County of Alameda v. Moore, A065901

• Decision Date: 06 April 1995
• Docket Number: No. A065901,A065901
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF ALAMEDA, Plaintiff and Respondent, v. Richard M. MOORE, Defendant and Appellant.

Page 18

40 Cal.Rptr.2d 18

33 Cal.App.4th 1422

COUNTY OF ALAMEDA, Plaintiff and Respondent, v. Richard M. MOORE, Defendant and Appellant.

No. A065901.

Court of Appeal, First District, Division 5, California.

April 6, 1995.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Carol Ann White, Statewide Child Support Coordinator, Mary A. Roth, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

William H. Ahern, Castro Valley, for defendant and appellant.

KING, Associate Justice.

In this case we hold that approval of informality in conducting hearings and trials in district attorney support and marital dissolution cases does not include resolution of disputed factual issues based upon mere statements of counsel or parties. Informality in the conduct of such hearings and trials is encouraged to expedite the proceedings while minimizing personal conflict between the parties; however, decisions on disputed factual issues in such cases must be based upon evidence presented in declarations under penalty of perjury, by offers of proof or through oral testimony.

Richard M. Moore appeals from a judgment awarding child support to his former spouse and reimbursement of welfare arrears to the County of Alameda (County). He contends there was insufficient evidence to support the judgment.

In December 1990, Richard and Donna Moore ¹ obtained a judgment of dissolution, and were awarded joint legal custody of their two sons. Richard was awarded physical custody, except for Tuesdays and Thursdays from 4 p.m. until the next morning, and Saturdays from 4 p.m. until, on alternating Sundays, 11 a.m. and 6 p.m. It was further ordered that, "Each party shall be responsible for the support of the children when the children are in his/her custody. Child support from one party to the other party is reserved."

In December 1992, County, represented by the district attorney, filed a complaint to establish parental relationship and for child support under Welfare and Institutions Code sections 11350 and 11350.1. ² It alleged that Richard was the parent of and separated from Michael and Christopher Moore, that he had the ability to pay child support but had not done so, and that as a result the children had been receiving public assistance since June 12, 1992. In his answer, Richard denied the allegations of separation and ability to pay and, upon insufficient information, his children's receipt of public assistance. As affirmative defenses, he alleged (1) that he had "the care, custody and control" of the children "pursuant to" the dissolution judgment, and (2) that he had not been separated from them and they had not needed public assistance. In November 1993, the trial court ordered Richard to pay $474 per month temporary child support, reserving jurisdiction to modify, and filed a wage assignment order for that amount. No appeal was taken from that order.

The matter came to trial on March 25, 1994. In an opening statement, the district attorney told the court that Richard and Donna were the parents of three children, ³ that they split custody 50-50, that Donna had quit her job to care for Michael who had serious psychological problems, and that she began receiving AFDC in June 1992. The district attorney went on to explain that considering Richard as head of household with two children for whom he claims tax deductions, with an average gross monthly income of $3,047.20, $49 in mandatory retirement, and $420 per month in child care expenses, and considering Donna's $60 in SSI payments for Michael, the computer program came up with child support of $621 per month. Finally, the district attorney stated there was a "welfare arrears balance" from June 1992 through March 1994 of $12,318. In his opening statement, Richard's counsel asserted the "allegations of the complaint are completely false," and Donna's AFDC claim was fraudulent.

Donna testified on the limited issue of what contributions, if any, her house-mate, Chris Del Rio, was making toward her expenses. Richard's counsel suggested the proper procedure was to file a modification motion in the dissolution action. He proposed a continuance and further testimony about Donna's need for public assistance. The trial court agreed with the district attorney that it did not have jurisdiction over welfare fraud allegations. Richard was sworn, stated he had "a due process worry" about the whole procedure, and was cut off by the trial court. The district attorney told the court the prior wage assignment had not been honored because, according to her discussion with Richard's employer's accounts person, Richard had said he was taking care of it, which he had not. Richard's attorney said it was he who told the employer not to forward the money.

The trial court ruled that each month beginning April 1, 1994, Richard should pay $621 child support for the two children, and $50 toward welfare arrears, and filed judgment (with computer printout attached) accordingly. It also filed a conditional wage and earnings assignment order, and an order for continued health insurance coverage for the children. On appeal Richard asserts that there was no evidence to support the trial court's judgment. He is, quite simply, correct.

Evidence is "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid.Code, § 140.) "Testimony" refers to statements made under oath. (People v. Belton (1979) 23 Cal.3d 516, 524, 153 Cal.Rptr. 195, 591 P.2d 485.) Thus, attorneys' statements do not constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 843, 251 Cal.Rptr. 530.) Yet, the only information upon which the trial court could base its judgment in this case was contained in the unsworn statements of the district attorney. County offered no evidence, testimonial or otherwise, to prove the disputed allegations of the complaint: separation, ability to pay, receipt of public assistance. No evidence was introduced to support the income and expense figures fed into the computer. There was no evidence of the amount of the alleged AFDC payments. No evidence at all.

County does not dispute the insufficiency of the evidence, asserting only that Richard waived the contention by failing to object below. ⁴ According to this theory, Richard should have objected to "the district attorney's statements being considered by the court." But there was no reason for Richard to anticipate the court would improperly "consider" counsel's opening remarks as evidence. Conceding that ordinarily unsworn statements of counsel do not constitute evidence, County nevertheless maintains that "when an attorney reads hearsay evidence in support of a proposed finding into the trial court record, and when those statements do not encounter a specific and timely objection, the statements may constitute sufficient evidence to support the judgment on appeal." County cites no authority for this proposition, nor does the record justify the belated characterization of counsel's remarks as "hearsay evidence." Richard was not required to "insist" (County's word) that County present evidence against him, but only to object to the introduction of...