Brubaker v. Strum

Filed 1/13/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BETSEY BRUBAKER, B317694
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 17STFL05662)
ANDY STRUM,
Defendant and Respondent;
MARK KARNEY,
Objector and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael R. Powell, Judge. Reversed with
directions.
Fernandez & Karney and Mark H. Karney for Plaintiff and
Appellant.
Law Offices of Ben Gharagozli and Ben Gharagozli for
Objector and Appellant.
Feinberg Mindel Brandt & Klein and Gregory A. Girvan for
Defendant and Respondent.
__________________________
INTRODUCTION
Sometimes a former spouse who owes child and spousal
support (i.e., the obligor) to a former spouse (i.e., the obligee)
doesn’t pay what he or she owes, either because the obligor
spouse has fallen behind in the payments or is not making
support payments at all. To ensure the obligor’s children and the
obligee receive court-ordered support if that occurs, a family court
order for child and spousal support must include an “earnings
assignment order” that directs the obligor’s employer to pay the
obligee any portion of the obligor’s earnings the obligor owes in
child or spousal support.
The obligor’s employer ignores an earnings assignment
order at its peril. Family Code section 5241, subdivision (a), 1
provides that an employer who willfully fails to withhold and
forward support pursuant to a valid earnings assignment order
(called an “income withholding order” under federal law) must
pay the obligee the amount of support that should have been
withheld and sent to the obligee, plus interest. And if the
employer complies with the assignment order, the obligor
employee has some protection. Section 5241, subdivision (b),
1 Undesignated statutory references are to the Family Code.
2
provides that, if the employer properly withholds support from
the obligor’s earnings, the obligor cannot be held in contempt or
subject to criminal prosecution for nonpayment of the support,
even if the obligee did not receive the support the obligor’s
employer withheld.
The issue in this appeal is whether section 5241 precludes
the obligee from seeking a determination of arrearages allegedly
owed by the obligor, where the obligor’s employer is subject to a
valid earnings assignment order. The family court ruled
section 5241 precludes such a request, but reached that
conclusion by answering a different question: whether section
5241 precludes an obligee from seeking to enforce arrearages
against an obligor whose employer is subject to an earnings
assignment order. The court concluded section 5241 precludes
such a request, and then applied that reasoning to deny an
obligee’s request for an order to determine (as opposed to enforce)
arrearages. As a result, the family court denied a request by
Betsey Brubaker for an order to determine child and spousal
support arrearages against her former husband, Andy Strum.
The court also granted Strum’s request for monetary sanctions
under Code of Civil Procedure section 128.5 against Brubaker’s
attorney, Mark Karney, because the court found its
interpretation of section 5241 “absolutely clear.”
We agree with the family court that the language of section
5241 is clear, but not in the way the family court thought it was.
Based on the language and legislative history of section 5241, we
conclude that, where an employer is subject to an earnings
assignment order, section 5241 protects obligors only from being
held in contempt or subject to criminal prosecution for
nonpayment of the support. Contrary to the family court’s ruling,
3
the statute does not preclude an obligee like Brubaker from
seeking arrearages or a determination of arrearages from an
obligor like Strum. Which in turn means Brubaker’s request for
an order determining arrearages was not frivolous for the reasons
stated by the family court and did not support an award of
sanctions against Karney. Therefore, we reverse the family
court’s order and direct the court to determine the amount of
arrearages, if any, Strum owes Brubaker.
FACTUAL AND PROCEDURAL BACKGROUND
A. Strum Owes Brubaker Monthly Child and Spousal
Support, Plus a Percentage of His Bonuses and
Commissions
On July 23, 2019 the family court entered a final statement
of decision dissolving Brubaker and Strum’s marriage and
awarding Brubaker $2,071 in monthly child support and $1,950
in monthly spousal support, plus 13.5 percent of any bonuses or
commissions Strum received in excess of his base monthly salary
(known as Ostler-Smith payments). 2 At that time, Strum worked
for Comcast Cable Communications, and an income withholding
order 3 directed Comcast to withhold the total amount of support
2 An Ostler-Smith payment is an additional support award
calculated as a percentage of discretionary bonus income actually
received. (See In re Marriage of Minkin (2017) 11 Cal.App.5th
939, 949; Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33,
54.)
