Pink v. Johnson

Filed 6/5/07 Pink v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Pamela Ann Thatcher, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed with directions.

Bloom & Rudibaugh, Scott Rudibaugh, and Mary L. Gosney, for Appellant.

Angeloff & Angeloff and Michael J. Angeloff, for Respondent William James Pink.

John Replogle, Director, and Glen O. Brandel and Maichi N. Nguyen, Deputy Child Support Attorneys, for Respondent Department of Child Support Services.

Appellant Rosemarie Pink,^[1]mother of Chamise and Nolina, appeals from an order from the trial court offsetting $13,250 against William Pinks $18, 244.01 total child support arrearage, resulting in a remaining balance of $4,994.01 owed by William to Rosemarie. She contends that the trial court erred because it applied its equitable powers to reduce Williams child support arrears. She also alleges that Family Code^[2]section 4504 cannot be applied retroactively to credit Williams Social Security disability payments towards his arrears. In addition, Rosemarie asserts there was insufficient evidence to support the trial courts $13,250 offset against Williams arrears. Finally, she argues that the trial court erred in interjecting a sua sponte objection to a question by counsel for the Department of Child Support Services (DCSS) about how defendants arrearage calculation differed from their calculation.

We conclude that the trial court did not apply equity to reduce Williams child support arrears. Although in its order the trial court stated it was using its equitable powers to offset Williams direct pays for child support, in fact the trial court properly applied statutory authority by giving William credit for his direct payments to Rosemarie. We find that the issue of whether section 4504 can be applied retroactively was waived because Rosemarie did not specifically request the trial court to render a ruling on that particular issue. We also conclude that there was insufficient evidence to support the trial courts ruling that William was entitled to a $13,250 offset against his arrearage. Finally, we conclude that the trial court did not abuse its discretion in excluding the comparison between arrearage calculations because that testimony would have been irrelevant.

FACTUAL AND PROCEDURAL HISTORY

In 1985, William and Rosemarie entered into a stipulated judgment for dissolution of their marriage in the Sacramento County Superior Court. That judgment incorporated a marital settlement agreement wherein the parties agreed that William would pay Rosemarie child support for their two children of $150 per month per child beginning September 1, 1984.

In 1986, William was diagnosed with multiple sclerosis purportedly resulting from contact from Agent Orange. Unable to work, William became delinquent on his child support payments. When William became disabled, he qualified for disability benefits from Social Security. The Social Security Administration paid childrens benefits to Rosemarie on Williams account on behalf of Chamise and Nolina. From October 1988 to August 1992, Social Security paid Rosemarie a total of $26,923.

In 1984, while she was living in Modoc County, Rosemarie applied to DCSS (formerly the county District Attorneys Office, Family Support Division) to enforce the child support order. At trial, William submitted a partial arrearage calculation prepared by the Modoc County District Attorneys Family Support Division. It reflects that in January 1989, William had accrued $9,084 in child support arrears. From January 1989 through July 1991, Modoc County had credited towards Williams account the Social Security benefits Rosemarie had been receiving. As of July 1991, Williams balance for unpaid child support was $0. According to Rosemarie, Modoc County informed her that because her account balance was $0, their computers could not continue crediting any Social Security overpayment above the $300 child support amount toward Williams arrears and asked her to close the case. Rosemarie closed her case with Modoc County on September 12, 1991.

On June 1, 1995, William obtained custody of Chamise. He opened a case with Tuolumne County. When Tuolumne County audited its account, it determined that William was in arrears beginning July 1993. From July 1993 through November 2000, William owed $4,283.16 in child support arrears. Because William owed arrears, Tuolumne County suspended his California drivers license. As William had opened the Tuolumne County case, he had the ability to close it, so Tuolumne County released his license. At some point, Chamise returned to live with her mother and Rosemarie and the children moved to Colorado.

On October 20, 1997, the Alameda County Superior Court ordered Chamise and Nolina to have visitation with William from October 10 through 13, November 26 through 30, December 26 through 31, January 17 through 19, February 14 through 16, March 13 through 20, April 17 through 20, and May 22 through 25. It ordered that William bear all costs of visitation, including round trip airfare for each child. For each month in which each child visited him, Williams child support obligation for that child for that month would be met by his bearing the expense of visitation.

