Opinion
A147256
05-18-2017
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. FDI-04-755746)
Vicki F. Van Fleet appeals from an October 2015 order directing her former husband, respondent Donald L. Kingery, to pay child support in the amount of $411. In making the challenged order, the trial court relied on an order it issued in April 2015, imputing income to Van Fleet. Van Fleet did not appeal from that order.
Van Fleet now contends the imputation of income to her was contrary to law and unsupported by the evidence. As we explain, her failure to appeal from the April 2015 order prevents us from reviewing the correctness of the trial court's original decision on the imputation issue. As for the matters embraced by the October 2015 order, from which Van Fleet has appealed, we conclude: (1) she has failed to show the evidence compelled a finding in her favor; and (2) her failure to appeal from the April 2015 order forecloses her from raising legal issues she might have raised in an appeal from that order. Accordingly, we will affirm the October 2015 order from which the appeal is taken.
BACKGROUND
Van Fleet and Kingery married in 2001. They have two children. In November 2004, the trial court entered a dissolution judgment. That judgment included a marital settlement agreement granting the parents joint custody of the children. The dissolution judgment ordered each parent to support the minor children while the children were residing with that parent.
Van Fleet is a lawyer who worked as a mutual fund attorney from 1993 to 2007. In 2008 and 2009, she received unemployment benefits, which ran out toward the end of that year. In September 2009, she applied for food stamp assistance from the San Francisco Human Services Agency (SFHSA). She also applied for the agency's JOBSNOW program. Under the program, SFHSA provided her with a voucher and agreed to reimburse her employer for 100 percent of her first year's wages. Van Fleet obtained a position at a small litigation firm in San Francisco beginning in October 2009. She earned approximately $100,000 per year working in this position until she quit in August 2013.
In the meantime, in September 2010, the trial court ordered Kingery to pay Van Fleet $283 per month for child support. The guideline calculation attached to the order found Kingery's income at the time was $9,821 per month, and Van Fleet's income was $8,333 per month. Kingery and Van Fleet agreed they would divide evenly additional expenses for childcare and health insurance.
After leaving her position at the litigation firm in 2013, Van Fleet was unable to find work and again sought aid from SFHSA. In January 2015, she was placed in a position with the San Francisco Sheriff's Department earning $13.77 an hour. On January 30, 2015, the San Francisco Department of Child Support Services (the Department) filed a notice regarding payment of support indicating it was providing services on behalf of Van Fleet. As a result, the Department became the "substituted payee" for Kingery's child support payments.
The Department is a "[l]ocal child support agency" within the meaning of Family Code, section 17000, subdivision (h). As such, it has "the responsibility for promptly and effectively establishing, modifying, and enforcing child support obligations" and is required to take "appropriate action" to "enforce child support . . . if the child is receiving public assistance." (Fam. Code, § 17400, subd. (a).)
Because of her earnings, the San Francisco Department of Human Services discontinued Van Fleet's cash aid in February 2015. The Department then filed a motion for modification of child support. It asked the court to raise Kingery's monthly support payments from $212 to $1,296. In response, Kingery requested that the trial court impute an annual salary of at least $100,000 to Van Fleet and require that she pay her share of healthcare costs and other childcare expenses. The request to impute income was based on Van Fleet's previous income as vice president and senior corporate counsel at Charles Schwab and her earnings at the litigation firm. A hearing was set for April 29, 2015.
At the hearing, Kingery introduced evidence of Van Fleet's licenses to practice law in California, Massachusetts, and New York. He also included a list of attorney jobs and a range of income for paralegals from $90,000 to over $100,000 per year. Kingery requested that Van Fleet be held to the amount of income she was earning in September 2010.
After considering the declarations, testimony, and Van Fleet's admission that she had voluntarily quit her job at the litigation firm, the trial court imputed income to Van Fleet in the same amount as the previously agreed upon salary of $8,333 per month. The guideline calculation attached to the order indicated Van Fleet's income was $8,333 per month and Kingery's income was $11,201 per month. The court ordered Kingery to pay the guideline amount of $411 in monthly child support. Van Fleet asked the court to reduce the payment to $380 to preserve her food stamp eligibility. The trial court then accepted the parties' "below guideline" stipulation for child support of $380 per month effective April 7, 2015. Van Fleet was also placed under a "self-directed work search order," which specified that "she must look for jobs in the legal profession to the potential of her abilities and background[.]"
The trial court reserved jurisdiction over its order for 90 days. Van Fleet did not seek reconsideration of the April 2015 order, and she did not appeal from it.
On August 18, 2015, Van Fleet filed a request to modify the child support payment to reinstate the guideline calculation of $411 made in the April 2015 order. She also requested a recalculation of guideline child support because she had not been employed since September 2013 and could not find work at her previous rate of pay. Van Fleet explained that on August 4, 2015, her food stamp benefits had been reduced from $511 to $150, and they would be reduced to $0 on September 4. She contended that she had not had the opportunity to present her case at the April 2015 hearing and asked the trial court to reconsider the imputation of income.
