Elena Gross, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CSSS1001023) OPINION APPEAL from the Superior Court of San Bernardino County. John A. Crawley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Elena Gross, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
In these consolidated appeals brought by defendant and appellant Elena Gross, we address orders entered following two hearings in a child support enforcement action. Underlying many of Elena's contentions is her assertion that her former husband, real party in interest and respondent Timothy Gross, has an ongoing obligation to pay her $1,128 a month pursuant to a sponsorship agreement he executed in 2001 in connection with Elena's immigration to the United States from South Africa. Although the veracity of this contention was not contested in either of the hearings that are at issue in this appeal, we feel compelled to point out, in light of Elena's continuing reliance on that contention, that it has been adjudicated that Timothy no longer has any such obligation. To demonstrate this, we take judicial notice of our unpublished opinions in County of San Bernardino Child Support Division v. Gross (July 23, 2013, E054457) and Gross v. Gross, et al. (Aug. 6, 2015, E060475) (hereafter Gross I and Gross II, respectively).
We will refer to the parties by their first names for simplicity and clarity. No disrespect is intended.
Under section 1183 of title 8 of the United States Code, immigrants who are deemed likely to become public charges may gain admission to the United States if a sponsor signs United States Citizenship and Immigration Services affidavit I-864, thereby promising to support the sponsored immigrant at no less than 125 percent of the Federal Poverty Guidelines. (See 8 U.S.C. § 1183a(a)(1)(A).) An affidavit of support creates a contract between the sponsor and the United States government, which can be enforced by the sponsored immigrant. (8 U.S.C. § 1183a(a)(1)(B).) The sponsor's obligation ends only in the event the sponsored immigrant (1) becomes a United States citizen, (2) works 40 quarters or receives credit for 40 quarters, as defined by the Social Security Act, (3) no longer has lawful permanent resident status and permanently leaves the United States, (4) receives a new grant of adjustment of status based on a new affidavit of support, or (5) dies. (8 U.S.C. § 1183a(a)(2), (3).) Dissolution of marriage between the sponsor and the sponsored immigrant does not terminate the support obligation. (Liu v. Mund (7th Cir. 2012) 686 F.3d 418, 423.)
In Gross I, we addressed the trial court's 2010 order for Elena to pay child support to Timothy in the amount of $420 a month. The amount of child support was based on Elena's income of $1,128 a month, which she was then receiving from Timothy's parents. Timothy and his parents had each executed sponsorship agreements in connection with Elena's immigration to the United States from South Africa. We affirmed the child support order, holding that the income Elena received from Timothy's parents was a type of income that could be used to calculate child support. We noted that the sponsorship agreement had been deemed enforceable in Riverside County Superior Court case No. INC10002737.
In Gross II, we affirmed the subsequent judgment in Riverside County case No. INC10002737, dismissing Elena's complaint for breach of the sponsorship agreement based on the trial court's finding that Elena qualified for credit for 40 quarters of work as defined by the Social Security Act and that Timothy and, therefore, his parents no longer had any obligation under the sponsorship agreements. (8 U.S.C. § 1183a(a)(2).) The superior court had previously issued a preliminary injunction, ordering Timothy and his parents to pay Elena support under the sponsorship agreements pending trial. However, we held, that injunction expired upon the entry of the judgment. Accordingly, contrary to Elena's representations to the trial court and to this court, it has been adjudicated that Timothy no longer has any obligation under the sponsorship agreement.
We now turn to the current appeals.
CASE NO. E067856
On October 6, 2016, plaintiff and respondent the San Bernardino County Department of Child Support Services (DCS) filed a request for an order to show cause, seeking an order requiring Elena to take specified actions to seek work and to provide documentation of her efforts at seeking work. The request alleged that Elena had an ongoing child support obligation in the amount of $420 a month and an adjudicated arrears balance in the amount of $39,593.07. On November 9, 2016, Elena filed a request for an order to show cause, seeking sanctions against Timothy pursuant to Family Code section 271, based on his alleged failure to enter into a settlement agreement to offset her child support arrearage with the amounts she claimed he owed her pursuant to an order in the Riverside County action. On the same date, Elena filed a request for an order to show cause to modify her child support obligation, asserting that Timothy was not paying her.
All further statutory citations refer to the Family Code unless another code is specified.
