Fiebig v. Fiebig

Filed 6/19/06 Fiebig v. Fiebig CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Jeannie Lowe, Commissioner. Appeal dismissed.

Ronald E. Fiebig, Jr. (Ronald), whose marriage to respondent Bonnie Lee Fiebig (Bonnie)[1] ended with a divorce in early 1987, appeals a stipulated order determining the amount of child support arrears he owes to Bonnie and co-respondent San Diego County Department of Child Support Services (the Department) for the support of the two children of the marriage, Sandra[2] and Corie (together the children). The court issued an order in April 1987 requiring Ronald to pay monthly child support for the children in the total amount of $420 per month. In late 1993, after Ronald moved to Colorado, his son Corie began living with him.

In April 1994 a Colorado court issued an order granting Ronald's request for a reduction of his monthly current child support obligation from $420 to $210, but ordered him to make monthly payments toward his $14,900 in child support arrears. In September 1994 Sandra also began living with Ronald, and in October of that year the Colorado court issued another order granting Ronald's request for termination of his current monthly child support obligation, but ordering him to continue paying the arrears.

In 1998, after Sandra and Corie moved back to California to live with Bonnie again, the Department, at Bonnie's request, sent to Colorado a request that Ronald's previous $420 monthly child support obligation be reinstated. Claiming that the October 1994 Colorado order terminating his monthly current child support obligation superseded the April 1987 California order and that he had finished paying off the child support arrears, Ronald brought a motion in the Superior Court of San Diego County seeking an audit of his child support payments and a determination of the amount of his child support arrears. After the court determined in a bifurcated proceeding that the Colorado court lacked jurisdiction over Bonnie, the matter was finally resolved in May 2005, based on a stipulation of the parties, when the court issued an order (the May 2005 California order) adjudicating that Ronald owed child support arrears to San Diego County in the amount of $45,105.59, and an additional sum of $1,975.79 in such arrears to Bonnie, through March 2005.

In his appeal, Ronald challenges the May 2005 California order, contending (1) the April 1994 and October 1994 Colorado orders (together the 1994 Colorado orders) modified and superseded the April 1987 California order, and (2) the court erred when it concluded that Colorado did not have jurisdiction.

The Department responded to this appeal by bringing in this court a pending opposed motion to dismiss the appeal on the ground the stipulated May 2005 California order is a nonappealable consent order.

The Department has also filed a respondent's brief, arguing that (1) the Colorado court did not have personal jurisdiction over Bonnie because she was neither present nor represented during the 1994 Colorado court hearings, and Ronald has not shown what it was that he mailed to her to give her notice in 1994 that there were court hearings in Colorado regarding modification of his child support obligation; (2) the court did not err in finding that neither of the 1995 Colorado orders modified the April 1987 California order; (3) the April 1994 Colorado order did not comport with the laws then governing interstate modification of child support orders; (4) by the time the Colorado court issued the October 1994 Colorado order, it was required to give full faith and credit to the April 1987 California order under federal law; and (5) the court thus did not err in establishing Ronald's child support arrears.

We conclude that because Ronald is appealing from a nonappealable consent order, the Department's motion to dismiss the appeal must be granted. Accordingly, the appeal is dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Ronald and Bonnie were divorced in San Diego County in January 1987. Ronald was initially obligated under the judgment of dissolution to pay $300 monthly in child support for each of their two minor children, Sandra (who was born in April 1980, and is now 26 years of age) and Corie (born in July 1981, and now 25). In April 1987 the Superior Court of San Diego County issued the order which reduced his monthly child support obligation to $210 per child, for a total of $420 per month.

In April 1989 the Department commenced an action in Colorado to register the $420 per month California child support order, asserting that Ronald resided in Colorado and his child support arrearages totaled $10,080 as of January 1989. At the same time, the Department sent an Interstate Child Support Enforcement Transmittal to the Colorado Division of Child Support Enforcement (Colorado CSE), asserting that Ronald made his last child support payment in July 1987 and the amount of child support arrears was $10,080, and asking that Colorado CSE initiate wage withholding attachments against him in the monthly amount of $420. In February 1991 the district court for the County of Adams in Colorado (the Colorado court) ordered that the wage assignment include withholding of $80 per month for the payment of Ronald's child support arrears in addition to the monthly withholding of $420 for payment of his current child support obligation.

