November 29, 2010
VALERIE WINDSOR, PLAINTIFF AND RESPONDENT,
DEBORAH A. KHORA, DEFENDANT AND APPELLANT; EL DORADO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, RESPONDENT.
The opinion of the court was delivered by: Blease, Acting P.J.
Windsor v. Khora CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Deborah A. Khora appeals from an order registering a New Jersey child support order, and from a subsequent seek-work order.
Defendant appears without counsel. However, we must apply ordinary appellate procedural rules regardless of whether a party has employed counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; see Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) Defendant heads 13 arguments in her opening brief. As we shall explain, many of these arguments are forfeited because defendant has not adhered to ordinary appellate rules, and we reject the arguments we deem properly tendered or otherwise elect to address on the merits. We shall affirm.
The facts and procedure stated in defendant's briefing are largely unintelligible, and she partly relies on material that is not properly before us, but the following background can be gleaned from the record and the briefing.
Defendant married Louis Ventre. They had three children, then divorced in Florida. The 1992 Florida decree gave Ventre custody of the children, and provided that defendant was not liable for child support. Later, a New Jersey court gave custody of the children to plaintiff Valerie Windsor, Ventre's sister. In 1998, after plaintiff had obtained public assistance benefits, a New Jersey court made a child support order against defendant, then known as Deborah Hinds. This order was modified from time to time in New Jersey. The record shows defendant made some payments pursuant to this order in 1999 and 2000, but it does not show that she ever attacked the order in New Jersey.
On January 8, 2009, the El Dorado County Department of Child Support Services (Department) filed a notice of registration of the New Jersey support order in El Dorado County, where defendant now resides. The stated child support arrearages were $43,412.40.
On January 23, 2009, defendant requested a hearing on the registration issue, contending the New Jersey support order was obtained by unspecified fraud, her divorce agreement relieved her of child support liability, and some or all of the arrearages were unenforceable because no children reside with plaintiff. Her request stated a hearing date of February 23, 2009, a full month away.
At the hearing on February 23, 2009, plaintiff appeared by telephone. (See Fam. Code, § 4930, subds. (a) & (f).) Defendant objected that "Nobody has come forward to speak for the state of New Jersey. They're an interested party." The trial court (York, J.) stated, "It's a judgment. You're not litigating whether or not you owe it, it is whether or not the judgment is going to be recognized in California. If you want to go back behind the judgment, you would need to go back to the New Jersey court. We're not going to relitigate what happened in New Jersey in California."
Defendant stated she had "sufficient evidence today to prove this registration to enforce child support cannot be enforced without multiple violations of the law"; however, when the trial court asked defendant for an offer of proof, defendant merely said "it would take a long time. I would have to ask for a continuance. A hearing on that would probably last at least an hour."
The Department's counsel stated that it was acting on New Jersey's request for enforcement, and therefore "having New Jersey added as a party makes no difference at all as we're enforcing on their behalf."
Plaintiff and the Department's counsel stated that although plaintiff stopped receiving public aid once the children reached age 18, under New Jersey law, child support can continue past age 18 if the children are attending college.
We note that "the issuing state's law governs the 'nature, extent, amount, and duration of current payments' to be enforced under an existing order, as well as the computation and payment of arrearages and accrual of interest thereon." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶ 18:727, p. 18-190, quoting Fam. Code, § 4953, subd. (a).)
Defendant then asserted her Florida divorce precluded her liability for child support. When she explained that New Jersey had made a mistake in ordering her to pay money to a heroin addict, the trial court told her: "You're paying on behalf of the children, wherever the children reside. If you have a complaint where the children reside, you need to take that up on a timely basis."
The trial court then ordered registration of the New Jersey judgment, so far as "back child support" was concerned, but reserved the issue of its validity regarding amounts accrued after the children turned 18, pending a hearing on the law regarding support for college-attending adult children.
Defendant said she was going to sue plaintiff for damages, and the trial court advised her, "That's a private dispute. You need to do that separately."
On March 9, 2009, the trial court (Shepherd, Comr.) ordered defendant to pay $106 in child support and $5 towards the arrearages per week, and ruled the trial court lacked authority to modify the New Jersey order.
