Brubaker v. Strum
| Decision Date | 13 January 2023 |
| Docket Number | B317694 |
| Parties | Betsey BRUBAKER, Plaintiff and Appellant, v. Andy STRUM, Defendant and Respondent; Mark Karney, Objector and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Fernandez & Karney and Mark H. Karney, Santa Monica, for Plaintiff and Appellant.
Law Offices of Ben Gharagozli and Ben Gharagozli, for Objector and Appellant.
Feinberg Mindel Brandt & Klein and Gregory A. Girvan, Los Angeles, for Defendant and Respondent.
Sometimes a former spouse who owes child and spousal support (i.e., the obligor) to a former spouse (i.e., the obligee) doesn't pay what he or she owes, either because the obligor spouse has fallen behind in the payments or is not making support payments at all. To ensure the obligor's children and the obligee receive court-ordered support if that occurs, a family court order for child and spousal support must include an "earnings assignment order" that directs the obligor's employer to pay the obligee any portion of the obligor's earnings the obligor owes in child or spousal support.
The obligor's employer ignores an earnings assignment order at its peril. Family Code section 5241, subdivision (a),1 provides that an employer who willfully fails to withhold and forward support pursuant to a valid earnings assignment order (called an "income withholding order" under federal law) must pay the obligee the amount of support that should have been withheld and sent to the obligee, plus interest. And if the employer complies with the assignment order, the obligor employee has some protection. Section 5241, subdivision (b), provides that, if the employer properly withholds support from the obligor's earnings, the obligor cannot be held in contempt or subject to criminal prosecution for nonpayment of the support, even if the obligee did not receive the support the obligor's employer withheld.
The issue in this appeal is whether section 5241 precludes the obligee from seeking a determination of arrearages allegedly owed by the obligor, where the obligor's employer is subject to a valid earnings assignment order. The family court ruled section 5241 precludes such a request, but reached that conclusion by answering a different question: whether section 5241 precludes an obligee from seeking to enforce arrearages against an obligor whose employer is subject to an earnings assignment order. The court concluded section 5241 precludes such a request, and then applied that reasoning to deny an obligee's request for an order to determine (as opposed to enforce) arrearages. As a result, the family court denied a request by Betsey Brubaker for an order to determine child and spousal support arrearages against her former husband, Andy Strum. The court also granted Strum's request for monetary sanctions under Code of Civil Procedure section 128.5 against Brubaker's attorney, Mark Karney, because the court found its interpretation of section 5241 "absolutely clear."
We agree with the family court that the language of section 5241 is clear, but not in the way the family court thought it was. Based on the language and legislative history of section 5241, we conclude that, where an employer is subject to an earnings assignment order, section 5241 protects obligors only from being held in contempt or subject to criminal prosecution for nonpayment of the support. Contrary to the family court's ruling, the statute does not preclude an obligee like Brubaker from seeking arrearages or a determination of arrearages from an obligor like Strum. Which in turn means Brubaker's request for an order determining arrearages was not frivolous for the reasons stated by the family court and did not support an award of sanctions against Karney. Therefore, we reverse the family court's order and direct the court to determine the amount of arrearages, if any, Strum owes Brubaker.
On July 23, 2019 the family court entered a final statement of decision dissolving Brubaker and Strum's marriage and awarding Brubaker $2,071 in monthly child support and $1,950 in monthly spousal support, plus 13.5 percent of any bonuses or commissions Strum received in excess of his base monthly salary (known as Ostler-Smith payments).2 At that time, Strum worked for Comcast Cable Communications, and an income withholding order3 directed Comcast to withhold the total amount of support payments from Strum's paychecks and forward that amount to the California Child Support Services Department on behalf of Brubaker.
On August 31, 2020, after Strum apparently left Comcast, the family court issued a new income withholding order to Strum's next employer, Synamedia Americas, LLC. Strum lost his job at Synamedia on February 12, 2021, but he received severance payments through March 31, 2021. On April 1, 2021 Strum sent Brubaker two personal checks, one for $1,035 toward his child support obligation of $2,071 and one for $141.02 toward his spousal support obligation of $1,950. According to Strum, he paid a medical premium on Brubaker's behalf and reduced the spousal support payment by that amount.
