Child Support Services v. Superior Court

• Decision Date: 23 May 2005
• Docket Number: No. G034550.,G034550.
• Citation: 129 Cal.App.4th 798,28 Cal.Rptr.3d 877
• Court: California Court of Appeals Court of Appeals
• Parties: ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; Clifford Ricketson et al., Real Parties in Interest.

28 Cal.Rptr.3d 877

129 Cal.App.4th 798

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent Clifford Ricketson et al., Real Parties in Interest.

No. G034550.

Court of Appeal, Fourth District, Division 3.

May 23, 2005.

Bill Lockyer, Attorney General, Douglas M. Press, Assistant Attorney General, Thomas R. Yanger and Mary Dahlberg, Deputy Attorneys General, for Petitioners.

No appearance for Respondent.

Steven J. Brewer for Real Party in Interest Clifford Ricketson.

Law Offices of Albert M. Graham, Jr., & Associates and Albert M. Graham, Jr., Santa Ana, for Real Party in Interest Patti Ricketson.

OPINION

RYLAARSDAM, Acting P.J.

The Orange County Department of Child Support Services and Deputy Department Counsel Constance Bailey seek extraordinary relief from the imposition of sanctions against them for prosecuting a nonmeritorious contempt proceeding against Clifford Ricketson. We find the trial court erred in failing to transfer the sanctions hearing to the judicial officer who heard the contempt proceeding. Accordingly, we grant the petition.

FACTS

Patti Ricketson sought help from the Department in collecting unpaid child support from her ex-husband, Clifford. She signed a declaration stating Clifford had failed to pay court-ordered child support in the amount of $463 per month for 21 months during the period from February 2001 to July 2003. The Department filed an order to show cause re contempt of the child support order, which was set before Commissioner James L. Waltz.

At arraignment, Clifford pleaded not guilty, claiming payment directly to Patti as a defense. Bailey, the prosecuting deputy, asked for "all proof and documentation" of payment at least two weeks before trial. Clifford's counsel, Steven Brewer, objected. "It's been my experience that if I meet with the . . . Department of Child Support Services, [it] will go through the list of items and then [it] will dismiss all the individual counts that he has made payments on, which will leave him with two or three counts. [¶] And then the court won't get the flavor of the fact that [Patti] lied about 14 times on the declaration. So I think I shouldn't have to produce any of those documents, any of those cancelled checks until the time of trial."

Commissioner Waltz acknowledged that family law contempt hearings were handled as "quasi criminal proceedings, and yet it's clear as butter on a mirror as to what criminal rules apply to these proceedings." Brewer explained he wanted to save the checks for impeachment and also argued, "[Clifford] has a right not to testify, and certainly bringing in cancelled checks is testimony. He is producing evidence to convict himself or exonerate himself." Bailey stated her goal was to resolve the issues and asserted the Department's right to reciprocal discovery. The court explained, "The problem with that is that you, the county, have started this proceeding through the criminal contempt process, so they simply are meeting the challenge head on. [¶] And I think Mr. Brewer is going to tell me that if you want to handle this as an arrears issue, that might be okay. But you have set the program, and he is going to meet it, so I think I get the flavor." The court refused to order Clifford to produce the checks but "reserve[d] the right to continue things" to avoid a "trial by ambush."

At trial, after Patti testified on direct, Brewer began his cross-examination by handing Bailey copies of the cancelled checks. Bailey objected, and the court granted her time to review the checks, admonishing both attorneys "to have no contact with the witness" in the interim. "I want to make sure her testimony is her own." When the trial resumed two months later, Brewer cross-examined Patti with the cancelled checks; she did not recall receiving any of them but acknowledged her signature endorsing each one. On redirect, Patti testified she considered checks with "child support" in the memo to be for child support and the undesignated checks to be for other extra expenses.

Near the end of Patti's testimony, when proceedings were being recessed for the day, the court asked Bailey whether she wanted to amend the petition. "Read nothing into this question. [¶] But because I know the county has not had opportunity to speak to [Patti] because I ordered you not to, over your objection, and now having heard probably most of her testimony, is there any amendment you wish to make to the petition? [¶] I ask that so we can try to shorten the proceedings, if possible." Bailey acknowledged there were five checks with a "child support" notation, "so there would be five counts that the county would be agreeing that [Clifford] had made payment in a certain amount to," but she declined to dismiss any of the counts "at this point." The court responded, "All right. If the county does reach a different conclusion or has time to further reflect and comes to a different conclusion, notify Mr. Brewer so we can try to, as I mentioned, shorten the proceedings."

