Marriage of Koelewyn CA5

Filed 1/17/23 Marriage of Koelewyn 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 RYAN KOELEWYN and
JENNIFER KOELEWYN.
RYAN KOELEWYN, F082837
Appellant, (Super. Ct. No. VFL255652)
v.
MODIFICATION OF OPINION
JENNIFER KOELEWYN, AND DENIAL OF REHEARING
[NO CHANGE IN JUDGMENT]
Respondent;
TULARE COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,
Intervener and Respondent.
THE COURT:
It is ordered that the opinion filed herein on December 22, 2022, be modified as
follows:
1. On page 2, under “INTRODUCTION,” the first sentence of the first paragraph
is deleted and replaced with the following:
“Appellant Ryan Koelewyn appeals from a March 25, 2021 order denying
him relief from his obligation to pay certain child and spousal support
arrears (subject order).”
2. On page 2, under “INTRODUCTION,” the following sentence is inserted at the
end of the first paragraph:
“He also argues that, shortly thereafter, the Tulare County Department of
Child Services (DCSS) modified the trial court’s support order to set his
support obligations at zero dollars and that the subject order in 2021 was an
impermissible retroactive modification of the prior order as modified by
DCSS.”
3. On page 2, under “INTRODUCTION,” the first sentence of the second
paragraph is deleted and replaced with the following:
“The DCSS, as intervener in the action, filed a respondent’s brief in
opposition to the appeal.”
4. On page 4, the last paragraph that begins “On November 12, 2014, the trial
court issued,” is deleted and replaced with the following:
“On November 12, 2014, the trial court issued an order after hearing
(November 2014 support order) which read, in relevant part, “All orders
previously made in this action remain in full force and effect except as
modified below.” No actual modifications to Ryan’s support obligations
were made in the order. The order also read, in relevant part, “The court
finds that child support shall remain as previously ordered. Further, the
court finds that the terms of the court’s standard orders will control during
[Ryan’s] incarceration.” The November 2014 support order also contained
the following printed advisement:”
For clarification, the indented block quote that immediately follows the paragraph and
begins “As provided in [former] section 4007.5,” should be retained in the opinion.
5. On page 6, the first full sentence that begins “It reflected, among other
things,” is deleted and replaced with the following:
“It reflected, among other things, that Ryan owed $15,365 in arrears on his
support obligations and accrued interest thereon in the amount of
$8,163.41.”
6. On page 7, in the first full paragraph under “DISCUSSION,” the third
sentence that begins “However, he contends,” is deleted and replaced with the
following:
“However, he contends, DCSS never attended the November 12, 2014
hearing, and thereafter sent him coupons that reflected his support
obligations had been suspended.”
2.
7. On page 7, in the first full paragraph under “DISCUSSION,” the fourth
sentence that begins “Ryan argues, therefore,” is deleted and replaced with the
following:
“Ryan argues, therefore, by operation of law, he was entitled to have
his support obligations reduced to zero for his period of incarceration, and
that principles of res judicata and collateral estoppel bar the court from
relitigating the issue.”
8. On page 8, in the final paragraph that begins “(d) Notwithstanding subdivision
(a),” the word “oblige” is deleted and replaced with “obligee.”
9. On page 9, the following paragraph is inserted at the top of the page, before the
paragraph that begins “The record on appeal indicates”:
“Notably, the potential for temporary suspension of support
payments provided under former section 4007.5 only applied to child
support payments—not spousal support payments.”
10. On page 11, in the last paragraph, the first sentence that begins “Contrary to
Ryan’s arguments on appeal,” is deleted and replaced with the following:
“Contrary to Ryan’s arguments on appeal, the original support order did not
set his support obligations at zero dollars.”
11. On page 11, in the last paragraph, the third sentence that begins “It further
provided,” is deleted and replaced with the following:
“It further provided, “[c]hild support payments shall continue until further
order of the court, or until the child marries, dies, is emancipated, reaches
19, or reaches 18 and is not a full-time student residing with a parent,
whichever occurs first,” that “[Ryan] shall pay to [Jennifer] spousal/family
support in the sum of $932.00 per month … commencing [June 1], 2014[,]”
and that “[a]ll terms of the Court’s Standard Orders are adopted.” ”
12. On page 12, the following sentence is added to the end of the second
full paragraph that begins “Similarly, in its November 2014”:
“Similarly, no modification was made to the court’s prior order setting
spousal support at $932 per month.”
13. On page 12, the third full paragraph that begins “It is clear from the
original,” is deleted and replaced with the following paragraph:
3.
