Marriage of Winter CA5 ( 2023 )

Filed 6/23/23 Marriage of Winter CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re the Marriage of ADRIA WINTER and
PACIFIC WINTER.
ADRIA OTTOBONI, F083824
Respondent, (Super. Ct. No. S-1501-FL-597161)
v.
OPINION
PACIFIC WINTER,
Appellant;
DEPARTMENT OF CHILD SUPPORT
SERVICES,
Intervener and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. Dawn
Bittleston, Judge.
Law Offices of Ira L. Stoker, Ira L. Stoker, for Appellant.
Borton Petrini, Edward Gordon and Diana L. Christian, for Respondent.
Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney
General, Gregory D. Brown and Ricardo Enriquez, Deputy Attorneys General, for
Intervener and Respondent.
-ooOoo-
Pacific Winter appeals from the family court’s orders in this child support matter.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
Pacific Winter and Adria Ottoboni (previously known as Adria Winter) were
married on June 1, 1996, and separated on January 28, 2006. During the marriage, they
had four children, born respectively in 1997, 1998, 2002, and 2003. On March 7, 2006,
Ottoboni filed a petition for dissolution of marriage, with minor children. Judgment of
dissolution was entered on April 14, 2008. Pursuant to the judgment, the parties had joint
legal custody and joint physical custody of their children, and Ottoboni was obligated to
pay spousal support ($1,000 monthly) and child support ($2,294 monthly) to Winter.
Child Support Orders of November 5, 2010, January 14, 2011, and March 11, 2011
On November 7, 2008, Winter filed an order to show cause requesting
modification of child support, and attorneys’ fees. In a declaration attached to the order
to show cause, Winter addressed Ottoboni’s earnings as an emergency room physician.
Winter declared: “Dr. [Ottoboni] is employed by a medical group commonly known as
Kern Emergency Physicians. Through that medical group, Dr. [Ottoboni] works for Kern
Medical Center. She is paid separately by Kern Emergency Physicians and Kern
Medical Center.” Winter indicated the family court’s prior child support determination
was based only on Ottoboni’s earnings from Kern Medical Center and did not encompass
her earnings from Kern Emergency Physicians. Winter further declared: “At the time
that this Court calculated Dr. [Ottoboni’s] support obligations to me, my attorney
calculated her income to be $19,451.41 per month. Since then, I have been informed that
Dr. [Ottoboni] has become a partner with her medical group and her income is now over
$300,000 per year.” Winter concluded: “At this time, I respectfully ask that this Court
calculate Dr. [Ottoboni’s] guideline child support obligation to me pursuant to the child
support guidelines that are set forth in California Family Code Section 4055.”
2.
Ottoboni filed a responsive declaration to the order to show cause on April 6,
2009. In her declaration, she stated: “The declarant has always disclosed all
documentation regarding her income from all sources.” She continued: “The declarant
has never objected to guideline support.” She added: “The declarant earns
approximately $20,243.00 each month and not ‘over 300,000.00 per year’ as stated by
[Winter].” Subsequently, Ottoboni submitted a letter from Kern Emergency Physicians’
CPA, dated April 30, 2010, stating that as of March 2010, Ottoboni’s earnings from Kern
Emergency Physicians had declined and were projected to be $9,500/month or
$114,000/year. In an income and expense declaration filed on May 13, 2010, Ottoboni
listed $8,432 in monthly salary from Kern Medical Center and $9,500 in monthly income
from Kern Emergency Physicians.
The family court, Commissioner James L. Compton, held several hearings on
Winter’s order to show cause, with the final hearing held on November 1, 2010,
following which the matter was submitted. The family court issued a concise ruling on
November 5, 2010. The court’s order stated: “The court orders that [Ottoboni] pay
[Winter] child support of $4,344 per month commencing January 1, 2009, and $3062 per
month commencing January 1, 2010 ($401, $533, $763 and $1,364 for the children
respectively, see the attached dissomaster worksheet). [Ottoboni] shall as additional
child support pay on gross amounts she receives above $114,000, pursuant to the attached
schedule, annually from Kern Emergency Physicians, to be paid within 10 days of receipt
along with proof of the amounts received.” The dissomaster worksheet for 2010,
attached to the court’s ruling, listed Ottoboni’s total monthly income as $18,635 (broken
down as $9,135 in monthly salary from Kern Medical Center plus $9,500 in monthly
self-employment income from Kern Emergency Physicians). The court’s order contained
an additional sentence: “[Ottoboni] shall pay [Winter], … spousal support of $2,500 per
3.
month to commence on January 1, 2009[,] based upon the parties[’] respective needs,
abilities and standard of living.”
