Marriage of Gotelli and Latteri

Filed 10/12/06 Marriage of Gotelli and Latteri CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Former spouses Ron Latteri (Father) and Barbara Bryant Gotelli (Mother) appeal from a judgment that denied Mother’s motion for payment of child support arrearages and denied Father damages for Mother’s incorrectly filed lien.

Mother contends the court erroneously concluded that all her claims for arrearages were released as part of the “Full Release” of a lien executed by the collection agency to which she had given power of attorney.

Father contends the court erroneously concluded that the litigation privilege precluded his seeking damages for the wrongfully filed lien and that there was insufficient evidence of damages therefrom. He also contends the court erred in denying him attorney fees as the prevailing party.

BACKGROUND

Years 1957-2001

The parties married May 5, 1957. Their two daughters were born in 1957 and 1959, and their son was born in 1960. The parties separated in 1962. On August 1, 1963, the court issued an interlocutory judgment and decree of divorce that ordered Father to pay Mother monthly child support of $300, to be paid on the first and fifteenth day of each month. Payments were to continue until the children attained their majority, married, became self-supporting, or the payments were modified by court order.^[1] The final judgment of August 4, 1964 adopted the terms of the interlocutory judgment.

In November 1969, Father was ordered to show cause (OSC) why he should not be declared in contempt for failure to pay child support payments since March 1, 1969. According to Mother’s supporting declaration, his total arrearage as of October 31, 1969 was $1,800.

On January 28, 1970, Mother submitted a further declaration in support of the OSC. She declared that Father had paid all child support payments through November 15, 1969, but had not made the two December 1969 or the two January 1970 payments, resulting in a $600 arrearage.

On February 20, 1970, the court ordered that Father was not in contempt for failure to pay child support and dismissed the OSC.

On April 2, 1970, an OSC issued concerning Father’s failure to make any child support payments since February 1, 1970, with a resulting arrearage of $750. A second OSC issued September 14, 1971, alleging non-payments since November 1, 1970, with resulting arrearages of $3,150. A third OSC issued February 28, 1972, alleging non-payments since May 15, 1971, with resulting arrearages of $2,800. The record does not show the disposition of these three OSCs. Mother “dropped” the February 1972 OSC proceedings because she could not afford to pursue them. She took no further action to obtain unpaid child support.

In 1972, and until 1987, money judgments were enforceable for a period of 10 years, and a court had discretion to enforce a judgment after the expiration of the statutory period. (In re Marriage of Cutler, supra, 79 Cal.App.4th at p. 468.) Case law had established that, as to support judgments payable in installments, the 10-year-period of enforceability ran as to each installment from the date it became due, and enforcement was available by way of a writ of execution, which did not require notice, motion or further court order. (Ibid.)

In 1982, legislation was enacted that continued the effect of the case law holdings. Thus, by statute, a judgment, order or decree for payment of child support could be enforced by a writ of execution without prior court approval for amounts not more than 10 years overdue on the date of the writ application; the 10-year period ran as to each installment from the due date of the installment; and a court had discretion to permit enforcement after the 10-year period. (Cutler, supra, 79 Cal.App.4th at p. 470.)

In 1988, the time period for enforcement of support arrearages without prior court approval was extended. (Cutler, supra, 79 Cal.App.4th at p. 471.) Support arrearages could be enforced by writ of execution until five years after the child reached the age of majority and thereafter for amounts not more than 10 years overdue on the date of the application therefor. (Ibid.)

In 1992, the Legislature eliminated the renewal requirement for support judgments. A judgment for child support, including a judgment for arrearages, became enforceable until paid in full. (Cutler, supra, 79 Cal.App.4th at p. 472)

The Family Code was enacted in 1992, operative January 1, 1994, to create a unified statutory scheme. (Stats. 1992, ch. 162, p. 463 et seq.) It reenacted many of the statutes that had been in the Family Law Act contained in the Civil Code. (Cutler, supra, 79 Cal.App.4th at p. 472.) Family Code section 4502 now provides: “Notwithstanding any other provision of law, a judgment for child . . . support, including a judgment for reimbursement . . . or other arrearages, including all lawful interest and penalties computed thereon, is enforceable until paid in full and is exempt from any requirement the judgments be renewed.”^[2]

Years 2002-Present

In January 2002, Mother learned from a radio show that there is no statute of limitations in California for the collection of unpaid child support. She verified this information with the county’s Department of Child Support Services (department). The department informed her it could not assist her collect arrearages because the parties’ children were over 18 years old. It referred her to “Supportkids, Inc.,” a corporation headquartered in Texas that provides enforcement services to custodial parents.