Van Fleet filed a declaration in support of her assertion that the imputation of income was improper. On October 5, 2015, she filed a supplemental declaration. Van Fleet requested that the court modify the child support order back to the $411 guideline because she had made a mistake about whether her food stamp eligibility would end.
On October 20, 2015, Kingery, his attorney, Van Fleet, and the Department appeared at the hearing on Van Fleet's motion to modify child support. The trial court acknowledged the current child support order had been entered pursuant to a stipulated below-guideline amount on April 29, 2015. The court noted that neither party had appealed from that order. It explained that the time for reconsideration had passed, and Van Fleet could not get "her second bite of the apple on [the imputation] issue" and was therefore "foreclosed." The court later remarked, "[a]nd as I said, [Van Fleet] should have, if she disagreed with the Court's ruling on April 29, filed her appeal." In response to Van Fleet's claim that she had been unaware of the finding the court made at the earlier hearing, the court pointed out "that Ms. Van Fleet is an attorney, . . . and it is not an excuse not to follow through on your rights with regard to appeal or otherwise."
The court granted Van Fleet's request to modify the child support order to comply with the guideline amount of $411 per month, effective September l, 2015. Van Fleet objected to the court's ruling limiting support in the amount of $411 per month, citing cases holding that a trial court cannot impute income to a person receiving CalWORKS benefits. She told the court she had been receiving CalWORKS benefits since 2014. The trial court distinguished the cited cases on the ground Van Fleet had voluntarily quit a high paying job. The trial court found Van Fleet's earning capacity remained the same as the income used for the stipulation entered at the April 2015 hearing.
The court issued an order the same day as the hearing, on October 20, 2015. Van Fleet filed a timely notice of appeal on December 18, 2015.
DISCUSSION
Van Fleet raises a single issue on appeal. She contends imputation of income to a participant in a CalWORKS program was beyond the discretion of the court. We cannot reach this issue, however, because her challenge comes too late.
The April 2015 Order Was Immediately Appealable
Code of Civil Procedure section 904.1, subdivision (a) states: "An appeal . . . may be taken from any of the following: [¶] . . . [¶] (10) From an order made appealable by the provisions of . . . the Family Code." Family Code, section 3554 permits an appeal to be taken "from an order or judgment under this division as in other civil actions." " 'This division' refers to division 9 in which section 3554 appears. Division 9 relates to support, including child support." (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287.)
Thus, "[a] direct appeal lies from an order in a family law case granting or modifying temporary spousal, domestic partner or child support." (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 2:83, p. 2-63; see In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 ["this court has looked to the substance of an order pendente lite rather than to chronology or to form, and has held temporary support orders directly appealable"]; In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359 ["even temporary support orders are appealable"].)
Since the April 2015 order was directly appealable, Van Fleet could have taken an appeal from it had she disagreed with the trial court's decision to impute income to her.
Van Fleet's Failure to Appeal the April 2015 Order Means the Trail Court's Decision to Impute Income to Her is Final And Conclusive
Although Van Fleet has appealed only from the October 2015 order, the substance of her appeal challenges the court's rulings made in connection with the April 2015 order. That April 2015 order, however, is long since final, and she cannot challenge the rulings therein through the device of appealing from the subsequent October 2015 order.
" 'If an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata.' " (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; accord, In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318.) This is true even if the order is demonstrably erroneous. (See In re Marriage of Murray (2002) 101 Cal.App.4th 581, 599-600 [where husband did not timely appeal order containing statutorily unauthorized retroactivity condition, order became res judicata and condition could not be challenged in later appeal].) " 'It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.' " (Id. at p. 599.)
Here, the trial court unquestionably had jurisdiction in the fundamental sense. As one court has explained, "[i]n the child support field, continuing jurisdiction over child support is the rule: 'Once acquired in a proceeding where child support is in issue, . . . superior court jurisdiction over child support ordinarily continues. For example, a family court with jurisdiction over a marriage dissolution action may first make a child support order after the dissolution judgment becomes final; and . . . the family court may exercise its continuing jurisdiction to modify a child support order postjudgment upon a showing of "changed circumstances." ' " (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.)
