Z.W. v. E.R.

Z.W., Respondent, v. E.R., Appellant;SAN DIEGO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.

D076224

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

October 21, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. DMB01590)

APPEAL from an order of the Superior Court of San Diego County, Enrique E. Camarena, Judge. Affirmed.

E.R., in pro. per. for Appellant.

No appearance for Respondent, Z.W.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Linda M. Gonzalez, Gregory D. Brown and Jennevee H. De Guzman, Deputy Attorneys General, for Respondent, San Diego County Department of Child Support Services.

Z.W. (Mother) and E.R. (Father) have two children and separated several years ago. Father appeals from a May 2019 child support modification order issued after an evidentiary hearing before a superior court judge. The order required Father to (1) retroactively pay $1,434 monthly child support from July 1, 2018 through November 30, 2018; and (2) thereafter pay $1,415 monthly child support on an ongoing basis. The San Diego County Department of Child Support Services (Department) was a party at the hearing on behalf of Mother. (See Fam. Code, § 17400 et seq.)¹

Father represents himself on appeal. He challenges the May 2019 order, contending: (1) he did not receive notice of an earlier September 2018 hearing; (2) a January 2019 hearing was improper because he objected to a court commissioner presiding over the hearing; (3) the Department was an improper party because his children are not receiving public assistance; and (4) the court improperly calculated his gross income. We find these contentions to be without merit and affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Background

In February 2016, a court commissioner issued an initial child support order requiring Father to pay $555 in monthly child support.

Two years later on June 29, 2018, at Mother's request, the Department filed a petition to increase the child support. The Department served Father by mailing him the petition to an address in San Diego.

On September 6, 2018, a court commissioner held a hearing on the Department's modification motion. Father did not appear at the hearing. At the hearing, the commissioner ordered, without prejudice to November 8,2018, that Father pay monthly child support in the increased amount of $1,249, effective July 1, 2018. The Department mailed a copy of the order to Father at a different address in San Diego.

Soon after, on October 31 and November 5 and 8, Father filed objections to the September 6 order. One of his objections was his claim that the Department failed to serve the June 2018 motion at his correct address. Father also filed his own motion to lower his child support payments.

The Department agreed a new support modification hearing should be held, and requested that both parents bring income information, including tax documents and a current income and expense declaration to the next hearing.

In January 2019, a court commissioner held a new hearing on the parties' child support modification motions. Father was present at the hearing. During the hearing, the commissioner stated it found Father's objections to the September 6, 2018 order valid and was willing to reconsider this order retroactive to June 2018 (when the Department initially filed its motion). However, Father objected to the commissioner presiding over the matter and refused to participate in the hearing. Thus, the commissioner maintained the order of $1,249 as the child support amount.

Shortly after, Father requested a de novo hearing before a superior court judge. (§ 4251, subd. (c).) The court (Superior Court Judge Enrique Camarena) granted Father's request and held a hearing on the parties' child support modification motions on two dates: April 26 and May 23.

April 26 Hearing

At the outset of the first hearing, the court said the hearing would be a "trial de novo" on all issues, unless Father wanted to limit the issues. The court told Father he had properly objected to the commissioner presiding overthe hearing, and therefore "you get a hearing in front of me, a judge. So we're doing that hearing over again."

Father argued the Department did not properly serve the June 2018 modification petition because it was sent to a wrong address, and therefore he did not have notice of the September 2018 hearing.

The court responded that it found Father's October 2018 objections to the September 2018 order to be timely and valid, so the issue of the June 2018 service was no longer relevant. Although it declined to declare the prior order "void," the court explained it was assuming the September 2018 order was not controlling and that Father had properly objected to the commissioner's consideration of the issues, and therefore it was intending to reconsider all issues regarding the proper child support amount from July 1, 2018 until the current date. The court said: "I understand your objection about the service. And I don't think we need to get there, and here's why procedurally: You timely made your request to vacate. I think it's fair [to go] back to the date that it would have gone into effect . . . ."

In addition to challenging the June 2018 service, Father strenuously and repeatedly objected to the court's subject matter jurisdiction and the Department's participation at the hearing, arguing the dispute was a private contractual matter between himself and Mother because the children were not receiving public assistance. The court overruled these objections, explaining the statutes permit the court to rule on the issues and allow the Department to participate in child support hearings if requested by a parent, even if the children are not receiving public assistance. (See § 17404, subd. (a).) The Department's counsel said Mother had requested the Department's assistance in obtaining an adjustment to her child support.

On the merits, the court asked Father whether he had submitted documentation of his income, noting it did not see this information in the file. Father said he works for the San Diego County Airport Authority, but he did not bring any paystubs or any other income information. Mother replied that the caseworkers had repeatedly asked Father for his updated income during the past two years, but Father had refused to provide any responsive information.

The court decided to continue the hearing for one month to May 23, providing the parties additional time to submit relevant income information. The court said at the hearing it would consider the parties' requests for support modification retroactive to July 1, 2018, and Father indicated his agreement with that retroactive date.

The court told the parties to file updated income and expense declarations with supporting documentation. The court also specifically directed the parties to provide paystubs "back to and including July 1, 2018. So if you can print that up off of a system from work or go to the HR, I think you have enough time to get something to print out, paystubs going back." (Italics added.)

May 23 Hearing

Before the May 23 hearing, Father filed a motion to dismiss, reasserting his arguments that the court does not have personal or subject matter jurisdiction, and the Department is not a proper party because child support is a matter of private contract between the parties.

Mother, Father and the Department's attorney appeared at the May 23 hearing. At the outset, the court said it had read Father's motion, and then permitted Father to orally explain his arguments and supporting authorities.

After considering Father's arguments, the court found no legal basis to dismiss the proceeding. The court said the purpose of the hearing was to consider anew the issue whether child support should be modified beginning on July 1, 2018, and that it intended to consider the parties' evidence as to the appropriate child support amount. Father agreed regarding the retroactive date, but said he was participating in the hearing under duress.

As will be discussed in more detail below, the court then examined the parties' income and expense declarations and supporting paychecks, and asked the parties various questions about their income and expenses. The court concluded it would impute a minimum wage income for Mother for the time when she was not receiving a paycheck. The court then inputted the relevant figures into the statutory guideline calculator, and reached the conclusion that (1) for the period July 1, 2018 through November 30, 2018, Father's child support monthly obligation was $1,434; and (2) effective December 1, 2018, the ongoing child support obligation would be $1,415. The court made clear in its written ruling that its review was de novo and its findings were based on the testimony and evidence presented by the parties at the May 2018 hearing.

DISCUSSION

I. Service of the June 2018 Motion

Father first challenges the court's May 2019 order based on his argument that he was not properly served with the Department's June 2018 motion to modify child support. He argues the Department sent the motion to an incorrect address, and therefore he was unaware of the September 2018 hearing and unable to appear at the hearing. The Department responds that Father's assertions about the incorrect address are not supported by the record.

We need not resolve this dispute because Father's failure to appear at the September 2018 hearing had no effect on the court's ultimate conclusion in May 2019. Father admits he became aware of the commissioner's September 2018 ruling based on a notice mailed to his correct address shortly after that hearing....