a. Services Agreement

In February 2002, Mother entered into an “Agreement for Services” with Supportkids (the services agreement). The services agreement contained a “Limited Power of Attorney” provision, which states: “I grant Supportkids a limited Power of Attorney to act as my representative and on my behalf in all communications and enforcement activities for the collection of the ‘Specified Amount’ of child support owed to me. I grant Supportkids full power and authority to do and perform every lawful act necessary and proper to enforce and collect unpaid child support as fully as I would be able to if personally present. Any such lawful acts performed by Supportkids under this limited power of attorney shall be binding on [me], my heirs, and legal and personal representatives.” (Emphasis in original.) Matthew Landley, Jr., the president of Supportkids, signed the services agreement on its behalf.

b. Lien

In February 2002, Supportkids, on behalf of Mother as obligee/claimant, recorded a $179,422.25 child support lien against Father’s property in Contra Costa County.

In March 2002, Father obtained an OSC ordering Mother to show why his motions to expunge the lien and for an order terminating any child support arrearage should not be granted. He asserted that he had paid all required child support; that, even assuming arguendo he had not, Mother’s 30-year delay in seeking the unpaid amounts precluded a child support arrearages claim under the doctrine of laches; and that the recorded lien did not comport with the statutory requirements governing the filing of a lien in conjunction with the enforcement of a support order.

c. May 15, 2002 Hearing

At the May 15, 2002 hearing on Father’s motions, attorney Suzanne Boucher appeared on behalf of Mother and lienholder Supportkids. Boucher had been engaged by Supportkids to represent Mother on May 9, 2002, and had received the case file on May 10. She therefore asked for a continuance to “get a full grasp of what’s going on.” She also announced that Mother had agreed to expunge the lien pending review of the arrearages issue, and that she (Boucher) had obtained a “Full Release of Lien” from Supportkids and had given Father a copy of the release. The court granted a continuance on the issue of arrearages to allow Mother time to file opposition to Father’s motions, and it scheduled a settlement conference for August 21, 2002.

d. Full Release of Lien

The “Full Release of Lien” was prepared by Supportkids and signed by its president, Landry, on May 15, 2002. It identifies Father as the obligor and Mother as the obligee/claimant. It states in full: “The undersigned has heretofore caused to be filed and recorded a Child Support Lien [for] the benefit of Claimant, [Mother] against the property of [Father] in the County Court of Contra Costa, CA Instrument # 2002-0071690-00 dated February 28, 2002. Claimant hereby releases said Child Support Lien as to any property owned by [Father]. It is Claimant’s intention that this is and shall be a full release of lien and it further being Claimant’s intention that this lien be fully released, with prejudice to the re-filing of subsequent lien(s), as to the above described account and any other assets, or to the filing and prosecution of child support enforcement or recovery actions against said Obligor. It being Claimant’s desire and intent to fully release any and all claims she has or may have, for and on behalf of Obligee to unpaid child support and interest under and by virtue of the child support order in the above styled and numbered cause. The Release of Child Support Lien is to be recorded in the above styled and numbered cause for the express purpose of discharging and holding harmless any and all persons who had notice of said Child Support Lien.” (Italics added.)

On May 22, 2002, Supportkids, on Mother’s behalf, recorded the “Full Release of Lien” with the Contra Costa County clerk-recorder.

e. Proceedings Following “Full Release of Lien”

Mother’s opposition to Father’s OSC argued that Father had not produced any documents to show he had paid all child support payments; that her lack of diligence in seeking child support arrearages was justified because she was unaware of her right to collect support that Father refused to pay; and because Father admitted he had not paid for the children’s medical care or insurance, admitted he had not contributed to their extracurricular activities, and admitted he had the current ability to pay arrearages and interest. She also argued that laches was not available as a defense because Father had not demonstrated any prejudice from the passage of time.

The settlement conference scheduled for August 21, 2002, was continued several times. The parties’ February 2003 joint status statement stated that the principal issues for trial were whether child support was owing, the amount purportedly owed, and whether Father was entitled to damages in the form of sanctions for the improperly filed lien.

On May 20, 2003, Mother requested a finding that the amendment to section 4502 that took effect January 1, 2003, eliminated laches as a defense to unpaid child support. The amendment states: “In an action to enforce a judgment for child . . . support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment owed to the state.” (§ 4502, subd. (c).)

On the same day Father moved for an order allowing him to seek tort damages for the wrongfully filed lien. He also moved for an order, inter alia, terminating any purported child support arrearages, based on the May 15, 2002 “Full Release” executed by Supportkids as agent for Mother with power of attorney.