Thereafter, Winter’s attorney sent a letter dated January 6, 2011, to the court, i.e.,
Commissioner Compton. The letter stated: “On November 5, 2010, my office received a
Minute Order from Your Honor in the above-referenced matter in which Your Honor
made certain child and spousal support orders in this case.… [¶ ] If Your Honor reviews
the file in this matter, you will see that the Order to Show Cause filed by my office in this
matter was requesting modification of child support and attorney’s fees and costs. In the
Minute Order, however, Your Honor inadvertently did not make any rulings regarding
attorney’s fees and costs, but did make a spousal support order which was not requested.
Although Mr. Winter and I both appreciate Your Honor’s spousal support ruling, the
Court did not have jurisdiction over that issue. At the same time, the Court did not
address Mr. Winter’s request for attorneys’ fees and costs to be paid by Dr. [Ottoboni].”
Winter’s counsel requested the court to issue an amended ruling that would “remove the
spousal support ruling and rule on [the] request for attorneys’ fees and costs.” (Emphasis
in original.)
On January 14, 2011, Commissioner Compton issued a “corrected ruling” with
respect to his earlier November 5, 2010 ruling. (Unnecessary capitalization omitted.)
The corrected ruling was identical to the November 5, 2010, ruling as to the court’s child
support order. Thus, the corrected ruling provided: “ ‘The court orders that [Ottoboni]
pay [Winter] child support of $4,344 per month commencing January 1, 2009 and $3,062
per month commencing January 1, 2010 ($401, $533, $763 and $1,364 for the children
respectively, see the attached dissomaster worksheet). [Ottoboni] shall, as additional
child support, pay on gross amounts she receives above $114,000, pursuant to the
attached schedule, annually from Kern Emergency Physicians, to be paid within 10 days
of receipt along with proof of the amounts received.” (Italics added, unnecessary
4.
capitalization omitted.) (The parties refer to the additional child support amounts
encompassed in the court’s child support order as “Ostler-Smith amounts,” which are
variable support amounts, pursuant to In re Marriage of Ostler & Smith (1990) 223
Cal.App.3d 33 (Ostler-Smith1).)
The corrected ruling omitted the prior ruling’s order as to spousal support. As to
attorneys’ fees, the new ruling added: “The court orders that [Ottoboni] pay [Winter]
attorney fees of $3,000. Said fees are to be paid by March 1, 2011.” Finally, the
corrected ruling specified that “[t]he ruling of November 5, 2010 is set aside by this
ruling.” (Unnecessary capitalization omitted.) The family court’s corrected ruling was
formally docketed as a findings and order after hearing (FOAH) on March 11, 2011.
Attached to the FOAH was a schedule for calculating any Ostler-Smith child support
payments owed under the court’s child support order. (See footnote 1 above.)
Department of Child Support Services’ Motion for Child Support Modification, Etc.
On February 24, 2016, Winter contacted the Department of Child Support
Services (DCSS) for enforcement of the March 11, 2011 FOAH. On May 24, 2019,
DCSS filed a notice of motion for modification of child support, determination of arrears,
and determination of Ostler-Smith amounts. Kristen McDonald, an attorney for DCSS,
filed a declaration outlining the procedural history of the matter. McDonald declared:
“The current order for [child] support was set forth in a Ruling entered January 14, 2011
and filed in a Findings and Order After Hearing on March 11, 2011. Child support was
ordered for the year 2009 in the total amount of $4,344.00 per month. Child support was
modified as of January 1, 2010 to the total amount of 3,062.00 per month segregated
$401.00 to the eldest child [V.W.], [$]533.00 to the second child [M.W.], $763.00 to the
third child [E.W.] and $1,364.00 to the youngest child [S.W.].” McDonald further
declared: “There was a change of custody as to the two elder children, [V.W and M.W],
1 We will adopt the same terminology as the parties.
5.
on September 10, 2014, whereby sole physical custody was granted to [Ottoboni].
