She contends the court erred in (1) awarding Stover a child care credit of $441 per month from January 2007 to May 2011 because no motion to modify had been filed during that time; (2) failing to set aside her admissions that she incurred no child care costs from January 2007 to November 2013, the date on which the court deemed Stover's requests for admissions admitted after Bruntz failed to timely respond to the discovery requests; (3) imposing discovery sanctions on her for her mistaken failure to respond to the discovery; (4) setting child support, with no child care add-on component, at $490 per month for the period June 2011 to December 2012, and $699 per month for January 2013 to November 2013; and (5) failing to dismiss Stover's motion to modify child support because, in her view, defendant was in contempt for failing to pay the required amount under the existing court order.
We note that, according to Bruntz, she appeals the court's "order retroactively modifying child support for the period of 06/01/2011-12/31/2013 to $490 per month with no child care add-ons[.]" But as far as we can discern from the record, the court set support at "$490 per month" with no child care add on "for the period of 06/01/2011-12/31/2012," and "beginning on 1/01/2013," it set support at $699 per month with no apparent child care add-on. The court ordered a child care arrears add-on for the period of December 1, 2013 to May 15, 2014, implicitly acknowledging a child care add-on for that period. We have therefore framed the issues to be considered on appeal in light of the challenged order's actual language.
We conclude that, notwithstanding the parties' stipulated retroactivity provision, the court erred in awarding Stover a child care credit for any period before May 10, 2011, when he filed his motion to modify support, because any such credits effectively modified the support award and incurred arrearages retroactively in contravention of the Family Code statutes governing modification of support orders (unless otherwise set forth, section references that follow are in the Family Code). We further conclude that while Bruntz
We also find the court did not err in deeming admitted the requests for admissions to which Bruntz failed to timely respond or in imposing discovery sanctions. Given these admissions, the court was amply justified in awarding child support in the amount of $490 per month without any child care add-on for June 2011 to December 2012, and $699 per month without any child care add-on for January 2013 to November 2013, the relevant time period covered by the admissions. Finally, the court did not err in considering Stover's modification motion even though Stover was not current on his child support payments.
The order after hearing filed June 19, 2014, awarding Stover certain child care credits, excluding other child care costs, and imposing discovery sanctions on Bruntz is reversed in part and affirmed in part.
FACTS AND PROCEEDINGS
Both parties' briefs make numerous factual assertions without any supporting citation to the relatively sparse record, which does not contain a reporter's transcript or settled statement of the trial
At one time, Bruntz and Stover were romantically involved and had a son and a daughter together. Their relationship ended badly in May 2001. Stover repeatedly violated protective orders Bruntz had obtained and ultimately served time in prison after being convicted of burglarizing Bruntz's home and stealing her personal items.
In July 2006, the Santa Clara County Superior Court entered a child support order that Stover pay $612 in support of his children. The order also directed Stover to pay half of all child care costs provided by a licensed provider. A November 2006 Findings and Recommendation of Commissioner recommended increasing child support to $1,304, which included Stover's half interest in child care and was differentiated $571 for his son and $733 for his daughter. Although not entirely clear from the record, it appears Stover objected to the recommended increase in his support obligations. Eventually the parties agreed that Stover would pay $1,000 in nondifferentiated support, and the court entered an order accordingly in April 2007. It is this order that serves as the genesis of Bruntz's various appellate challenges.
The April 2007 order states that the $1,000 support amount includes Stover's half interest in child care costs. It also includes the following
The April 2007 support order entered by the Santa Clara County Superior Court was registered in Placer County in 2009 when Bruntz moved there with the children. With court approval, she and the children later moved to Oregon, where they presently reside.
In each month except one, from October 2007 until January 2011, Stover paid some child support but did not pay the full $1,000 required by the April 2007 support order. In February 2011, Bruntz filed an order to show cause to hold Stover in contempt for failing to pay the full child support amount.
Immediately after Bruntz filed the order to show cause, Stover ceased making any further child support payments. In May 2011, Stover moved to modify child support and to determine child care arrearages, claiming the children had not been enrolled in child care since January 2007, and that pursuant to the April 2007 support order, child care costs were retroactive to the date the minor children were no longer receiving child care.
Bruntz filed a second order to show cause in October 2011, which covered February 2011 to July 2011. She asserted Stover had not paid any child support during those six months.
