Marriage of F.K. and J.A.CA4/1 ( 2015 )

Filed 9/25/15 Marriage of F.K. and J.A.CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of F.K. and J.A.
D065876
J.A.,
Appellant, (Super. Ct. No. D469406)
v.
F.K.,
Respondent.
APPEAL from an order of the Superior Court of San Diego County, Adam
Wertheimer, Judge. Affirmed.
J.A., in pro. per., for Appellant.
F.K., in pro. per., for Respondent.
J.A. (Father), in propria persona, appeals a 2014 family court order that modified a
2011 child support order. The appealed order reduced Father's child support obligations
to F.K. (Mother) to zero, effective August 1, 2013. Father contends that the court erred
by not entirely setting aside the 2011 child support order, not retroactively applying his
modified child support obligations further back in time, and not setting his child support
arrears balance to zero. We reject Father's contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Father and Mother have one child together. In October 2011 the court held a
hearing on child support payments that Mother sought from Father. Father did not appear
at the hearing. The court imputed his income to be $9,500 per month and ordered
monthly child support payments of approximately $1,300 (the 2011 Order).
Father filed a motion to set aside the 2011 Order, but did not appear at the hearing
on his motion. As a result, his motion to set aside the 2011 Order was taken off calendar.
Almost a year later, Father filed a request to set the 2011 matter back on calendar, but his
request was denied on the merits, and the court set a review hearing for May 2013.2
Father did not appear at the hearing to review his child support obligations, and the
matter was taken off calendar.
On July 24, 2013, Father filed a motion to modify his child support obligations
and requested that any modification be given retroactive application. On April 15, 2014,
the court held a hearing on the matter, and both parties were present. Father was
1 Mother's motion to strike Father's opening brief and his opposition to motion to
dismiss brief, and request for sanctions, are denied. We have not relied upon any matters
outside of the record or similarly defective materials and elect to forgo our options to
order the brief returned for correction or to strike the brief. (Cal. Rules of Court, rule
8.204(e)(2)(C).)
2 Father explicitly states that he is not appealing the denial of his request to put the
2011 issues back on calendar; rather, he is only appealing an April 15, 2014 order.
Accordingly, Mother's motion to dismiss the appeal based on timeliness and
jurisdictional grounds is denied.
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represented by counsel. Based on evidence that Father was unemployed, financially
dependent on others, and suffering from illnesses and/or disabilities that prevented him
from working, the court reduced his child support obligations to zero, effective August 1,
2013.3 In response to his counsel's inquiry concerning past amounts owed by Father
(i.e., before August 2013), the court stated that it could not retroactively modify a support
order prior to the filing of the request to modify.
DISCUSSION
Father contends he has been disabled and unable to become employed since 2010.
He contends the court erred by not modifying his child support obligations back to when
his disability allegedly began in 2010. The law allows retroactive application of an order
modifying or revoking child support, but only to the date of filing a notice of motion or
order to show cause on the proposed modification. (Fam. Code, § 3653, subds. (a), (b);
In re Marriage of Everett (1990) 220 Cal. App. 3d 846, 852 [citing former Civ. Code
§ 4700, subd. (a), which was continued by Fam. Code, § 3653 without substantive
change]; see In re Marriage of Cryer (2011) 198 Cal. App. 4th 1039, 1051-1052.)
The appealed order is dated April 15, 2014, and concerned Father's motion to
modify his child support obligations filed in late July 2013. The court's order to modify
Father's support obligations was made retroactive to August 1, 2013, which is as far back
as the law permitted. Father apparently ignores or misunderstands the procedural history
3 Father requests we take judicial notice of the fact that he is disabled, based on a
July 2015 social security administration award letter. His request for judicial notice is
denied. The document was not before the trial court, and whether Father is actually
disabled is not a proper matter for judicial notice and not relevant to the issues on appeal.
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of his case. Although he had previously sought to set aside the 2011 Order, those
motions were either (1) terminated as a result of Father's nonappearance or (2) denied on
the merits. He did not timely appeal any orders from those prior proceedings. In April
2014 the court had no basis to "undo" the prior proceedings, and it correctly decided the
issues pending at the time. Father has not demonstrated any reversible error.
DISPOSITION
The order is affirmed. Mother is entitled to costs on appeal.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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