Neither party sought a modification of child support in connection with this change of
custody. Per DCSS records, [V.W.] emancipated upon graduation from High School in
May 2015, and [M.W.] emancipated upon turning eighteen in November 2016.”
McDonald added that “DCSS has been informed that [Winter] remarried on December 1,
2011.”
McDonald stated in her declaration: “[Ottoboni] is subject to an Ostler-Smith
order for additional child support set forth in section twelve of the Findings and Order
After Hearing filed March 11, 2011. The language of the order reads: ‘[Ottoboni] shall,
as additional child support, pay on gross amounts she receives above $114,000, pursuant
to the attached Schedule, annually in total income from Kern Emergency Physicians,
within 10 days of her receipt, along with proof of the amounts received.’ A three-page
‘Annual Bonus Table for Mother’ is attached to the order.” McDonald added: “As far as
DCSS is aware there have been no payments made pursuant to the Ostler-Smith order as
of yet.” Finally, McDonald declared: “It is DCSS’ belief, based on information received
from both parties, that [Ottoboni] left her employment or was terminated in January
2019. Due to the change in employment and because DCSS has no present income
information as to [Ottoboni] available, DCSS is filing this Notice of Motion for
modification of child support without an attached guideline support calculation.”
DCSS also attached a memorandum of points of authorities to its moving papers.
The memorandum of points and authorities provided: “DCSS requests judicial
determination of the amounts due and owing under the Ostler-Smith order set forth in the
Findings and Order After Hearing filed March 11, 2011. Given the inherently uncertain
nature of the amount of additional support due under such orders, DCSS cannot seek to
enforce the order until the amount is reduced to a sum certain by order of the court.” The
memorandum of points and authorities further provided: “DCSS submits the issue of
6.
potential equitable credits against arrears to the court’s discretion. Pursuant to the
Findings and Order After Hearing filed September 10, 2014, there was a change of
custody as to the two elder children, [V.W. and M.W.], with sole physical custody
granted to [Ottoboni]. It does not appear that either party sought modification of child
support in connection with the change of custody. As neither party has at the time of this
drafting filed a motion requesting equitable credits [under Jackson v. Jackson (1975) 51
Cal.App.3d 363 and In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072], DCSS
simply submits the issue to [the] court as a potential connected issue in the requested
determination of arrears.”
The memorandum of points and authorities concluded: “DCSS requests the court
render a judicial determination of the arrears owed under the parties’ Ostler-Smith order
such that DCSS may seek to enforce via collection of a sum certain. In connection with
DCSS’ request for an overall determination of arrears DCSS restates its request for a
payment thereon and proposes that the court may wish to entertain the possibility of
equitable credits to [Ottoboni] after she received sole physical custody of the two elder
children in 2014.”
Ottoboni and Winter thereafter filed their respective responsive papers. After
successive rounds of briefing, the matter was finally heard by the family court,
Commissioner Dawn Bittleston, on March 5, 2021. The court ordered Winter and
Ottoboni to exchange recent tax returns and, along with DCSS, to submit a proposal as to
child support commencing June 1, 2019. The court also requested further briefing from
the parties on “the Ostler-Smith issues and any requests for Equitable Credits.” The court
ordered, in this context: “As to the Ostler-Smith issues, the parties are to specifically
address whether Ostler-Smith applies to entities other than Kern Emergency Physicians
and if it applies to [Ottoboni’s] income once she became solely a W-2 salaried
employee.”
7.
DCSS, Winter, and Ottoboni submitted additional briefing to the court pursuant to
its March 5, 2021 order. We will excerpt and/or summarize parts of Ottoboni’s brief on
Ostler-Smith issues, in light of the brief’s relevance to the questions at issue in this
appeal.