“It is clear from the original support order, the November 2014
support order, and the court’s standard orders incorporated into each, that
Ryan’s support obligations were not set to zero dollars; that, rather, Ryan’s
spousal support obligations were set at $932 per month; that his child
support obligations were set at $1,563 per month; that DCSS could adjust
its charging instructions to reflect suspension of the child support amounts;
and that, in doing so, DCSS would not be precluded from seeking a
subsequent judicial determination of the applicable and appropriate
arrearages.”
14. On page 14, in the second full paragraph, the second sentence that
begins “Those orders expressly,” is deleted and replaced with the following
sentence:
“Those orders expressly and unequivocally set Ryan’s child support
obligation at $1563 per month and spousal support obligation at $932 per
month.”
15. On page 14, in the third full paragraph, the last sentence that begins
“The 2020 audit was based,” is deleted and replaced with the following:
“The 2020 audit was based on the support obligations as reflected in the
November 2014 support order.”
16. On page 16, the second full paragraph that begins “Ryan does not cite
to any,” is deleted and replaced with the following paragraph:
“Ryan does not cite to any applicable authority for the proposition
that DCSS had a duty to argue for, or against, suspending his child support
obligations during the 2014 hearings, and we are not aware of any such
duty. His reliance on former code section 4007.5 is unavailing since it did
not impose such a duty on DCSS. Moreover, Ryan is not challenging the
original support order or the November 2014 support order. He is
appealing the subject order issued on March 25, 2021.”
17. On page 17, footnote “8” is added to the end of the last paragraph
before “DISPOSITION,” as follows:
“In his petition for rehearing, Ryan argues “[t]he command of the trial court
was to retroactively modify spousal and child support without providing
[him] with notice and an opportunity to be heard retroactively.” However,
as discussed above, the court did not retroactively modify spousal support
or child support. Ryan’s support obligations remained the same throughout
the relevant time period. While it is true that DCSS adjusted its charging
instructions to reflect a projected suspension of certain support payments,
4.
that adjustment did not have the effect of overriding or altering the trial
court’s November 2014 support order.”
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
SMITH, J.
WE CONCUR:
LEVY, ACTING P. J.
FRANSON, J.
5.
Filed 12/22/22 Marriage of Koelewyn CA5 (unmodified opinion)
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 RYAN KOELEWYN and
JENNIFER KOELEWYN.
RYAN KOELEWYN, F082837
Appellant, (Super. Ct. No. CFL255652)
v.
OPINION
JENNIFER KOELEWYN,
Respondent;
TULARE COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,
Intervener and Respondent.
APPEAL from a judgment of the Superior Court of Tulare County. Norma
Castellanos-Perez, Commissioner.
Ryan Koelewyn, in pro. per, for Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown and Ricardo Enriquez, Deputy Attorneys General, for Intervener and
Respondent Tulare County Department of Child Support Services.
-ooOoo-
INTRODUCTION
Appellant Ryan Koelewyn appeals from a March 25, 2021 order denying him
relief from his obligation to pay certain child support arrears (subject order). Ryan1
premised his contention that he should be relieved from this obligation on the fact he was
in prison for approximately five years and three months before being paroled on February
11, 2020. Ryan argues he was entitled to a suspension of his child support obligations
during said period under former Family Code section 4007.5 (Stats. 2010, ch. 495, § 1)
(former section 4007.5).
The Tulare County Department of Child Support Services (DCSS), as intervener
in the action, filed a respondent’s brief in opposition to the appeal. We affirm the subject
order.
FACTS AND PROCEDURAL BACKGROUND
Ryan and Jennifer Koelewyn were previously married. Together, they had two
biological children. Jennifer also had another minor daughter (i.e., Ryan’s stepdaughter)
from a previous relationship.
In March of 2014, Ryan filed for dissolution of his marriage to Jennifer. One or
more hearings in the matter followed over the course of the next couple of months,
including a May 15, 2014 hearing at which the trial court considered issues of child and
spousal support.
On June 2, 2014, the trial court issued its findings and order after hearing (original
support order) in connection with the May 15, 2014 hearing. Pursuant to the original
support order, Ryan was ordered to pay Jennifer child support in the amount of $1,563
per month commencing June 1, 2014, to support the parties’ two biological children, and
spousal support in the amount of $932 per month commencing June 1, 2014. The court
1 It is common practice to use the parties’ first names in family litigation. (In re
Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.) We adhere to, but intend
no disrespect by, this practice.
2.
also granted a restraining order after hearing2 against Ryan (CLETS restraining order).
