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Darin P. Smedberg et al v. Gerald D. Toste et al

March 6, 2012

DARIN P. SMEDBERG ET AL., PLAINTIFFS AND RESPONDENTS,
v.
GERALD D. TOSTE ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. PC20060340)

The opinion of the court was delivered by: Mauro , J.

Smedberg v. Toste

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs and respondents Darin P. Smedberg, Kenneth P. Smedberg and Bonnie L. Smedberg (the Smedbergs) obtained a money judgment and wage garnishment order against defendant and appellant Gerald D. Toste (Toste). Toste contends on appeal that the trial court erred in denying his claim of exemption. He argues that the trial court ignored the evidence he presented and applied the wrong legal standard.

We conclude that the trial court did not err. Instead, Toste failed to meet his burden because he did not submit the information required by the applicable exemption statute. We will affirm the order denying Toste's claim of exemption.

BACKGROUND

The Smedbergs obtained a money judgment against Toste in 2007. (See Smedberg v. Toste (Dec. 10, 2008, C056578) [nonpub. opn.].) The Smedbergs also obtained an order garnishing Toste's wages earned as a seasonal Heavenly Valley ski patroller.

Toste filed a claim of exemption to the wage garnishment in March 2011, asserting that his wages are exempt from garnishment because the necessary expenses for support of his family exceed his wages. In a declaration filed in support of the claim of exemption, Toste averred that he and his wife are separated, but he nonetheless pays the mortgage on the house where his wife and daughter live, and he also pays rent for the apartment where he resides. Toste declared that his net monthly pay is $2,678, but his monthly expenses to support himself and his daughter are $2,922 per month, including a $1,131 mortgage payment, a $200 payment on a home equity line of credit, $500 rent for his apartment, a $72 payment for his motorcycle, and $600 per month for food. Toste attached to the declaration his January 2011 pay stub, a March 2011 mortgage payment coupon, and a month-to-month residential lease agreement for the period November 2010 to May 2011.

The Smedbergs opposed Toste's claim of exemption, arguing among other things that Toste cannot be making mortgage payments because he transferred ownership of the house to his wife, his rental payments are in doubt because he is always seen at the house and seems to be staying there, and Toste essentially said during his oral examination that he has no expenses because he is living hand to mouth.

Toste responded that he is still legally obligated to pay the mortgage and the home equity line of credit, and he remains responsible to pay living expenses for his high school-aged daughter, including a $134 per month car payment.

At the hearing, Toste's attorney represented that his monthly obligations on the two house loans (the mortgage and the equity line of credit), the utilities on the house, and food for his daughter -- taken alone -- total more than $2,700, and exceed Toste's net monthly wages. Toste's attorney also represented that Toste's wife lost her job and is unemployed. No additional evidence was taken at the hearing, although Toste's wife was present and Toste's counsel made an offer of proof that she could testify regarding the house maintenance expenses.

The Smedbergs argued that Toste failed to prove that he actually incurred the claimed expenses, because he produced no cancelled checks or other evidence showing he is actually paying the enumerated expenses. They added that Toste's separation from his wife is a "sham"; Toste lived in the house with the wife and could continue to do so to avoid paying apartment rent; he could not have transferred his assets to his wife but ...


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