Ottoboni noted in her brief that she was employed by Kern County at two entities;
she was employed at Kern Medical Center (KMC) from 2005 to 2015 and she was
employed at Kern Health Authority from 2015 to 2019. “She was a salaried employee
with both entities.” During the proceedings leading to the March 11, 2011 child support
order, Ottoboni submitted documentation to the family court demonstrating she had two
sources of income at the time. One source was a “base salary from the county.” The
second source was income from Kern Emergency Physicians (KEP); this consisted of
“professional fees collected from non-indigent patients who were treated in the [KMC]
emergency department (private pay and insurance).” “[KEP’s] sole purpose was to bill
and collect fees for services performed, from all the patients seen in the emergency
department except those [indigent patients] whose healthcare the county had a
responsibility to cover.” “[Ottoboni’s] base salary from the county, was the same amount
each month. Her income from KEP, however, varied each month depending on how
much was collected from the non-indigent patients.”
Ottoboni explained in her brief: “KEP began dissolving in 2012 and was
completely dissolved by 2013.” “After KEP dissolved, the hospital continued to bill and
collect fees from non-indigent patients, but the difference was [Ottoboni] was no longer
allocated a portion of those collected fees like she was when KEP was doing the
collections.” (Italics added.) Thus, “[a]fter KEP dissolved, [Ottoboni’s] income no
longer fluctuated, and it was no longer separated out by a county base pay versus private
pay dollars.” Rather, “[s]he was exclusively a W-2 wage earner going forward and each
year her salary was raised to reflect her increased experience and duration of employment
8.
with the county.” Ottoboni emphasized in her brief: “Following the dissolution of KEP,
[Ottoboni] received no self employment income in the form of a K-1 and was solely a W-
2 wage earner.”
Ottoboni further observed in her brief: “The only reason an Ostler Smith order
was made at all in this case was because of the uncertain income projection for KEP. In
support of this, [Ottoboni’s] 2010 Income and Expense Declaration (I&E) included a
letter from KEP’s CPA dated April 30, 2010.… The CPA provided a projection of
[Ottoboni’s] anticipated monthly income from non-indigent patient fee collections for the
remainder of 2010. That projection was $9,500/month or $114,000 for the entire year. It
is no coincidence then that the court set the floor amount of self employment income
from KEP in the dissomaster at $9,500/month with an Ostler Smith order for her to pay a
percentage of amounts received over $114,000 [that is, 9,500 x 12] annually from KEP.
This was done so that if the projection was wrong, and she made more than the projected
amount in patient collections, then [Winter] would receive a percentage of that as well.”
Ottoboni noted in her brief: “Before KEP dissolved in 2012, it could easily be
determined how much [Ottoboni] received from the non-indigent patient billing because
a K-1 was prepared each year. The varying amounts of income received from KEP
necessitated an Ostler Smith order. Once that uncertainty went away, after KEP
dissolved, so should have the Ostler Smith order.” Ottoboni further observed in her brief:
“After KEP dissolved, we have no way of determining how much of [Ottoboni’s] yearly
salary, may have ultimately been paid by the hospital’s collection efforts against non-
indigent patients. Even if we did know … how much the hospital received from their
collection efforts each month, we do not know how much of that was used to specifically
pay [Ottoboni’s] salary. This is significant because the Ostler Smith order provides a
threshold amount above $114,000 from that part of her income that fluctuated, e.g., KEP,
9.
not from all income because not all her income fluctuated triggering an Ostler Smith
percentage, only part of it did and only while KEP was active.” (Emphasis in original.)
Ottoboni’s brief added: “[Winter] was not without recourse though. It was at that
point, in 2013 [after KEP dissolved], when the appropriate course of action would have
been for him to request the support orders be modified on account of the change of
circumstances, he did not do that. [Winter] did not go back to court even though he was
aware of [Ottoboni’s] increased base income that was available online; a resource which
he used to file for a modification of support previously in 2009. The reason [Winter] did
not seek to modify support in 2013 was because he knew that would result in his support
getting lowered since [V.W. and M.W. had] discontinued their visitation with him
completely as of April 2012.”