3 An income withholding order is a federally mandated form
for any action in which a court orders child or spousal support. It
is submitted to and signed by the family court. (See 42 U.S.C.
4
payments from Strum’s paychecks and forward that amount to
the California Child Support Services Department on behalf of
Brubaker.
On August 31, 2020, after Strum apparently left Comcast,
the family court issued a new income withholding order to
Strum’s next employer, Synamedia Americas, LLC. Strum lost
his job at Synamedia on February 12, 2021, but he received
severance payments through March 31, 2021. On April 1, 2021
Strum sent Brubaker two personal checks, one for $1,035 toward
his child support obligation of $2,071 and one for $141.02 toward
his spousal support obligation of $1,950. According to Strum, he
paid a medical premium on Brubaker’s behalf and reduced the
spousal support payment by that amount.
On April 12, 2021 Strum began working for Kinetiq/IQ
Media, and on April 21, 2021 the family court issued an income
withholding order to Kinetiq. Kinetiq began withholding child
and spousal support payments from Strum’s paychecks starting
with the pay period that began on April 24, 2021.
On April 27, 2021 Brubaker obtained a writ of execution for
Strum’s underpayments of child and spousal support for April
2021. On May 21, 2021 Brubaker received support payments
withheld from Strum’s paycheck for the last week of April 2021,
and on June 2, 2021 the Los Angeles County Sheriff levied on
Strum’s bank account for the amount Strum underpaid in April
2021, including the amount for the last week of April.
§ 666; Fam. Code, § 5208, subd. (b).) The form is available from
the Administration for Children and Families, a division of the
United States Department of Health and Human Services, at
https://www.acf.hhs.gov.
5
B. Brubaker Files a Request for an Order To Determine
Child and Spousal Support Arrearages
On June 10, 2021 Brubaker filed a request for an order to
“set child support arrears” including a determination of unpaid
Ostler-Smith payments. Brubaker alleged Strum owed her
$6,974.89 in child and spousal support for the period April 1,
2021 to May 24, 2021 (including the amount obtained from the
levy on Strum’s bank account, which Brubaker had not yet
received). Brubaker also asked the court to determine the
amount of Ostler-Smith payments Strum owed since March 2021.
Brubaker stated that she subpoenaed Kinetiq to ascertain
whether Strum had received any signing bonus or commissions
Strum had not disclosed to Brubaker and that Strum had “not
been forthcoming” about bonus income and commissions in the
past. In later declarations supporting the request for an order to
determine arrearages, Brubaker claimed arrearages as far back
as August 2020.
On July 6, 2021 counsel for Strum sent Karney a letter
concerning Brubaker’s request for an order determining
arrearages. Counsel for Strum stated Strum did not owe
Brubaker any unpaid child or spousal support for April or May
2021, and he attached copies of Strum’s paystubs showing
support payments Kinetiq had withheld in May and June 2021.
Counsel for Strum also stated that, because Kinetiq was subject
to an income withholding order, Brubaker had to seek any unpaid
amounts accrued during Strum’s employment there from Kinetiq.
Finally, counsel for Strum advised Karney that, if Brubaker did
not withdraw her request, Strum would seek attorneys’ fees from
Brubaker under section 271 and from Karney under Code of Civil
Procedure section 128.5.
