Filed 3/20/13 Solis v. Griego CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

DANIEL SOLIS, Plaintiff and Appellant,

v. MARY (SOLIS) GRIEGO, Defendant and Respondent.

DEPARTMENT OF CHILD SUPPORT SERVICES OF KINGS COUNTY, Intervenor and Respondent. F064554 (Super. Ct. No. 95C2003)



### OPINION

THE COURT *
APPEAL from an order of the Superior Court of Kings County. Jeremias F. DeMelo, Jr., Commissioner. Daniel Solis, in propria pers ona, for Plaintiff and Appellant. No appearance for Defe ndant and Respondent. Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Linda M. Gonzalez and Mary Dahlberg, Deputy Attorneys General, for Intervenor and Respondent. -ooOoo-

* Before Levy, Acting P.J., Go mes, J. and Franson, J.2. Daniel Solis appeals, in propria persona , from an order that established his child support arrears and ordered a monthly paymen t toward those arrears. He contends: (1) the trial court erred in refusing to consid er evidence regarding circumstances prior to June 1996; (2) the trial cour t erred by ordering payment toward the arrears of $77 per month; and (3) the Kings County Department of Child Support Services (Department) did not have authority to send a notice to withhol d income directly to the Social Security Administration (SSA) without a court order. We affirm. FACTUAL AND PROCED URAL BACKGROUND Solis and respondent Mary Griego have two children, Daniel Jr., born August 22, 1977, and Victorio, born May 28, 1979. A dissolution judgment was filed on August 6, 1982, ordering Solis to pay child support to Griego. On May 16, 1996, an uncontested hearing was held in Kings County Superior Court with respect to child support. On June 17, 1996, the court issued an order which modified the child support order by reducing the amount of monthly support paid , set Solis’s child support arrears at $15,763.75 as of March 31, 1996, and ordered him to pa y $150 per month towards the arrears. Solis was notified of the amount of the arrears prior to the court hearing. The order also states “a wage and ear nings assignment shall issue.” On September 15, 2011, Solis filed a request for a hearing regarding an earnings assignment in propria persona, in which he requested the earnings assignment be modified because child support had terminated when his sons turn ed 18 in August 1995 and May 1997, and the monthly arrearage pa yment stated in the earnings assignment created an undue hardship . Solis asserted that his social security income of $1,198 per month was less than his expenditures; that fro m June 2006 to August 2009, he tried to obtain work but had difficu lty maintaining a job due to his “debilitating medical conditions” for which he was receiving medical treatment, and he was unable to do any type of meaningful work; th e recent income with holding asked that his garnishment from his SSA benefit increase from $77 per month to $157 per month; and the increase would3. make his situation worse, as he was alrea dy living below the poverty level. He also submitted an income and expense declaration, in which he stated he was 67 years old, he was receiving social security retirement bene fits of $1,198 per mo nth, and his monthly expenses were $1,335.16. At the November 14, 2011 hearing, So lis requested a contested hearing on the issue of whether his payments should be su spended totally becaus e Griego and his sons had received “SSI” benefits. The court ordered the repaymen t plan remain at $77 per month, based on Solis’s age and expenses. The court se t a contested hearing on the amount Solis owed for January 17, 2012, and ordered Solis to submit a declaration by December 31, 2011. The court explained to Solis that it would be reviewing the amount of the arrearage owed and wh ether anything needed to be credited toward any arrearage from October 1, 2011, but it would not go back 20 years if Solis had been paying the $77 and never complained, and would not consider evidence that had nothing to do with what Solis owed. On December 28, 2011, Solis filed a declaration with attachments. 1 In his declaration, Solis related even ts that occurred before the J une 1996 order on arrears, and attached documents relating to the dissoluti on judgment, child support orders and the 1996 calculation of arrears. Solis asserted that Griego was not entitled to any further reimbursement from his benefits because she di d not provide financially for the boys and the unique circumstances of his case, includi ng the withholding of large portions of his child support payments by the Kings County district atto rney from Augu st 1982 to December 1994, caused inaccuracies in the audit. He asked the court to exercise its equitable powers and “expunge[]” a ll the money he purportedly owed.