Family Court’s August 5, 2021 and January 18, 2022 Rulings on DCSS Motion
On August 5, 2021, the family court issued an interim ruling as to DCSS’s “Notice
of Motion seeking modification of current child support, determination of arrears and
determination of Ostler-Smith amounts owed.”
In its ruling, the court first observed that Ottoboni paid Winter “$1000 per month
pursuant to the Court’s spousal support order from February 2011 to July 2013.” The
court noted that Winter “remarried on February 1, 2011” and “never informed [Ottoboni]
of his new marriage and continued to accept spousal support payments from [her].” The
court stated Ottoboni “overpaid spousal support to [Winter] in the amount of $20,000.”
The court concluded: “[Winter] owes [Ottoboni] the sum of $20,000. This amount shall
be used as an off-set against any child support arrears owed by [Ottoboni] to [Winter]. If
no such arrears are owed, [Winter] is to pay [Ottoboni] $20,000 by November 30, 2021.”
As for child support, the court noted: “The orders for child support in dispute are
not based upon the Judgment but from a November 5, 2010 order by Commissioner
James L. Compton. Commissioner Compton ordered that [Ottoboni] pay to [Winter] as
10.
and for child support ‘$3,062 per month commencing January 1, 2010 ($401, $533, $763
and $1,364 for the children respectively, see the attached dissomaster worksheet).
[Ottoboni] shall as additional child support pay on gross amounts she receives above
$114,000, pursuant to the attached schedule, annually from Kern Emergency Physicians,
to be paid within 10 days of receipt along with proof of the amounts received.’ ”
Preliminarily, the court ordered that Ottoboni would receive “Jackson/Trainotti2
equitable credits as to all four children,” and specified the monetary amounts and the
relevant time period applicable to each child. The court did not order Jackson/Trainotti
equitable credits for Ottoboni for a limited period between “September 2007 through
December 2007,” because of a lack of information for this particular period. The court
ordered the parties to exchange information for this period and thereafter “to contact
DCSS to meet and confer on the issue.” The court noted: “Once the information is
exchanged, the parties are to contact DCSS to meet and confer on the issue. If the issue
remains unresolved, this issue may be placed back on the Court’s calendar for
determination of the dispute for the months of September 2007 through December 2007.”
The court also modified child support. The court stated: “As of March 1, 2019,
all minor children were residing with [Ottoboni] and had no visitation with [Winter].
Regardless of the parties’ income, [Winter] has a zero percent timeshare with the minor
children and in no scenario will [Ottoboni] be required to pay [Winter] child support.
[Ottoboni’s] child support obligation to [Winter] is set at zero as of May 31, 2019.” The
court observed: “All of the parties’ children emancipated as of June 1, 2021. [E.W. and
S.W.] are the only children subject to the current child support modification request.
[E.W. and S.W.] reside with [Ottoboni] and do not visit [Winter].” The court noted:
“Attached to this Ruling is the Guideline Calculation Results Summary which is
2 Jackson v. Jackson, supra, 51 Cal.App.3d 363; In re Marriage of Trainotti, supra,
212 Cal.App.3d 1072.
11.
incorporated herein as the Court’s findings as to child support.” The court ordered
Winter to pay child support to Ottoboni: “Commencing June 1, 2019, [Winter] is ordered
to pay to [Ottoboni] the sum of $507 per month segregated $190 for [E.W.] and $317 for
[S.W.]. Support for [E.W.] terminates as of May 31, 2020. Support for [S.W.]
terminates as of May 31, 2021.” The court concluded: “If either party owes the other
party arrearages, those shall be paid back at the rate of $500 per month commencing
November 1, 2021.”
The family court also addressed the issue of any outstanding Ostler-Smith
payments. The court explained the concept of Ostler-Smith payments: “If … bonus or
commission income is not predictable, the court may consider (a) excluding it from the
calculation of gross income, but order[] the parent who may receive [such] income to
notify the other parent on receipt[,] so the other parent may attempt to modify the support
payments; or (b) order[] that when bonus or commission income is received, a certain
percentage must be paid as additional support. The latter is the better practice. See
Marriage of Ostler & Smith[, supra,] 223 Cal.App.3d 33. This type of order was issued
by Commissioner Compton on November 5, 2010.”