Orders to show cause were issued, and the three requests were heard simultaneously on February 23, 2017. The court granted Elena's request for modification, finding that she was not receiving the monthly payments under the sponsorship agreement, and set her child support obligation at zero, effective December 1, 2016. The court denied Elena's request to offset her child support arrearage against the money allegedly owed to her pursuant to the Riverside County sponsorship action, finding it not "legally appropriate or permissible" because Riverside County was the appropriate venue for enforcement of any such judgment. It also denied Elena's request for sanctions as "factually and legally not appropriate" to impose sanctions based on Timothy's refusal to agree to the offset that the court had just refused to order. Finally, the court granted DCS's request for an order requiring Elena to seek work. The court found that Elena was already registered with America's Job Center and ordered her to maintain her registration and continue to seek employment at a minimum of "five places per week, places that she [knew were] hiring, and [for] work that she is able to perform," given her established partial disability. The court also ordered her to report her efforts to DCS and provide the name, address and other information pertaining to her employer if she did obtain employment.
On March 1, 2017, Elena filed a timely notice of appeal.
A. The Commissioner Properly Heard This Matter as a Temporary Judge.
Elena first contends that the judgment must be reversed because she did not stipulate that Commissioner John A. Crawley could sit as a temporary judge and was not informed prior to the hearing that she could object to the commissioner sitting as a temporary judge.
Section 4251 provides that in all proceedings initiated either by the local child support agency seeking to establish, modify, or enforce child support orders and all proceedings initiated by a party other than the local child support agency seeking to modify or enforce a support order "shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances." (§ 4251, subd. (a).) The commissioner "shall act as a temporary judge unless an objection is made" by any party. (§ 4251, subd. (b).) The court is required to advise parties prior to the commencement of the hearing that the matter is being heard by a commissioner who is acting as a temporary judge unless any party objects to the commissioner acting as a temporary judge. (§ 4251, subd. (c).) If a party objects, the commissioner may hear the matter and make findings of fact and a recommended order. (Ibid.) Within 10 court days after that, "a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days." (Ibid.)
Here, as Elena points out, Timothy's and DCS's attorney both executed a stipulation for Commissioner Crawley to act as a temporary judge for the hearing on February 23, 2017, and for any new proceedings in the case. Elena did not execute that stipulation. She contends that because the record contains "no . . . indication" that she had seen a stipulation before the hearing and she was not advised prior to the hearing that she could object to the commissioner acting as a temporary judge, the commissioner's order is void.
We review a contention that a party was unaware of his or her right to object to a commissioner in proceedings governed by section 4251 under the substantial evidence rule. (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) If there is any substantial evidence, whether contradicted or uncontradicted, that the party had actual knowledge of the right to object to the commissioner acting as a temporary judge, we will not reverse a judgment based upon an order issued by the commissioner. (Ibid.; Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another ground as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.)
Here, the record shows that the notice required by section 4251, advising the parties of their "right to review by a superior court judge and how to exercise that right" (§ 4251, subd. (b)), appears on all of the order to show cause forms filed by the parties in this case. The notice states that the case "may be referred to a court commissioner" to act as a temporary judge unless a party objects before the hearing. It also states that if a party does object, the commissioner can still hear the case to make findings and a recommended order. If a party is not satisfied with the order, the notice states that upon objection to the order, within 10 days, a judge will make a temporary order and set a new hearing. Accordingly, substantial evidence supports the conclusion that Elena had actual knowledge of her right to object and of the procedure to follow if she did not like the order issued by the commissioner.
To the extent that Elena contends that the order must be reversed because the California Constitution requires an affirmative stipulation to having a commissioner act as a temporary judge, she is incorrect. The argument that a stipulation is required by the California Constitution was effectively rebutted in Stratton v. Stratton (1991) 226 Cal.App.3d 1392. In that case, the court reviewed the predecessor statute to section 4251. The court held that a stipulation is constitutionally required only when there is a general reference to a commissioner. A general reference must be consensual because any ruling that results is binding on the parties without further action by a judge. In contrast, a special reference is merely advisory. (Stratton, at pp. 1395-1396.) Although the reference provided for in section 4251 is binding if none of the parties objects to having the commissioner act as a temporary judge, the commissioner's findings and recommendation must be submitted for further hearing by a judge if a party does object to having the commissioner act as a temporary judge. Accordingly, the absence of a stipulation does not invalidate the commissioner's order as a matter of constitutional law. The cases Elena cites are not apposite because they do not involve section 4251 or other special references.