After the Department rested, Clifford made a motion for nonsuit, claiming the Department had not proved his willful violation of the support order. He argued the checks showed he had overpaid for the period, even if he had missed a month or two, and the Department should have dismissed the contempt as soon as he provided copies of the cancelled checks. The motion was denied, and Clifford testified in support of his defense.

The court acquitted Clifford on all counts. Commissioner Waltz easily found a reasonable doubt as to the willfulness of Clifford's nonpayment for all the counts except 11 and 12, and 17 through 21. The court considered those 7 counts "closer" and observed its determination was based on the credibility of the parties. Because Clifford had a pattern of paying, the court had "no reason to disbelieve his testimony" that he paid cash for the months represented by counts 11 and 12. Clifford testified he believed his obligations represented by counts 17 through 21 were satisfied by signing over a bail check and purchasing a car for his daughter. The court found this testimony raised a reasonable doubt as to the willfulness of his nonpayment.

Clifford filed an order to show cause re sanctions (OSC) against the Department and Bailey pursuant to Code of Civil Procedure sections 128.5 and 128.7 and Family Code section 271, arguing Bailey's refusal to dismiss after she received the cancelled checks was "continued prosecution of a non-meritorious frivolous action." The documents submitted with the motion included the reporter's transcript for October 20, 2003, which was the first day of trial that ended in the granting of the continuance for Bailey to review the checks.

The OSC was set before Judge Nancy Pollard because the case was part of her direct calendar inventory, and Judge Pollard denied the Department's repeated requests that it be transferred to Commissioner Waltz. The Department argued it was unable to follow its normal practice of going over the cancelled checks with Patti. "Just because he hands me, you know, checks, doesn't mean they automatically get credit. We do have to confirm with the custodial parent. We have to confirm it was child support, not a gift. Since the court said you can't talk to her, our hands were tied."

Judge Pollard concluded sanctions were warranted because she believed Bailey knew some of the information in the Department pleadings and moving papers was not correct and proceeded to put Patti on the stand nonetheless; Judge Pollard stated Bailey should have investigated the documentation further before proceeding. "[T]here was two months to examine these checks. Line them up, check them against whatever the document was that [Patti] signed under penalty of perjury as to monies she didn't receive. [¶] Was there ever an attempt on the part of . . . Ms. Bailey to go to the judge with some kind of a motion saying Your Honor, we understand that you have ordered us — if, in fact, that's what he said, [not to] . . . speak to the petitioner, we are concerned about the information that has been provided and there's a request and an order from the judge that there will not be a trial by ambush, so could we seek the leave of court to rescind, vacate, suspend the order that we can speak to the petitioner to verify the document which appears to be a valid defense as opposed to gathering up your gun and going duck hunting — which it looks like what it was, it looks like it was a shotgun approach with no consideration to the proof that was presented."

Judge Pollard also concluded Brewer's motivation for refusing to provide the checks before trial was not to prove that Patti was lying. "I think it was . . . an attorney's way of telling the judge that there was some serious impeachment information, rebuttal information to which ordinarily in a discovery process he would be bound to provide but in the case of the criminal defense, he doesn't have that same duty. [¶] I think without betraying the confidentiality and trust that his client has in him, he was letting the court know that there was some information [the] People needed. [¶] The fact that Ms. Bailey either didn't pick up on it, took it as an affront to challenge him or refused to follow up on it I think is a serious, serious breach of her duty and her ethical obligation as a representative of the People of the State of California."

Judge Pollard ordered the Department to pay $1000 as sanctions and $1000 as attorney fees, Bailey to pay $1500 as sanctions and $1000 as attorney fees, and Patti to pay $1000 as sanctions and $1000 as attorney fees. The sanctions and fees were all payable to Brewer.

DISCUSSION

Bailey and the Department contend that Judge Pollard erred in failing to grant their motion to transfer the sanctions hearing to Commissioner Waltz because he is in a better position than she to determine the nature of Bailey's...