On March 25, 2009, defendant filed a notice of appeal. Attached to the notice of appeal is a legal brief. Because this document was not before the trial court when the appealed order was made, we disregard it. "It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 (Reserve).)
After we dismissed and then reinstated defendant's appeal from the registration order, defendant filed a second notice of appeal on December 29, 2009, from an order after a hearing held on December 21, 2009. The minute order from that hearing states defendant was ordered to seek work and provide the Department with written proof that she had done so, ordered her to pay $25 for December and January, and set a review hearing for January 4, 2010. However, if defendant paid $25 per month, beginning January 1, 2010, she was excused from complying with the seek-work order. There is no reporter's transcript for this seek-work hearing.
Attached to defendant's second notice of appeal, as with her first notice of appeal, is what appears to be a brief, purportedly in the form of a declaration. Because this document was not before the trial court when the seek-work order was made, we disregard it. (Reserve, supra, 30 Cal.3d at p. 813.) Similarly, defendant filed in the trial court a request for a stay pending appeal, in the form of a declaration. Again, that document was not before the trial court when it made its ruling and therefore we disregard it. (Ibid.)
We docketed defendant's first and second notices of appeal in one appellate case, No. C061498, the instant appeal.
Portions of the clerk's and reporter's transcripts in this case pertain to matters that occurred after both of defendant's first two notices of appeal were filed and appear to relate to matters raised in a separately pending appeal, docketed as case No. C065360, that defendant took from a subsequent order. However, we briefly describe this information.
On January 4, 2010, the date set for the review hearing on the seek-work order, the Department asked that defendant be ordered to continue to seek employment. Defendant asserted her appeal effected an "automatic stay" of the prior order. She tendered a copy of a children's manuscript she was working on, asserting that J.K. Rowling, the author of the Harry Potter books, "started out as a housecleaner, just like me." Based on her claim of need, the trial court stayed the monthly $25 order "pending the outcome of the appeal, but the seek work order will continue. You have to keep looking for work."
On January 25, 2010, Judge Proud confirmed the seek-work order, and defendant said she understood it.
On February 8, 2010, defendant explained that she had filed a motion to compel in order to get information about where one child, J.V., had lived. In denying the motion to compel, the trial court (Shepherd, Comr.) explained that it was irrelevant where J.V. lived, because defendant would owe support to whoever was caring for him: "Wherever the child lives, that's where the money is supposed to go." The seek-work order remained in effect.
As indicated earlier, defendant's lack of counsel does not warrant relaxation of the normal rules of procedure, and application of normal rules of appellate procedure leads us to conclude she had forfeited most of her contentions.
We begin by noting two basic points. First, "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409; see Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Second, where a point is asserted without coherent argument or legal authority, "it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 (Atchley); see In re S.C. (2006) 138 Cal.App.4th 396, 408.)
As will become evident, many of defendant's claims overlap, making the briefing confusing. However, we will address her 13 headed contentions in the order in which she presents them.
1. Defendant contends the trial court deprived her of a hearing to determine whether the New Jersey support order was obtained by fraud or covered periods "when then minor child resided with his father" rather than with plaintiff.
Defendant requested the hearing on the registration order and she bore the burden to prove that the New Jersey order was obtained by fraud or that she had any other defense. (Fam. Code, § 4956, subds. (a)(2), (a)(5); 8 Witkin, supra, Enforcement of Judgment, § 422, pp. 453-455; see Willmer v. Willmer (2006) 144 Cal.App.4th 951, 960.) She had a month to prepare for the hearing. When the trial court asked defendant for an offer of proof, she did not explain what evidence she had to offer; she instead asked for a continuance.
The record does not show the trial court deprived defendant of an adequate hearing; it shows defendant failed to marshal and present her evidence to the trial court at the registration hearing she had requested, and failed to explain what further evidence she might have produced if given a continuance.
2. Defendant states she has "a final, legal divorce agreement" providing that she does not have to pay child support. She provides no legal authority for the proposition that private parties can by mutual agreement cut off their children's right to support. The law is to the contrary. (See In re Marriage of Alter (2009) 171 Cal.App.4th 718, 728-729; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.)