While in Colorado, Rosemarie requested that Riverside County, where William now resided, register and enforce the original $150 per child per month support order from Sacramento County pursuant to the Uniform Interstate Family Support Act. ( 5601.) After Riverside County DCSS registered the order on November 10, 2003, it prepared an arrearage calculation and included the arrears from the Tuolumne County audit. At the time of trial, DCSS assessed Williams arrears at $18,244.01. To enforce payment of the arrears, DCSS listed his delinquency with the states Franchise Tax Board.

On November 4, 2004, William filed an Order to Show Cause (OSC) for Arrearage/Interest Accounting and Modification; Adj. of Principal & Interest. Rosemarie filed a response to Williams OSC. In her response, Rosemarie raised section 4504 as an issue. She stated that while Modoc County was enforcing the child support order, it credited the excess Social Security payments she received over and above the $300 monthly amount towards Williams child support arrears. At that time, section 4504 only allowed Social Security payments to be credited to the current monthly amount and not towards arrears.

During his testimony at the hearing to determine arrears, Williams counsel asked him how much money he paid Rosemarie while she was receiving social security benefits, William responded, It adds up to $13,250 that I paid directly to her.

The trial court admitted into evidence the following cashiers checks, personal checks, handwritten receipts, personal check registers, and Tuolumne District Attorney/Family Services receipts that William submitted to document the money he paid to Rosemarie for child support:

DateAmount

September 7, 1987 $150

July 9, 1989 $150

October 4, 1989 Amount illegible

November 3, 1989 Amount illegible

December 5, 1989 $150

January 4, 1990 $350

February 3, 1990 $150

February 20, 1990 $150

April 4, 1990 $350

April 9, 1990 $275

October 4, 1990 $450

November 8, 1990 $150

February 1991 $350

December 10, 1991 $350

February 20, 1992 $500

June 28, 1992 $700

October 21, 1992 $350

November 6, 1992 $350

April 14, 1993 $300

June 3, 1994 $300

May 2, 1994 $1,200

July 27, 1994 $300

TOTAL $7,025

William had also prepared his own accounting of what he claimed his payments were and the balance that he owed. During DCSSs counsels cross-examination of William, she asked him to explain the discrepancies between his calculation and DCSSs calculation. The trial court interposed its own sua sponte objection to the question. It said that William was not testifying as an expert witness but as a percipient witness and held that the question was not something that could be inquired of a percipient witness.

Rosemarie testified that she agreed with the DCSS arrearage calculation that stated William owed $18,244.01. She testified that whenever she received a direct payment from William, she reported it. She reviewed everything he submitted and could not testify as to whether she received a certain check. She complained that there was no proof of endorsement on the documents. While that didnt mean that he did not pay that amount, Rosemarie insisted that it did not necessarily mean that William did pay because she knows that people can get money orders and turn them in and cash them.

When the trial court asked Rosemarie what she thought Williams arrears were, part of her response was that Modoc County erroneously credited him with Social Security payments in excess of the monthly current child support amount and credited them towards the arrears. Modoc told her that she had to close her case because they would credit him with the Social Security benefits which were not congruent with the law. She stated, Even though I didnt agree with that because I knew social security payments couldnt be used to pay off arrearages, I went along with it because I had gotten the social security payments. So I was willing to go along with that.

The trial court took the matter under submission. The parties did not request that the trial court issue a statement of decision. The trial court prepared a memorandum. In it, the trial court recited the parties positions. It ordered, Based on the Courts equitable powers, the Court finds that Petitioner, William Pink, is entitled to an offset against the amount sought by the County of Riverside, DCSS in the amount of $13,250.00, which amount he paid while his children were receiving Social Security benefits. Thus, the total amount of arrearage owed by Petitioner, William Pink, is $4,994.01, which amount represents the amount of $18,244.01 less his offset of $13,250.00.

DISCUSSION

A. The Trial Court Properly Applied Statutory Authority Crediting Direct Pays Made to the Custodial Parent

Rosemarie contends that the trial court erroneously applied its equitable powers to reduce Williams child support arrearage. She maintains that matured installment payments are to be treated as a money judgment and that cannot be reduced under equitable principles.

