Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. YD070769, Glenda Veasey, Judge.
Irwin M Friedman for Defendant and Appellant.
Milo F. DeArmey for Plaintiff and Respondent.
KLEIN, P. J.
Dennis Wayne Zumwalt appeals an order determining child support arrearage in the amount of $64,900 and ordering payment of the arrearage to his ex-spouse, Sharon Zumwalt, at the rate of $400 per month. We affirm the trial court’s order.
BACKGROUND
Dennis and Sharon Zumwalt had a child born in 1975. At the time of the dissolution of their marriage in 1980, Dennis was ordered to pay child support of $200 per month. In August of 1981, Dennis was found guilty of 13 counts of contempt for failure to pay. A jail sentence of 39 days was suspended, Dennis was deemed to be current on his payments, and the monthly amount was reduced to $150. Dennis thereafter essentially paid no support.
“As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect.” (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
On November 2, 2005, Sharon gave Dennis notice of an order to show cause seeking a determination of child support arrearage, a wage assignment and a writ of execution. Sharon computed the arrearage in the sum of $64,900.79 as of October 14, 2005.
On January 19, 2006, Dennis appeared and the trial court granted his request for a continuance to obtain an attorney and file a response. The trial court ordered Dennis to file an updated income and expense declaration with his last three pay stubs and last two income tax returns.
The record on appeal lacks a reporter’s transcript of the hearing of January 19, 2006. However, at the continued hearing on May 16, 2006, the trial court stated on the record the orders it previously made.
On May 16, 2006, Dennis again appeared without an attorney. Sharon’s counsel indicated Dennis had not filed a response or an income and expense declaration but he had provided copies of his tax returns for the last three years and Sharon was willing to accept the tax returns in lieu of an income and expense declaration. The trial court asked if Dennis had anything to say. Dennis responded he had been unable to afford any of the attorneys he spoke to about the case and thought he would be eligible for the services of the public defender. When the trial court told Dennis a public defender would not be appointed to represent him, Dennis stated Sharon remarried and moved when their child was between five and seven years of age and he was never informed where to send the child support by the attorneys or the court. “So for the last 18 years there was no way for me to contact her or – I knew she was in the Riverside/San Bernardino area . . . .”
The trial court looked through paperwork related to the 1981 contempt proceedings, as a result of which the child support order had been modified to $150 per month. The trial court asked if Dennis knew Sharon’s whereabouts at the time of the modification in 1981. Dennis responded, “I knew where she was then, but I had no former address, no way to send [anything] to her.” The trial court inquired how that was so if Dennis knew where she was. Dennis responded Sharon had a claim against a truck he owned as partial settlement of the 1981 arrearage and the last time he saw his child was after his father died. The trial court asked whether it was Sharon’s job to keep in touch with Dennis, or Dennis’s job to keep in touch with Sharon. Dennis responded, “She told me to stay out of her life . . . . I don’t want nothing, no – nothing to do with you. I had no idea where she lived.” Dennis claimed he tried to find Sharon by speaking to family members but “she just stayed out of the whole thing.”
The trial court then asked if Dennis ever paid any of the ordered child support and if he had ever sent money to the last address he had. Dennis indicated he did not mail money to Sharon’s last known address because he went to the address and Sharon no longer lived there. Dennis also indicated he “paid some of it,” including private school fees, in cash because he worked construction. Dennis stated there had been “bad blood” between himself and Sharon after their separation.
When the trial court indicated Sharon’s declaration showed Dennis made no payments from 1982 through 1993, Dennis agreed that was correct but claimed he “had no idea where Sharon was . . . .” Dennis indicated he saw Sharon at his father’s funeral but they only spoke briefly.
Dennis then asked the trial court to permit him another continuance to obtain the services of an attorney to help him file a response. The trial court reminded Dennis the matter already was continued once for that purpose and that Dennis had been ordered to file a response by March 16, 2006. The trial court denied Dennis’s request for a further continuance and determined the arrearage in the amount requested by Sharon with interest from October 14, 2005. Based on Dennis’s adjusted gross income as reflected in his tax returns, Sharon’s counsel computed a presumed child support payment of $500 per month. The trial court ordered Dennis to pay $400 per month toward the arrearage and signed a wage assignment in that amount.
Dennis retained an attorney who filed the instant appeal.
CONTENTIONS
Dennis contends the trial court erroneously tried the case based only on declarations, the trial court should have exercised its discretion to hear testimony and to allow Dennis to cross-examine Sharon because Dennis indicated he had a valid defense to the arrearage, the trial court abused its discretion in finding Dennis had the ability to pay without considering his expenses and the arrearage is barred under the doctrine of laches.
DISCUSSION
1. The trial court properly resolved the matter on declarations and Dennis’s testimony.
Dennis contends the trial court erroneously tried the case to a final determination of the arrearage. Because this finding constitutes a final judgment, it requires competent evidence. (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 484.) Dennis argues the declarations relied upon by the trial court were hearsay and thus insufficient to support the judgment. (Windigo Mills v. Unemployment Ins. Appeal Bd. (1979) 92 Cal.App.3d 586, 597.) Dennis denigrates the declarations as “faulty, incomplete and insufficient.”