At the June 20, 2003 hearing on Mother’s request and Father’s motions, the court observed there was “no question” that Mother did not intend a release of all claims; the question was whether the release was legally binding on Mother. It tabled its decision on the binding effect of the release, inviting the parties to submit further written authority and argument on the issue if they chose. It recommended that Mother file a motion to establish arrearages because the parties disagreed on the burden of proof, i.e., whether Mother had to prove she had not received payments or whether Father had to prove he had made the payments. It took the issues of laches and tort damages for wrongful lien under submission.

On June 26, 2003, Mother, as directed, applied for a determination of child support arrearages. In support she declared: she did not receive any child support after January 1970; she had dropped her motion seeking unpaid February 1970-April 1970 child support because she had been unable to afford legal costs and attorney fees; her present arrearages calculation goes through June 1981, when the parties’ son was married; and total arrearages, principal and interest, were $133,532.

On June 30, 2003, Mother filed supplemental points and authorities concerning the effect of the “Full Release of Lien.” She argued that the service agreement between her and Supportkids granted Supportkids only “Limited Power of Attorney” to act as her representative in all enforcement activities for “the collection” of the specified amount of child support owed; it did not authorize Supportkids to impair her ability to collect amounts owed. She requested an order finding that the release of claims provision of the “Full Release” was not binding on her and that she could proceed with her action to collect child support from Father. In support of her motion she declared that she did not authorize Supportkids to take any action that would release her right to collect child support from Father. Because the service agreement gave her the right to hire her own attorney at any time, she understood that Supportkids would not take any action in this matter other than to collect child support.

On September 4, 2003, the scheduled trial date, the court concluded that the defense of laches was no longer available as a result of the new law effective January 1, 2003. It announced it had not yet decided the issue of the effect of the “release of all claims” provision in the “Full Release of Lien.” It again tabled its decision until it received factual evidence at trial regarding the “Full Release.” It announced that the lien filed by Supportkids on Mother’s behalf did not comply with statutory filing requirements and permitted Father to present evidence of damages resulting from the incorrectly filed lien. For unrelated reasons, the court then continued trial until December 10, 2003.

f. Trial

As discussed in greater detail elsewhere in this opinion, testimonial evidence was offered at trial concerning Father’s child support payments while the children were minors, the effect of the lien on Father’s financial standing, and the intent of Supportkids and Mother in executing the full power of attorney provision in the service agreement.

g. Statement of Decision

The court’s statement of decision makes the following findings and conclusions. Pursuant to section 4502, subdivisions (a) and (c), Mother’s claim was not barred by the statute of limitations, and Father was foreclosed from relying on the defense of laches. Father failed to pay a significant amount of child support but there was insufficient evidence to determine the unpaid amount. Mother’s testimony that no support was paid after January 1, 1970, was not credible, nor was Father’s claim that he paid all support he was obligated to pay. The testimony of the parties’ two daughters that Father’s support checks were “few and far between” during their childhood and were cause for celebration because they were so rare was credible, as was their testimony that Father told them “in later years” that he would have paid support if he felt Mother needed it. Based on this evidence, Father occasionally, but rarely, paid child support after the last contempt citation in 1972. Due to the passage of time, Mother could not identify the amount owed her, and Father could not prove the amount he had paid. Absent such evidence, Father failed to prove that he paid Mother any child support after February 28, 1972.

The court further found that the lien placed by Supportkids on Father’s real estate failed to comply with the requirements of section 4506, and that these failures nullified the lien. Placing a lien to collect past due child support was protected by the litigation privilege of Civil Code section 48. Consequently, Father could not seek damages against Mother for filing the lien through Supportkids. Furthermore, Father failed to prove that he suffered any damages as a result of the lien.

The court concluded that Supportkids acted within the limited power of attorney granted in the services agreement when it released Mother’s claims for past due child support against Father in May 2002. Therefore, the court concluded, because Supportkids acted within the broad scope of its authority in the matter of collecting child support, its release was binding on Mother as between her and Father. The court also denied Mother’s petition for relief (Code Civ. Proc., § 473, subd. (b)) from the effect of the May 2002 “Full Release of Lien” because her petition was untimely and because she had not shown any excusable neglect.

The court ordered the parties to bear their own attorney fees because neither party prevailed on his or her primary cause of action.

The court entered judgment incorporating its statement of decision, and this appeal and cross-appeal followed.

DISCUSSION

The parties argue at length as to whether the trial court correctly concluded that Mother was owed back child support and whether Father was entitled to the defense of laches. However, their argument is academic if (1) the court did not err in concluding that Supportkids was authorized to release Mother’s claims for past due child support and that this release was binding on Mother as between her and Father, and/or (2) if the court did not abuse its discretion in denying Mother’s petition for relief from the effect of the full release of the lien. We therefore first address Mother’s contention that the court’s conclusion was erroneous.