A. The 1994 Colorado Court Orders

In December 1993 Corie began living with Ronald in Colorado. Ronald sent a letter to the Colorado court requesting a wage assignment modification to "have my child support reduced from two children to one child . . . ." In February 1994 the Colorado court responded with a letter informing him that it had received his letter "requesting Modification for Child Support," it had set a hearing on the matter for 1:30 p.m. on April 12 of that year, and Ronald needed to send a letter to Bonnie by certified mail, return receipt requested, "giving the date, place and time of the hearing."

On April 12, 1994, the Colorado court issued the order which reduced Ronald's monthly child support obligation from $420 to $210 for the support of Sandra only and ordered him to pay an additional $85 per month toward the child support arrears. The court's electronic minutes indicated that the hearing was on "[Ronald's] M[otion to ]Modify [Child Support]"; that "[Ronald] notified [Bonnie] of hearing today and Ret[urn] Receipt tendered"; that the court "will modify child support and [Ronald] to pay $210 per month for the support of the child in [Bonnie's] custody via wage assign[ment] commencing April 1994"; and that "[p]ayment of $85 per month towards the arrears of $14,900 to remain in full force and effect. . . ."

In August 1994 Ronald again wrote the Colorado court to request a "wage assignment modification for child support" and to "have my child support reduced to only having to pay for back child support" because Bonnie had given him custody of their daughter Sandra. Later that month, the court clerk replied in writing and advised Ronald that the court had set a hearing on the matter for 8:30 a.m. on October 25 of that year, and he needed to send a letter to Bonnie by certified mail, return receipt requested, notifying her "of the hearing and what you are asking of the Court." Although the record shows that Bonnie signed the return receipt on October 18, 1994, it does not contain a copy of what Ronald mailed to her.[3]

On October 25, 1994, following a hearing, the Colorado court issued the order which terminated enforcement of Ronald's current child support obligation as of September 1994, but ordered him to continue paying $85 per month toward child support arrears. The court's electronic minutes indicated that the hearing was on Ronald's "M[otion to ]Modify [Child Support] (Recip.─Calif.)," and the "[c]ourt will terminate any order for current support effect[ive] Sept. 1994." The Colorado court entered a notice to Ronald's employer in Colorado notifying the employer that the amount of withholding for current child support had been reduced to $0, and it was required to withhold $85 per month towards arrearages in the amount of $13,909.

B. Bonnie's Request To Reestablish Collection of Child Support for Sandra

In May 1998, at Bonnie's request, the Department sent to Colorado a request that ongoing monthly child support in the amount of $210 per child be "re-established/collected" for both Sandra and Corie, thereby reinstating Ronald's previous child support obligation in the amount of $420 per month. In her supporting letter, Bonnie asserted that Sandra had lived with Ronald in Colorado for eight months and Corie had lived with him for four years, but both children had returned to California to live with her (Sandra in April 1995 and Corie in November 1997). Bonnie also requested that Ronald's monthly payment obligation for child support arrearages be increased from $85 to at least $200. She indicated that Ronald had not paid current child support since they returned to live with her and requested this unpaid child support be added to the balance of his child support arrears balance.

In October 2002 Ronald and the Colorado CSE agreed to a temporary stay of execution of enforcement of arrears pending an accounting by the Department.

In the summer of 2003 the Colorado court granted Colorado CSE's request to be dismissed from the action and ordered that "all future child support, maintenance or medical support payments, if applicable, received by the Family Support Registry be sent to [Bonnie]."

C. Ronald's Motion for Determination of His Child Support Arrears

In late July 2003 Ronald filed in the Superior Court of San Diego County a noticed motion requesting an audit of his child support payments and a determination of his child support arrears. In his supporting declaration, Ronald claimed he had made all the payments he owed while Colorado was enforcing the California child support order.

In April 2004 the Department responded to the motion by stating that under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), one state "may establish subsequent support orders without [e]ffectively modifying a prior support order from [another state]," and Colorado was to enforce, not modify, the California child support order issued in this case.

In May of that year, Ronald filed points and authorities asking the court to uphold the 1994 Colorado orders that reduced and then terminated his child support obligation as of September of that year. Citing In re Marriage of Popenhager (1979) 99 Cal.App.3d 514 and In re Marriage of Ward (1994) 29 Cal.App.4th 1452, Ronald claimed that those Colorado orders "served to super[s]ede the prior California orders."

