Guerra v. Headrick-Hanna

Filed 7/27/06 Guerra v. Headrick-Hanna CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Here we hold the trial court has no power to retroactively modify child support to a date prior to the filing of the motion for modification. (Fam. Code, § 3651, subd. (c).) We affirm.

FACTS

On July 12, 2002, the trial court ordered John Guerra to pay $614 per month in child support commencing June 1, 2002. On February 19, 2003, Guerra filed a motion to modify child support because he was unemployed as of August of 2002.

On July 8, 2003, the court issued an order denying Guerra's motion to modify child support. The order states Guerra failed to appear at earlier hearings and failed to file a declaration in support of his motion or a current income and expense statement. Guerra did not appeal the July 12, 2002, or the July 8, 2003, orders.

On February 26, 2004, Guerra filed a new motion asking the trial court to set aside the July 8, 2003, order. The trial court treated Guerra's new motion as a request for modification of child support. The court ordered child support payments modified to $317 per month, retroactive to March 1, 2004. On November 1, 2004, the trial court set the amount of child support in arrears as $9,067 through October 2004. Guerra appeals the November 1, 2004, order setting the amount in arrears.

DISCUSSION

Some of the issues Guerra attempts to raise appear to relate to the July 12, 2002, and the July 8, 2003, child support orders.

Guerra claims that on July 12, 2002, the court instructed the child's mother, Audra Headrick Hanna, to close the case with the San Joaquin County Department of Child Support Services (DCSS), the agency that was collecting Guerra's support payments. She failed to do so. Then, he claims, she used every means possible to hinder his effort to modify support, including: not filing the order from the July 12, 2002, hearing until November; misleading DCSS into believing support matters would be considered at an upcoming hearing; and preventing DCSS from assisting him to obtain a modification by closing his DCSS case.

Guerra also apparently places some of the blame for delay on DCSS. DCSS received his completed modification package on November 7, 2002. Guerra filed his own motion to modify a little over three months later on February 19, 2003. That motion resulted in the July 8, 2003, order denying his request for modification.

None of Guerra's claims of prejudice due to unjustified delay have been adjudicated in his favor. Instead, on July 8, 2003, the trial court denied his motion to modify support because Guerra failed to appear and failed to submit the appropriate supporting documents.

Even assuming the trial court erred in making the July 12, 2002, or the July 8, 2003 orders, it is too late to raise that contention now. Guerra could have made a direct attack on those orders by appealing. (Code Civ. Proc., § 904.1, subd. (a)(2).) He did not do so, however. The time for such appeals has long since passed. (Cal. Rules of Court, rule 2 (a).) Guerra cannot collaterally attack those orders by filing a new motion asking the trial court to set them aside. (See 7 Witkin, Cal. Procedure (4th ed. 1997) Judgments, §§ 280-281, pp. 820, 821.)

The trial court, as a favor to Guerra, elected to treat Guerra's motion to set aside the previous order as a new motion for modification of child support. The trial court granted modification, but refused Guerra's request to modify support retroactive to a time prior to the February 26, 2004, filing of the motion. Guerra believes the court abused its equitable powers in refusing to modify support that accrued prior to February 26, 2004.

Guerra acknowledges that Family Code section 3651, subdivision (c)(1), provides: "[A] support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." Nevertheless, Guerra cites In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 471, for the proposition that the trial court has the broadest possible discretion to achieve fairness and equity in child support matters. But Guerra omits that the trial court's exercise of its discretion extends only "to the extent permitted by child support statutes . . . ." (Ibid.) The court has no power, equitable or otherwise, to ignore the plain language of Family Code section 3651, subdivision (c). That language allows no room for equitable considerations. The court did all it could do for Guerra when it made the modification retroactive to March 1, 2004.

The judgment (order) is affirmed. Costs are awarded to intervener and respondent San Luis Obispo County Department of Child Support Services.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

E. Jeffrey Burke, Judge

Superior Court County of San Luis Obispo

______________________________

John A. Guerra, in pro. per., for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Thomas R. Yanger, Senior Assistant Attorney General, Paul Reynaga, Supervising Deputy Attorney General, Linda M Gonzalez, Deputy Attorney General, for Intervener and Respondent.

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