1 On September 10, 2012, Solis filed a mo tion to augment the re cord to include a legible copy of his December 28, 2011 declarati on, as the copy in the clerk’s transcript is illegible. By an October 1, 2012 order, we deferred ruling on the motion, which we now grant.4. The Department filed a responsive declara tion on January 17, 2012, stating that as of December 31, 2011, Solis owed child suppor t arrears of $33,963. 60, and requesting he be ordered to pay $100 per mont h toward the arrears. Attach ed to the declaration was an audit report which listed by month the char ges, amounts paid, principal and interest on Solis’s child support obligatio n from April 1996, when the principal due was $15,528.90, through January 2012. The declaration an d report were served on Solis by mail on January 13, 2012. At the January 17 hearing, at which Solis appeared telephonically, the court stated it had read Solis’s declaration, which addresse d periods prior to the June 1996 order that set the arrears at $15,763.75, and explained th at those portions of the declaration were “not available to heard” that day because the 1996 order was final and could not be contested. The court further explained it di d not see anything in the declaration that addressed periods subsequent to the 1996 order that would cause the arrears calculation to be incorrect, which states that the amount of principal owed was $15,303.40, on which $27,000 in interest had accumulated, ma king the balance due $33,886.60. Solis responded that he is not an attorney, he di d not know what his appeals rights were in 1996 or how the arrears balance was calculat ed, and he was too disabled to assert his rights at that time. While Solis stated he had not received the Department’s responsive declaration, the court confirmed with Solis that he had a copy of the Department ’s accounting, which the court explained to Solis was the only information contained in the Department’s declaration, and discussed it with him. The court then addressed the amount being withheld towards the arrears and asked Solis what he could afford to pay. Solis responded that he could not afford to pay a nything, which is why his income and expense declaration showed his expenses to be high er than his income. The court found the calculation the Department pr ovided was supported by the J une 1996 finding on what the arrears amount was effective March 31, 1996; the printout from the Department showed5. support was reduced from $350 to $278, and beginning January 1, 1998, child support ended; and the total amount due as of December 31, 2011 wa s $33,886.60, which continued to bear interest at the rate of 10 percent per year. The court considered Solis’s income, that interest on the arrears of $33,886.60 would be $282 per month and a payment order covering the interest would pl ace him below the poverty level. The court ordered continuation of $77 per month by wage withhold ing, as his remaining income would leave him above the poverty level, and set arrears of $33,886.60 as of December 31, 2011. DISCUSSION The June 1996 Order Solis contends there is no evidence to sup port the trial court’s determination that a June 1996 order was issued that set arrears at $15,763.75. He asserts the only evidence the Department submitted in opposition to his motion was the report attached to its responsive declaration, which is incomplete because it begins in April 1996 instead of May 1982, when the divorce proceeding bega n. He reasons that since the report is flawed, it is not sufficient ev idence to support the trial court’s determination of the amount of arrears and its order to pay $77 toward the arrears. At the hearing, the trial court refere nced the June 1996 order of Commissioner James LaPorte in the case file that set the arrears at $15,763.75 as of March 31, 1996. A trial court is bound to take judicial notice of its own records in the same action. ( Dillard v. McKnight (1949) 34 Cal.2d 20 9, 218; see Evid. Code, § 452 , subd. (d).) As the 1996 order was part of the case file, it was properly before the court and considered by it, and the Department did not need to supply a copy of it with its responsive declaration. The 1996 order provided evidence of the arr ears owed as of March 31, 1996, which the Department properly could use as a starting point for determining th e arrears balance as of December 31, 2011, in the current proceeding.6. The June 17, 1996 order show s that, in addition to orde ring Solis to pay $350 per month to support Victorio begi nning June 1, 1996, the court or dered that Solis owed child support arrears as of March 31, 1996 of $15, 763.75, payable at $150 per month. This final order is conclusive as to Solis’s arrears balance as of March 31, 1996. (See, Code of Civ. Proc., § 1908, subd. (a)(2); Wodicka v. Wodicka (1976) 17 Cal.3d 181, 188-189 ( Wodicka ).) While Solis asserts the arrearage de termination was an incidental issue to the modification of child support, the June 17, 1996 “Order After Hearing” shows