The CLETS restraining order was issued to protect Jennifer and all three children.3
The original support order also provided: “All terms of the Court’s Standard
Orders [standard orders] are adopted.”4 The Court’s standard orders (standard orders) in
effect in 2014 read, in part:
“No provision of this judgment/order may operate to limit any right to
collect the principal (total amount of unpaid support) or to charge and
collect interest and penalties as allowed by law.”
The standard orders also provided the following description as to the effect of former
section 4007.5:
“Commencing July 1, 2011, as provided in Family Code Section 4007.5,
the obligation of the person ordered to pay support will be temporarily
suspended for any period after the first 90 consecutive days in which the
person ordered to pay support is incarcerated or involuntarily
institutionalized, unless that person has the ability to pay support during
that time or has committed certain crimes. Immediately after the person
ordered to pay support is released from incarceration or involuntary
institutionalization, the support order will restart in the same amount as it
was before it was temporarily suspended. DCSS is authorized to adjust its
charging instructions to reflect the suspension of support during any months
where DCSS determines support is zero or is projected to be zero without
prejudice to a subsequent judicial determination at the request of DCSS or
either parent or legal guardian.” (Emphasis added.)
2 Judicial Council Form DV-130.
3 The record on appeal does not include a copy of the CLETS restraining order.
However, at the March 25, 2021 hearing on Ryan’s request for an order (RFO), the trial
court took judicial notice of the order, that Ryan was the restrained party, and that the
three children were listed as additional protected persons. Ryan admitted to the court the
CLETS restraining order was issued, and, on appeal, does not challenge the court’s
decision to take judicial notice of it.
4 Although the original support order did not attach a copy of the trial court’s
standard orders, a copy of the court’s standard orders in effect at the time was offered and
received into evidence at the March 25, 2021 hearing that led to the issuance of the
subject order.
3.
As alluded to previously, the application of former section 4007.5 is at the heart of
Ryan’s appeal.
In its original support order, the trial court set a further hearing for August 21,
2014, to, among other things, “review the CLETS restraining order and the
custody/visitation issues as well as [Ryan’s] request that [Jennifer] be imputed with the
ability to earn minimum wage income for purposes of calculating child and spousal
support.”
On August 15, 2014, Ryan filed a declaration and memorandum of points and
authorities in which he contended his earning capacity had been adversely affected by a
criminal investigation and resulting criminal charges against him. Ryan stated he had
been investigated by the Tulare County District Attorney for “possession of child
pornography”; “was arrested for allegedly molesting” his stepdaughter in April of 2014;
was placed “on administrative leave with pay”; and was subsequently “placed on unpaid
leave pending the outcome of the outstanding criminal charges against [him].” Ryan
further averred he had “submitted upwards of 40-45 applications to various potential
employers” and had “sent out over 50 cover letter and resume combinations,” but had not
received any interviews. As a result, he contended he no longer had the same ability to
earn as he had when the original support order was issued, and argued for reduced
support obligations. Ryan requested the court modify the original support order.
On November 12, 2014, the trial court issued an order after hearing (November
2014 support order) which read, in relevant part, “The court finds that child support shall
remain as previously ordered. Further, the court finds that the terms of the court’s
standard orders will control during [Ryan’s] incarceration.” The November 2014 support
order also contained the following printed advisement:
“As provided in [former] section 4007.5, the obligation of the person
ordered to pay support will be temporarily suspended for any period after
the first 90 consecutive days in which the person ordered to pay support is
incarcerated or involuntarily institutionalized, unless that person has the
4.
ability to pay support during that time or has committed certain crimes.
Immediately after the person ordered to pay support is released from
incarceration or involuntary institutionalization, the support order will
restart in the same amount as it was before it was temporarily suspended.”
(Emphasis added.)
Ryan was ultimately convicted of one or more of the offenses charged against him.
Ryan admitted the victim was his stepdaughter. Although Ryan does not provide a copy
of his judgment of conviction in his record on appeal, he acknowledged the following in
his opening brief:
“It is undeniable that the exception at [former section] 4007.5(2)(d)
precludes relief for an individual like [him]. And had [DCSS] argued
against the application of [former section] 4007.5 at the final family law
hearing on November 12, 2014[, he is] positive that they would have
prevailed and rightly so. However, they did not attend that hearing.”
