By Robert Lafer
Chief Legal Counsel, San Diego DCSS
Did you know that our CSDA Appellate Committee participates on the State’s Appellate Advisory Committee to make recommendations on whether to appeal/writ trial court decisions? We also review appellate decisions to determine whether we should ask for a case to be published or depublished in the Official Reports of the court. Before making such a request, we consider and discuss the statewide implications of the appellate opinion, and if we decide to move forward, the CSDA Board is contacted to vote on that action.
Recently, our Committee discussed a partially published appellate decision, IRMO Wilson (2016) 4 Cal.App.5th 1011, that could be misinterpreted and potentially complicate our child support enforcement efforts. In the published portion of the Wilson decision, the court held that its equitable authority may be extended to deny enforcement of arrears in a particular situation. The case involved a fact scenario where, during the period of arrears accumulation, the obligor’s parent (child’s grandparent) had physical custody of the child and thus, the court ruled, the obligor’s child support obligation may have been discharged. Prior case law held that a parent may discharge their child support obligation when the child is living with them; thus, the court could deny enforcement of arrears accrued during that period (see Jackson v. Jackson (1975) 51 Cal.App.3d 363; sometimes referred to as an equitable offset or Jackson credits).
The Appellate Committee took no position on the court’s extension of its equitable authority in this case. However, the facts were so unusual and peculiar, concerns were expressed that the court’s holding may be misinterpreted to go beyond what was intended by the court. The Committee submitted a letter to the Supreme Court requesting depublication; unfortunately, the request was not granted. The published portion of the case remains citable at this time.
You can read more about the details of this case and others in the California Attorney General’s Family Support News, Fall 2016 issue, Vol. 19, No.3.
Additionally, based upon some of the recurring issues identified in other cases reviewed, the following “practice pointers” may be helpful:
- Imputation of income: On appeal, to affirm a trial court’s imputation of income, proof of ability and opportunity to earn must have been admitted into evidence. All documents must be actually admitted into evidence, not just be considered by the court. Some attorneys use checklists to ensure that each piece of evidence was marked and admitted.
- Presentation of oral testimony: Our cases can be handled very informally by some courts and self-represented litigants may make statements about their facts. Before the court can consider those facts, the party must be sworn in. Occasionally, an attorney may argue facts without any declarations or other proper evidence to support their argument. The facts contained in the attorney’s argument may not be considered by the court; however, an “offer of proof” may be made so the court can properly consider those facts.
- Statement of Disqualification against a Judicial Officer (C.C.P. §170.3): Where multiple Statements of Disqualification are filed, the Judicial Officer must properly determine each one, even where the statements have no merit. Before hearing any further issues, the Commissioner must strike the statement(s), or consent to it, or file a written verified answer to the statement(s); it cannot be ignored. (See IRMO M.A. (2015) 234 Cal.App.4th 894.) If the issue is not addressed, the court should be reminded that the statement(s) must be handled before proceeding with the case.
If you have any questions about the cases or issues discussed in this article, feel free to contact Robert Lafer at email@example.com.