(Super. Ct. No. S-FS-0018719) APPEAL from orders of the Superior Court of Placer County, Frances Kearney, Judge. Reversed with directions.
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Lorain Rice appeals from two court orders--one dismissing her motion to have Thomas Eaton held in contempt for failing to pay child support, and the other compelling Rice to pay $1,000 in attorney fees to Eaton as sanctions under Family Code section 271 (hereafter section 271).
Rice contends the trial court erred in dismissing her motion, erred in ordering her to pay sanctions, and erred in ordering the sanctions to be offset against child support owed by Eaton. We find each of Rice's claims to have merit and shall reverse the trial court's orders accordingly.
In May 2006, Eaton was ordered to pay to Rice $2,524 each month (retroactive to January 2005) for the support of their daughter, then seven years old. In April 2008, at Rice's request, the Placer County Department of Child Support Services (DCSS) opened a case to enforce that order of support.
In August 2008, DCSS filed a motion for an "Order to Show Cause and Affidavit for Contempt" (hereafter OSC re Contempt), seeking to have Eaton held in contempt for failing to pay child support in May, June, and July 2008. Eaton was properly served but failed to appear at the scheduled hearing. DCSS estimated that Eaton owed in excess of $96,000 in child support arrears. Accordingly, a $50,000 bench warrant was issued for Eaton's arrest.
At that same hearing, Rice (who appeared telephonically and without counsel) asked why Eaton was being charged with only three counts of contempt totaling $7,500. Rice noted that Eaton had not made a single child support payment since the order of support was issued in May 2006. The court advised Rice that charging Eaton with only three counts was a decision within DCSS's discretion. The court further advised Rice that she could bring her own motion to have Eaton held in contempt on the months not alleged by DCSS.
Eaton subsequently signed a "Promise to Appear," and on January 7, 2009, Eaton appeared before the court to answer the contempt charges. Eaton was represented by counsel, DCSS was present, and Rice again appeared telephonically and without counsel. On the record DCSS's counsel indicated DCSS met with Eaton and his counsel prior to the hearing and a plea agreement had been reached. Surprised, Rice requested a continuance.
Rice explained to the court that she had been "having a problem" with DCSS. An administrative hearing with DCSS was scheduled in four weeks to address her concerns, and she asked the court to postpone taking Eaton's plea until that hearing was completed. The court asked Rice how that hearing would impact Eaton's plea. Rice responded, "[T]he contempt amount will be different. Instead of just [$6,000], it will be more."
The court denied Rice's request to continue the hearing. The court again advised Rice, "If you want to file a separate OSC re Contempt, you're entitled to do that." Rice expressed her concern that any order issued by the court or any plea taken would have to be vacated after the administrative hearing. DCSS's counsel disagreed, stating, "Well, I think we attempted to explain this to Miss Rice on more than one occasion. The fact that the OSC re Contempt only charges for the specific months in question, three months in this case; does not mean that that's the extent of the arrears that are owed in this case. There is no compromise of any kind of arrears, simply by the fact that we charge for the months when the case has been opened in our offices."
Rice again expressed her concern that DCSS did not have the correct amount of arrearages owed by Eaton, noting that this was a contempt hearing--not a hearing to determine arrearages. The following colloquy then took place between DCSS and Rice:
"[DCSS]: Miss Rice, Miss Rice, at your insistence we have taken an enforcement action in the form of an OSC re Contempt. [¶] Mr. Eaton is prepared to enter a plea today and start making payments. [¶] Are you objecting to that?
"[RICE]: There is nothing to preclude him from making payments.
"[DCSS]: There is nothing precluding him from making payments. You're absolutely correct. [¶] So, we could take his plea today, and enter into a plea, put him on probation for one year; and/or we could do nothing and that we may actually dismiss the contempt, and let him just pay on his own. [¶] This is your choice. This is your choice at this point. [¶] What would you like us to do? [¶] I don't see any reason why we have to continue an arraignment, when he's prepared to enter a plea and start making payments.
"[RICE]: He should be prepared to start making payments. Regardless of entering any plea, he can always make the payments. And the point would be moot. Therefore, I'm asking for this to be continued until after the Administrative Hearing, because I do believe that it will change things as far as what you're filing the contempt for.
"[DCSS]: I don't--I think you may have a misunderstanding as to what an Administrative Judge would do in this case. I don't think an Administrative Judge is going to order that I file a contempt in a certain manner or not in a certain manner. [¶] I think this is good for you. That he's willing to enter a plea. Hopefully, you will start seeing money consistently every month real soon.
"[RICE]: Just start seeing money. I should have seen money consistently for the past two years. Four [sic] weeks of money out of $96,000 is really not going to make much difference for me. And I can be better informed to prepare to make a decision. You're asking me things, that were not to be adjudicated today."
The court then interrupted the discussion between DCSS and Rice, denied Rice's request to continue the hearing, and proceeded to take Eaton's plea. The terms of Eaton's plea were recited by his counsel: Eaton would admit to two counts of contempt, be placed on probation for one year, and he would be sentenced to 10 days in county jail, suspended, and ordered to pay the current ...