Marroage of Thomas

Filed 3/1/07 Marroage of Thomas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Diane Thomas, in pro. per., for Appellant.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Shara Beral Witkin, for Respondent.

Diane Thomas appeals from a postdissolution order that fixed the amount of interest due on unpaid child support owed by Robert C. Thomas, Jr. In a prior opinion, we held interest had not been properly calculated and reversed with directions to recompute that sum. Diane argues the trial court understated the amount of unpaid child support, and because of that, it also understated the interest due. We disagree and affirm.

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This dispute arises out of a February 2003 order providing support for the Thomas two children, Rebecca and Robert III. Our prior opinion reversed only the interest calculation and otherwise affirmed the order. (In re Marriage of Thomas (May 10, 2004, G032092) [nonpub. opn.].) We set out only those facts necessary to this appeal, leaving the reader to peruse our prior opinion for further details.

In the February 2003 order, the trial court found Robert owed Diane $2,419 for support of Rebecca and $4,367.20 for Robert III, a total of $6,786.30. The numbers were based on two key findings: Rebecca had lived with Diane for 17 months until the support obligation ended upon her graduation from high school (the court did not state which 17 months these were); Robert owed support for Robert III for 21 months 44 months from December 1997 to July 2001 (when Robert III graduated from high school), less 23 months from July 1997 to June 1999 that Robert III had lived with his father. The order awarded Diane interest on the delinquent support payments starting on October 1, 2002. Diane appealed.

In an opinion filed on May 10, 2004, we held a support order is an installment judgment, on which interest accrues on each installment as it comes due. We said Diane is entitled to interest on each missed payment . . . . What should be done is to determine which payments were missed, and award interest at the statutory rate on each from the due date. (In re Marriage of Thomas, supra, G032092, p. 4.)

On remand, it appears the trial court invited the parties to submit declarations setting out the missed payments and the interest due on each. (We say appears because only the declarations are in the record; no order appears.) In a September 2004 declaration, Robert stated he missed payments for Rebecca from May 1998 to September 1999, and for Robert III from November 1999 to July 2001. Dianes October 2004 declaration, on the other hand, asserted the missed payments went beyond the amounts found owing in the February 2003 order. Contrary to the finding that she was owed 17 months of support for Rebecca, Diane claimed 38 months (January to March, 1996 and July 1996 to May 1999). For Robert III, where the finding was 21 months payments were due, Diane claimed payments had been missed in whole or part for 44 months.

In a November 19, 2004 supplemental court order after remittitur, the trial court found Robert failed to make payments for Rebecca from May 1998 to September 1999 (as asserted in Roberts declaration). For Robert III, it found payments were omitted from November 1999 to July 2001 (again, as asserted in Roberts declaration). The order set out a list of payments made by Robert which were to be credited against his debt, and directed the Orange County Department of Child Support Services (DCSS) to prepare an accounting of the amount Robert owed, based on these findings.

DCSS submitted its accounting in January 2005. Both parties filed objections in February 2005. Robert claimed the total due was a bit too high (he argued for $2,570.30 rather than DCSSs $3,466.48.) Diane took issue with the amount of arrearages due, repeating the position taken in her October 2004 declaration. By her tally, Robert owed $18,333.79.

Following a hearing in January 2006, the trial court decided more information was needed.[1] In a minute order, it requested DCSS to prepare an executioner program calculating the interest on arrears. The parties were ordered to submit their declaration re: calculations to DCSS, who shall prepare a declaration for the court. The order stated the matter would be deemed submitted upon receipt of the declaration from DCSS.

DCSS responded with a letter to the court that attached two sets of figures. The letter stated the first set of figures was based on the trial courts November 2004 order, and the second on calculations contained in a February 2006 letter from Dianes lawyer to DCSS. Here is what DCSS came up with: Robert owed $1,415.67 based on the November 2004 order, and $18,350.64 based on Dianes letter.

In a March 29, 2006 supplemental #2 court order after remittitur, the trial court adopted DCSSs calculations based on the November 2004 order. It found Robert owed Diane $1,415.67, consisting of $1,359.02 in principal and $56.65 in interest.

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Diane argues the trial court should have used her calculations of the arrearages in computing the interest due, for several reasons, but all of them are mistaken. The essential problem with the argument is the amount due was settled in the prior appeal, and that issue cannot be relitigated.

Under the law of the case doctrine, a principle or rule of law necessary to an appellate decision becomes the law of the case, and it is binding in later proceedings in the case. The doctrine is not jurisdictional, but rather is based on judicial economy, which demands finality to decisions. (See, e. g., People v. Stanley (1995) 10 Cal.4th 764, 786-787.) A related rule is jurisdictional. When a case is remanded following an appellate decision, the scope of what may be decided by the trial court is circumscribed by the terms of the remand. When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. [Citations.] (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.)

Here, our prior opinion reversed the February 2003 order for one reason interest was not properly calculated. Our directions to the trial court were limited, explaining [w]hat should be done is to determine which payments were missed, and award interest at the statutory rate on each from the due date. (In re Marriage of Thomas, supra, G032092, p. 4.) The disposition stated [t]he matter is remanded to the trial court to redetermine the amount due in accord with the rules set out in this opinion. (Id. at p. 6.)

The only issue on remand regarding Rebecca were which 17 months were unpaid, and the interest on those sums. As to Robert III, the only issue was calculating the interest on the 23 months missed payments.

Diane does not argue the trial court made any mistake on these issues. Rather, phrasing the point in different ways, she contends the trial court understated the number of months that Robert failed to pay child support. One iteration is the trial court should have used DCSSs second calculation of arrearages based on her timeline of missed payments. Another contends the trial court never determined the omitted payments because it did not adopt Dianes timeline of missed payments. The same point is made again when Diane argues DCSSs second calculation was the proper one, because it was based on her timeline.

The answer to this argument is that the number of missed payments was not remanded to the trial court. So it is not before us on this appeal. Diane does not contend the instant decision identified the wrong 17 months for Rebecca, or miscalculated the interest for those months or the 23 months applicable to Robert III. Since those are the only issues at hand, and there is neither a claim, nor a showing, they were wrongly decided, the order must be affirmed.

Diane raises another argument that amounts to an impermissible collateral attack on the February 2003 order. She contends the parties stipulated to the missed payments in 2002, and the trial court should have awarded her child support and interest based on the stipulation. Diane says she stipulated to Roberts list of missed payments set forth in a declaration he signed in April 2002, that declaration showed the children spent more time with her than the 17 months and 23 months, respectively, and she is entitled to both principal and interest based on the stipulation. She is wrong on both the facts and the law.

On the facts, no record citation supports the claimed stipulation, nor can we find it in the record. What the record does show is that in 2002, Robert and Diane disagreed on the time the children were with her. The dates Diane claims to have been stipulated to are in fact those set out in her September 2002 declaration objecting to proposed findings. So there is no factual basis for the claimed stipulation. Turning to the law, even if Diane were right, it is too late to raise new objections to the February 2003 order. Our prior decision, which found the order supported by the evidence, is the law of the case. Diane cannot now collaterally attack the February 2003 order.

Since our prior opinion remanded this matter solely to recalculate interest on unpaid child support fixed by the February 2003 order, and there is no showing the

trial court erred in doing so, the order appealed from is affirmed. Respondent is entitled to costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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[1] Nothing in the record, or the parties briefs, explains why it took nearly a year after the February 2005 objections to hold a hearing on them.