Setting aside for the moment Ryan’s arguments on appeal, based on the foregoing
statement, we presume that Ryan’s conviction would otherwise satisfy the criteria set
forth in former section 4007.5, subdivision (2)(d), which precludes the suspension of
child support obligations.5
Ryan admits in his opening brief that he was sentenced to a term of eight years,
and that he served approximately five years and three months after which time he was
paroled on February 11, 2020. During that time, Ryan contends he “received monthly
payment coupons … from [DCSS] confirming the suspended monthly support amount of
$0.00” and that “a total of sixty-four (64) payment coupons were received.”
On December 30, 2019, shortly before his parole date, Ryan filed a request for an
order to reduce his child support payments, end his spousal support payments, and
remove interest that accrued on support arrears. In support of his RFO, Ryan included a
copy of a monthly billing statement from DCSS for the period beginning November 1,
5 Were Ryan to contend otherwise, we would have little choice but to rule against
him on that issue due to a failure to supply this court with an adequate record
demonstrating the nature of his conviction. (Osgood v. Landon (2005) 127 Cal.App.4th
425, 435 [appellant’s affirmative duty to show error by an adequate record].)
5.
2019, and ending November 30, 2019. It reflected, among other things, that Ryan owed
$15,365 in arrears on his child support obligations and accrued interest thereon in the
amount of $8,163.41.
On March 5, 2020, the trial court issued a minute order and an order after hearing
(2020 support order). The minute order indicated Ryan and Jennifer “stipulate[d] to set
spousal support at $0.00 per month, Father to pay, effective January 1, 2020,” and that
Jennifer “stipulate[d] to waive interest on child support and spousal support arrears,
effective December 1, 2014.” The minute order further provided, “[DCSS] shall
produce[] an audit consistent with the aforementioned stipulations of the parties. The
matter is continued to June 15, 2020[,] at 10am in Department 1, Dinuba Division for
receipt of the audit.” The 2020 support order also stated, in part, “[a]ll orders previously
made in this action remain in full force and effect except as specifically modified.”
On March 25, 2020, DCSS filed its audit along with a declaration from a DCSS
child support specialist (collectively, the 2020 audit). After finding Ryan had paid a total
of $2,380 towards his support obligations, the 2020 audit indicated Ryan owed the
following amounts: “Never Assigned (NA) Principal Child Support [in the amount of]
$92,963[], Never Assigned Child Support Interest [in the amount of] $182.65, Never
Assigned Spousal Support Principal [in the amount of] $62,444[], and Never Assigned
Spousal Support Interest [in the amount of] $116.69.” The total amount due under the
audit was stated as $155,706.34 as of March 9, 2020. DCSS requested the court adopt
the audit as the total arrearages owed by Ryan.
The matter was continued on more than one occasion and was eventually
scheduled to be heard on September 21, 2020. Prior thereto, on August 31, 2020, Ryan
was ordered to “file and serve prior to the hearing date the Points and Authorities
regarding Family Code Section 4007.5.”
6.
On September 15, 2020, Ryan filed a declaration in which he opposed the 2020
audit and set forth his grounds for the relief he was requesting. In his declaration, Ryan
made the same or similar arguments to those he now raises on appeal.
On September 21, 2020, the court set a contested hearing to occur on October 27,
2020, regarding the application of former section 4007.5 to Ryan’s child support
obligations. The hearing was again continued. Subsequently, DCSS filed a reply to
Ryan’s September 15, 2020 declaration, and Ryan filed a further declaration in response
to DCSS’s reply.
On March 25, 2021, the hearing went forward. The trial court issued the subject
order denying Ryan’s “request for relief under Family Code Section 4007.5 and standard
orders attachment that were in place at the time of the Findings Order After Hearing filed
on June 2, 2014.” The subject order adopted and incorporated the 2020 audit and the
arrearages it assessed against Ryan.
On May 24, 2021, Ryan timely appealed the subject order.
DISCUSSION
I. Ryan’s Contentions on Appeal
On appeal, Ryan admits former section 4007.5 “precludes relief for an individual
like [him].” He posits “had [DCSS] argued against the application of [former
section] 4007.5 at the final family law hearing on November 12, 2014,” his obligation to
continue paying child support during his period of incarceration would not have been
suspended. However, he contends, DCSS never attended the November 12, 2014
hearing, and thereafter sent him coupons that reflected his child support obligations had
been suspended. Ryan argues, therefore, by operation of law, he was entitled to have his
child support obligations reduced to zero for his period of incarceration, and that
principles of res judicata and collateral estoppel bar the court from relitigating the issue.
He further argues the court’s adoption of the 2020 audit—which assessed arrearages for
the period of his incarceration—amounted to a denial of due process.
7.