Prior to a trial on both contempt citations and on Stover's modification motion, Stover propounded discovery on Bruntz, which included two sets of requests for admissions. Briefly summarized, the requests for admissions asked Bruntz to admit that the children had not been enrolled
While Bruntz claims she filed a motion for relief pursuant to Code of Civil Procedure section 473.5, she does not include any such filing in her appendix
The court declined to admit late responses from Bruntz, which she contended she directed her former attorney to provide to Stover's counsel.
Bruntz's two contempt citations and Stover's modification motion, including his request to retract child care arrearages, were tried together over three days. While Stover was represented by counsel, Bruntz acted on her own behalf.
Following the trial, the court generally found in favor of Stover and against Bruntz. Among other things, the court found Stover not guilty of contempt for each of the alleged instances of partial nonpayment in Bruntz's initial order to show cause (approximately 39 months). It found him guilty of contempt for complete nonpayment for each of the six months alleged in Bruntz's second order to show cause. The court awarded Stover a $441 per month child care credit for the period of January 1, 2007 to May 31, 2011. It also set child support at $490 per month, without any child care add-on, for the period of June 1, 2011 to December 31, 2012, and at $699 per month, without any child care add-on, for the period of January 1, 2013 to November 31, 2013. The court also sanctioned Bruntz $1,250 for discovery violations. Bruntz timely appealed.
DISCUSSION
I
Retroactivity Provision
Bruntz contends the court erred in awarding Stover a child care credit of $441 per month for each month from January 1, 2007 to May 31, 2011. She argues that the effect of the credit was to improperly modify the April 2007 support order retroactively before Stover had filed his motion for modification on May 10, 2011. We agree the court was statutorily empowered to retroactively modify the April 2007 support order to the date Stover filed his motion, but no earlier. The court thus erred in awarding Stover child care credits beginning in January 2007.
By their plain terms, these statutory provisions "permit[ ] the trial court to make its ruling retroactive to the filing date of the motion, but no earlier." (In re Marriage of Cheriton (2001)
"The Legislature has established a bright-line rule that accrued child support vests and may not be adjusted up or down. [Citations.] If a parent feels the amount ordered is too high-or too low-he or she must seek prospective modification." (In re Marriage of Tavares (2007)
A court order modifying support retroactive to any time period before the filing date of a modification motion would thus violate the governing statutory scheme. Such an act, moreover, would be in excess of the court's jurisdiction. (In re Marriage ofGruen (2011)
In this case, the court apparently relied on the retroactivity condition contained in the April 2007 order to allow Stover a credit for each month that
That the court labeled the adjustment a "credit" rather than a retroactive modification is of no moment. It is the effect of the order that is paramount. (See e.g., Gruen, supra,
We find Tavares instructive. There, like here, the father argued that to the extent
Notably, the Tavares court found that section 3692 forestalled his argument that the court-ordered support amount exceeded actual child care costs. (Tavares, supra,
Had Stover "harbored a suspicion the court's childcare support orders no longer reflected actual costs, his remedy was to seek prospective modification of his support obligation." (Tavares, supra,
Bruntz also contends without any citation to the record that the court found the April 2007 order ambiguous which could not be enforced by contempt.
II
Estoppel
Having concluded that the court acted in excess of its jurisdiction when it imposed the retroactivity condition in the April 2007 support order to allow Stover a child care credit for any time period before May 10, 2011, we must next decide whether Bruntz is estopped from raising the issue because she did not initially object to the retroactivity condition or otherwise appeal the April 2007 order. Stover answers that question in the affirmative. For important public policy reasons, however, we conclude otherwise.
