In re the Marriage of Nathan And Robin Lamoure.Nathan Lamoure

• Court: California Court of Appeals
• Writing for the Court: OPINION
• Citation: In re the Marriage of Nathan And Robin Lamoure.Nathan Lamoure, 198 Cal.App.4th 807, 132 Cal.Rptr.3d 1, 11 Cal. Daily Op. Serv. 10851, 2011 Daily Journal D.A.R. 12882 (Cal. App. 2011)
• Decision Date: 02 August 2011
• Docket Number: No. E048992.,E048992.
• Parties: In re the MARRIAGE OF Nathan and Robin LAMOURE.Nathan Lamoure, Appellant,v.Robin Lamoure, Respondent;San Bernardino County Department of Child Support Services, Respondent.

198 Cal.App.4th 807

132 Cal.Rptr.3d 1

11 Cal. Daily Op. Serv. 10,851

2011 Daily Journal D.A.R. 12,882

In re the MARRIAGE OF Nathan and Robin LAMOURE.Nathan Lamoure, Appellant,

v.Robin Lamoure, Respondent;San Bernardino County Department of Child Support Services, Respondent.

No. E048992.

Court of Appeal, Fourth District, Division 2, California.

Aug. 2, 2011.

Nathan D. La Moure, in pro. per., for Appellant.Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Douglas M. Press, Senior Assistant Attorney General, Paul Reynaga, Supervising Deputy Attorney General, and Mary Dahlberg, Deputy Attorney General, for Respondent.No appearance by Respondent, Robin La Moure.

OPINION

CODRINGTON, J.

IINTRODUCTION ¹

Petitioner Nathan La Moure (father) appeals from a trial court order denying his claim of exemption and motion to quash and recall a levy on his individual retirement account rollover (IRA account), to recover child and spousal support arrears. Father contends his due process rights were violated because he did not receive notice of the levy and there was no court assignment order or writ of execution authorizing the levy on his retirement accounts. Father also argues his retirement accounts could not be levied upon because they were not income; the levy improperly included spousal support; the support orders could not be enforced by levy because they were retroactively modifiable; and father's funds could not be levied upon because he was a “ ‘custodial parent.’ ” In addition, father asserts that the trial court erred in rejecting his claim of exemption based on hardship.

Respondent in this appeal is “the Public Interest,” represented by the local child support agency, San Bernardino County Department of Child Support Services (local DCSS), and the state Attorney General, on behalf of the State of California Department of Child Support Services (State DCSS), under Family Code sections 17406 and 17407.²

IIFACTUAL AND PROCEDURAL BACKGROUND

Father and Robin La Moure (mother) were married in 1993 and have two sons, born in 1995 and 1998. Father and mother separated in February 2003. In March 2003, father petitioned for dissolution of marriage.

In March 2003, the court ordered mother immediately to enter a residential alcohol treatment program. Upon her completion of the program, father and mother were to share custody on a 50/50 basis. The court also ordered father to enroll in an anger management class.

In April 2003, the court ordered father, who practiced law as a sole practitioner, to pay mother $4,000 a month in child support and $3,500 a month in spousal support.

In May 2003, father filed a request for an order to show cause (OSC) to modify child and spousal support.

In May 2003, the court granted mother's request to live in the family residence and ordered father to live in the couple's other home, which he used as an office. Custody and visitation were to remain the same.

In November 2003, the court heard mother's OSC for attorney's fees and costs, and ordered father to pay support to mother's attorney instead of paying “bills and such as in-lieu support.” Again, the court reserved jurisdiction on the issues of arrears and support set-offs. The child and spousal support remained the same. The court also ordered father to pay $14,000 in child support arrears.

After several continuances, father's OSC request to modify support was heard on February 2, 2004. The court reduced child support to $2,108 a month and spousal support to $2,012 a month, beginning on October 15, 2003. The court reserved determination of the issue of support arrears retroactive to May 2003. A hearing on the issue was set for February 18, 2004.

At the February 18, 2004, contested hearing on arrears, the court ordered father to pay $15,000 in arrears within seven days, toward support, and an additional payment of $6,500 by March 5, 2004. Later, the court set another hearing on support and arrears in June 2004, and continued the hearing to August 30, 2004.

At the August hearing, the court ruled that the money used to clean up the family residence and for bills could not be used to offset support. The court requested the local DCSS to submit documentation to establish the amount of support arrears. In February 2005, the court ordered father to send all support to the local DCSS.