II. The Trial Court Treated Ryan’s Objection to the 2020 Audit as a Petition to
Adjust Arrears Under Former Section 4007.5
At the time the original support order and November 2014 support order were
entered, former section 4007.5 provided, in relevant part:
“(a) Every money judgment or order for support of a child that is being
enforced by a local child support agency … shall provide the following: [¶]
(1) The obligation of the person ordered to pay support shall be suspended
for any period exceeding 90 consecutive days in which the person ordered
to pay support is incarcerated or involuntarily institutionalized, unless the
obligor has the means to pay support while incarcerated or involuntarily
institutionalized. [¶] (2) The suspension of the support obligation shall
only apply for the period of time during which the obligor is incarcerated or
involuntarily institutionalized, after which the obligation shall immediately
resume in the amount otherwise specified in the child support order.
[¶] … [¶]
“(c) Upon release from incarceration or involuntary institutionalization, an
obligor may petition the court for an adjustment of the arrears pursuant to
the suspension of the support obligation .… The obligor must show proof
of the dates of incarceration or involuntary institutionalization, as well as
proof that during that time, the obligor did not have the means to pay the
support. The obligor shall serve copies of the petition to the support
obligee and the local child support agency, who may file an objection to the
obligor’s petition with the court. An obligor’s arrears shall not be adjusted
until the court has approved the petition.
“(d) Notwithstanding subdivision (a), the court may deny the obligor’s
petition if it finds that the obligor was incarcerated or involuntarily
institutionalized for any offense constituting domestic violence, as defined
in Section 6211, against the support oblige or supported child, or for any
offense that could be enjoined by a protective order pursuant to Section
6320, or as a result of his or her failure to comply with a court order to pay
child support.” (Former § 4007.5.) (Stats. 2010, ch. 495, § 1.)6
6 On January 24, 2022, DCSS requested this court judicially notice portions of the
legislative history of Senate Bill No. 1355 (2009-2010 Reg. Sess.) by which former
section 4007.5 (Stats. 2010, ch. 495, § 1) was enacted. On January 31, 2022, Ryan
objected to DCSS’s request for judicial notice and requested that this court judicially
notice “additional portions of the legislative history of Senate Bill 1355.” On February 3,
2022, we deferred ruling on both parties’ requests. We now grant both requests.
8.
The record on appeal indicates a hearing was held on June 15, 2020, after DCSS
had filed the 2020 audit. The record further reveals that Ryan participated telephonically
and that he had “indicate[d] he executed the Stipulation and Order” and that he mailed it
to DCSS. The exact nature of the stipulation and order is not stated. However, at an
August 31, 2020 hearing, at which Ryan appeared by ZOOM video, Ryan indicated he
desired to withdraw the stipulation. As a result, the trial court issued its direction to Ryan
“to file and serve prior to the [September 21, 2020] hearing date the Points and
Authorities regarding [former] Section 4007.5.” Based on this record, we think it fair to
presume that Ryan voiced his objection to the 2020 audit and that the trial court elected to
treat Ryan’s presumed objection to the 2020 audit as a petition under subdivision (c) of
former section 4007.5 for an adjustment of arrears assessed by DCSS.
We see no impropriety, or abuse of discretion by the court, in electing to treat an
objection by Ryan to the 2020 audit as a petition under subdivision (c) of former section
4007.5. Had the court not elected to do so, it is relatively certain the 2020 audit would
have been adopted without providing Ryan an opportunity to make his case for an
adjustment of child support arrears.
We also take this occasion to note that both parties appear to concede that former
section 4007.5 applies to the original support order and November 2014 support order.
Regardless, as is relevant to this appeal, former section 4007.5 does not differ in any
meaningful way from later enacted versions of the statute. Each succeeding version of
the statute provides for the suspension of child support obligations during periods of
incarceration exceeding 90 consecutive days unless the “person owing support was
incarcerated … for an offense constituting domestic violence, as defined in Section 6211,
against the supported party or supported child, or for an offense that could be enjoined by
a protective order pursuant to Section 6320, or as a result of … failure to comply with a
court order to pay child support.” (Stats. 2015, ch. 629, § 2, eff. Oct. 8, 2015, to Dec. 31,
2019; Stats. 2020, ch. 217, § 2, eff. Jan. 1, 2021.) Each version of section 4007.5,
sunsetted by their own terms on specified dates. No version of the statute appears to have
been in effect during the calendar year 2020.
9.
III. Standard of Review
Ryan and DCSS agree the subject order should be reviewed on appeal for abuse of
discretion. We concur. Former section 4007.5 provided “the court may deny” a petition
for the adjustment of arrears “if it finds that the obligor was incarcerated … for any
offense constituting domestic violence … against the support obligee or supported child,
or for any offense that could be enjoined by a protective order pursuant to section 6320.”