I. Effect of Full Release of Lien

Mother does not deny that the “Full Release of Lien” (hereafter Full Release) unambiguously states that she, as the named claimant/obligee, releases all claims she has against Father for child support. She contends the “Limited Power of Attorney” provision in the service agreement with Supportkids did not grant it the authority to release her claims. Alternatively, she contends the Full Release contains a mistake of fact permitting its rescission or reformation.

A. Standard of Review

The appellate court’s review of a trial court’s interpretation of an agreement “is governed by the settled rule that where extrinsic evidence has been properly admitted as an aid to the interpretation of a contract and the evidence conflicts, a reasonable construction of the agreement by the trial court which is supported by substantial evidence will be upheld. [Citations.]” (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747.) If no extrinsic evidence was offered, or there is no conflict in the evidence, the reviewing court makes an independent determination of the contract’s meaning. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.)

B. Evidence of Intent of Mother and Supportkids in their Service Agreement Mother testified that she thought she had hired Supportkids to collect the back child support she was owed. The deposition testimony of Supportkids personnel was also admitted at trial.

1. Supportkids President Landry

Landry, who is not an attorney, is the designated representative of Supportkids for purposes of liens filed by Supportkids. He testified that notices of liens are prepared and reviewed by Supportkids’s legal staff. Generally, his signature is affixed by stamp, but is entered manually if required by the jurisdiction where the lien is to be filed. A member of Supportkids’s legal staff provides him the notice lien forms for signature; after signing the forms he returns them to the legal staff.

His understanding of the agency relationship between Supportkids and the custodial parent is that the custodial parent has a right to enforce an obligation arising from a court order for child support, and under Supportkids’s power of attorney, it stands in the shoes of the custodial parent and has available to it the majority of enforcement remedies available to that parent by federal or state statutes to act on behalf of that parent to enforce the court-ordered obligation for support. Under the service agreement, Supportkids has the right to file a notice of lien on behalf of the custodial parent without first discussing doing so with the parent. He was unaware whether Supportkids discussed with Mother the notice of lien it filed on Father’s property.

He understood the “limited power of attorney” clause in the services agreement to limit what Supportkids can do under the laws of a particular state regarding enforcement of a child support action. He understood that its authority would include filing a release of the lien, but he did not know whether it would include filing a release of all claims. He understood that generally a “Full Release of Lien” is recorded where the obligation for child support has been satisfied in full by a payment from the obligated noncustodial parent or there has been a compromise settlement agreement executed by both parents. A release without an execution of documents by the parents would be a violation or mistake of Supportkids’s internal guidelines. He understood that in the instant case there had been no payment pursuant to Supportkids’s enforcement action, and he was unaware of any settlement agreement signed by the parties.

He did not personally sign the May 2002 “Full Release of Lien;” it was executed with his facsimile signature stamp. He understood the “Full Release” phrase “with prejudice” to mean that Supportkids agreed that the release of the lien was an appropriate course of action and that it could not be reestablished under the terms in which it was originally established. He understood that, under Supportkids’s power of attorney, it had the right to file the “Full Release of Lien” when it did. He was unaware of Mother signing any documents authorizing a release of all claims against Father.

2. Lisa Jones

Lisa Jones is an attorney with Supportkids. She testified that attorney Boucher advised Supportkids to file a “release of lien” while it was working on the case. Jones instructed “Julie” in Supportkids’s document preparations department to prepare the release. Jones did not give Julie any instructions regarding the language of the “Full Release.” Specifically, she did not instruct Julie to include the sentence: “It being Claimant’s [i.e., Mother’s] desire and intent to fully release any and all claims she has or may have, for and on behalf of Obligee [i.e., Mother] to unpaid child support and interest under and by virtue of the child support order in the above styled and numbered cause.” Asked where Julie would have obtained the information to include this sentence, Jones replied, “I don’t know where she had . . . got her forms or whatever.”

After Julie prepared the “Full Release” she faxed it to Jones; it was already stamped with President Landry’s signature when Jones received it. Jones did not remember reading the sentence concerning release of all claims when she received the faxed “Full Release” or approving the language “because, obviously, it was a mistake.” Jones did not know why Julie faxed her the “Full Release,” because Julie did not normally do so unless Jones had a specific change. After Jones received the faxed “Full Release” she did not have any conversation with Julie to the effect that “‘this was only a partial release situation’” because “I’m assuming if I had noticed [the release of claims,] that [the Full Release of Lien] wouldn’t have gone out.” Jones was unaware of any agreement between the parties regarding a release of all claims or authorization from Mother to file a release of all claims.