Rosemarie is wrong. Although a court may not disturb the accrual of payments under the original [child support] judgment, it does have some equitable powers regarding the enforcement of the judgment. [Citation.] The court ha[s] equitable discretion to determine whether and to what extent the original support provision should be enforced by execution. [Citation.] (County of Santa Clara v. Wilson(2003) 111 Cal.App.4th 1324, 1326.)

While a trial court has equitable powers to determine to what extent a child support arrearage should be enforced, that is not what happened in the trial below. Though it is true that the trial court used the phrase based on its equitable powers in its order, it was clear that the trial court did not apply equity but applied statutory authority to determine the arrears.

There is a reasonable inference from the record that the trial court probably felt that Rosemarie should not receive Social Security payments based on Williams disability and then deny him the credit for those payments. However, the issue raised both in Williams moving papers and his testimony was whether he got credit for the direct pays he made to Rosemarie while she was receiving Social Security payments. As proof of those direct payments, William submitted cashiers checks, personal checks, handwritten receipts, personal check registers, and Tuolumne District Attorney/Family Services receipts in the amount of at least $7,025.^[3]

Code of Civil Procedure section 695.221 informs us as to how child support payments are to be credited. First, it is to be applied to the current months support, next, to the accrued interest, and finally to the accrued principal. Rosemarie received Social Security benefits on account of Williams disability from October 1988 to August 1992. William submitted proof that he made direct pays to Rosemarie during that time in the amount of $7,025.^[4]Those payments for which he provided proof from January 9, 1989, through November 6, 1992, are to be credited to William against his arrears. Obviously, the trial court believed he made those payments based on the documentary evidence he submitted at trial. We will not reweigh the trial courts credibility determinations. (Contra Costa Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 904.)

However, we have reviewed Modoc Countys arrears calculation, and it appears that William has already received credit for several payments he is now claiming double credit for. As William has already received credit for the October 4, 1990, payment of $450, he may not receive additional credit for it. William has also provided proof that he paid $300 on April 14, 1993. However, Tuolumne County had already given William credit for that payment on its arrears calculation. William also provided proof that he paid $300 on June 3, 1994. He has already received credit for that payment and should not be given double credit. William submitted proof that he paid $1,200 on May 2, 1994. That payment should be disallowed as William has already received credit for that payment from Tuolumne County. That $1,200 payment was allocated as follows: $300 to current support, $114.17 to interest and $785.83 to arrears principal. Finally, William submitted proof that he paid $300 on July 27, 1994. As William has previously received credit for that payment from Tuolumne County, he is not entitled to additional credit.

B. The Issue of Whether Section 4504 is Retroactive Has Been Waived

Rosemarie argues that section 4504 should not be applied retroactively. Section 4504, subdivision (b) provides: If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act or Railroad Retirement Act, or by the Department of Veterans Affairs because of the retirement or disability of the noncustodial parent and received by the custodial parent or other child support obligee shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid. Any payments shall be credited in the order set forth in section 695.221 of the Code of Civil Procedure.

Currently, section 4504 would credit Williams Social Security disability benefits paid on the minor childrens behalf to the arrears principal and interest. However, at the time Rosemarie was receiving Social Security benefits in1988 through 1992, the prior statute, Civil Code section 4705^[5]was in effect. That statute did not allow Social Security benefits to be credited towards arrears. (In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 96.)

With respect to this case, if the Social Security benefits cannot be applied in 1989 through 1992 to Williams arrears, he would owe Rosemarie significantly more child support. It is true that Rosemarie raised the issue of the retroactivity of section 4504 in her response to Williams OSC re: arrears, and testified at trial as to her belief that section 4504 was not retroactive. However, the trial court did not address the retroactivity issue in its order. Rosemarie did not specifically request the trial court to rule on the retroactivity issue.

Consequently, we conclude that the retroactivity issue had been waived. Code of Civil Procedure section 632 requires a party to specify those controverted issues which the party is requesting a ruling. Failure to request a specific ruling from the trial court results in the matter being waived on appeal. (See, e.g., In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [failure to dispute the amount of child support, and arguing only that no child support should be ordered, waives on issue on appeal].) It would be unfair to the trial judge to take advantage of an error on appeal when it could easily have been corrected at the trial by requesting a ruling. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.) Neither has Rosemarie shown that it would have been futile to raise an objection or argue the issue.