6
Brubaker did not withdraw her request for order to
determine arrearages. On July 8, 2021 Strum filed a response to
the request and argued Brubaker’s request was frivolous because
Strum did not owe Brubaker any unpaid child or spousal support
for the period April 1, 2021 to May 24, 2021 and Kinetiq was
subject to an income withholding order. Thus, Strum argued, to
the extent Brubaker believed Kinetiq had not withheld all
support payments from Strum’s paychecks, Brubaker had to
“seek relief” from Kinetiq. Strum asked the court to impose
monetary sanctions against Karney under Code of Civil
Procedure section 128.5 because Brubaker’s request for order was
“‘completely without merit,’” Karney filed the request knowing
Brubaker had obtained a writ of execution and would receive the
proceeds from the levy on Strum’s bank account for the amount
Strum withheld from his April 2021 support payments, and the
combination of the funds that Brubaker would receive from the
levy and that Kinetiq had withheld resulted in an overpayment
to Brubaker. In the alternative, Strum sought sanctions against
Brubaker under section 271.
Brubaker submitted several declarations of payment
history in support of her request for an order determining
arrearages. In the latest declaration, Brubaker claimed Strum
owed $122.12 in child support, $6,750.82 in spousal support, and
$2,829.98 in Ostler-Smith payments. The payment history for
child support showed Strum underpaid Brubaker in August 2020
and May 2021, and the payment history for spousal support
showed Strum underpaid Brubaker in late 2020 and January
through May 2021. The payment history for Ostler-Smith
payments showed underpayments in December 2020 and June
7
2021. Brubaker acknowledged receipt of funds from the Sheriff’s
levy.
Brubaker attached to her declaration a March 22, 2021
letter from Kinetiq to Strum stating that Strum was eligible to
receive a “ramp-up bonus” of $18,750 in the second quarter of
2021, paid over three months, and that Strum would receive
three advances on commissions totaling $18,750, also paid over
three months. Brubaker attached copies of Strum’s paystubs
from Kinetiq for salary, bonus, and commissions paid for the pay
periods from April 9 to May 24, 2021, several of which did not
show any deductions for support payments. Finally, Brubaker
attached a letter from Strum’s prior employer Synamedia stating
that Synamedia withheld only 12.8 percent (instead of 13.5
percent) of a commission paid to Strum on December 11, 2020.
C. The Family Court Denies Brubaker’s Request for
Order To Determine Arrearages and Imposes
Monetary Sanctions
The family court began the hearing on Brubaker’s request
by stating that issues arising from underpayments from
employers that are subject to an income withholding order should
be “handled” through employers “because they’re the ones who
are responsible.” Karney argued there were gaps in payments
between the time the income withholding order was submitted to
Kinetiq 4 and the time Brubaker began receiving support
4 Section 5232 provides: “Service on an employer of an
assignment order may be made by first-class mail in the manner
described in section 1013 of the Code of Civil Procedure.” The
employer must commence withholding pursuant to the
assignment order within 10 days of service. (§ 5233.) There is no
8
payments from Kinetiq. Karney also identified underpayments
in support and Ostler-Smith payments in 2020 and 2021.
Counsel for Strum argued that, once Strum’s employer
became subject to an income withholding order, support
payments were the employer’s responsibility, and Brubaker had
to “go after the employer” or the Los Angeles County Child
Support Services Department. Counsel for Strum said that,
because Synamedia was under an income withholding order from
August 2020 to March 2021, Brubaker had to direct any claims
for deficiencies during that time to Synamedia. Similarly,
counsel for Strum argued that, because Kinetiq began
withholding payments from Strum’s paychecks for the pay period
beginning in late April, the only time period not covered by an
income withholding order was the first three weeks in April.
Counsel for Strum argued Brubaker received payments for those
three weeks from the levy on Strum’s bank account.
The court stated: “If there’s an income withholding order
and there’s a request for order for arrearages, that arrearage
needs to go to the employer, not [Strum]. . . . Assessing
arrearages, finding out who’s responsible, et cetera, that becomes
an issue between [Brubaker] and the employer, not [Brubaker]
and [Strum]. . . . The only time that Mr. Strum would be on the
hook for anything potentially would be the April date. And so
that’s the only thing that I would need to address as to
arrearages as to him. . . . The [Family] Code is very specific. The
employer is the one who has to withdraw. And if they didn’t
withdraw, it doesn’t matter. They’re still on the hook.”
evidence in the record of how any of the income withholding
orders were served on Strum’s employers.