3. Gregory Warmink

Gregory Warmink is head of Supportkids’s legal department. He testified that he was unaware of any discussion with Mother regarding the “Full Release.” The Release of Lien is a form document. Supportkids’s electronic filing notes for Mother’s account stated that, in response to Boucher’s request, Supportkids informed her by fax that it would “‘release the lien while the accounting is being discussed and [the] case is pending.’” He did not discuss the “Full Release” with Lisa Jones or review it before it was filed. Julie would have reviewed the “Full Release” before it was sent to Landry for his signature; Julie was authorized to stamp Landry’s facsimile signature. Another Supportkids employee, Anabelle Cantu, sent the “Full Release” to Boucher. Warmink was never told that the court had ordered Supportkids to release the lien, nor did Mother tell him she wanted the lien released. He saw nothing in the file notes to indicate that Mother authorized a release.

4. Kathleen Kerr

Kathleen Kerr is chief operating officer of Supportkids. She testified that she had seen “Release of Lien” forms similar to the one in this case, but she would not consider the instant release “standard” because Supportkids does not generally give a full release unless all support has been paid.

5. Dalen Fredrickson

Dalen Fredrickson is a lawyer and vice president of strategic development. He reports to Kerr, who reports to Landry. He was designated “the person most knowledgeable” to testify about Supportkids’s operations and procedures and with the facts of the instant case. Supportkids is not a law firm; it provides enforcement services to custodial parents. Fredrickson did not speak to anyone except Boucher about the release. He did not know who decided the language to be included in the “Full Release.” He learned from Gregory Warmink that it was a form release typically used by Supportkids when a case is settled. He thought Lisa Jones was the staff member who “put [the release] together.” He was unaware of any discussion with Mother regarding the release of her claims, but he “would think that appropriate communication would happen between her and her attorney.”

C. Limited Power of Attorney

“. . . [T]he intention of the parties as expressed in the contract is the source of contractual rights and duties. A court must ascertain and give effect to this intention by determining what the parties meant by the words they used.” (Pacific Gas & E. Co. v. G.W. Thomas Drayage Etc. Co. (1968) 69 Cal.2d 33, 38, fn. omitted.) The services agreement granted Supportkids limited power of attorney to act as Mother’s representative and on her behalf in all enforcement activities for the collection of child support arrearages from Father, and it granted Supportkids “full power and authority to do and perform every lawful act necessary and proper to enforce and collect unpaid child support.” The question is whether Mother and Supportkids intended this power of attorney to be limited solely to activities that involved the actual enforcement and collection of support from Father, or whether they intended it to grant Supportkids the unilateral authority to dismiss all support claims against him without Mother’s consent before it had exhausted all legal methods of collection.

As seen from the recitation, ante, of the trial evidence on the issue, the evidence regarding Supportkids and Mother’s intent as to the scope of the power of attorney was not in conflict. Mother, understandably and credibly, testified that she never intended that Supportkids’s power of attorney to enforce and collect outstanding child support was to encompass the authority to release all her claims without her consent. There was no contrary testimony from any Supportkids employee. The only specific testimony concerning the nature of the limited power of attorney provision came from Supportkids’s president, Matthew Landry. He testified that, under the power of attorney provision, Supportkids stands in the shoes of the custodial parent and can pursue most of the statutory enforcement remedies a parent can pursue to enforce a court-ordered support obligation; that “limited power” refers to what Supportkids can do under the laws of a particular state regarding enforcing a child support action; and that the power of attorney gave Supportkids the right to file the instant “Full Release of Lien” when it did.

Given the lack of conflicting extrinsic evidence, we therefore determine independently the meaning of the “limited power of attorney” provision of the services agreement, taking into consideration the undisputed extrinsic evidence and the circumstances surrounding the making of the services agreement, including its objective, nature, and subject matter. (Pacific Gas & E. Co, supra, 69 Cal.2d at p. 409.) We conclude that implicit in the “limited power of attorney” is the mutual understanding between Mother and Supportkids that Supportkids would have authority to dismiss claims against Father only after notice to Mother.

The patent objective of the services agreement was to have Supportkids obtain Father’s unpaid child support for Mother. The actions of Supportkids were in essence the actions of a collection agency. Its revenues derive from the percentage of the arrearages it collects; until it collects payments, it has no income. Indeed, under the terms of the services agreement, Mother agreed to pay Supportkids 34 percent of each payment Supportkids received on her behalf from Father. Therefore, it would be contrary to Supportkids’s interest to dismiss all claims against the noncustodial parent before a resolution of the claims.

Furthermore, as the testimony of Supportkids personnel demonstrates, doing so would not be part of its normal custom and procedure. President Landry, Chief Operating Officer Kerr, and Vice President Fredrickson all testified that Supportkids does not generally file a “Full Release” until the noncustodial parent has made full payment of his or her obligation or the parents have reached a compromised settlement. Landry specifically testified that a release without an execution of documents by the parents would be a violation or mistake of Supportkids’s internal guidelines.