However, the order entered with respect to the child support arrearage was not a judgment but an order in post judgment proceeding which properly may be determined on declarations. (Reifler v. Superior Court, supra, 39 Cal.App.3d 479, 484.) In Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354-1356, the Supreme Court recently held declarations generally are inadmissible at contested marital dissolution trials. However, in the course of its discussion, Elkins acknowledged that a different rule obtained in motion matters. (Elkins, supra, at p. 1355.) Because the instant child support arrearage is a postjudgment matter determined on motion, the trial court properly could consider Sharon’s declaration.
Moreover, the record reflects the parties were sworn at the outset of the proceedings. The trial court thereafter heard Dennis’s testimony and made a determination based on that testimony and the declarations presented. No impropriety or evidentiary insufficiency appears.
2. The trial court properly conducted the hearing on the order to show cause.
Dennis contends his statements to the trial court at the hearing reveal that he had valid defenses to the arrearage, including Sharon’s concealment of herself and the child. (In re Marriage of Damico (1994) 7 Cal.4th 673, 680 [concealment of child is a valid basis upon which to deny payment of arrearage].) Dennis further asserts his testimony revealed Sharon waived the right to child support by telling Dennis she wanted nothing to do with him. (State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 459.) Dennis argues the trial court should have exercised its discretion to take evidence with respect to these defenses because he was in pro per. Dennis further claims the trial court should have permitted cross-examination of Sharon with respect to the contents of her declaration. However, Sharon was not even present at the hearing. Dennis concludes the trial court’s failure to receive testimony or permit cross-examination of Sharron constituted an abuse of discretion and a denial of due process.
This claim fails because the record reveals the trial court heard and considered Dennis’s testimony before entering its order. In re Marriage of Damico, supra, 7 Cal.4th at p. 685, the case relied upon by Dennis, held that a custodial parent who actively conceals him or herself and the child from the noncustodial parent until the child reaches the age of majority, despite reasonably diligent efforts by the noncustodial parent to locate them, is estopped from later collecting child support arrearage for the time of the concealment. The trial court’s questioning of Dennis reveals it either disbelieved Dennis’s assertion that he did not know Sharon’s whereabouts, or that the trial court found Dennis failed to make reasonably diligent efforts to locate her. Similarly, the trial court reasonably could conclude Sharon’s alleged statement to Dennis that Sharon did not want Dennis involved in her life did not constitute a relinquishment of her right to support for their child.
In sum, the record reveals the trial court heard Dennis’s testimony, considered his defenses and rejected them. No abuse of discretion or denial of due process appears.
3. The trial court properly could rely on Dennis’s income tax returns to demonstrate his ability to pay.
Dennis contends the trial court abused its discretion in finding he had the ability to pay the arrearage without considering his expenses. Dennis asserts the trial court relied exclusively on the representation of Sharon’s counsel of Dennis’s gross income based on his tax returns.
This claim fails. The trial court ordered Dennis to produce recent pay stubs and to file an income and expense declaration. Dennis did neither. Dennis cannot now complain that the trial court improperly relied on Dennis’s tax returns, the only information Dennis was willing to provide. Moreover, the record reveals the trial court ordered monthly payments in an amount that was less than the amount that would have been ordered for the support of a child. No abuse of discretion appears.
4. The defense of laches is unavailable in a child support case.
Dennis contends the arrearage is barred under the doctrine of laches. He concedes this claim runs afoul of Family Code section 291, as it was construed in In re Marriage of Fellows (2006) 39 Cal.4th 179. Dennis nonetheless claims this case is distinguishable because Sharon actively concealed the child and then waited more than a decade after the child reached majority to seek payment of the arrearage. Dennis argues the order unjustly enriched Sharon after Sharon concealed the child. Dennis concludes no harm would result in this case if section 291 was not enforced.
Subsequent unspecified statutory references are to the Family Code.
As Dennis concedes, section 4502, enacted in 2002, eliminated the defense of laches with respect to the enforcement of child support arrearage. In re Marriage of Fellows held the statute applied retrospectively to cases, like this one, that arose prior to enactment of section 4502. We are constrained to follow In re Marriage of Fellows. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
6. Attorney fees and costs for prosecuting a frivolous appeal.
Sharon claims the appeal is frivolous and merits an award of costs and attorney fees according to proof.
The Supreme Court has stated that “an appeal should be held to be frivolous only when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Alternatively, attorney’s fees and costs may be awarded under section 271 where the conduct of a party “frustrates the policy of the law in favor of settlement, and increases the cost of litigation.” (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991; § 271, subd. (a).)
Neither standard has been met here. Consequently, we decline to find Dennis’s appeal frivolous but order Dennis to bear the usual costs on appeal.
DISPOSITION
The order determining child support arrearage is affirmed. Sharon is awarded costs on appeal.
We concur: KITCHING, J., ALDRICH, J.