C. There Was Insufficient Evidence to Support the Trial Courts Finding that William Made $13,250 Worth of Direct Pays

Rosemarie asserts that there was insufficient evidence to support the trial courts finding that William should receive an offset of $13,250 against his arrears for direct payments to Rosemarie. We agree.

We consider the trial courts factual determinations under a substantial evidence standard of review. Substantial evidence is evidence . . . of ponderable legal significance, . . . reasonable in nature, credible, and of solid value. [Citations.] (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) Judgments and orders of the lower courts are presumed to be correct on appeal. [Citation.] [Citation.] We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings. [Citations.] [Citations.] (Wilmer v. Wilmer (2006) 144 Cal.App.4th 951, 959-960.)

When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) However, substantial evidence is not synonymous with any evidence. [Citation.] It must have ponderable legal significance and must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case. [Citation.] [Citation.] (In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1185.)

We find that there was no evidence to support the trial courts ruling that William made $13,250 in direct pays for which he never received credit. Totaling up Williams direct pays from July 9, 1989, through November 6, 1992, that were admitted into evidence, and excluding the prior payments for which William already received credit for,^[6]we conclude William is entitled to an offset of $4,325.

We have also excluded the September 7, 1987, payment of $150 from the list of direct pays that William should get credit for. The Modoc County arrears calculation begins in 1989, and does not reflect the payments received when Modoc County began collecting in 1985. As the record fails to reflect whether Modoc County has already given defendant credit for the September 7, 1987, payment, William has not met his burden to show that he did not get credit for that payment.

Additionally, we have excluded the October 4, 1989, and November 3, 1989, payments from the list of credits because the record does not reflect the amount of those cashiers checks. Should William provide legible copies of the amounts to the trial court, the trial court should credit William with those amounts.

Finally, we find that William was properly charged only $150 a month when he had custody of Chamise from June 1, 1995, through September 1, 1997.

D. Evidence of Accounting Comparison Was Irrelevant

Rosemarie alleges that the trial court erred in sustaining its sua sponte objection which barred DCSSs counsel from questioning William about the differences between the arrearage calculation he prepared and the one DCSS prepared, on the grounds that William could not testify as an expert witness.

The first question is whether the proffered statements were relevant. Only relevant evidence is admissible (Evid. Code, 350), and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. (Evid. Code, 351; see also Cal. Const., art. I, 28, subd. (d).) Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.] (People v. Scheid (1997) 16 Cal.4th 1, 14.)

The trial court did not abuse its discretion by interposing an objection to Williams testimony comparing the two arrearage calculations. Whatever the differences were between the two calculations is irrelevant. What was relevant was whether William submitted proof of direct pays to Rosemarie. The arrearage calculations would show what the total amount of principal and interest was. They are not proof of payment of cashiers checks, personal checks, or receipts of monies William paid to Rosemarie. Consequently, the trial court did not abuse its discretion in excluding evidence of Williams comparison between the two arrearage calculations.

DISPOSITION

The trial courts order offsetting Williams child support arrears in the amount of $13,250 is reversed. The trial court is directed to vacate its order offsetting Williams child support arrears in the amount of $13,250 and to enter a new order offsetting Williams child support arrears in the amount of $4,325. In all other respects, the judgment is affirmed. Each party is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.276, subd. (c).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.

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^[1] For ease of reference, we shall use the parties first names and mean no disrespect in doing so. (In re Marriage of Heiner (2006) 136 Cal.App.4th 1514, 1517, fn. 2.)

^[2] All further statutory references will be to the Family Code unless otherwise indicated.

^[3]Ante, at p. 6.

^[4] The amounts of the October 4, 1989, and November 3, 1989, cashiers checks are illegible. If the trial court can determine the amounts, William is entitled to credit for those payments. (Ante, at p. 6.)

^[5] Civil Code section 4705 read as follows: In any case in which the court has ordered a noncustodial parent to pay for the support, maintenance, and education of a child, payments for the support of such child made by the federal government pursuant to the Social Security Act . . . because of the . . . disability of the noncustodial parent and transmitted to the custodial parent each month shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid by the noncustodial parent.

^[6] As we discussed in section A, ante, they are the October 4, 1990, April 14, 1993, June 3, 1994, May 2, 1994, and July 27, 1994, payments for which William has already received credit.