Because the trial court had fundamental jurisdiction, even if its decision to impute income to Van Fleet were legally erroneous—a question we do not decide—its action " 'is not void, but only voidable.' " (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 599.) Consequently, if Van Fleet disagreed with that decision, she had the opportunity " ' "to have the judgment or order reviewed by the usual methods of direct attack, such as new trial or appeal." ' " (Ibid.) As a party aggrieved by the April 2015 order, Van Fleet certainly could have appealed it. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216.) Since she did not, she may not now seek review of issues resolved by that order. (See In re Marriage of Williamson, supra, 226 Cal.App.4th at p. 1318 [failure to appeal temporary child support order meant it could not be retroactively modified]; In re Marriage of Gruen, supra, 191 Cal.App.4th at p. 639 [where husband failed to appeal temporary spousal support order, it became final and was not subject to collateral attack]; In re Marriage of Lusby, supra, 64 Cal.App.4th at pp. 472-473 [child support issues resolved by dissolution judgment could not be reviewed on appeal from later order dealing with add-on expenses]; In re Marriage of Padilla, at p. 1216 [on appeal of order entered after review hearing that modified father's child support obligation, father could not obtain review of earlier temporary support order he had failed to appeal].)
In short, because Van Fleet failed to appeal the April 2015 order, it "is res judicata" and any rulings made therein are "beyond the reach of this appeal." (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 600.)
The Evidence Does Not Compel a Finding in Van Fleet's Favor on the Issue of Modification
Because Van Fleet did not appeal the April 2015 order, our review is restricted to her challenges to the trial court's October 2015 order. It bears repeating that at the October hearing, the trial court granted her request to raise child support to the guideline amount. Thus, the only portion of the October 2015 order with which Van Fleet may now take issue as an aggrieved party, is the court's refusal to modify the amount of income imputed to her. Under Family Code, section 3692, a court may not set aside "a support order . . . simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the support ordered to become excessive." This means Van Fleet's appeal is limited to the trial court's denial of recalculation of child support from the date of the filing of her request for modification. (Fam. Code, § 3653, subd. (a).)
To obtain modification of the earlier child support order, Van Fleet had to introduce admissible evidence of a change in circumstances. (E.g., In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 390.) As she was seeking a modification in the amount of imputed income based on a claimed lack of opportunity to work, Van Fleet bore the burden of showing a lack of ability and opportunity to earn income. (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1246-1247.) Moreover, Kingery did not have to show Van Fleet would have secured employment if she had sought it. "[Kingery] bore no burden to convince the court that [Van Fleet] would have secured a full-time job had she applied. Rather, it was incumbent upon [Van Fleet] to show that, despite reasonable efforts, she could not secure employment despite her qualifications." (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1339, italics omitted.) Thus, it was up to Van Fleet to prove that, despite reasonable efforts, she had been unable to secure employment.
The allocation of the burden of proof affects our standard of review. As Van Fleet bore the burden of proof on this issue and failed to meet it, to prevail on appeal she is required to demonstrate that "the evidence compels a finding in [her] favor . . . as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528; accord, In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163; see In re R.V. (2015) 61 Cal.4th 181, 203 [where appellant bore burden of proof in trial court and lost, reviewing court "inquires whether the weight and character of the evidence . . . was such that the . . . court could not reasonably reject it"].) Since the trial court refused to reduce the amount of income imputed to Van Fleet, "it plainly did not find [she] had met [her] burden of proof." (In re Aurora P., at p. 1163.)
In declining to revisit its earlier order imputing income to Van Fleet, the trial court relied on the fact that she had voluntarily left remunerative employment. As the court put it, "there really is no dispute that she had voluntarily quit a very high paying job." Van Fleet makes no effort to dispute this finding on appeal, let alone demonstrate that the evidence compels a finding in her favor. To the extent her opening brief addresses her claimed lack of opportunity to find work, it cites to nothing in the record. Instead, she claims "[t]here is no evidence, much less substantial evidence, that Petitioner . . . had any ability on her own to obtain a position paying $100,000 today in the San Francisco Bay Area." This argument misconceives the applicable standard of review. "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W., supra, 180 Cal.App.4th at p. 1528.) As stated earlier, Van Fleet can only prevail by demonstrating the evidence compels a finding in her favor. She has not done so.
Van Fleet did not file a reply brief.
Finally, we turn to Van Fleet's principal argument in her opening brief—that imputation of salary to a petitioner in a CalWORKS program is beyond the discretion of the court. But Van Fleet conceded at the October 2015 hearing that she had been on CalWORKS since 2014. She therefore could have raised the argument at the April 2015 hearing, and because the order entered after that hearing is now res judicata, it is too late to raise the issue now. " ' "A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable." ' " (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028, italics omitted.)
As a general rule, res judicata does not apply when "the first ruling was not in a former action" but instead "was an earlier ruling in the same action." (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185.) Nevertheless, "a prior appealable order becomes 'res judicata' in the sense that it becomes binding in the same case" if no appeal is taken. (Id. at pp. 1185-1186.) Res judicata "applies to final adjudications rendered in the course of a divorce proceeding over which a court may have continuing jurisdiction and which may require several orders for its ultimate disposition." (Wodicka v. Wodicka (1976) 17 Cal.3d 181, 188.) --------
DISPOSITION
The order from which the appeal is taken is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.