it was not, as the court issued an order after an uncontested hearing on May 16, 1996, setting arrears as of March 31, 1996 at $15,763.75. For this same reason, Solis’s contention that there was never a judicial determination of a rrearages fails, as does his claim that the Department failed to prove the amount of arrearages due from Ma y 1982 to March 31, 1996. Solis contends he was de prived of his due process rights when the trial court refused to hear the issues he raised in his de claration. He claims his declaration raised issues concerning Griego’s entitlement to “reimbursement” and mistakes and fraud committed by the district attorn ey’s office. Specifically, So lis argues (1) Griego cannot ask for “reimbursement” for child support be cause she did not contribute to their sons’ support from 1984 to 1997, (2) the district atto rney made mistakes wh en it diverted large portions of child support paymen ts to the welfare department to pay off “non-existent” welfare arrears, and (3) the district a ttorney committed “fra ud” when it sought modification of support paym ents. Solis asserts these circumstances entitle him to equitable relief from the arrearages. Solis’s contentions are all based on cond uct that occurred before the 1996 order was issued. To the extent he is claiming the arrears listed on the 1996 order is inaccurate or should not have been ordered, his claim is barred by res judicata. “The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” (7 Witkin , Cal. Procedure (5th ed. 2008) Judgment,7. § 334, p. 938, italics omitted.) “If an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata.” ( In re Matthew C. (1993) 6 Cal.4th 386, 393 ( Matthew C. ); In re Marriage of Murray (2002) 101 Cal.App.4th 581, 599.) Res judicata applies to final adjudications rendered in the course of a divorce proceeding over which a cour t may have continuing jurisdiction. ( Wodicka , supra , 17 Cal.3d at p. 188.) Here, having fa iled to appeal the 1996 order, Solis is precluded from relitigating the am ount of arrears he owed as of March 31, 1996. ( Ibid. ; see also Moffat v. Moffat (1980) 27 Cal.3d 645, 656-6 59 [holding an erroneous child support order bound the parties for purposes of res judicata even when court issued it in error].) Solis asserts he is entitled to relief fro m the arrearages on equitable grounds. However, Family Code section 3692, which pr ovides that “a support order may not be set aside simply because the cour t finds that it was inequita ble when made, nor simply because subsequent circumstances caused th e support ordered to become excessive or inadequate[,]” expressly disallows those challe nges. To the extent trial courts have the equitable power to modify or se t aside prior orders (see 8 W itkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 215, p. 823 [equitable relief may be allowed in cases of extrinsic fraud or extrinsic mistake]), section 3692 expressly precludes courts from exercising that power in cases of support orders. The Legislature has “determined equity is not served by retroactive modifi cation of support orders, where simplified procedures are available for prospective modification.” ( In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628.) “[A] tria l court has no discre tion to absolve an obligor of support arrearages , or interest thereon.” ( Id. at p. 626.) Because Solis did not timely challenge, eith er in the trial court or the appellate courts, the 1996 arrearages order, that order became final and, as the trial court correctly concluded below, the doctrine of res judicata now bars him from challenging that order. Solis does not assert, or show, the 1996 orde r was not appealable. His instant untimely8. challenge to those orders is barred by res judicata. ( Matthew C. , supra , 6 Cal.4th at p. 393 ; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216; cf. Frank v. Frank (1969) 275 Cal.App.2d 717, 723 [husband fa iled to challenge spousal support order on direct appeal and therefore was barre d from later collaterally attacking it]; In re Cicely L. (1994) 28 Cal.App.4th 1697.) The Garnishment Order Solis contends the trial court abused its discretion in conti nuing the withholding from his social security benefits to pay arrear ages because he presented a prima facie case of inability to pay, as his in come and expense declaration sh ows his income was less than his expenses, and he is disabled. Pursuant to Family Code section 5246 , subdivision (e)(2), wh en a child support obligor objects to a notice to withhold on the ground payment of arrearages at the rate sought is excessive, and it is determined th at payment of the arr earages at the rate specified by that section creates an undue hardship on the ob ligor, the rate of payment of arrearages “shall be reduced to a rate th at is fair and reas onable considering the circumstances of the parties and the best interest of the child.” Here, the trial court, after reviewing the parties’ incomes and expenses, or dered Solis to