The court added: “[Ottoboni] was employed by Kern Medical Center from 2005
to 2015, Kern Health Authority from 2015-2019[,] and has been self-employed since
2019. [Ottoboni] had a partnership interest in KEP for the years of 2010, 2011, 2012,
2013, 2014, and 2015. Although it should be noted that KEP began dissolution of the
Partnership in 2012, thereafter [Ottoboni’s] base W-2 wages while employed at Kern
Medical Center increased.” The court determined that Ottoboni received from KEP the
sum of $174,390 in 2010, $37,054 in 2011, $18,425 in 2012, ($-94) in 2013, ($-5) in
2014, and zero in 2015.
The court determined: “The only year [Ottoboni] received more than $114,000
from KEP was in 2010. [Ottoboni] never paid additional child support and [Winter]
12.
requested payment of the additional child support. Neither party filed any motions with
the court to modify support or enforce the orders issued by Commissioner Compton until
2019. Neither party requested annual income and expense declarations from the other
party. Fam. C § 3664. Both parties sat on their legal rights. The Court does not find …
the equitable defenses raised by the parties to have merit.”
The court further clarified: “[A] support order may not be modified or terminated
as to an amount that accrued before the date of filing of the motion to modify. Fam C
§ 3651(c)(1). The Court does not find that Commissioner Compton’s Ostler-Smith Order
reached [Ottoboni’s] W-2 wages received [from] Kern Medical Center or Kern Health
Authority after the dissolution of KEP. There is no applicable case law that authorizes
the court to convert the Ostler-Smith order to a salary-based order upon changes in
employment compensation. If the Court found that Ostler-Smith Order applied when
[Ottoboni] became salary-only, it would be an impermissible retroactive modification of
child support.” The court concluded: “[Ottoboni] owes [Winter] $7,475 as and for
additional child support for 2010. This amount was due and owing commencing January
1, 2011. [Ottoboni] does not owe [Winter] any additional child support for [the] years
2011 and thereafter.”
The court ordered DCSS to “prepare an accounting consistent with [its] Ruling,”
and to file the accounting and serve it on “all parties/counsel by October 8, 2021.”
Finally, the court ruled that “DCSS shall prepare the Findings and Order After Hearing.”
DCSS filed the requisite accounting on October 4, 2021, as well as an updated
accounting on December 2, 2021. The accounting filed on October 4, 2021, showed
Ottoboni had paid Winter a total of $451,527.88, with overpayment in the amount of
$44,925.15. As noted, DCSS filed a second accounting on December 2, 2021. DCSS
explained the second accounting was necessary because, in its August 5, 2021 ruling, the
court had ordered “the parties to perform certain acts of discovery relative to [equitable
13.
credit] payments for the period of 9/01/2007-12/31/2007.” DCSS stated that after it filed
the prior accounting on October 4, 2021, Ottoboni provided documentation regarding
payments she had made for the September 2007 through December 2007 period, which
payments were incorporated into the second accounting, as relevant. The second
accounting showed Ottoboni had paid Winter a total of $457,830.88, with overpayment
in the amount of $56,878.26.
On January 18, 2022, the family court issued an order after hearing prepared by
DCSS, as to DCSS’s notice of motion. The court’s order after hearing attached and
incorporated its August 5, 2021 ruling as the final order of the court. This appeal
followed.
DISCUSSION
I. Standard of Review
Child support orders are reviewed for abuse of discretion and the related findings
of fact are reviewed for substantial evidence.3 (In re Marriage of Zimmerman (2010) 183
Cal.App.4th 900, 906; In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1039 [“In
conducting this review, appellate courts determine whether the trial court’s factual
findings are supported by substantial evidence and whether the trial court reasonably
exercised its discretion—that is, whether any judge reasonably could have made such an
order.”].)