The Department thereafter filed opposition points and authorities, arguing that the Colorado orders did not modify and supersede the April 1987 California order because all of those orders were valid and enforceable under RURESA, and Ronald had failed to provide supporting Colorado court documents showing that the required elements for modification of the April 1987 California order were met in this case.[4]

Bonnie also filed a response, stating that Corie went to Colorado in 1993 to live with Ronald and returned to California in November 1997, and Sandra went to live with Ronald in September 1994 and returned to California in April 1995. Acknowledging that she had received a letter from Ronald informing her that both children were living with him and he did not intend to continue paying her for ongoing child support, Bonnie also asserted that she "was never aware of any proceedings in the Colorado courts to change the child support order," and she "[did] not recall receiving any official court papers from Colorado, stating either that the child support order had been modified, or would be modified."

In early January 2005 Ronald filed two recently procured formal orders issued by the Colorado court, one based on the April 1994 Colorado order, and the other based on the October 1994 Colorado order. Both formal orders contained language indicating that Ronald had filed motions to modify child support, and the court modified that support.

1. The Court's Orders and Ronald's Appeal

On January 11, 2005, following an initial hearing on Ronald's motion for determination of his child support arrears, the court denied Ronald's request to establish his child support arrears based on the 1994 Colorado orders. The court found that Colorado did not have jurisdiction over Bonnie, and thus did not have authority to modify the April 1987 California order. The court also found it would be prejudicial to the Department to have a formal order finally produced from the October 25, 1994 Colorado hearing, since it was not signed until December 13, 2004. The court ordered two continuances of the hearing on Ronald's motion.

On May 24, 2005, the court resumed the hearing on Ronald's motion. Following the hearing, the court issued the May 2005 California order at issue in this appeal, in which it accepted the parties' stipulation that Ronald owed child support arrears to San Diego County in the amount of $45,105.59 through March 31, 2005, and that he owed an additional sum of $1,975.79 in arrears to Bonnie through the same date.

Ronald's appeal,[5] and the Department's motion to dismiss the appeal, followed. In his appellant's opening brief, Ronald asserts that "the order affixing arrears should be reversed and the matter remanded to the trial court to recalculate arrears based upon the 1994 Colorado orders that modified the 1987 California child support order."

DISCUSSION

In their pending motion to dismiss Ronald's appeal in this matter, the Department argues that the stipulated May 2005 California order on his motion for a determination of his child support arrears is a nonappealable consent order. In his written opposition, Ronald acknowledges that a judgment entered pursuant to a stipulation ordinarily is not appealable, but he asserts that "[f]rom a review of the record, it cannot be held that [he] consented to the entry of judgment against him on the issue of arrears and payment thereon."

"'"It is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it." . . . A stipulation is a consent within the meaning of this rule.'" (Zinke v. Zinke Rebottoming Shoe Co. (1962) 208 Cal.App.2d 690, 694-695, italics added, quoting Brooms v. Brooms (1957) 151 Cal.App.2d 351, 352.) In Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-400, the California Supreme Court reaffirmed the "'rule' that a 'party may not appeal a consent judgment'" (hereafter the consent rule). An exception is recognized when "consent was merely given to facilitate an appeal following adverse determination of a critical issue . . . . [Citations.]" (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.)

Here, the reporter's transcript of the May 24, 2005 hearing on Ronald's motion shows that the Department's attorney stated to the court, "We are here on [Ronald's] motion to determine arrears. Audits have been completed. It looks like we have a stipulation on everything except as to the arrears payment amount. [¶] The parties have agreed for the period of January 27, [19]87 through March 31st of 2005 [Ronald] owes to the [Department] a total of $45,105.59, which includes interest of $23,060.59 through March 31 of 2005. [¶] For the period of October 1, [19]96 through March 31, 2005 [Ronald] owes to [Bonnie] a total of $1,975.79, which includes interest of $393.60 through March 31, 2005. Basically the arrears were stipulated to based on the audit that was conducted." (Italics added.) The Department's counsel also informed the court that, "[a]s to the arrears repayment amount, the only issue that is in dispute, [Ronald] wants the arrears payment to be set at $50 a month. [Bonnie] wants the arrears payment set at least $85 a month."