9
Regarding the request for sanctions, counsel for Strum
argued that his July 6, 2021 letter made clear the only month in
dispute was April 2021 and that Brubaker knew she would
receive the funds from the bank levy by the end of July, yet she
still refused to withdraw the request for order. Karney argued
Strum did not provide the new income withholding order to
Kinetiq until the first week of May and had not been “up front”
about his bonuses. Karney said that the request for order was
“not done in bad faith at all” and that he “made every effort to try
to resolve this.”
Following a recess the court said it would not “rule on
whether [Strum’s] past or current employers have satisfied their
obligations.” Citing section 5241, the court stated: “If there’s an
income withholding [order in place] and there are arrearages that
have not been paid, . . . that action lies with the employer, not
with [Strum]. In this particular case, [Brubaker] filed the action
against [Strum] seeking arrearages in which I believe the statute
is absolutely clear about, which is the remedy lies with the
employer.” The court also said it would grant Strum’s request for
sanctions under Code of Civil Procedure section 128.5 because
“it’s absolutely clear . . . that the remedy for this is the employer,
not [Strum]. And what has happened here is we had a request
for order that never should have been filed at all. I think that the
law is unequivocal about it.”
On October 22, 2021 the family court issued a written order
denying Brubaker’s request for an order “to determine child and
spousal support arrearages.” The order stated: “The Court finds
that a valid Income Withholding Order existed prior to March 30,
2021 and after May 1, 2021. [Brubaker] must seek relief from
[Strum’s] employer directly for all periods there is a valid Income
10
Withholding Order. The Court finds that [Strum’s] personal
payments and the bank levy on [Strum’s] bank account satisfied
his support obligations for April 2021.” The order also awarded
Strum $938.50 to reimburse him for an overpayment resulting
from the transfer of funds to Brubaker from the bank account she
levied on and $9,329.50 in sanctions against Karney under Code
of Civil Procedure section 128.5. Brubaker and Karney timely
appealed.
DISCUSSION
Brubaker does not challenge the family court’s order
finding Strum satisfied his support obligations for April 2021 or
for the reimbursement of funds to Strum. But she argues the
family court erred in ruling that section 5241 prevents her from
seeking arrearages from Strum, including a determination of
arrearages, for time periods in which Strum’s employers were
subject to an income withholding order. For the same reason,
Karney argues the family court erred in granting Strum’s request
for sanctions.
A. The Family Code Does Not Prevent Brubaker from
Seeking an Order To Determine Arrearages from
Strum
1. Applicable Law and Standard of Review
To effect a family court order to pay child or spousal
support, the court issues an earnings assignment order to the
employer of the obligor “to pay to the obligee that portion of the
obligor’s earnings due or to become due in the future as will be
11
sufficient to pay” the amount ordered by the court for support
and any arrearage. (§ 5230.) An assignment order is functionally
equivalent to an income withholding order, the term federal law
uses for notices to employers to withhold income for child
support. (See § 5246, subd. (c).) In general, a parent may enforce
an obligation of the other parent to make support payments “by
execution, the appointment of a receiver, or contempt, or by any
other order as the court in its discretion determines from time to
time to be necessary.” (§ 290; see § 7641, subd. (c) [parent may
enforce the other parent’s obligation to pay child support by all
remedies available for the enforcement of judgments].)