Given Mother’s purpose in seeking Supportkids’s services and the nature of Supportkids’s business, their mutual intent, manifest in the services agreement at the time they entered into it, was that Supportkids’s limited power of attorney did not extend to dismissing Mother’s child support claims against Father before the claims were resolved.

D. Father’s Reliance on Supportkids’s Acts

Father argues that, even if the limited power of attorney provision in the services agreement did not permit Supportkids to dismiss all claims against him, he was entitled to rely on Supportkids as having authority to dismiss Mother’s claims.

Probate Code section 4301 provides that a third person “may rely on, contract with, and deal with an attorney-in-fact with respect to the subjects and purposes encompassed or expressed in the power of attorney without regard to whether the power of attorney expressly authorizes the specific act, transaction, or decision by the attorney-in-fact.” (See also Civ. Code § 2317: ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent possesses.) The principal’s consent need not be express to establish ostensible authority. (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644.) It “‘may be implied from the facts of a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power. . . . An agent’s authority may be proved by circumstantial evidence. [Citation.]’” (Ibid.) By parity of reason, if the evidence establishes an absence of reliance by the third party on the unauthorized acts of the attorney-in-fact, the third party may not later assert that he or she relied on the ostensible authority of the attorney-in fact to take a particular action, and thereby obtain the advantage of the unauthorized acts.

The trial court made no findings regarding Father’s reliance on the ostensible authority of Supportkids to release all Mother’s claims against him. It concluded only that in issuing the “Full Release,” Supportkids acted within the “extremely broad” scope of its power of attorney. Nevertheless, there is no evidence on this record to which Father can point that Mother led him to believe she conferred authority on Supportkids to dismiss her claims before the issue of arrearages was resolved. At the May 15, 2002 hearing, Mother’s attorney Boucher stated several times that “we”^[3] have agreed to expunge the lien “pending review on the issue of arrearages” and that “we are [stipulating]” to release of the lien because the existence of the lien appeared to be “the main issue they [i.e., Father and his attorney] have;” that there was “still” the issue of child support arrearages and the enforcement of the arrearages; and that the hearing was not about damages for an improperly filed lien but to expunge the lien and to determine and terminate arrearages. She also stated that she had given Father’s attorney a copy of the Full Release. Father’s attorney argued only that Father had suffered substantial damage due to the improperly filed lien, and that he wanted a ruling terminating all child support arrearages because “there aren’t any,” and, if there were, laches would protect him from paying them. He made no reference to the provision of the Full Release that released all Mother’s claims against him. In fact, he proposed that “the case [i.e., Father's motion to expunge liens] ought to be granted without prejudice on what we want,” and that Mother should then “file back” a proper petition under Family Court rules for the alleged outstanding support, to which Father would then respond. The hearing concluded with the court setting the matter for a settlement conference in August 2002 and ordering Mother to record the Full Release by the following week.

As directed, Mother recorded the Full Release one week later, May 22, 2002, but it was not until a year later, May 20, 2003, that Father moved for an order that, as a consequence of the Full Release, he was relieved of all child support obligations. Rather, during that year, the parties had been proceeding with the litigation, e.g., Father’s June 2002 deposition of Mother , Mother’s August 2002 opposition to Father’s March 2002 OSC; Father’s August 2002 reply to Mother’s opposition asserting that Mother had not produced any evidence to show outstanding arrearages ; the parties’ February 2003 joint status statement stating that the principal issues for trial were whether child support was owing, the amount purportedly owed, and whether Father was entitled to damages in the form of sanctions for the improperly filed lien ; Father’s March 2003 depositions of the parties’ three children and his April 2003 deposition of Supportkids Vice President Dalen Fredrickson.

This activity following the May 2002 Full Release militates against a finding that Father believed Supportkids was authorized to release Mother’s claims. Had he relied in good faith on such authority, he would have had no need to expend a year’s worth of time and money toward trial preparation on the question of arrearages after the “Full Release” was recorded on May 22, 2002.

In the absence of any evidence that Father relied on Supportkids’s authority to file a Full Release, we conclude as a matter of law that Father did not rely on the Full Release. Therefore, the trial court erroneously ruled that Mother had released all claims against Father in the “Full Release of Lien.” We now address the claims of error raised by Father.

II. Litigation Privilege

Father contends the court erred in concluding that the litigation privilege (Civ. Code, § 47, subd. (b)) protected Mother from liability for any damages resulting from improperly placing a lien on his property.