In July 2005, father filed a request for an OSC to modify support. In October 2005, he also filed a request for an OSC for support offsets. On December 22, 2005, the court ordered child support reduced to $2,006 a month, beginning January 1, 2006.

On February 21, 2007, the court ordered father to pay $4,000 toward child and spousal support arrears by February 28, 2007. That same day father filed another OSC request for support modification.

During a hearing on father's OSC for child and spousal support modification and offsets, the court on May 15, 2007, denied father's request to offset support arrears with payments made in lieu of support prior to May 2003. The court found child support arrears amounted to $17,897.13 and spousal support arrears were $13,827.60. The court continued the hearing.

At the continued OSC hearing re support modification on July 11, 2007, the court found that father was entitled to credit for social security benefits paid to mother for child support. The hearing was continued to December.

At the OSC hearing in December 2007, the court ordered payment of mother's in-patient treatment in lieu of $7,000 in spousal support. Reallocation of payment of expert fees was to be determined later, at the time of trial.

On April 2, 2009, the State DCSS provided Morgan Stanley with an order to withhold funds from father's retirement accounts for the purpose of collecting child support arrears. In response, father filed a levy claim of exemption. In April 2009, father also moved ex parte for an injunctive order, order to quash, and order to recall a levy by the State DCSS, on father's retirement plans.

On May 12, 2009, the trial court found that service of notice of the levy was proper and that the support arrears obligation subject to levy included spousal support. The court denied father's ex parte motion to quash or recall levy on father's IRA account. A hearing on father's claim of exemption based on hardship was set for May 22, 2009.

On May 22, 2009, the court heard argument on father's hardship exemption claim and took the matter under submission. Father has not provided this court with a reporter's transcript of the hearing or of any other proceedings. The court denied father's claim of exemption as to father's Morgan Stanley IRA account (account No. 250061045) and granted, without prejudice, father's claim of exemption as to his Morgan Stanley retirement plan account (account No. REG250061042). The court stated that its order was “based upon a balancing of the hardships to the children and the parties.”

The trial court granted a temporary stay of its order until July 23, 2009, when the court heard father's subsequent claim of exemption and motion to quash levy on father's IRA account. On July 23, 2009, the court denied father's motion and claim of exemption.

IIINOTICE OF LEVY

Citing numerous state and federal statutes, father contends the levy on his IRA account violated his due process rights because he was not provided with proper notice of the levy. We disagree.

A. Statutory Procedures for Levy on Financial Institution Accounts

The State of California has devised a system of ensuring automatic payment of child support arrears by means of levying on support obligors' assets in financial institution accounts. Under the Financial Institution Data Match (FIDM) system, the State DCSS provides financial institutions with the State DCSS's files of delinquent support obligors. The financial institutions are required to determine if there is a match with their own accountholders. Upon receiving a notice or order to withhold issued by the State DCSS, financial institutions are required to notify the obligor of the notice or order, and withhold from the obligor's accounts the amount of support arrears stated in the notice or order. (§§ 17453, 17545.)

Before the funds are transmitted to the State DCSS, the obligor may file with the local DCSS a claim of exemption based on financial hardship. (§ 17453, subd. (j)(3).) Subdivision (j)(3) of section 17453 provides that, “If any of the conditions set forth in paragraph [j](1) exist, an obligor may apply for a claim of exemption ... for an amount that is less than or equal to the total amount levied. The sole basis for a claim of exemption under this subdivision shall be the financial hardship for the obligor and the obligor's dependents.” (§ 17453, subd. (j)(3).)

“The superior court in the county in which the local child support agency enforcing the support obligation is located shall have jurisdiction to determine the amount of exemption to be allowed. The court shall consider the needs of the obligor, the obligee, and all persons the obligor is required to support, and all other relevant circumstances in determining whether to allow any exemption pursuant to this subdivision. The court shall give effect to its determination by an order specifying the extent to which the amount levied is exempt.” (§ 17453, subd. (j)(7).)

The obligor is also entitled to an automatic exemption of $3,500 if any circumstances specified in subdivision (j)(1) of section 17453 apply. Those circumstances include when “[a]t least 50 percent of the obligated parent's earnings are being withheld for support.” (§ 17453, subd. (j)(1)(C).)

B. Discussion

There is no question father is entitled to notice before funds are removed from his IRA account. Because father received sufficient notice, we reject his due process challenge based on deficient notice. Father cites numerous statutes in support of the proposition that the State DCSS failed to provide proper notice of the levy. (42 U.S.C. § 666(a)(6), (a)(8)(B)(...