(Former section 4007.5, subd. (2)(d), emphasis added.) “As a rule of statutory
construction, the word ‘may’ generally connotes discretionary action.” (Menefield v.
Foreman (2014) 231 Cal.App.4th 211, 218; Fam. Code, § 12 [“ ‘Shall’ is mandatory and
‘may’ is permissive.”].) Here, former section 4007.5 confers discretion upon the court to
deny a petition for the adjustment of arrears.
To the extent the interpretation of a statute is at issue, our review is de novo. (In
re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906-907.) “[W]here ‘the
propriety of a[n] … order turns on the interpretation of a statute, a question of law is
raised, which is subject to de novo review on appeal.” (People v. Henderson (2018) 20
Cal.App.5th 467, 470; Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.)7
IV. DCSS Was Not Barred by Principles of Res Judicata or Collateral Estoppel
From Seeking to Assess Arrears for the Period of Ryan’s Incarceration
Ryan contends the original support order was a “final judgment” and that DCSS
was barred by principles of res judicata or collateral estoppel from assessing arrears for
the period of his incarceration.
“ ‘Res judicata, or claim preclusion, prevents relitigation of the same cause of
action in a second suit between the same parties or parties in privity with them.
7 DCSS further argues that the trial court’s conclusion that Ryan’s conviction was
for an “ ‘offense[] that could be enjoined by a protective order pursuant to Section 6320,’
is a question of law that is reviewed de novo,” citing Holmes v. Jones (2000) 83
Cal.App.4th 882, 888. However, as mentioned, Ryan does not challenge the fact his
conviction is of a type for which former section 4007.5 precludes suspension of child
support obligations.
10.
Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and
decided in prior proceedings.” ’ ” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76,
82.) “[R]es judicata and collateral estoppel require three common elements: ‘ “(1) A
claim or issue raised in the present action is identical to a claim or issue litigated in a
prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and
(3) the party against whom the doctrine is being asserted was a party or in privity with a
party to the prior proceeding.” ’ ” (Id. at pp. 82-83.)
Where a court retains the power to modify a child support order, “[s]uch an order
cannot … be considered a judgment in the sense of its being a final adjudication of the
rights and duties of the parent and the minor child. It was not intended to and does not
operate to crystallize or limit the duty of the parent to support his minor child, but merely
defines the extent of his duty during the life of the order.” (Rosher v. Superior Court
(1937) 9 Cal.2d 556, 559.) Subject to certain exceptions not relevant here, “a support
order may be modified or terminated at any time as the court determines to be necessary.”
(Fam. Code, § 3651, subd. (a); see id. at § 5700.205 [continuing, exclusive jurisdiction to
modify child-support orders, involving nonresidents].) However, as acknowledged by
the trial court, generally, “a support order may not be modified or terminated as to an
amount that accrued before the date of the filing of the notice of motion or order to show
cause to modify or terminate.” (Id. at § 3651, subd. (c)(1).)
Contrary to Ryan’s arguments on appeal, the original support order did not set his
child support obligations at zero dollars. Rather, the express language of the original
support order reads, in relevant part, “[Ryan] shall pay [Jennifer] for support for the
minor child(ren) the sum of $1563.00 per month, payable on the first day of each month
commencing [June 1], 2014.” It further provided, “[c]hild support payments shall
continue until further order of the court, or until the child marries, dies, is emancipated,
reaches 19, or reaches 18 and is not a full-time student residing with a parent, whichever
occurs first,” and that “[a]ll terms of the Court’s Standard Orders are adopted.” For the
11.
convenience of the reader, we again set forth the relevant text of the trial court’s standard
orders:
“Commencing July 1, 2011, as provided in Family Code Section
4007.5, the obligation of the person ordered to pay support will be
temporarily suspended for any period after the first 90 consecutive days in
which the person ordered to pay support is incarcerated …, unless that
person … has committed certain crimes. Immediately after the person
ordered to pay support is released from incarceration …, the support order
will restart in the same amount as it was before it was temporarily
suspended. DCSS is authorized to adjust its charging instructions to reflect
the suspension of support during any months where DCSS determines
support is zero or is projected to be zero without prejudice to a subsequent
judicial determination at the request of DCSS or either parent or legal
guardian.” (Emphasis added.)