The court then asked whether the Department was "submitting on $50 a month on the $45,000 due . . . ." The Department's attorney replied, "I would submit on that based on the current circumstances. The [Department] will at some point request that amount to be increased because the amount that's been offered by [Ronald] is not even enough to cover the interest on the $45,000 debt."

Ronald's attorney replied that Ronald had suffered a stroke in December 2004 and was requesting that the arrears payment be set at $50 per month. She represented to the court that "[Ronald will] make that payment." (Italics added.) When the court specifically asked Ronald's attorney, "[Y]ou have authority to bind your client?", she replied, "Yes." (Italics added.) At no time during the hearing did Ronald's counsel indicate in any manner that Ronald was stipulating to the amount of child support arrears owing to Bonnie and the Department merely to facilitate an appeal.

Based on the parties' stipulation and the foregoing representations, the court accepted the stipulation, but ordered that the monthly arrears payment would increase from $50 to $75 in January 2006 and to $100 in July 2006. In its May 24, 2005 minute order, the court stated that "[the] parties are bound. [Ronald's counsel] has authority. Stip[ulation] is accepted [and] adopted by the court." (Italics added.)

Based on the foregoing record, we reject Ronald's contention that the record fails to show that "[he] consented to the entry of judgment against him on the issue of arrears and payment thereon." On the contrary, the record establishes that he consented through his attorney not only to the amounts of the arrears, but also to the monthly payment of $50.[6] His attorney unequivocably represented that she had authority to bind Ronald to the terms of the stipulated agreement and that Ronald would pay his child support debts to Bonnie and the Department in the stipulated amounts. As already noted, nothing in the record indicates Ronald stipulated to the amounts of child support arrears owing to Bonnie and the Department merely to facilitate an appeal.

Ronald asserts his appeal should be permitted because "any resolution that penalizes family law litigants for settling evidentiary points will only lead to more time consumption in the trial court." Because the record establishes that Ronald consented to the order he is attempting to challenge on appeal, dismissal of his appeal cannot be construed as a penalty.

In support of his opposition to the application of the consent rule in this matter, Ronald also urges this court to consider "the looming specter of Family Code section 271 sanctions if a party frustrates settlement." Ronald contends that "[a] strict application of the consent rule in family law practice does the court, the parties and counsel a disservice."

We reject this contention. Family Code section 271, subdivision (a), on which Ronald relies, expressly acknowledges that "the policy of the law" is "to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys."[7] Where the record establishes that the parties and their attorneys cooperated and consented to an order, and one of the parties thereafter seeks to challenge the stipulated order through an appeal, dismissal of the appeal under the consent rule serves to further that policy by allowing the stipulated order to stand. Here, Ronald consented to the order determining the amounts of his child support arrears and, represented through his counsel, who had authority to bind him to the provisions of the stipulated order, that he would make the stipulated payments. Under the consent rule, his appeal must be dismissed.

For the foregoing reasons, we grant the People's motion to dismiss Ronald's appeal. (Norgart, supra, 21 Cal.4th at pp. 399-400; Zinke, supra, 208 Cal.App.2d at pp. 694-695.)

DISPOSITION

The appeal is dismissed. Respondents shall recover costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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[1] We refer to the parties by their first names for purposes of clarity only. No disrespect is intended.

[2] In 1997 Sandra obtained a legal change of name.

[3] In his appellant's opening brief, Ronald states, "As instructed, [he] sent Bonnie the required notice specified by the Clerk and Bonnie personally signed the proof of receipt." Although he purports to support this statement by citing page 228 of his appellant's appendix, that portion of the record consists only of a photocopy of the return receipt that Bonnie signed. A copy of the "required notice specified by the Clerk" is not in the record.

[4] Specifically, the Department argued that Ronald had failed to document that "a modification was expressly pled, fully litigated, and expressly stated on the order[s]."

[5] Ronald's amended notice of appeal states he is appealing "the Order . . . affixing arrears filed May 24, 2005 and all intermediate orders including March 15, 2005 and January 11, 2005 . . . ." The March 15, 2005 order merely continued the hearing on Ronald's motion to allow a correction to the audit of his child support payments.

[6] Although the record does not indicate that Ronald or his attorney expressly agreed to increase his monthly arrears payments to $75 beginning January 2006 and to $100 in July 2006, his appeal does not challenge these provisions of the order.

[7] Ronald relies on Family Code section 271, subdivision (a), which provides: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. . . ." (Italics added.)