 2015 order.

Van next suggests that by enforcing the February 2015 support orders, the trial court improperly reconsidered the September 2016 order. Van again argues that the parties agreed to modify child support in April 2015, and that their modification was later adopted in the September 2016 order. But the trial court did not modify the February 2015 support orders. In the September 2016 order, the trial court indicated the parties agreed to modify the February 2015 order, but the court did so on the condition that the parties were to meet and confer to calculate new support amounts. The trial court reserved its jurisdiction for that purpose. The parties never submitted a new calculation of child support to the trial court for approval and no new order issued. When Van later sought enforcement of the agreement in September 2015, the trial court denied his request without prejudice. Van did not seek review of that order; as a result, we cannot consider the merits of the order now. (Malatka, supra, 188 Cal.App.4th at p. 1082.)

Van does not dispute that he failed to pay the full amount of child support owed pursuant to the February 2015 order; rather, he made his own determination as to what he believed he should pay in support, using both the child support calculator available at the state's child support services website, and deducting the amounts he believed Nguyen owed in reimbursements towards community expenses. Absent approval from the trial court, which Van did not receive, his reduced payments did not satisfy his obligation under the February 2015 order. The trial court did not adopt his calculation of child support. Nor is there any evidence cited by Van that the trial court authorized him to deduct community property reimbursements from his child and spousal support payments.

Van contends the doctrine of equitable estoppel should preclude DCSS, on Nguyen's behalf, from enforcing the February 2015 order, as Nguyen admits she agreed to modify support in April 2015, and Van alleges Nguyen provided false information to the trial court. Van did not raise these issues to the trial court when he asked the court to waive his child support arrears. He thus waived the arguments on appeal, as they do not involve legal issues that can be determined from uncontroverted facts in the record that cannot be altered by the presentation of additional evidence. (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 510 (Brewster).) Even if Van had raised these arguments at the hearing on his request, he did not provide a reporter's transcript in the record on appeal for our consideration. Therefore, we resolve the issue against him, presuming the correctness of the order. (Randall, supra, 2 Cal.App.5th at p. 935.)

Van next argues that the trial court should not have ordered enforcement of the February 2015 order while his September 2016 request to modify child and spousal support was pending. The legal authority cited by Van does not preclude the trial court from enforcing the prior order while considering whether or not to modify that order. But even if the trial court erred in enforcing the order prior to the trial court's October 2017 ruling on the pending request, that error was not prejudicial to Van as the trial court ultimately denied his request to modify child support. To the extent the trial court granted Van's request to modify spousal support at a later date, section 3653, subdivision (d), authorizes Van to seek reimbursement of any overpayments created by the retroactive modification of the support amount. Without a showing of prejudice, we will not reverse the order. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108.)

Additionally, Van argues that the order denying his request to waive arrears violates section 17416, subdivision (a), and Code of Civil Procedure section 430.10, subdivisions (c) and (e). Section 17416, subdivision (a), authorizes DCSS to enter into an agreement with a noncustodial parent for entry of a judgment without filing an action for determination of parentage; the judgment can include support orders "based on the noncustodial parent's reasonable ability to pay. . . ." Section 17416, subdivision (a) does not apply here, as the trial court issued support orders before DCSS became involved in the action. Nor does Code of Civil Procedure section 430.10 apply; that statute specifies the grounds on which a defendant or cross-defendant may object to a complaint or cross-complaint, and DCSS did not file a cross-complaint.

Finally, Van generally argues that the trial court's and/or DCSS's actions violated his rights under both the United States and California constitutions, claiming he was deprived of his "life, liberty, and property without the due process of law and the equal protection of laws under its jurisdiction." Aside from citing Section 1 of the 14th Amendment to the United States Constitution, and Article 1, Section 7 of the California Constitution, Van does not explain why he believes these provisions apply to require the reversal of the February 2017 (or August 2017) order. Where an appellant fails to support a point with reasoned argument, the appellate court may treat that point as waived; we are not required to develop a party's legal arguments for him. (Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 911; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) As Van did not provide legal argument concerning his constitutional claims, we deem them waived.