Similarly, in its November 2014 support order, the trial court stated, “[t]he court
finds that child support shall remain as previously ordered. Further, the court finds that
the terms of the court’s standard orders will control during [Ryan’s] incarceration.” The
November 2014 support order also contained, within the order itself, the following
language: “As provided in Family Code section 4007.5, the obligation of the person
ordered to pay support will be temporarily suspended for any period after the first 90
consecutive days in which the person ordered to pay support is incarcerated …, unless
that person … has committed certain crimes.” (Emphasis added.)
It is clear from the original support order, the November 2014 support order, and
the court’s standard orders incorporated into each, that Ryan’s child support obligations
were not set to zero dollars; that, rather, Ryan’s child support obligations were set at
$1,563 per month; that DCSS could adjust its charging instructions to reflect suspension
of the support amounts; and that, in doing so, DCSS would not be precluded from
seeking a subsequent judicial determination of the applicable and appropriate arrearages.
The fact that DCSS was authorized to adjust its charging instructions to reflect
suspension of child support payments did not operate to bind DCSS to a determination
that a suspension of the obligation was warranted. DCSS was authorized to make that
12.
adjustment “without prejudice” to its ability to contend suspension was not appropriate.
“The term ‘without prejudice,’ in its general adaptation, means that there is no decision of
the controversy on its merits, and leaves the whole subject in litigation as much open to
another application as if no suit had ever been brought.” (Chambreau v. Coughlan
(1968) 263 Cal.App.2d 712, 718.) Plainly, under the express terms of above referenced
orders, DCSS was not collaterally estopped from requesting the court adjudicate the
propriety of suspending Ryan’s child support obligations under former section 4007.5.
We conclude DCSS was not barred by principles of res judicata or collateral
estoppel from seeking the trial court’s approval and adoption of its 2020 audit.
V. The Trial Court Had Jurisdiction to Adopt the 2020 Audit as Part of Its
Subject Order
Ryan correctly contends a trial court may not modify a support order “ ‘as to an
amount that accrued before the date of the filing of the notice of motion or order to show
cause to modify’ ” the support order. (Fam. Code, § 3603; see id. at § 3651.) Ryan
contends, “ ‘[t]he Legislature has established a bright-line rule that accrued child support
vests and may not be adjusted up or down,’ ” quoting Stover v. Bruntz (2017) 12
Cal.App.5th 19, 26 (Stover). The Stover court also noted, “ ‘a trial court has no
discretion to absolve an obligor of support arrearages, or interest thereon.’ ” (Ibid.)
Ryan also notes that a “ ‘trial court acts “in excess of the court’s jurisdiction” if it
modifies support retroactive to any time before the filing of the obligor’s modification
motion,’ ” quoting S.C. v. G.S. (2019) 38 Cal.App.5th 591, 599. Moreover, as discussed
above and as noted by Ryan in his opening brief, the trial court likewise acknowledged
this limitation on its jurisdiction.
We have no quarrel with the law as represented by Ryan and as set forth in the
above referenced statutes and cases. However, we disagree with Ryan as to the
underlying facts.
13.
Here, DCSS adjusted its charging instructions to reflect its projected suspension of
support obligations. DCSS was authorized to make that adjustment in the standard orders
adopted in the original support order and, again, in the November 2014 support order,
without prejudice to DCSS’s right to obtain a judicial determination concerning the
propriety or impropriety of suspending support payments.
The jurisdictional prohibition on a trial court modifying a support order retroactive
to any time before the filing of the obligator’s modification motion limited the court’s
ability to modify the original support order and subsequent November 2014 support
order. Those orders expressly and unequivocally set Ryan’s child support obligation at
$1563 per month. The orders did not indicate the court was formally adjudicating Ryan’s
entitlement to suspension of child support arrears. (In fact, Ryan had not even been
convicted or incarcerated at the time those orders were issued.)
Ryan’s argument appears to be that the jurisdictional prohibitions imposed on trial
court’s in retroactively modifying support orders should actually be interpreted as a
prohibition on the court deviating from DCSS’s accounting adjustments in which it
projected Ryan would be eligible for suspension of support obligations. However, that is
not what the law provides. The jurisdictional prohibition against retroactive modification
applied to the November 2014 support order—not DCSS’s accounting. The 2020 audit
was based on the child support obligation as reflected in the November 2014 support
order.
We conclude there was no jurisdictional prohibition on the trial court adopting the
2020 audit.
VI. The Trial Court Did Not Abuse Its Discretion in Adopting the 2020 Audit
We next consider whether the trial court abused its discretion in adopting the 2020
audit which assessed significant arrears against Ryan. “[I]t is generally accepted that the
appropriate test of abuse of discretion is whether or not the trial court exceeded the
bounds of reason, all of the circumstances before it being considered.” (Rappleyea v.
