Marriage of Harris

Filed 3/5/07 Marriage of Harris CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Daniel E. Harris appeals an order dividing the community property interest in his military retirement pension and awarding him an offset for overpayment of child support.^[1] We conclude that the family law court properly declined to award additional offsets, and we affirm.

FACTS

In August 1997, Paula and Daniel Harris separated after a ten-year marriage. Thereafter, Paula sought dissolution of the marriage, primary custody of their minor child, child support, and an interest in Daniel's military retirement pension.

On October 25, 1999, the family law court held a hearing concerning child support and the division of community property. Paula and Daniel testified at the hearing and each was represented by counsel. Daniel testified that he retired from the United States Air Force on May 31, 1999, after serving the military for 25 years. Among other things, the family law court then ordered Daniel to pay Paula $155 child support monthly.

Many months later, counsel for each party withdrew as attorney of record. Neither counsel nor the parties had prepared an order or judgment concerning the October 25, 1999 hearing and orders made therein.

On November 29, 2001, Paula and Daniel appeared in propria persona in the family law court and stated that their former attorneys had not "file[d] the final paperwork." The family law court described the dissolution matter as "messed up," and stated that the parties "let [their] rights languish." The court recommended that the parties seek legal assistance.

Daniel and Paula then retained separate counsel. On December 9, 2002, the family law court entered a judgment nunc pro tunc as of March 31, 2000. Among other things, it ordered that Daniel pay Paula $360 monthly child support, commencing April 1, 2002. The order rested in part upon Daniel's $1,881 monthly military retirement pension.

The court also determined that Paula's community property interest in the pension was 20.25 percent of the monthly amount, and that payment would commence "after [the] Order is entered by the Court [February 19, 2003]." The court declined to award Paula a percentage of the pension payments previously received by Daniel, in part because "[i]t would be manifestly unjust to [him]," because Paula "knew that she had that right and sat on it [and] continued to receive the higher child support order [based on Daniel retaining 100 percent of his retirement pension]."

Paula sought reconsideration of the order. She argued that Daniel had received 45 monthly retirement payments, and that she was entitled to 20.25 percent of every payment. The family law court denied the motion for reconsideration and Paula appealed.

In an unpublished opinion, we concluded that the family law court erred by not dividing the military retirement pension from March 31, 2000, the date of the judgment nunc pro tunc. (Harris v. Harris (Mar. 18, 2004, B167262.) We also concluded that Daniel may be entitled to an offset "for increased child support, the payment of spousal support, an erroneous wage assignment, or other payments," but pointed out that the appellate record was "inadequate to establish the existence of or the amount of such offsets." (Ibid. [emphasis added].) We reversed and remanded for determination of pension payments due Paula from March 31, 2000 to February 19, 2003, minus any offset to which Daniel was entitled. (Ibid.) We stated: "Upon remand, the family law court shall determine the amount of retirement payments due Paula from March 31, 2000 to February 19, 2003, minus any offsets that Daniel is entitled to, including amounts paid through erroneous wage assignments or paid based upon his retention of the full amount of his military pension, such as increased child support." (Ibid.)

Upon remand, Daniel submitted evidence that his military retirement pension was, in part, a disability pension, thereby reducing its divisible portion. He also presented evidence of monthly payments totaling $5,953.23 for a "Surviving Spouse Benefit Protection" plan on Paula's behalf, affording Paula and their child medical benefits. Daniel asserted that $5,953.23 benefit protection plan payments plus child support overages exceeded Paula's community property interest in his pension.

After a hearing on December 8, 2005, the family law court awarded Paula $10,588.32, representing her interest in Daniel's pension payments from March 31, 2000 to May 2003.^[2] It declined to award interest upon that amount.

The court also awarded Daniel an offset of $496, consisting of child support overpayment based upon his retention of the full amount of his military retirement pension. The court declined to award Daniel an offset for additional overpayment of child support that arose from his failure to prepare a court order in 2000, and serve it upon his employer. The court also declined reimbursement for Daniel's payment of the "Surviving Spouse Benefit Protection" plan. Finally, the court refused to modify a 2003 family law court order that Daniel claimed inaccurately stated his monthly pension payment.

Daniel appeals and contends that the family law court failed to follow the directions stated in our previous opinion. (In Re Candace P. (1994) 24 Cal.App.4th 1128, 1131 [trial court's material variance from the appellate court's direction is unauthorized and void].)

DISCUSSION

Daniel asserts that we "fully considered" the merits of his requested offsets in our prior opinion, and this determination binds the trial court. (Snukal v. FlightwaysManufacturing, Inc. (2000) 23 Cal.4th 754, 774.) We disagree.

The family law court properly followed the directions issued in our prior opinion. Moreover, it properly determined the existence of and the amount of Daniel's offsets. Daniel misapprehends our directions upon remand. Our opinion stated that Daniel "may be entitled to an offset . . . ." and that the appellate record was inadequate "to establish the existence of or the amount of such offsets." (Harris v. Harris, supra, at pp. 3-4[emphasis added].) The issue of Daniel's overpayments, if any, was not before us in the prior appeal. That appeal solely concerned Paula's community property interest in pension payments made prior to February 19, 2003.

Family Code section 3653, subdivision (d), permits the family law court to exercise its discretion regarding an offset for overpayment of child support. The court may order an offset or repayment after considering the amounts involved, the financial impact upon the support obligee, and "[a]ny other facts or circumstances that the court deems relevant." Here the court properly exercised its discretion in disallowing an offset where Daniel continued paying a larger child support payment for many months despite a court order to the contrary. The trial court's findings in this regard were apt. Daniel did not bear his burden of proof or the burden of persuasion in the family law court regarding claimed credits and offsets.

The order is affirmed. Respondent shall recover costs on appeal.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Diana R. Hall, Judge

Superior Court County of Santa Barbara

______________________________

Edwin H. Adams for Appellant.

Suzanne K. Biely for Respondent.

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^[1]We refer to the parties by their first names not from disrespect, but to ease the reader's task.

^[2] This amount also included three delinquent payments from March through May 2003.