A privileged publication or broadcast is one made, inter alia, in any judicial proceeding or other official proceeding authorized by law. (Civ. Code, § 47, subd. (b).) To be privileged, the statement must be made in a judicial proceeding by litigants or other authorized participants; it must aim to achieve the litigation’s objective, and it must have some logical connection or relations to the proceeding. (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.) The scope of “publication or broadcast” includes conduct such as the filing of assessment or mechanic’s liens, and the privilege applies to conduct or publications that occur outside the courtroom, as well as to publications that are legally deficient for some reason. (Ibid.)

Section 4502, subdivision (a) provides that, notwithstanding any other provision of law, a judgment for child support, including all lawful interest and penalties computed thereon, is enforceable until paid in full and is exempt from any requirement that judgments be renewed. Here, the 1963 judgment, although dormant, was extant because it was never extinguished, and there was no post-judgment order that would bar Mother from enforcing it. (See In re Marriage of Cutler, supra, 79 Cal.App.4th at pp. 473-474.) Mother’s filing of the lien was privileged under Civil Code section 47, subdivision (b) because the filing was her effort to secure payment of the child support awarded in that 1963 judgment. In other words, filing the lien was an extension of the judicial process she had undertaken to obtain that award, and her action was logically and legally related to realizing the litigation objective of collecting on the judgment. (O’Keefe v. Kompa, supra, 84 Cal.App.4th at pp. 134, 135.) Even if the lien filed by Mother did not comport with all statutory particulars necessary to create a judgment lien for child support, the deficiencies did not defeat the privilege.^[4] (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25.)

Father argues the Civil Code section 47, subdivision (b) privilege is inapplicable to Mother’s filing of the lien because the lien was not based on any claim by Mother that affected title or the right to possession of his real property, either in 1963 when the interlocutory judgment was filed, or 2002, when the lien was filed. He appears to rely on subdivision (b)(4) of Civil Code section 47, which provides that a recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction, and which action affects the title or right of possession of real property as authorized or required by law. However, the recorded lis pendens exception is inapposite to the facts of this case. A lis pendens “is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Its effect is that anyone acquiring an interest in the property after the action was filed will be bound by the judgment.” (BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, 966.)

Mother’s effort beginning in 2002 to seek child support arrearages was simply her effort to obtain money to satisfy an alleged outstanding judgment debt. Her effort never purported to be a claim affecting the title of real property owned by Father or his right to possess such property, nor did Mother ever attempt to characterize the lien she recorded as a lis pendens. Consequently, Civil Code section 47, subdivision (b)(4) and the law governing lis pendens do not apply to this case. Because Mother’s act of filing the lien was privileged, Father cannot pursue a tort action for disparagement or slander of title. In light of our conclusion, we need not address Father’s argument, raised obliquely for the first time in his reply brief, that he suffered damages as a result of Wife’s actions.^[5]

III. Proof of Past Due Child Support

Without any citation to authority, Father contends Mother “did not carry the burden of proof that she was owed past child support as ordered by the court in September 2003.”

Father’s reference is to the hearing on September 4, 2003, the originally scheduled trial date. After the court announced that trial would be continued, Mother’s attorney expressed concern that she had the burden of proof regarding arrearages, and argued that the burden lay with Father to prove he had paid child support. “We can’t prove she didn’t receive any money. All she can say is [she] didn’t receive any money. . . . [G]enerally the way it works is that the person who receives notice [has to come into court] and prove [he] made the payments.”

The court replied: “[M]y view of it is it’s [Mother] who is seeking arrearages. . . . [The] request for paying child support arrearages is initiated by [Mother] in this matter. I recognize it’s difficult in proving a negative, but I think the burden . . . can be met by proving that an order of child support was made, and testimony that it was not received. . . . [M]y point is that that is how you prove the negative. And then because it’s a preponderance burden it doesn’t, I don’t think, make a huge difference. But my understanding of the law is that [Father] would not be required to come in here and prove a lack of arrearages. I think it’s the person requesting the arrearages who has the burden. Unless somebody has a case on this issue [] I’m going with kind of a common sense, what I view as common sense, approach.”

Regardless of whether the court correctly concluded that Mother, as the parent seeking arrearages, had the burden of proving outstanding support payments, Father’s contention is, in essence, that there was insufficient evidence to support the court’s finding that he had not paid all required support. We disagree.

In the absence of documentary evidence such as cancelled checks or regularly-maintained ledgers, resolution of the question turned on the credibility the witnesses, which is an issue for the finder of fact. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622, 623.) As the court’s statement of decision outlined, the testimony of the parties’ daughters demonstrated that Father was, at best, erratic in making support payments. As they testified, his payments were so rare that they were cause for rejoicing when they arrived. Furthermore, he confided to them when they were adults that he would have paid support if he believed Mother needed it, but, because she had remarried, he did not think she did. Coupled with this testimony was the evidence of the several OSCs that issued in the early years after the divorce, and the testimony of Father’s then-attorney that Father consistently refused to make support payments until forced to do so by contempt citations. From this evidence, the court could reasonably infer that, even if Father’s failures to make support payments were not as extensive as Mother asserted, he had failed to pay the large majority of his support obligations.