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Campbell (1994) 8 Cal.4th 975, 987.) A court abuses its discretion if it “ ‘ “exercise[s]
its discretion in an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (People v. Williams (2013) 58 Cal.4th 197, 270-
271.) Where the trial court’s exercise of discretion is at issue, this court “ ‘ “will only
interfere with its ruling if we find that under all the evidence, viewed most favorably in
support of the trial court’s action, no judge reasonably could have reached the challenged
result.” ’ ” (Estate of Sapp (2019) 36 Cal.App.5th 86, 104.)
Here, DCSS was ordered to produce and file with the court an audit. In preparing
the audit, DCSS discovered the underlying basis of Ryan’s conviction and determined it
involved crime(s) for which suspension of support obligations may be disallowed. As
mentioned, Ryan does not dispute that his conviction was among those for which
suspension of support obligations are disallowed under former section 4007.5. Viewing
the evidence most favorably in support of the subject order, we cannot say that no judge
could have reasonably reached the same result.
We conclude the trial court did not abuse its discretion in adjudicating and
adopting the 2020 audit as part of the subject order.
VII. Ryan Was Not Denied Due Process
Ryan contends he was denied due process. We disagree.
“The Fourteenth Amendment due process clause states that no state may ‘deprive
any person of life, liberty, or property without due process of law.’ The procedural
component of the due process clause ensures a fair adjudicatory process before a person
is deprived of life, liberty, or property.” (Las Lomas Land Co., LLC v. City of Los
Angeles (2009) 177 Cal.App.4th 837, 852.) “Notice and an opportunity to be heard are
the fundamental hallmarks of due process whenever ‘life, liberty, or property’ is put in
jeopardy.” (People v. Silva (2021) 72 Cal.App.5th 505, 523, citing U.S. Const., 5th &
14th Amends.; Cal. Const., art. I, §§ 7 & 15.)
15.
In support of his argument, Ryan states, “I believe it is important to view the
proper procedure which would have resulted had the [DCSS] fulfilled its duty at the final
family law hearing on November 12, 2014[,] by contesting the application of [former
section] 4007.5.” He includes reference to the following statement he made at the March
25, 2021 hearing: “Your honor, I never filed for any relief. The issue, here, is due
process. If the Department had been there, at the last hearing, prior to my incarceration,
in November 2014, and made these argument [sic], the Court could have conducted a
hearing on earning capacity. It didn’t.”
Ryan does not cite to any authority for the proposition that DCSS had a duty to
argue for, or against, suspending his child support obligations during the 2014 hearings,
and we are not aware of any such duty. Moreover, Ryan is not challenging the original
support order or the November 2014 support order. He is appealing the subject order
issued on March 25, 2021.
From the record before us, it appears Ryan received due process in connection
with the subject order. Ryan was present when the trial court ordered the 2020 audit.
Ryan was present when the court directed him “to file and serve … Points and
Authorities regarding Family Code Section 4007.5” On September 15, 2020, Ryan did,
in fact, file a declaration in which he set forth his contentions concerning former section
4007.5.
Ryan appeared at the next scheduled hearing on September 21, 2020. The minutes
of that meeting read, in part, “Matter set for a Contested Hearing RE: whether or not
4007.5 Family Court Section applies due to incarceration on OCTOBER 27, 2020, at
10:00 a.m., in Dept. 1-Dinuba.” On December 1, 2020, following one or more additional
continuances, and after DCSS filed its reply brief in opposition to Ryan’s position
concerning the application of former section 4007.5, Ryan filed a declaration in answer to
DCSS’s reply brief in which he further articulated his position with respect to application
of former section 4007.5.
16.
On December 14, 2020, Ryan and DCSS appeared before the trial court on ZOOM
video. At the hearing, the trial court continued the “Contested Hearing RE: Family Code
Section 4007.5” to March 25, 2021.
On March 25, 2021, the contested hearing was held. The minutes from the March
25, 2021 hearing reflect that Ryan was present, was sworn in, and testified at the hearing.
The subject order issued thereafter.
Thus, at every stage of the process, Ryan received notice and an opportunity to be
heard concerning the application of former section 4007.5. We conclude Ryan was not
denied due process.
DISPOSITION
The March 25, 2021 order after hearing (i.e., the subject order) is affirmed. Costs
on appeal are awarded to DCSS.
SMITH, J.
WE CONCUR:
LEVY, ACTING P. J.
FRANSON, J.
17.