Stratton v. Stratton, supra, 226 Cal.App.3d 1392, addresses Code of Civil Procedure former section 640.1. (Stratton, at pp. 1395-1396.) That statute was repealed in 1996 (Stats. 1996, ch. 957, § 3) and replaced with Family Code section 4251 (Stats. 1996, ch. 957, § 6).
In any event, even if a stipulation were required, Elena had previously executed one in this case. On December 2, 2010, Timothy, Elena and the attorney for DCS all stipulated, pursuant to section 4251, that Commissioner Crawley could act as a temporary judge to "hear the within action" and "any new proceedings in this case." Elena does not explain why the 2010 stipulation was not still in effect.
Moreover, Elena has not shown that she was prejudiced by having Commissioner Crawley act as a temporary judge. An appellant who claims that a trial court has failed to comply with the requirements of section 4251 has the burden to demonstrate that prejudice resulted from that failure. (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.) Prejudice in this context means a showing that it is reasonably probable that a more favorable result would have been reached in the absence of the error. (Ibid.) Because we disagree, post, with Elena's contentions that the trial court erred by denying her request for section 271 sanctions and by imposing the "find work" order, we conclude that she has failed to demonstrate that a more favorable outcome would have resulted if the matter had been heard by a judge rather than by the commissioner.
The county declined to address this issue in its respondent's brief because the issue applies only to Timothy. Timothy did not file opposition to the motion in the trial court and did not file a brief in this appeal. Contrary to her assertion, despite the absence of opposition, Elena nevertheless has the burden of demonstrating both error and prejudice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.)
Section 271, subdivision (a), provides, in pertinent part: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award."
Elena filed a motion for sanctions pursuant to section 271, based on Timothy's refusal to enter into a proposed settlement agreement that offset Elena's unpaid child support against the unpaid amounts she claimed were due her pursuant to the Riverside County order for sponsorship payments. The trial court denied the motion, saying that it was neither factually nor legally appropriate to award sanctions on that basis.
We address the correctness of the order on the basis of the arguments made to the trial court. DCS did not contest Elena's contention that there was an existing order in the Riverside County case, and the trial court accepted her contention at face value.
An order granting or denying sanctions pursuant to section 271 is normally reviewed for abuse of discretion. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1312.) Here, however, there is an underlying legal question as to whether section 271 provides for an award of attorney fees to a party who is self-represented. We conclude that it does not.
In general, attorney fees are not available to a self-represented litigant, whether as a sanction for the conduct of the opposing party or for another reason. California follows the so-called "American rule," which provides that each party in litigation must ordinarily pay his or her own attorney fees unless the parties agree otherwise or attorney fees are specifically provided for by statute. (Code Civ. Proc., § 1021; Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) A "necessary predicate for obtaining fees is the existence of an attorney-client relationship." (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) Accordingly, it is well established that attorney fees may not be awarded to a self-represented litigant who does not pay or become liable to pay consideration for legal representation. (Id. at pp. 493-494; Musaelian v. Adams, at p. 517.) Similarly, a litigant who is entitled to an award of costs as a sanction is entitled only to costs that are actually incurred. Here, the trial court waived Elena's court fees. Accordingly, even if she were entitled to an award of costs, the order would be limited to whatever recoverable litigation costs she actually incurred. Elena made no showing that she incurred any costs, and her request for sanctions was properly denied on that basis alone.
In any event, Elena has not demonstrated any abuse of discretion in the trial court's denial of her request for an award under section 271. A court abuses its discretion when it issues an order that is arbitrary, clearly outside the bounds of reason, or in derogation of the applicable legal standards. (California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 827.) Elena requested sanctions because Timothy refused to sign an agreement offsetting Elena's child support arrearages against the amount she contended he owed her under the sponsorship agreement. The court denied the request for sanctions because it did not believe that it had the authority to order such an offset and, therefore, declined to sanction Timothy for refusing to do what the court could not order him to do. Elena has not shown that the court did have the legal authority to order the offset. In the absence of legal authority to grant the request, the court's denial of the request is not an abuse of discretion.