Section 5241 addresses an employer’s liability for failing to
comply with an earnings assignment order. Section 5241,
subdivision (a), provides: “An employer who willfully fails to
withhold and forward support pursuant to a currently valid
assignment order entered and served upon the employer
pursuant to this chapter is liable to the obligee for the amount of
support not withheld, forwarded, or otherwise paid to the obligee,
including any interest thereon.” Section 5241, subdivision (b),
provides, in relevant part: “If an employer withholds support as
required by the assignment order, the obligor shall not be held in
contempt or subject to criminal prosecution for nonpayment of
the support that was withheld by the employer but not received
by the obligee.” 5 The question in this appeal is whether these
5 Section 5235, subdivision (a), similarly provides in relevant
part: “If an employer withholds support as required by the
assignment order, the obligor shall not be held in contempt or
subject to criminal prosecution for nonpayment of the support
that was withheld by the employer but not received by the
obligee. If the employer withheld the support but failed to
12
provisions prevent an obligee like Brubaker from seeking a
request for an order determining arrearages from an obligor like
Strum whose employer was subject to a valid income withholding
order at the time of the alleged underpayments.
“Issues of statutory interpretation are questions of law
subject to de novo review on appeal.” (In re Marriage of
Knox (2022) 83 Cal.App.5th 15, 25; see In re Marriage of
Davis (2015) 61 Cal.4th 846, 851; Welch v. Welch (2022)
79 Cal.App.5th 283, 296.) The general principles governing the
interpretation of a statute are well settled. “‘“‘Our function is to
ascertain the intent of the Legislature so as to effectuate the
purpose of the law. [Citation.] To ascertain such intent, courts
turn first to the words of the statute itself [citation], and seek to
give the words employed by the Legislature their usual and
ordinary meaning. [Citation.] When interpreting statutory
language, we may neither insert language which has been
omitted nor ignore language which has been inserted. [Citation.]
The language must be construed in the context of the statutory
framework as a whole, keeping in mind the policies and purposes
of the statute [citation], and where possible the language should
be read so as to conform to the spirit of the enactment.’”’” (Welch,
at p. 296; see Davis, at pp. 851-852.)
forward the payments to the obligee, the employer shall be liable
for the payments, including interest, as provided in Section
5241.”
13
2. Neither the Plain Language nor the Purpose of
Section 5241 Restricts an Obligee from Seeking
an Order Determining Arrearages from an
Obligor
A motion for the determination of arrearages is a “species
of declaratory judgment or accounting unconnected with any
specific enforcement of the support obligation.” (County of Shasta
v. Smith (1995) 38 Cal.App.4th 329, 334 (County of Shasta); see
In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th
1203, 1214 [a family court has the authority “to determine
whether any arrearages exist and, if so, the amount due”]; In re
Marriage of Robinson (1998) 65 Cal.App.4th 93, 98
[a determination of arrearages “‘rests upon an existing order
rendered in a family law action’”].) The determination of
arrearages is “treated as a money judgment” enforceable under
section 290. (County of Shasta, at p. 334; see In re Marriage of
Lackey (1983) 143 Cal.App.3d 698, 702-703 [custodial parent may
file a motion in superior court asking the court to determine the
amount of arrearages under an existing judgment and for
liquidation of the arrearages, and the resulting judgment may
then be enforced as specified under (the predecessor to)
section 290].) 6
Section 5241 does not address requests for, or orders
determining, arrearages. The statute merely protects an obligor
from attempts to hold the obligor in contempt or to prosecute the
obligor criminally for nonpayment of support in certain
6 At the time the court decided In re Marriage of Lackey,
supra, 143 Cal.App.3d 698, section 290 was codified at Civil Code
former section 4380.
14
circumstances. Brubaker is not seeking to do either of those
things. Thus, section 5241 does not limit Brubaker in seeking a
request for order determining arrearages from Strum.
This result is supported by the legislative history of
Assembly Bill No. 960, which added the relevant language to
section 5241. (See Assem. Bill No. 960 (1997-1998 Reg. Sess.)
§§ 4-5; see also Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335
[although the meaning of language in a statute “is plain, it is
helpful to look at [the statute’s] legislative history”]; Hughes v.