V. Laches

Father contends that even assuming he owes child support arrearages, the court erred in concluding Mother’s claims were not barred by the doctrine of laches. Our Supreme Court recently held that section 4502, subdivision (c) applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 182.) In light of the Fellows decision, the trial court correctly concluded that a laches defense was unavailable to Father.^[6]

VI. Attorney Fees

Father contends the court erred in ordering the parties to bear their own attorney fees, rather than awarding him attorney fees as prevailing party. He argues he is the prevailing party, insofar as his motion to expunge the lien was granted, and the court concluded that Mother’s “Full Release of Lien” precluded her from recovering child support arrearages.

Father asserts that Code of Civil Procedure section 405.38 entitles him to attorney fees for expungement of the lien. This statute provides that a court shall direct that the party prevailing on any motion “under this chapter” shall be awarded reasonable attorney fees unless the court finds the other party acted with substantial justification or that other circumstances make the imposition of attorney fees unjust. “This chapter” refers to chapter 3, “Expungement and Other Relief,” (Code Civ. Proc., § 405.30 et seq.) which deals with expungement of recorded lis pendens. As discussed, supra, Supportkids, on behalf of Wife, did not record a lis pendens. Therefore, Code of Civil Procedure section 405.38 does not govern Father’s entitlement, if any, to attorney fees.

Father also contends he should have been awarded attorney fees pursuant to section 271, which permits a court to award attorney fees as a sanction for conduct that frustrates the policy of settlement and cooperation between the parties. A trial court has broad discretion in determining whether to award attorney fees under section 271, and the appellate court does not interfere with its discretion absent a showing of abuse. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 122.) We conclude there was no abuse in the court’s decision not to award fees. Although it concluded (incorrectly, as we have discussed) that Mother was precluded from claiming child support arrearages due to Supportkids’s execution of the “Full Release,” it concluded, correctly, that she was statutorily authorized to seek them, notwithstanding the passage of time, and that there was credible evidence that Father had not made all support payments. Given these conclusions, it could reasonably determine that Mother’s action, although ultimately unsuccessful, was not frivolous or dilatory.

DISPOSITION

The judgment denying Mother child support arrearages is reversed and remanded with directions to calculate, insofar as possible, the outstanding amount and award them to Mother. In all other respects, the judgment is affirmed. Costs on appeal to Mother.

_________________________

Jones, P.J.

We concur:

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Simons, J.

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Gemello, J.

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^[1] In 1963 the age of majority was 21. Effective January 1, 1972, minors were defined as all persons under 18 years of age. (Former Civ. Code, § 25.) Former Civil Code section 25.1, added in 1973, stated that the Legislature intended any use of “age of majority, “age of minority,” “adult,” or “minor,” to refer, before March 4, 1972, to persons 21 years of age or older or younger than 21 years of age, and on or after March 4, 1972, to refer to persons 18 years of age and older, or younger than 18 years of age. (Stats. 1973, ch. 38, p. 50, § 4.) These sections were repealed in 1993 and the language now appears in Family Code sections 6500, 6501, and 6502. (Stats. 1993, ch. 162, § 10, ch. 219, § 2.)

All the parties’ children reached the age of majority at 18, because all of them had their 18th birthday after the statutory change: the daughters in 1975 and 1977 and the son in 1978. However, In re Marriage of Cutler (2000) 79 Cal.App.4th 460 held that pre-1972 child support judgments were enforceable until the child reached age 21.

^[2] All further section references are to the Family Code.

^[3] It is unclear whether attorney Boucher’s use of the plural pronoun referred to her, Supportkids and Mother, or to both parties.

^[4] A judgment lien on real property is created by recording an abstract, a notice of support, an interstate lien form promulgated by the United States Secretary of Health and Human Services, or a certified copy of a judgment for child support payable in installments. (Code Civ. Proc., § 697.320, subd. (a).) An abstract of judgment ordering a party to pay child support is required to be certified by the clerk of the court where the judgment was entered. (§ 4506, subd. (a).) The lien filed by Supportkids on Mother’s behalf did not comport fully with the requirements of section 4506 because it was not a certified abstract of judgment. However, Supportkids attorney Gregory Warmink testified that the form used was a federal form drafted by the United States Office of Child Support Enforcement.

^[5] Were we to reach the issue, we would deem it waived. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466 fn 6.)

^[6] We deferred Mother’s request to take judicial notice of the legislative history of section 4502, subdivision (c) until we ruled on the merits of the case. The Fellows decision makes consideration of this history unnecessary, and we now deny her request.