3. Defendant claims she was not given adequate time to present her case. As stated above, she had a month to prepare for the hearing, and when the trial court asked her for an offer of proof she did not explain why she needed an hour to present her case, she failed to identify what facts she wanted to try to prove, and she failed to explain why she had not requested a continuance prior to the hearing. "The granting or denying of a continuance is a matter within the court's discretion, which cannot be disturbed 'on appeal except upon a clear showing of an abuse of discretion.' [Citation.]" (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) On this record, we cannot say defendant carried her burden to show the trial court abused its discretion by proceeding with the hearing and not granting a continuance. (See In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 405-407.)
4. Defendant claims she was prevented from establishing that some arrearages were unenforceable because she "had good reason to believe" that plaintiff had committed welfare fraud against New Jersey, by "collecting public assistance for minor child [J.V.] when he lived with his father" "for some or all of 2008-2009," and defendant further states she had been informed of this purported fact "by a family member." She contends the trial court should have required plaintiff "to produce verification of minor child [J.V.]'s address."
Defendant states an unnamed "family member" gave her "reason to believe" that for some period of time J.V. did not live with plaintiff. Even if this offer of proof had been made to the trial court at the registration hearing, it was entitled to no weight, as it consists of hearsay and speculation.
As explained above, the burden was on defendant to show that some or all the arrearages were not collectible; the burden was not on plaintiff or the Department to provide background documentation supporting the New Jersey order or every payment made to plaintiff reflected in the arrearages.
5. In a reiteration of the last claim, defendant contends the trial court improperly denied her motion to compel New Jersey authorities to verify J.V.'s address.
Defendant filed her motion to compel on January 6, 2010. This occurred after the second notice of appeal was filed, on December 29, 2009, and therefore it is not properly before this court in this appeal.
Further, the motion consisted of a narrative, accompanied by attached informal letters from defendant to New Jersey officials, and a letter back from New Jersey authorities providing some information and stating that additional records are confidential under New Jersey law. Defendant provides no authority showing her informal letters and New Jersey's response satisfied the standards for issuance of a third-party discovery order by the trial court.
Defendant does argue as follows: "In Steiner v. Hosseini, the court of appeal held that Fam C 2107(d) stands for the proposition that a judgment must be set aside or a new trial granted solely because of failure to comply with disclosure requirements." The code section cited by defendant pertains to one spouse's duty to disclose information to another spouse, and states in part that "Except as otherwise provided in this subdivision, if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment." (Fam. Code, § 2107, subd. (d).) That code section is inapplicable to third-party discovery. Further, the case cited by defendant holds that this code section is invalid to the extent it purports to compel a trial court to set aside a judgment in the absence of a miscarriage of justice, as required by California Constitution, article VI, section 13. (See In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 525-528.)
6. In a reiteration of the prior two claims, defendant contends the Department failed to meet its burden of proof to show "that some or all of the arrears are enforceable," based on the claim that J.V. may have lived with his father during some of the time plaintiff received public assistance on J.V.'s behalf. As stated above, the burden was on defendant to show any portion of the arrearages was not enforceable.
7. Defendant contends the court should have granted her motion for a continuance to join New Jersey as a party. She contends this deprived her of the ability to conduct discovery, and argues that once New Jersey is made a party, she can force New Jersey to submit to discovery: "New Jersey should have had to produce evidence that the divorce agreement was set aside, they should have had to produce evidence of [J.V.]'s address, and they should have produced the original" child support order, apparently to show why it was entered "against" the Florida divorce decree.
As stated above, the Florida divorce agreement did not have to be set aside because it was unenforceable to the extent it purported to cut off defendant's liability for child support.
We have already explained that defendant, not the Department acting on New Jersey's behalf, had the burden of proof; therefore, J.V.'s address was not a fact necessary to register the support order.