Pair (2009) 46 Cal.4th 1035, 1046 [“we [may] look to legislative
history to confirm our plain-meaning construction of statutory
language”]; United Health Centers of San Joaquin Valley, Inc. v.
Superior Court (2014) 229 Cal.App.4th 63, 79 [“‘[r]eviewing
courts may turn to the legislative history behind even
unambiguous statutes when it confirms or bolsters their
interpretation’”].) The court’s decision in County of Shasta,
supra, 38 Cal.App.4th 329 motivated the Legislature to enact the
amendments to section 5241. The court in County of Shasta held
an obligor was liable for support payments withheld by his
employer but never sent to the obligee, in that case before the
employer declared bankruptcy. (Id. at p. 336.) An early analysis
of Assembly Bill No. 960 cited County of Shasta and said the
decision unfairly held obligors responsible for support twice, “first
when it comes out of his or her wages, and second when the
obligee or the [district attorney] engages in other enforcement
mechanisms to collect the support which never reached the
obligee.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No.
960 (1997-1998 Reg. Sess.) as amended Jan. 12, 1998.) At that
time, the bill would have prevented an obligor “from being liable
for support payments withheld from the obligor’s earnings
15
pursuant to an earnings assignment order but not received by the
obligee.” (Ibid.)
The Legislature, however, amended the bill to limit the
scope of protection available to an obligor whose employer
withheld but did not pay support obligations to the obligee.
Rather than providing that an obligor “shall not be held liable for,
and shall not owe, the support that was withheld by the employer
but not received by the obligee,” the bill proposed to amend
section 5241 to state “the obligor shall not be held in contempt or
subject to criminal prosecution for nonpayment of the support
that was withheld by the employer but not received by the
obligee.” (Assem. Bill No. 960 (1997-1998 Reg. Sess.) as amended
Jan. 16, 1998.) This limitation on protection for obligors tracks
legislative concerns that obligors were suffering “various
consequences for nonpayment of support, even though the obligor
believe[d] the support to have been paid.” (Assem. Com. on
Judiciary & Com. on Appropriations, 3d reading analysis of
Assem. Bill No. 960 (1997-1998 Reg. Sess.) as amended Jan. 16,
1998.) For example, the bill’s author reported it was “not an
uncommon scenario that the [district attorney], upon receiving
the support from the obligor’s employer, fails to properly credit
the payment to the obligor’s account and unfairly and incorrectly
continues to show that the obligor owes support. At such
time . . ., the [district attorney] engages in various enforcement
activities to collect the supposed arrearage.” (Ibid.) Such
enforcement actions included holding the obligor in contempt or
criminally prosecuting the obligor “when an employer who has
withheld the support for the obligor’s earnings has failed to
forward the support to the obligee.” (Ibid.) Thus, the bill sought
“to protect obligors from being held in contempt or subject to
16
criminal prosecution for nonpayment of support when the support
has in fact been withheld from their wages, but through no fault
of their own, fails to reach the obligee.” (Ibid.; see In re
J.W. (2002) 29 Cal.4th 200, 211 [“[t]o determine the purpose of
legislation, a court may consult contemporary legislative
committee analyses of that legislation”].) The Legislature did not
intend to limit an obligee’s right to seek a determination of
arrearages from an obligor whose employer was subject to an
earnings assignment order, even if the employer had withheld
funds for support payments.
The family court made two errors in interpreting and
applying section 5241 to Brubaker’s request for an order to
determine arrearages. First, the court conflated Brubaker’s
request for an order to determine arrearages with an enforcement
action to recover arrearages. (At times, the parties did as well.)
The court reasoned that, because section 5241 made Strum’s
employers liable for any arrearages that accrued while Strum
was employed, Brubaker could not “seek[ ] arrearages” from
Strum. But Brubaker’s request did not seek arrearages from
Strum, at least not yet. It only asked the family court to “set
child support arrears including [a] determination of unpaid
Ostler/Smith payments.” Thus, the family court’s reasoning that
section 5241 does not permit Brubaker to seek arrearages from
Strum did not apply to Brubaker’s more limited request for an
order determining arrearages.
