Marriage of Diener CA4/3

Filed 6/25/15 Marriage of Diener CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of DONALD and
BRIGITTE MAXWELL DIENER.
DONALD DIENER,
G050134
Appellant,
(Super. Ct. No. 11D006404)
v.
OPINION
BRIGITTE MAXWELL DIENER,
Respondent.
Appeal from an order of the Superior Court of Orange County, Paula J.
Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Donald Diener, in pro. per., for Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Linda M. Gonzalez and Renu R. George, Deputy Attorneys General,
for Respondent Orange County Department of Child Support Services.
No appearance for Respondent Brigitte Maxwell Diener.
Donald Diener appeals from the order denying his request to offset against
his child support obligations a small claims judgment he obtained against his former wife,
Brigitte Maxwell Diener, for money he claims she wrongfully withdrew from his bank
account.1 Donald contends the trial court abused its discretion by denying his request.
We find no error and affirm the order.
FACTS AND PROCEDURE
Donald and his former wife Brigitte have a 50-50 custody arrangement for
their two minor children and are in an ongoing dispute over child support. The sparse
record on appeal contains a February 27, 2013, order on a motion for child support
modification in which the trial court ruled commencing March 1, 2013, “[Donald is] to
provide [Brigitte] with half of his [Social Security] derivative benefits, for a total of
$417[] per month for child support as a temporary order.” The court ordered Donald and
Brigitte to provide discovery concerning their finances. The motion for child support
modification was continued. The record also contains a minute order from a June 26,
2013, hearing on the continued motion to modify support, at which the court corrected
the earlier order to provide commencing March 1, 2013, “[Donald is] to provide
[Brigitte] with one half of the children’s [Social Security] derivative benefits[,] which is
$417 per month per child as a temporary order.”2
1 To avoid confusion, we hereafter refer to the parties by their first names.
(In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 475, fn. 1.) Brigitte does not
appear in this appeal. Respondent in this appeal is “the Public Interest,” represented
originally by the local child support agency, Orange County Department of Child Support
Services, and currently by the state Attorney General, on behalf of the State of California
Department of Child Support Services under Family Code sections 17406 and 17407.
2 In that same order, the trial court ordered a forensic accounting pursuant to
Evidence Code section 730 to analyze Donald’s and Brigitte’s income available for child
support. Donald appealed, and in our prior opinion (In re Marriage of Diener, G048928,
July 2, 2014 [nonpub. opn.]), we affirmed the order.
2
In February 2014, Donald obtained a small claims judgment against
Brigitte for $6,342.37. In the small claims action, Donald claimed Brigitte used bank
records he provided in discovery to withdraw funds from his bank account without his
permission.
On March 20, 2014, Donald filed a motion to offset his “child support
payments of $417” against the $6,342.37 judgment. Donald declared that without the
offset he would incur additional costs because he would be forced to levy against
Brigitte’s bank account or her other assets to collect the judgment.
The trial court denied Donald’s request. In its written ruling, entered
May 12, 2014, the court explained a permanent child support order had yet to be made.
Donald had applied for the children’s derivative benefits through Social Security but was
keeping the entire benefit for himself. Because Donald and Brigitte had 50-50 custody of
the children, the court had previously ordered Donald to pay Brigitte one-half of the
monthly benefit as a temporary support order. The court reasoned the small claims
judgment Donald obtained against Brigitte was a personal judgment against her and could
not be offset against Donald’s child support obligations. Donald appealed.
DISCUSSION
Donald contends the trial court abused its discretion by denying his motion
to allow him to offset his obligation to pay one-half of his children’s Social Security
derivative benefits to Brigitte for child support against the small claims judgment he
obtained against her. We find no error.
A supporting parent cannot offset a debt owed by the custodial parent
against his or her child support obligations where the offset would eliminate or reduce the
court-ordered support to the detriment of the child. (Williams v. Williams (1970)
8 Cal. App. 3d 636, 639 (Williams); see also In re Marriage of Armato (2001)
88 Cal. App. 4th 1030, 1039 (Armato) [“‘[s]ince a child support obligation runs to the
child and not the parent, a debt owed by the custodial parent to the supporting parent
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generally cannot be offset against child support arrearages’”].) In Williams, supra,
8 Cal.App.3d at pages 639-640, the court would not permit an offset to child support by
the amount the supporting parent had advanced in maintaining an investment the parties
jointly owned. The court explained: “An order for child support . . . is not an ‘ordinary
debt’ but rather a court-imposed obligation to provide[] for one’s child. . . .
[¶] . . . [¶] . . . In essence, the parent, to whom such support is paid, is but a mere conduit
for the disbursement of that support.” As Williams noted, “the very nature of child
support gravitates against the allowance of the setoff sought. Such support is strongly
favored in the law and statutes providing for it are to be liberally construed to promote
their purpose of protecting the family.” (Id. at p. 640.) Similarly, in Armato, supra,
88 Cal.App.4th at page 1039, the court rejected an attempt to offset from child support a
business debt of the supported parent that the supporting parent had assumed.
Donald attempts to distinguish Williams by arguing that unlike that case
where the supporting spouse sought to offset a personal debt against child support, here
there is no child support order. He claims the order to pay one-half of the children’s
Social Security derivative benefits to Brigitte “is not a [c]hild [s]upport [o]rder[,] it is
merely directing [him] to pay [her] a sum of money each month.” Nonsense. The court
has twice ordered Donald to make the payments as temporary child support; apparently
the only child support order that exists. And Donald’s motion specifically identifies the
payments as child support.
In a document filed after his opening brief was filed titled “table of
authorities,” Donald argues equitable setoffs are “not an impermissible modification of
past child support orders . . . and [s]etoffs are routinely allowed.” The cases he cites
concern a party’s right to set off child support arrearages against the same type of
debt—i.e., another child support order. Keith G. v. Suzanne H. (1998) 62 Cal. App. 4th
853, concerned a mother, residing in California, who had custody of her minor child for
approximately eight years, during which time father paid little support and accrued
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$24,328 in arrearages. When the parties agreed to transfer custody to father, who lived in
Missouri, he obtained an order there requiring mother to pay monthly child support. The
California court held mother was properly granted a setoff against her child support
obligations of the child support arrearages owed by father. (Id. at p. 857.) In essence, the
setoff simply exchanged support payments by mother for those owed by father.
Similarly, In re Marriage of Trainotti (1989) 212 Cal. App. 3d 1072, 1073, involved
setoffs of the parents’ mutual support obligations.
By contrast, the small claims judgment Donald obtained against Brigitte is
a personal obligation unrelated to any child support obligation. Because the child support
obligation is owed to the child, not the parent who receives child support payments, “a
child support obligation cannot be satisfied through the obligor parent’s performance of
an entirely different (independent) obligation.” (Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2014) ¶ 6:628, p. 6-244 (rev. #1 2011).) Accordingly, the
court did not err by denying Donald’s request that he be allowed to forego providing
child support for his children as a means of satisfying a personal debt owed to him by his
former wife.
DISPOSITION
The order is affirmed. Respondent is awarded her costs on appeal.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.
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