II. References to November 5, 2010 Order in Final Order, Not Prejudicial
As noted above, the family court issued an interim order on DCSS’s notice of
motion on August 5, 2021, and subsequently, attached and incorporated the August 5,
2021 interim order in its final order of January 18, 2022. In its August 5, 2021 interim
3 Ottoboni argues Winter’s appeal is improper because the order appealed from
“contemplates further proceedings – the preparation of an accounting by DCSS.”
However, as noted above, DCSS did prepare the requisite accountings and the court
issued its final order thereafter. Ottoboni’s argument is therefore unavailing.
14.
order, the court referred on two occasions to the child support order made by
Commissioner James Compton on November 5, 2010. Commissioner Compton’s
November 5, 2010 order addressed both child support and spousal support.
Commissioner Compton later issued a superseding, corrected order on January 14, 2011,
that adopted the identical child support order as the November 5, 2010 order, omitted the
spousal support order, and added an attorney’s fees order. The January 14, 2011 order
further specified that the November 5, 2010 order was thereafter set aside.
Commissioner Compton’s January 14, 2011 child support order was later issued as a
findings and order after hearing or FOAH on March 11, 2011.
As noted, the family court’s August 5, 2021 interim order (at issue in this appeal)
made two references to Commissioner Compton’s November 5, 2010 order, specifically
as to child support. First, the August 5, 2021 order stated: “The orders for child support
in dispute are not based upon the Judgment but from a November 5, 2010 order by
Commissioner James L. Compton.” (Italics added.) Second, the August 5, 2021 order
noted: “On November 5, 2010, Commissioner Compton ordered that [Ottoboni] pay to
[Winter] as and for child support ‘$3062 per month commencing January 1, 2010 ($401,
$533, $763 and $1,364 for the children respectively, see the attached dissomaster
worksheet). [Ottoboni] shall as additional child support pay on gross amounts she
receives above $114,000, pursuant to the attached schedule, annually from Kern
Emergency Physicians, to be paid within 10 days of receipt along with proof of the
amounts received.’ ” (Italics added.)
Winter argues the family court improperly cited Commissioner Compton’s
November 5, 2010 order, as that order had been superseded by Commissioner Compton’s
January 14, 2011 order. Winter fails to mention he also cited Commissioner Compton’s
15.
November 5, 2010 order in his brief to the family court.4 For that matter, Ottoboni’s
brief to the court also referred to Commissioner Compton’s November 5, 2010 order.
While it is clear the January 14, 2011 order superseded the November 5, 2010 order, the
court’s erroneous citation to the latter order did not prejudice the parties, because the
child support orders in the November 5, 2010 ruling are identical to the child support
orders in the January 14, 2011 ruling. The differences between the November 5, 2010
order and the corrected January 14, 2011 order have to do with a spousal support
provision that was omitted in the corrected order and an attorney fee provision that was
added to the corrected order. In short, for present purposes, there is no material
difference between the two orders. Accordingly, Winter cannot show prejudice.
III. Final Order Properly Addressed Child Support and Ostler-Smith Arrears
Winter makes a number of confusing and disjointed arguments regarding the
family court’s interpretation and application of the existing child support order of January
14, 2011 (entered as the FOAH on March 11, 2011).
Winter states: “In 2013, the County of Kern, took over control of the billing of
private insurers, and eliminated the need for KEP. [Ottoboni], remaining in the same
position, with the same responsibilities, again contracted with the County of Kern to
provide medical services to the County for persons to whom the County provided care.
However, she was now being paid through the County of Kern, for private billing or
insurance compan[y] paid plans, instead of KEP. There was not any difference in the
services or process of payments for income purposes to her other than to change the
private billing from KEP to the County of Kern. The private billing payment was now
coming from the County and not KEP.” Winter complains that Ottoboni did not notify
4 It appears Winter cited to the November 5, 2010 order, rather than the January 11,
2011 order, because the former order had a complete set of dissomaster worksheets
attached to it, while the latter order did not.