Finally, to the extent defendant contests the authenticity of the New Jersey documents by claiming they were not "original," that objection is forfeited. At the registration hearing, defendant objected that the original order was payable to her former husband, who was soon "picked up for heroin," and that New Jersey "made an error in ordering me to pay child support to a heroin addict." This was not an objection to the authenticity of the New Jersey documents. A party wishing to attack the foundation of documentary evidence must interpose a timely and specific objection in the trial court. (Evid. Code, § 353, subd. (a); see Kirkpatrick v. Tapo Oil Co. (1956) 144 Cal.App.2d 404, 410-411.) Defendant's objection was an argument about the propriety of the original New Jersey order, not an objection about the authenticity of the documentation. Therefore, the objection comes too late.
8. Defendant contends the Department billed her for a month before the hearing on February 23, 2009. However, she concedes the record on appeal does not support this claim, stating she "will attempt to submit this into evidence prior to the second brief." As we have said, we will not rely on evidence not before the trial court when it made the ruling challenged on appeal. (Reserve, supra, 30 Cal.3d at p. 813.) Further, defendant fails to explain how the purported error caused prejudice, as a purported early billing would not operate to change the amount of the arrearages.
9. Defendant contends that the failure to honor her Florida divorce decree supports a claim by her for damages against plaintiff. There is no cross-complaint in this action; therefore, we decline to address this contention.
10. In a motion to augment the record on appeal, defendant has lodged with this court a partial copy of her children's manuscript, claiming the trial court wrongly excluded it from evidence. However, she tendered that as evidence at the hearing held after her second notice of appeal was filed; therefore, the document was not considered by the trial court and should not be considered by this court. (Reserve, supra, 30 Cal.3d at p. 813.) Accordingly, we deny the motion to augment.
In this same portion of her brief, defendant argues that once she filed her notice of appeal from the registration order, the trial court lacked the power to make a seek-work order. She contends the trial court violated an "automatic stay" rule. However, her authorities hold the opposite.
In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, cited by defendant, explained that in family law matters a trial court generally has the power to make support orders (spousal support, in that case) during the pendency of an appeal. (Id. at pp. 1038-1039.) In In re Marriage of Varner (1998) 68 Cal.App.4th 932, also cited by defendant, a judgment was entered dividing marital property, making a support order, and retaining jurisdiction over support. Later, the former wife moved to set aside the judgment based on her former husband's purported failure to disclose assets, and she appealed from the denial of that motion. (Id. at p. 934.) After her appeal had been taken, the trial court made orders modifying the extant support orders and ordering the termination of jurisdiction over support, and she again appealed. (Id. at pp. 934-935.) In that second appeal, the appellate court held that the trial court had the power to modify the support orders, but not the power to make any order that would preclude effective relief after the first appeal was decided. (Id. at pp. 936-937.) "The trial court cannot make any order which will lessen the effectiveness of the appellate court's opinion. The reversal of a judgment dividing community property and the reallocation of those assets upon remand constitute changed circumstances which may justify a modification of spousal support obligations. [Citation.] If the trial court has, during the pendency of the appeal, ordered the termination of its jurisdiction over spousal support, then any modification of that support upon remand is impossible, and the effect of the appellate decision is diminished. We conclude that a trial court has no jurisdiction to terminate its jurisdiction over spousal support while an appeal of a judgment awarding spousal support or dividing community property is pending." (Id. at p. 937.)
In this case, the making of the seek-work order did not affect the order registering the New Jersey support order, nor impair our ability to fashion effective relief in the event we reversed that order. Therefore, the trial court had the power to make that order, despite the first notice of appeal.
11. Defendant contends the reporter's transcript omits "a wrongful and abusive statement" made by the Department's counsel and contains a line that "may be a fabrication," because it reflects a statement "never made by the judge." By separate order, we previously denied defendant's request to correct the transcript. Further, defendant does not explain how she has been prejudiced by the purported transcript errors. Accordingly, defendant failed to meet her burden.
12. Defendant contends the Thirteenth Amendment to the United States Constitution bars the trial court from making a seek-work order to allow collection of what she characterizes as "a disputed debt." In making this argument, defendant relies on facts contained in her motion for a stay on appeal that, as we explained above, were not before the trial court when the challenged ruling was made.