C. The Work Search Order Is Valid.
Elena contends that the order requiring her to seek work and report her efforts and any success to DCS is invalid because: (1) DCS failed to serve notice of the request for the order on Timothy; (2) the order "does not adhere to the facts of this case" because "the debt obligation is based upon the failure of Timothy Gross to pay his debt obligation"; (3) the order is moot because she was already registered on the required job database and was already seeking work; and (4) the order conflicts with the domestic violence restraining order in effect against Timothy because it requires Elena to disclose the name and address of her employer, if she succeeds in obtaining employment.
As to the service issue, only a party whose interests are adversely affected by a judgment or order has standing to appeal. (Code Civ. Proc., § 902; Vitatech Internat., Inc. v. Sporn (2017) 16 Cal.App.5th 796, 803-804.) Because Elena is not aggrieved by any failure by DCS to serve Timothy with notice of the request for an order to show cause or of the hearing on the order to show cause, she lacks standing to raise the issue on appeal.
Next, Elena contends that the order is invalid because her obligation to pay child support was based on Timothy's obligation to pay support to her under the sponsorship agreement, and Timothy never paid the support. The trial court acknowledged that Elena's obligation did arise out of Timothy's sponsorship obligation and that Timothy had not paid her but, nevertheless, rejected Elena's contention that she was entitled to an offset. In any event, section 3651, subdivision (c)(1), prohibits any modification of a support order as to any amount that accrued before the date of the filing of a notice of motion or order to show cause to modify or terminate support. (County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1326-1327.) Accordingly, the order is not invalid on this ground.
Next, Elena contends that the work search order is unsupported by the facts because she was already seeking work and was registered with the job search agency specified by the court. However, Elena's voluntary efforts were not sufficient to comply with the court's order, specifically that she apply for five available jobs a week, that she report her efforts to DCS, and that she provide DCS with detailed information as to any job she obtains.
Finally, Elena contends that the order violates the restraining order, which prohibits Timothy from taking any action, directly or indirectly, to obtain Elena's addresses or locations. Elena assumes that Timothy would be privy to this information, but she provides no factual basis for that assumption. In any event, she is incorrect. DCS does not represent Timothy; it represents the public interest in establishing and enforcing child support obligations, and "[n]o attorney-client relationship shall be deemed to have been created between the local child support agency or Attorney General and any person by virtue of the action of the local child support agency or the Attorney General in carrying out these statutory duties." (§ 17406, subd. (a); see id., subd. (h).) Furthermore, because a protective order is in effect, DCS is barred from releasing any information concerning Elena's whereabouts unless a court finds, after a noticed motion, that disclosure of that information is required by due process. (§ 17212, subds. (b), (c)(6).)
CASE NO. E068766
Elena filed three requests for orders, all of which reiterated her contention that Timothy's obligation under the sponsorship agreement should be used to offset her child support arrearage. She also sought an order prohibiting what she alleged to be harassment by DCS, an order joining Timothy as a party to the child support action, an order for Timothy to seek work, and a good cause exemption from the order requiring her to seek work. All three matters were set for hearing on July 5, 2017. Following a hearing on that date, the court denied all of Elena's requests. The court filed an order after hearing on July 11, 2017.
Elena filed a timely notice of appeal and a timely amended notice of appeal.
A. Elena Has Not Shown Prejudice Resulting from the Hearing Being Conducted by a Commissioner Acting as a Temporary Judge.
Elena first contends that the orders must be reversed because she did not stipulate to having a commissioner act as a temporary judge and because the commissioner did not ask her, at the beginning of the hearing, if she stipulated to his acting as a temporary judge. She contends that a stipulation was required for Commissioner Fuertsch, who presided at the hearing, and for Commissioner Crawley, who signed the orders after hearing.
Elena's argument is captioned "Appellant's Stipulation for a Commissioner Is Not Reflected in the Record. Orders of 7/5/2017 and 7/11/2017 Are Void." Within the three pages of argument that follows, Elena raises numerous other complaints about the procedures followed by the court in connection with these orders. We decline to address any issues that are not fairly encompassed within the caption. (Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must state each point under a separate heading or subheading summarizing the point]; Dinslage v. City & County of San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3 [court may disregard arguments that are not clearly set out in a heading and supported by reasoned legal argument].)