16.
him “that the private insurance billing and payer had changed from KEP to the County of
Kern” and that “she failed to provide any proof of payments of amounts over or under the
$114,000 as ordered by the Court.” Winter adds that Ottoboni was “under the obligation
through the January 14, 2011 Ruling to notify him as to what portion of [her] income was
from KEP even if it was zero.”
Winter’s arguments are disingenuous and unavailing. The family court disposed
of these arguments in its August 5, 2021 order, as follows: “The only year [Ottoboni]
received more than $114,000 from KEP was in 2010. [Ottoboni] never paid additional
child support and [Winter] never requested payment of the additional child support.
Neither party filed any motions with the court to modify support or enforce the orders
issued by Commissioner Compton until 2019. Neither party requested annual income
and expense declarations from the other party. Fam. C § 3664. Both parties sat on their
legal rights. The Court does not find … the equitable defenses raised by the parties to
have merit.” As the family court noted, Winter sat on his rights and did not request
annual income and expense declarations from Ottoboni pursuant to Family Code section
3664. He will not now be heard to complain he was unaware of the scope and amount of
Ottoboni’s income from Kern County and KEP.
Next, Winter attacks “[t]he proposition that only income from ‘KEP’ is available
for payment of child support under the Ostler-Smith order.” He argues this proposition
“would seem to run against the public policy/interest,” “[e]specially given that the
purpose of an Ostler-Smith order is to structure child support orders that are accurate to
the income of the payor.” He adds, “Ostler-Smith Orders are highly dependent on the
moral obligation of the payor spouse to follow through on the notifications of the amount
and source of additional income.” He states he “is unaware of any statute or rule that
would interpret income available for child support being limited by or from whom it was
received.”
17.
The family court disposed of these arguments as follows: “[A] support order may
not be modified or terminated as to an amount that accrued before the date of filing of the
motion to modify. Fam C § 3651(c)(1). The Court does not find that Commissioner
Compton’s Ostler-Smith Order reached [Ottoboni’s] W-2 wages received [from] Kern
Medical Center or Kern Health Authority after the dissolution of KEP. There is no
applicable case law that authorizes the court to convert the Ostler-Smith order to a salary-
based order upon changes in employment compensation. If the Court found that Ostler-
Smith Order applied when [Ottoboni] became salary-only, it would be an impermissible
retroactive modification of child support.” We detect no error or abuse of discretion in
the family court’s ruling.
Under a separate argument heading, Winter further argues: “[T]he Ruling of the
Trial Court in the instant case allowed [Ottoboni] to unilaterally reduce the child support
obligation to [Winter] by modifying the method of payment of the child support
obligation. This interpretation of the duties of the parties would require [Winter] to
continuously seek out the employment status of [Ottoboni] to ensure that she had no
change in employment status.” Winter’s argument misses the point. The family court
found Ottoboni owed Winter $7,475 in Ostler-Smith arrears because she had received
more than $114,000 in income from KEP in 2010, the only year she did so. Winter has
not shown any error in the family court’s determination to this effect.
The family court also addressed other child support arrears, beyond Ostler-Smith
arrears. However, Winter makes no substantive arguments with respect to the family
court’s determinations as to other child support arrears. Accordingly, we need not
address that issue.
We conclude the family court properly enforced the existing January 14, 2011
child support order (entered as the FOAH on March 11, 2011).
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IV. Family Court Did Not Abuse its Discretion in Not Ordering Attorneys’ Fees
Finally, Winter argues the family court abused its discretion by not awarding him
attorneys’ fees in the amount of $25,000, in its final order. Winter concedes, however,
that his request for $25,000 in attorneys’ fees consisted merely of a couple of sentences in
his trial brief to the effect his counsel had expended 60 hours on this matter, at the rate of
$400/hour, and he was therefore requesting $25,000 in attorneys’ fees. Winter did not
file a noticed motion, order to show cause, or request for order as to attorneys’ fees.
Accordingly, there was no request for attorneys’ fees before the court and there was
nothing for the court to rule on in this regard.
DISPOSITION
The judgment is affirmed. Ottoboni is awarded her costs on appeal.
SMITH, J.
WE CONCUR:
LEVY, Acting P. J.
SNAUFFER, J.
19.