The trial court properly determined that the February 2015 order remained in effect at the time Van asked the court to waive his child support arrears. Van has not met his burden to show that the trial court otherwise abused its discretion in denying his request, particularly given the clearly established law divesting the court of any ability to absolve a party who owes child or spousal support from paying support arrearages or the interest thereon. (S.C. v. G.S., supra, 38 Cal.App.5th at p. 600.) Finding no error, we affirm the February 2017 order denying Van's request to waive child support arrears.

2. Claim of exemption

As we find no error in the trial court's order denying Van's request to waive child support arrears, we next consider whether the trial court erred in denying his claim of exemption, made after DCSS garnished funds from Van's bank account. In his appellant's opening brief, Van does not cite any legal authority in support of his claim that his bank account was exempt from levy or garnishment; he bases his claim on his belief that he did not owe any child support arrears. In his reply brief, Van confirms his belief that his bank account is exempt solely because he does not owe arrears. He cites legal authority addressing his complaint that the court improperly imputed him with income, arguments that should have been raised in a timely appeal of the underlying support orders, rather than an appeal of orders related to the enforcement of support. He reiterates his claims that DCSS violated Code of Civil Procedure section 430.10, and divested him of his rights under the United States and California constitutions, without further explanation. We have already addressed the propriety of these arguments.

In addition to claiming he does not owe arrears, Van argues that his bank account could not be levied because it contained pension funds he withdrew from a pension plan and deposited into the bank account, citing section 2060, and Code of Civil Procedure sections 703.070, subdivision (b), and 704.115, subdivision (b). Generally, an order or judgment cannot be enforced against an employee benefit plan unless the plan has been joined as a party to the proceeding. (§ 2060, subd. (b).) However, as already noted, section 5103, subdivision (a), creates a clear exception to this general rule, allowing for enforcement of a support order against an employee benefit plan without joining the plan as a party. Therefore, section 2060 does not provide an appropriate basis for Van to claim that his bank account is exempt.

Code of Civil Procedure section 703.070 provides that the exemptions set forth in Code of Civil Procedure section 703.010 et seq., apply to support judgments. (Code Civ. Proc., § 703.070, subd. (a).) Subdivision (b) of Code of Civil Procedure section 703.070, cited by Van, provides, "If property is exempt without making a claim, the property is not subject to being applied to the satisfaction of a judgment for child, family, or spousal support." Code of Civil Procedure section 704.115, subdivision (b), creates an exemption for "[a]ll amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan. . . ." The plain language of the statute reveals that it does not apply to the funds removed from the pension or retirement plan and deposited in Van's bank account. While those funds may have previously been "held, controlled, or in process of distribution by a private retirement plan," at the time DCSS garnished the funds, they were in Van's possession, not his employer's retirement plan. Van does not cite any legal authority exempting funds that an employee has removed from a private retirement plan.

In his reply brief, Van mentions section 17453, a statute cited by DCSS in its responsive brief. Van does not discuss the application of the statute in this action, aside from saying that DCSS incorrectly argued that the exemption under section 17453, subdivision "(j)(c)," does not apply. Section 17453 generally authorizes the state child support services department to coordinate with financial institutions doing business in the state for purposes of aiding in the enforcement of past-due support obligations. The department provides the financial institutions with a list of past-due support obligors, which the financial institution matches with its own list of account holders. (§ 17453, subd. (a).) "Except as provided in subdivision (j), in response to a notice or order to withhold issued by the department, [the subject financial institution shall] withhold from any accounts of the obligor the amount of any past-due support stated on the notice or order and transmit the amount to the department in accordance with Section 17454." (§ 17453, subd. (d)(2).)

Section 17453, subdivision (j)(1) sets forth the circumstances that exempt a person who owes child support from such withholding by the financial institution. "Each county shall notify the department upon the occurrence of the circumstances described in the following subparagraphs with respect to an obligor of past-due support: [¶] (A) A court has ordered an obligor to make scheduled payments on a child support arrearages obligation and the obligor is in compliance with that order. [¶] (B) An earnings assignment order or an order/notice to withhold income that includes an amount for past-due support has been served on the obligated parent's employer and earnings are being withheld pursuant to the earnings assignment order or an order/notice to withhold income. [¶] (C) At least 50 percent of the obligated parent's earnings are being withheld for support." (§ 17453, subd. (j)(1).) If any of these conditions exist, the first $3,500 of an obligor's assets are exempt from collection without the obligor having to file a claim of exemption. (§ 17453, subd. (j)(2).) In addition, if any the conditions of subdivision (j)(1) exist, the obligor can also file a claim of exemption "for an amount that is less than or equal to the total amount levied. The sole basis for a claim of exemption under this subdivision shall be the financial hardship for the obligor and the obligor's dependents." (§ 17453, subd. (j)(3).)