We reject these contentions for the same reasons we rejected them in case No. E067856. First, there is no requirement for a stipulation; all that is required is the party's actual knowledge that a commissioner might be hearing the case as a temporary judge and has actual knowledge of the procedure for objecting. Second, even if Elena was not already aware from the earlier proceedings in the child support enforcement action that a commissioner might be hearing the case as a temporary judge, notice was additionally given in the form request for telephone appearance Elena executed and filed on June 14, 2017. That form states that the case may be referred to a court commissioner, and the commissioner would act as a temporary judge unless a party objected before the hearing. The form also contains an acknowledgement that the person signing it had read the advisement and understood that it applied to him or her. Accordingly, Elena had knowledge that a commissioner might be hearing the case and that she could object. If there is any substantial evidence, whether contradicted or uncontradicted, that the party had actual knowledge of the right to object to the commissioner acting as a temporary judge, we will not reverse a judgment based upon an order issued by the commissioner. (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.)
Third, with respect to Elena's contention that a stipulation was required in order for Commissioner Crawley to sign the orders after hearing, we take judicial notice that on December 2, 2010, Timothy, Elena and the attorney for DCS all stipulated, pursuant to section 4251, that Commissioner Crawley could act as a temporary judge to "hear the within action" and "any new proceedings in this case." Elena does not explain why the 2010 stipulation was not still in effect.
It is arguable, however, that Elena did not know that Commissioner Fuertsch was a commissioner rather than a judge because he did not announce that fact at the beginning of the hearing, as required by section 4251, subdivision (c). Because Elena appeared by court call, she would not have seen the commissioner's name displayed in the courtroom, and there is nothing in the record to indicate Commissioner Fuertsch, unlike Commissioner Crawley, sat in any prior proceedings in this case. However, Elena has not shown that she was prejudiced by having either commissioner act as a temporary judge. An appellant who claims that a trial court has failed to comply with the requirements of section 4251 has the burden to demonstrate that prejudice resulted from that failure. (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.) Prejudice in this context means a showing that it is reasonably probable that a more favorable result would have been reached in the absence of the error. (Ibid.) Because we reject all of Elena's other contentions concerning the proceedings, we conclude that she has failed to demonstrate that a more favorable outcome would have resulted if the matter had been heard by a judge rather than by a commissioner.
B. There Was No Error in the Procedure with Respect to Signing and Serving the Orders After Hearing.
Elena next contends that the court violated California Rules of Court, rule 5.125, because the court did not have one of the parties draft a proposed order and allow the other parties to object to the proposed order before filing it as a final order. Elena utterly ignores the fact that the rule begins by providing that the court "may prepare the order after hearing and serve copies on the parties or their attorneys." (Ibid.) It goes on to provide that, in the alternative, "the court may order one of the parties or attorneys to prepare the proposed order as provided in these rules." (Ibid.) The remainder of the rule, which contains the procedures Elena describes, applies only if the court chooses to order a party to prepare a proposed order. (Ibid.) Here, the court chose to prepare and issue an order after hearing itself rather than asking either party to do so. Accordingly, Elena's contention is unfounded.
C. The Court Properly Denied Elena's Request to Add Timothy as a Defendant.
Elena filed a request to join Timothy as a defendant in the child support collection action based on her contention that he owed her money pursuant to the sponsorship agreement. The court denied the motion, stating that Timothy is already a party to the action pursuant to section 17404, and that because he is not the party against whom child support enforcement is being sought, he cannot be added as a defendant.
Section 17404 provides for an action brought by a child support agency to recover child support owed by a parent who has been ordered to pay it. (§ 17404, subd. (a).) In this case, Elena is the only parent who was ordered to pay child support. Accordingly, although the statute provides for the non-owing parent to become a party to the proceedings for certain purposes once an order for support has been made (§ 17404, subd. (e)), the statute does not provide that the non-owing parent can be made a defendant in the action even if the owing parent is claiming a right to an offset against the child support he or she owes. Accordingly, the court did not err in denying Elena's request.
Section 17404, subdivision (a), provides, in pertinent part: "Notwithstanding any other statute, in any action brought by the local child support agency for the support of a minor child or children, the action may be prosecuted in the name of the county on behalf of the child, children, or a parent of the child or children. The parent who has requested or is receiving support enforcement services of the local child support agency shall not be a necessary party to the action but may be subpoenaed as a witness. Except as provided in subdivision (e), in an action under this section there shall be no joinder of actions, or coordination of actions, or cross-complaints, and the issues shall be limited strictly to the question of parentage, if applicable, and child support, including an order for medical support. . . ."