Second, the family court’s reason for denying Brubaker’s
request for an order determining arrearages was based on an
erroneous interpretation of section 5241. Contrary to the family
court’s interpretation, section 5241 does not insulate Strum from
an action to enforce the payment of arrearages. Section 5241,
17
subdivision (a), makes employers liable for arrearages they
willfully fail to withhold and pay under an applicable earnings
assignment order, but that provision does not address an obligor’s
liability for such payments. Indeed, the legislative history shows
the Legislature was very much aware of the court’s holding in
County of Shasta and specifically decided against relieving
obligors of liability for arrearages, even where an employer
withheld support payments but failed to forward the payments to
the obligee. 7
Strum argues this interpretation of section 5241 would
allow an obligee to collect arrearages from the obligor and then
“get double recovery” against the employer. Strum cites section
5241, subdivision (a), which, as stated, provides that an employer
who willfully fails to withhold and send to the obligee support
pursuant to a valid assignment order is liable for the support the
employer failed to withhold and pay to the obligee, plus interest.
That liability, however, is a penalty for the willful failure to
comply with an assignment order, which may also subject the
employer to contempt. (§ 5241, subd. (c); see Code Civ. Proc.,
§ 1218.) And section 5241 provides that any penalty for failing to
comply with an assignment order “shall be payable directly to the
obligee.” (§ 5241, subd. (d).) Where an employer does not
7 In those circumstances, section 5241, subdivision (d),
provides that “the local child support agency shall take
appropriate action to collect the withheld sums from the
employer.” To the extent both a local child support agency and
an obligee seek to enforce an earnings assignment order, the
Family Code provides that, in the event of conflicting orders, “the
court order last issued shall supersede all other orders and be
binding upon all parties . . . .” (§ 17404, subd. (d).)
18
willfully fail to withhold payments, nothing in the Family Code
suggests the obligee can recover the arrearages owed from both
the employer and the obligor. 8
B. Brubaker’s Request for an Order Determining
Arrearages Was Not Sanctionable
Code of Civil Procedure section 128.5 “gives the trial court
discretion to award ‘reasonable expenses, including attorney’s
fees, incurred by another party as a result of bad-faith actions or
tactics that are frivolous or solely intended to cause unnecessary
delay.’ [Citation.] ‘“Frivolous” means (A) totally and completely
without merit or (B) for the sole purpose of harassing an opposing
party.’” (Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th
882, 893; accord, Rudisill v. California Coastal Com. (2019)
35 Cal.App.5th 1062, 1070; see Code Civ. Proc., § 128.5, subds. (a)
& (b).) “To meet this standard, a party requesting the award
must show that ‘any reasonable attorney would agree the motion
was totally devoid of merit.’” (Rudisill, at p. 1070.)
The family court granted Strum’s request for sanctions
against Karney under Code of Civil Procedure section 128.5
because the court believed section 4251 required Brubaker to
seek a determination of arrearages (and the actual arrearages)
from Strum’s employers. Because the family court
misinterpreted section 4251, it had no basis for finding
8 Strum also cites section 5235, subdivision (a), for the
proposition that Strum’s employer “is liable for arrears, if any
exists.” But section 5235, subdivision (a), like section 5241, does
not address an obligor’s liability for arrearages. Section 5235,
subdivision (a), refers only to an employer’s liability “as provided
in Section 5241.”
19
Brubaker’s request totally devoid of merit. Therefore, the court
erred in awarding Strum sanctions against Karney.
DISPOSITION
The family court’s order denying Brubaker’s request for an
order determining arrearages and granting sanctions against
Karney is reversed. The family court is directed to determine the
amount of arrearages, if any, prior to March 30, 2021 and after
May 1, 2021. Brubaker is to recover her costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
20