Although he does not specifically address section 17453, subdivision (j), Van does argue that the withholding of funds from his bank account subjected him to a financial hardship. However, Van does not show that the conditions of subdivision (j)(1) of section 17453 applied to his case; those conditions are a necessary precursor to his ability to obtain an exemption under section 17453, subdivision (j)(3). Here, there is no dispute that Van was not in compliance with the February 2015 order, which was the operative order at the time Van sought the claim of exemption. (§ 17453, subd. (j)(1)(A).) Nor is there evidence that Van's income was being withheld for purposes of paying current or past-due support obligations. (§ 17453, subd. (j)(1)(B), (C).) Thus, on its face section 17453, subdivision (j)(3) does not apply here, and the trial court did not abuse its discretion in denying the claim of exemption on that basis.

As the exemptions of section 17453, subdivision (j), and Code of Civil Procedure section 704.115, subdivision (b) do not apply, we affirm the February 2017 order denying Van's claim of exemption.

E. August 2017 Order

Van reiterates the arguments he made regarding the February 2017 order in seeking reversal of the August 2017 order, which we have discussed and rejected above. We will address only those arguments that are specific to the August 2017 order.

Van requested that the trial court waive both child and spousal support at the hearing which resulted in the issuance of the August 2017 order. As he did regarding the February 2017 order, Van contends the trial court failed to consider undue financial hardship in issuing the August 2017 order, citing section 4320. Although the August 2017 order arguably concerns both child and spousal support orders, that order requires Van to pay temporary spousal support, which is governed by section 3600. Section 4320 concerns permanent spousal support orders. In issuing temporary support orders, designed to maintain the status quo as the parties litigate the dissolution, the trial court generally does not have to consider the factors set forth in section 4320. (See In re Marriage of Samson (2011) 197 Cal.App.4th 23, 29, as modified (July 18, 2011).) Even if the court was required to consider the section 4320 factors when it issued the February 2015 spousal support order, Van did not appeal that order, and thus waived the right to argue its validity on appeal. (Malatka, supra, 188 Cal.App.4th at p. 1082.)

Van further contends the trial court erred in allowing enforcement of the spousal support arrears because Nguyen had remarried and/or was cohabiting with a nonmarital partner or spouse, citing sections 4323 [creating a rebuttable presumption of a reduced need for spousal support if the recipient cohabits with a nonmarital partner] and 4337 [terminating spousal support upon the remarriage of the support recipient]. Van does not cite to any evidence in the record demonstrating that he raised this allegation to the trial court in advance of its issuance of the August 2017 order. Rather, he cites to a statement he attached to the notice designating the record in appeal number H044902, as well as a declaration filed in the trial court in September 2017. Neither of these pleadings were before the trial court when it ruled on Van's request to waive the arrears owed under the February 2015 order. Absent evidence that Van raised the issue of Nguyen's alleged remarriage to the trial court, we find he waived the argument on appeal. (See Brewster, supra, 45 Cal.App.5th at p. 510.) Even if Van did raise these arguments at the August 2017 hearing on his request, he did not provide a reporter's transcript for our review. Therefore, we resolve the issue against him, presuming the correctness of the order. (Randall, supra, 2 Cal.App.5th at p. 935.)

As Van has failed to show that the trial court abused its discretion when it issued the August 2017 order, we affirm the order.

III. DISPOSITION

The orders issued February 16, 2017 (appeal no. H044902), and August 31, 2017 (appeal no. H045159) are affirmed. In the interests of justice, each party shall pay its own costs on appeal.

/s/_________

Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.


Summaries of

Nguyen v. Van (In re Marriage of Nguyen)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
May 28, 2021
No. H044902 (Cal. Ct. App. May. 28, 2021)
Case details for

Nguyen v. Van (In re Marriage of Nguyen)

Case Details

Full title:In re the Marriage of ANH DAO NGUYEN and MIKE VAN. ANH DAO NGUYEN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: May 28, 2021

Citations

No. H044902 (Cal. Ct. App. May. 28, 2021)