We note that, Stover's brief also makes a passing reference questioning whether Bruntz can appeal the court's order because she allegedly accepted certain child care support payments following the trial. But he does not support the argument with any reasoned analysis or citation to authority. We therefore deem the issue waived. (Nelson v. Avondale Homeowners Assn. (2009)
Citing Murray , a spousal support case involving no children, Stover contends the retroactivity condition in the April 2007 order cannot now be challenged because Bruntz never appealed the condition when it was first entered. In Murray , the trial court suspended the husband's previously ordered support obligation due to his failing health and business, but the court reserved the right to reinstate the support obligation retroactively. (Murray, supra,
While it is true that in general " 'a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties' " (Murray, supra,
Indeed, "appellate courts have voided acts in excess of jurisdiction when the irregularity was too great or when the act violated a comprehensive statutory scheme or offended public policy[,]" especially policies concerning children. (In re Marriage of Jackson (2006)
As in Goodarzirad and Jackson , we conclude that Bruntz may collaterally attack the retroactivity condition in the April 2007 support order in challenging the court's award of child care credits to Stover. The Legislature has declared the important public policy of protecting minor children to ensure that their needs are met when their parents separate. (
Barring Bruntz from attacking the retroactivity condition contravenes these venerable public policies. And allowing Stover to avoid child care costs for several years in which no motion to modify has been filed could seriously destabilize the minor children's home life and Bruntz's ability to meet their needs. This is especially so since they reside with her for almost 95 percent of the time and Stover rarely has them.
III
Discovery Admissions and Sanctions
In addition to attacking the retroactive modification of Stover's support obligations and arrearages, Bruntz also contends the court erred in deeming Stover's requests for admissions admitted and in failing to set the admissions aside so she could prove at trial that she actually incurred child care expenses for the children during the years at issue. The court did not err.
Under Code of Civil Procedure section 2033.010, a party may request that another litigant "admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties." If a litigant fails to timely respond, the propounding party may move the court for an order deeming the truth of any matters specified in the requests admitted. (Civ. Proc. Code, § 2033.230, subd. (b).) "Matters that are admitted or deemed admitted through [request for admissions] discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence." (St. Mary v. Superior Court (2014)
While the discovery statutes do include a mechanism for withdrawing a deemed admission, a party may withdraw such an admission only on leave of court granted after notice to all parties. (Code Civ. Proc., § 2033.300, subds. (a) & (b).) The court may permit withdrawal of an admission only if the admission was the result of mistake, inadvertence, or excusable neglect and the opposing party will not be substantially prejudiced. (Ibid .; see also
In this case, Bruntz was deemed to have admitted, among other things, that her children were not enrolled in any day care programs related to her employment from January 2007 to November 2013, when the court granted Stover's motion to compel responses. In other words, she admitted she incurred no child care costs for that time period.
She does not dispute that she did not timely respond to the requests for admissions. Instead she contends the court
Bruntz, however, was not exempt from the foregoing rules because she represented herself during the litigation. (Nwosu v. Uba (2004)
Our previous determination that Stover is not entitled to a child care credit for any alleged overpayments before he filed his motion to modify means that Bruntz's admissions covering the time period of January 2007 to May 2011 are irrelevant and cannot serve as a basis to retroactively modify the support order. (Tavares , supra , 151 Cal.App.4th at pp. 626-627,
The court, moreover, was justified in sanctioning Bruntz for failing to timely respond to the discovery. Under Code of Civil Procedure section 2033.280, it is mandatory that the court impose a monetary sanction on the
IV
Child Support Award Without Child Care Add-Ons
Bruntz contends the court erred in failing to award childcare add-ons for the time period between June 2011 to November 2013. We disagree.
In addition to basic child support established by the guideline formula in section 4055, subdivision (a), a trial court must order certain other costs as additional support, including childcare costs related to employment, training, or education. (§ 4062, subd. (a)(1); see
Given our conclusion that the court did not err in deeming Bruntz to have admitted that there were no work related child care costs from January 2007 to November 2013, the court was amply justified in not awarding such costs for June 2011, after Stover had filed his motion to modify support the previous month, to November 2013, the outside date of the deemed admissions.
Dismissal of Modification Motion
Bruntz contends the court should have dismissed Stover's motion to modify child support because he was in arrears on his payments. Given his alleged unclean hands for failing to pay sufficient child support, she claims the court should have disregarded his modification motion.
Courts have recognized that not every debtor-spouse or parent has unclean hands merely by virtue of having failed to pay child support. (In re Marriage of Dancy (2000)
DISPOSITION
The order after hearing filed June 19, 2014, awarding Stover certain child care credits, excluding other child care costs, and imposing discovery sanctions on Bruntz is reversed in part and affirmed in part. The court is directed to enter a new order consistent with this opinion. The parties shall bear their own costs on appeal.
We concur:
MURRAY, J.
DUARTE, J.