On April 12, 2021 Strum began working for Kinetiq/IQ Media, and on April 21, 2021 the family court issued an income withholding order to Kinetiq. Kinetiq began withholding child and spousal support payments from Strum's paychecks starting with the pay period that began on April 24, 2021.
On April 27, 2021 Brubaker obtained a writ of execution for Strum's underpayments of child and spousal support for April 2021. On May 21, 2021 Brubaker received support payments withheld from Strum's paycheck for the last week of April 2021, and on June 2, 2021 the Los Angeles County Sheriff levied on Strum's bank account for the amount Strum underpaid in April 2021, including the amount for the last week of April.
On June 10, 2021 Brubaker filed a request for an order to "set child support arrears" including a determination of unpaid Ostler-Smith payments. Brubaker alleged Strum owed her $6,974.89 in child and spousal support for the period April 1, 2021 to May 24, 2021 (including the amount obtained from the levy on Strum's bank account, which Brubaker had not yet received). Brubaker also asked the court to determine the amount of Ostler-Smith payments Strum owed since March 2021. Brubaker stated that she subpoenaed Kinetiq to ascertain whether Strum had received any signing bonus or commissions Strum had not disclosed to Brubaker and that Strum had "not been forthcoming" about bonus income and commissions in the past. In later declarations supporting the request for an order to determine arrearages, Brubaker claimed arrearages as far back as August 2020.
On July 6, 2021 counsel for Strum sent Karney a letter concerning Brubaker's request for an order determining arrearages. Counsel for Strum stated Strum did not owe Brubaker any unpaid child or spousal support for April or May 2021, and he attached copies of Strum's paystubs showing support payments Kinetiq had withheld in May and June 2021. Counsel for Strum also stated that, because Kinetiq was subject to an income withholding order, Brubaker had to seek any unpaid amounts accrued during Strum's employment there from Kinetiq. Finally, counsel for Strum advised Karney that, if Brubaker did not withdraw her request, Strum would seek attorneys’ fees from Brubaker under section 271 and from Karney under Code of Civil Procedure section 128.5.
Brubaker did not withdraw her request for order to determine arrearages. On July 8, 2021 Strum filed a response to the request and argued Brubaker's request was frivolous because Strum did not owe Brubaker any unpaid child or spousal support for the period April 1, 2021 to May 24, 2021 and Kinetiq was subject to an income withholding order. Thus, Strum argued, to the extent Brubaker believed Kinetiq had not withheld all support payments from Strum's paychecks, Brubaker had to "seek relief" from Kinetiq. Strum asked the court to impose monetary sanctions against Karney under Code of Civil Procedure section 128.5 because Brubaker's request for order was " ‘completely without merit,’ " Karney filed the request knowing Brubaker had obtained a writ of execution and would receive the proceeds from the levy on Strum's bank account for the amount Strum withheld from his April 2021 support payments, and the combination of the funds that Brubaker would receive from the levy and that Kinetiq had withheld resulted in an overpayment to Brubaker. In the alternative, Strum sought sanctions against Brubaker under section 271.
Brubaker submitted several declarations of payment history in support of her request for an order determining arrearages. In the latest declaration, Brubaker claimed Strum owed $122.12 in child support, $6,750.82 in spousal support, and $2,829.98 in Ostler-Smith payments. The payment history for child support showed Strum underpaid Brubaker in August 2020 and May 2021, and the payment history for spousal support showed Strum underpaid Brubaker in late 2020 and January through May 2021. The payment history for Ostler-Smith payments showed underpayments in December 2020 and June 2021. Brubaker acknowledged receipt of funds from the Sheriff's levy.
Brubaker attached to her declaration a March 22, 2021 letter from Kinetiq to Strum stating that Strum was eligible to receive a "ramp-up bonus" of $18,750 in the second quarter of 2021, paid over three months, and that Strum would receive three advances on commissions totaling $18,750, also paid over three months. Brubaker attached copies of Strum's paystubs from Kinetiq for salary, bonus, and commissions paid for the pay periods from April 9 to May 24, 2021, several of which did not show any deductions for support payments. Finally, Brubaker...
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