COUNTY OF RIVERSIDE v. KEEGAN

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Court of Appeal, Fourth District, Division 2, California.

COUNTY OF RIVERSIDE, Plaintiff and Respondent, v. Raymond Joseph KEEGAN, Defendant and Appellant.

No. E014834.

Decided: April 16, 1997

Henry James Koehler, Santa Ana, for Defendant and Appellant. Grover C. Trask, District Attorney, and Barbara A. Heredia, Deputy District Attorney, for Plaintiff and Respondent.

Raymond Joseph Keegan appeals from a judgment establishing paternity and ordering him to pay child support on behalf of his daughter Elizabeth, born February 23, 1989.   On appeal, Keegan contends the trial court erred in (1) calculating child support because the record contained no evidence of the mother's income and (2) making the award retroactive to the date the complaint was filed.

On August 21, 1989, the County of Riverside (County) filed a complaint for establishment of child support against Keegan.   Following trial, the court ruled that paternity had been established and that Keegan was to pay $649 per month in child support retroactive to August 21, 1989, the date of the filing of the complaint.

DISCUSSION

I. The Trial Court Had Sufficient Information Before It Upon Which to Base the Judgment

 Keegan contends the trial court never acquired jurisdiction to make an award of child support because mother never filed an income and expense declaration (Jud.Council form 1285.50) in accordance with California Rules of Court1 Rules 12252 and 12433 .

Keegan has cited no authority, other than the rules themselves, for his argument that the court never acquired jurisdiction because of the failure to comply with rules 1225 and 1243.   Nothing in the text of those rules suggests that compliance is a prerequisite to establishing jurisdiction.   In In re Marriage of Gortner (1976) 60 Cal.App.3d 996, 131 Cal.Rptr. 919, the court reversed an order vacating a previous order concerning child support because the wife had not been served personally with notice of subsequent proceedings as required under Civil Code, former section 4809.   The court noted that “although one case has used the term ‘lack of jurisdiction’ in discussing a failure to comply with section 4809 [citation], the issue is one of notice rather than ‘jurisdiction’ in the sense of service of process.  [Citation.]”  (Marriage of Gortner, supra, at p. 1001, fn. 6, 131 Cal.Rptr. 919.)   Thus, the court explained, “If it could be shown that the party had actual notice of the proceedings, a technical failure to comply with section 4809 would not invalidate the order.  [Citations.]”  (Id. at p. 1001, 131 Cal.Rptr. 919.)

Here, the County concedes that mother's income and expense declaration was erroneously omitted, but Keegan was given copies pursuant to a stipulation filed July 1, 1994.   Furthermore, Keegan stipulated that certain figures in the DissoMaster calculations of December 8, 1993, were agreed upon.   That DissoMaster printout was admitted into evidence at trial.   Instead of a trial brief, Keegan filed “Defendant's Calculation of Current Child Support” which included copies of the mother's pay stub, 1992 tax return, and the last page of her income and expense declaration.   Thus, Keegan had actual notice of the figures upon which the DissoMaster calculations were based (see In re Marriage of Gortner, supra, 60 Cal.App.3d at p. 1001, 131 Cal.Rptr. 919), and the court had sufficient evidence before it upon which to base the child support award.   There was no error.

II. The Trial Court Did Not Err in Awarding Support Retroactive to the Filing of the Complaint

 Keegan contends the trial court erred in awarding child support retroactive to the filing of the complaint rather than from the time a motion was filed to establish a specific temporary support award.   Keegan argues a retroactive award was impermissible under Family Code section 4009 4 and 42 U.S.C. section 666(a)(9).

By its own terms, 42 U.S.C. section 666(a)(9) does not apply to this case.  “Family law commentators explain that subjecting retroactivity to federal law means that orders modifying child support, as opposed to original orders of support, may be made retroactive only to the date of service of the order to show cause or the notice of motion seeking modification.  (Hogoboom & King, Cal. Practice Guide:  Family Law 1 (The Rutter Group 1993) ¶ 6:42.16, pp. 6-106, 6-107.)”  (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 843, 31 Cal.Rptr.2d 613, original italics.)   Here, the action sought to establish child support, not to modify an existing support order.

The trial court relied on the case of Richter v. Superior Court (1963) 214 Cal.App.2d 821, 29 Cal.Rptr. 826 to justify the award of child support retroactive to the date of the filing of the complaint.   In Richter, the court stated that the lower court “has power to award support and costs from the date of filing the complaint.  (Kyne v. Kyne, 38 Cal.App.2d 122 [100 P.2d 806];  Mathews v. Hornbeck, 80 Cal.App. 704 [252 P. 667].)”  (Richter v. Superior Court, supra, at p. 823-824, 29 Cal.Rptr. 826;  see also County of Los Angeles v. Ferguson (1979) 94 Cal.App.3d 549, 555, 156 Cal.Rptr. 565.)

However, Keegan contends that In re Goosmann, supra, 26 Cal.App.4th 838, 31 Cal.Rptr.2d 613 supports his position that a child support order may not be made before the filing date of the order to show cause or notice of motion.   In Goosmann, the court held, in the context of a dissolution action, that child support could not be made retroactive to the date of an informal request made in a position statement prepared in anticipation of a settlement conference.   The court stated, “A position statement is not the equivalent of a notice of motion or an order to show cause,” and a “procedurally correct” motion was required to give proper notice of the relief being sought.  (Id. at pp. 844-845, 31 Cal.Rptr.2d 613.)

Here, the complaint was filed under Welfare and Institutions Code section 11350.1, not under the Family Code.   The purpose of the action, set forth on the face of the complaint, was to establish child support, thus placing the defendant on notice at the outset of the proceeding.   This pleading, unlike the position statement discussed in Goosmann, was the functional equivalent of a notice of motion or order to show cause used in a Family Code action.   Thus, we conclude the trial court properly entered judgment requiring child support retroactive to the date of the filing of the complaint.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further references to rules are to the California Rules of Court.

2.   Rule 1225(b) states, “A completed income and expense declaration, property declaration and application for order and supporting declaration in the form prescribed by Rules 1285.20, 1285.50 and 1285.55 shall be attached to an application for an injunctive or other order when relevant to the relief requested․   The original application and order shall be retained in the court file.”

3.   Rule 1243 states, “A current income and expense declaration and a current property declaration in the form prescribed by rules 1285.50 and 12385.55 shall be served and filed by any petitioner or respondent appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant, and so much thereof shall be completed as is applicable to the issue to be determined,․”

4.   Family Code section 4009 states, “An order for child support may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date, except as provided by federal law (42 U.S.C. Sec. 666(a)(9)).”

WARD, Associate Justice.

HOLLENHORST, Acting P.J., and RICHLI, J., concur.