pay on the arrearages at a rate of $77 per month. We review the tria l court’s order for abuse of discretion. ( In re Marriage of Dancy (2000) 82 Cal.App.4t h 1142, 1148-1149, su perseded by statute on other grounds as stated in In re Marriage of Fellows (2006) 39 Cal.4th 179, 185 & fn. 6.) There was no abuse. The trial court cons idered the total amount of Solis’s arrears (over $33,000) and the interest accruing on the arrears each m onth ($282). While the trial court acknowledged Solis could not keep up with the interest without being below the poverty level, it noted that if withholdin g was left at $77 per month, Solis’s income would be almost $200 above the poverty level in California. Accordingly, the trial court left the $77 withholding order in place, re cognizing that the amounts Solis may be asked9. to pay in reimbursement can vary based on the amounts he received and the respondent’s needs. Solis argues the trial court failed to cons ider his inability to pay, as s hown by his income and expense declaration. But the record reveals that, before ordering payments of $77 per month, the trial court considered his papers and his argument on this point. That a different order may have issued does not auth orize this court to substitute our judgment for that of the trial court. ( In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) Instead, “[t]he trial court’s exercise of disc retion will not be disturbed on appeal in the absence of a clear showing of ab use, resulting in injury suffici ently grave as to amount to a manifest miscarriage of justice.” ( Ibid. ) On this record, we cannot say the trial court abused its discretion to order So lis to pay $77 per month. The Department’s Author ity to Garnish Wages For the first time, Solis asse rts the Department did not follow the Code of Civil Procedure process to obtain a court order to ga rnish his social secur ity benefits, thereby voiding the garnishment of his benefits since January 1, 2001. Having failed to raise this issue in the trial court, he may not rais e it here for the first time on appeal. ( Holmes v. California Nat. Guard (2001) 90 Cal.App.4t h 297, 313.) In any event, his contention fails. Here, the Department follo wed Family Code section 5246, which provides that where support enforcement services are bei ng provided by the local child support agency, that agency may serve on the employer a no tice of assignment in lieu of an earnings assignment order signed by a judicial officer, and that an order/notic e to withhold income for child support has the same force and effect as an earnings assignment order signed by a judicial officer. (Fam. Code, § 5246, su bd. (a) & (b).) Family Code section 5246, subdivision (f), specifically prov ides that the Department may issue a notice of wage withholding for chil d support arrears.10. Social security retirement benefits are subject to assignment or garnishment to enforce support obligations, as provided in 42 United States Code section 659 and 5 Code of Federal Regulations section 581.103(c)(1 )(ii). (See Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutte r Group 2012) 18:343.1, p. 18- 118.) Federal regulations provide that legal process in cludes a child support order submitted by a child support agency using the standard order/notice to with hold income for child support when issued by a state agency authorized to issue income w ithholding notices pur suant to state or local law. (5 C.F.R. § 581.102(f)(1)(iv).) The record shows So lis received notice that a wa ge assignment would issue through the statement in the June 17, 1996 order that “a wage and earnings assignment shall issue.” This conforms to Family Code section 5230, subdivision (a), which requires all support orders to include an earnings a ssignment order. When an assignment order or an order/notice to withhold income for child support is served on an employer, the employer is required to deliver a copy to the employee. (Fam. Code, § 5234.) Service of an assignment order creates a lien on the employee’s earnings and employer’s property to the same extent as the service of an earnings withholding order provid ed in Code of Civil Procedure section 706.029. (Fam. Code, § 5242.) After th e initial child support order has been entered, the court does not need to issue an arrears order before the Department’s collection efforts, as each mi ssed monthly installment becomes a judgment by operation of law and is enforc eable like any other judgment. ( In re Marriage of Lamoure (2011) 198 Cal.App.4th 807, 818-819 .) A judgment for child support is enforceable until paid in full or otherwise satisfied. (Fam. Code, § 391, subd. (a).) Here, the Department had the authority unde r Family Code section 5246 to issue a notice to withhold income and pr operly did so in this case.11. DISPOSITION The trial court’s January 17, 2012 orde rs are affirmed. Solis’s “Motion to Augment Record on Appeal ... Re: Declarat ion of Daniel G. Solis, 12/28/2011,” filed September 10, 2012, is granted.