In any event, the California Supreme Court has rejected a similar contention as follows: "The obligation of a parent to support a child, and to become employed if that is necessary to meet the obligation, is in no way comparable or akin to peonage or slavery. It is among the most fundamental obligations recognized by modern society. The duty is not simply one imposed by statute, but 'rests on fundamental natural laws and has always been recognized by the courts in the absence of any statute declaring it.' [Citation.] It is an obligation that existed under common law [citation] and has long been recognized in a majority of American jurisdictions as not only a moral obligation, but one that is legally enforceable." (Moss v. Superior Court (1998) 17 Cal.4th 396, 409-410.)
To the extent defendant contends the trial court lacked the power to make a seek-work order, or abused its discretion in doing so, we reject the contentions.
To aid in the enforcement of the registered support order, the trial court had statutory authority to "[o]rder the obligor to seek appropriate employment by specified methods." (Fam. Code, § 4919, subd. (b)(10); see also Fam. Code, §§ 3558, 4500, 4505 [authorizing seek-work orders].) A trial court may order a parent to seek work to satisfy child support arrearages, and violations of such orders are punishable by contempt. (County of Monterey v. Banuelos (2000) 82 Cal.App.4th 1299, 1305-1307.)
A seek-work order is reviewed for an abuse of discretion, which "must be controlled by fixed legal principles and exercised in the spirit of the law, in a manner to serve the ends of substantial justice. [Citation.] A trial court's discretion is limited by the legal principles governing the subject of its action and is subject to reversal on appeal where no reasonable basis for the action is shown." (Barron v. Superior Court (2009) 173 Cal.App.4th 293, 298-299.)
The hearing on the Department's request for a seek-work order was not reported. However, the Department concedes defendant argued she was self-employed, writing a children's book. Defendant also contends that she is attending college full time, "to earn authorship credentials."
Defendant has not shown an abuse of discretion. Her choice to attend college and pursue her writing career does not give her license to evade her large child support arrearages.
Generally, in order to provide for the payment of child support, a trial court may impute earning capacity to a parent, regardless of the parent's personal desire to pursue a different life path rather than work at her or his reasonable earning capacity. (See In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927-928; In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1339 (LaBass); In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218.) Although defendant likens herself to J.K. Rowling and believes her manuscript will make her financially secure, few authors enjoy Rowling's success, and the trial court could rationally conclude she must seek gainful employment to begin paying child support. (See Philbin v. Philbin (1971) 19 Cal.App.3d 115, 121 ["few in the entertainment field, with the exception of those with star status, are able to sustain high incomes"], disagreed with on another ground, as explained by LaBass, supra, 56 Cal.App.4th at p. 1338, fn. 2.)
13. Defendant contends plaintiff has violated her rights under the Fourth Amendment to the United States Constitution and caused her harm, and defendant seeks "dialogue, reconciliation and a relationship with her children[.]" This claim is unintelligible. As stated above, there is no cross-complaint in this case, and nothing in the record shows that plaintiff, a private actor, violated the Fourth Amendment.
We have rejected all 13 of the claims in defendant's opening brief, concluding they were forfeited, lacked merit, or both. To the extent defendant purports to raise new claims in the reply brief, those claims are forfeited because they were presented too late. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.)
The Department responds to a stray assertion made by defendant, to the effect that she was entitled to appointment of counsel. But defendant did not head any such claim in the argument section of her opening brief, nor does she cite any authority in support of the claim; therefore, it is doubly forfeited. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [failure to head claim forfeits contention]; Atchley, supra, 151 Cal.App.3d at p. 647 [failure to provide authority forfeits contention].)
In her reply brief, defendant states she has an outstanding warrant and asks for appointment of counsel on appeal, "not a criminal attorney but a family court specialist." Defendant cites no authority supporting her request for appointment of counsel in this case, in which her liberty is not at stake. The law is to the contrary. (Clark v. Superior Court (1998) 62 Cal.App.4th 576 [no right to counsel in child-support collection case]; 1 Witkin, supra, Attorneys, § 48, p. 83.) Therefore, we deny the request.
The orders from which the appeals were taken are affirmed. Defendant shall pay the Department's costs of this appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1).)
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