Section 17404, subdivision (e), provides, in pertinent part: "(e)(1) After a support order, including a temporary support order and an order for medical support only, has been entered in an action brought pursuant to this section, the parent who has requested or is receiving support enforcement services of the local child support agency shall become a party to the action brought pursuant to this section, only in the manner and to the extent provided by this section, and only for the purposes allowed by this section. [¶] . . . [¶] (4) The parent who has requested or is receiving support enforcement services of the local child support agency is a party to an action brought under this section for issues relating to the support, custody, and visitation of a child, and for restraining orders, and for no other purpose. The local child support agency shall not be required to serve or receive service of papers, pleadings, or documents, or participate in, or attend any hearing or proceeding relating to issues of custody or visitation, except as otherwise required by law. Orders concerning custody and visitation may be made in an action pursuant to this subdivision only if orders concerning custody and visitation have not been previously made by a court of competent jurisdiction in this state or another state and the court has jurisdiction and is the proper venue for custody and visitation determinations. All issues regarding custody and visitation shall be heard and resolved in the manner provided by this code. Except as otherwise provided by law, the local child support agency shall control support and parentage litigation brought pursuant to this section, and the manner, method, and procedures used in establishing parentage and in establishing and enforcing support obligations unless and until the parent who requested or is receiving support enforcement services has requested in writing that the local child support agency close his or her case and the case has been closed in accordance with state and federal regulation or policy."
D. The Court Did Not Err in Denying Elena's Request for a Work Search Order Against Timothy.
Elena contends that the court should have ordered Timothy to seek work because Timothy was evading his debt obligation and was refusing to cooperate by settling the case with an offset stipulation. Even if we assume that Timothy had a debt obligation to Elena, that obligation was not for child support. Elena argues that Timothy's refusal to offset Elena's child support arrearage somehow constitutes a failure by Timothy to pay a child support obligation, but we are unable to see the logic of that argument. She also contends that the "good cause claim for noncooperation" she filed with the California Health and Human Services Agency based on Timothy's spousal abuse somehow supports her contention that Timothy should be ordered to seek work in order to offset Elena's child support obligation. Again, the logic of this argument escapes us. Accordingly, we conclude that Elena has not meet her burden of appeal to demonstrate that the trial court erred in denying her request for a work search order.
When an application for certain types of public assistance is made in a case in which a parent is absent from the home, the county welfare department must refer the case to the local child support agency, which must then take all steps necessary to obtain child support. (§ 17415, subds. (a), (b).) However, the case will not be referred to the child support agency if the welfare department determines that it is not in the best interests of the child to seek a support order against the parent. (§ 17552, subd. (b).) One such exemption is where the parent believes that filing an action for support will result in increased risk of harm to the child or increased risk of domestic violence. The so-called "good cause exemption" does not allow Elena to argue that she should not have to pay child support because of the domestic violence restraining order; it would only allow her to decline to cooperate in obtaining child support from Timothy. --------
E. The Trial Court Properly Denied Elena's Request for a Protective Order Prohibiting Harassment by DCS.
Elena sought a protective order against DCS, alleging its actions violated the Fair Debt Collection Practices Act and also violated the restraining order in place against Timothy. On appeal, she contends (as best we can discern) that DCS is harassing her with collection notices and bank orders to withhold because, although DCS states that $11,405.07 is the amount that she owes to Timothy, DCS is seeking to collect approximately $44,000. Elena provides no legal authority that the Fair Debt Collection Practice Act applies to DCS's actions to collect child support arrearages. And, she does not cite any evidence that the amount DCS seeks to recover is not the amount she owes. DCS explained in its opposition to Elena's request for order, that although Elena owed only $11,045.07 directly to Timothy, the balance is for public assistance expended on behalf of the children.
Elena also contends that DCS's "harassment" violates the restraining order in effect against Timothy because DCS is acting on Timothy's behalf. However, a child support agency does not represent either parent or the child; rather, it represents the public interest. (§ 17406, subds (a), (h).) The child support agency directs, controls, and prosecutes the action in the name of the county. (§ 17400, subd. (b)(1).) Accordingly, DCS is not acting on Timothy's behalf or at his direction. Because DCS is not a named party in the restraining order and because it is not acting on Timothy's behalf or at his direction, its actions do not violate the restraining order.
The judgments in the consolidated cases are affirmed. Each party shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Acting P. J. We concur: MILLER