Lak v. Lak
| Decision Date | 22 May 2020 |
| Docket Number | G056784 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jennifer S. LAK, Respondent, v. Daniel K. LAK, Appellant, Orange County Department of Child Support Services, Intervener and Respondent. |
Daniel K. Lak, in pro. per., for Appellant.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General for Intervener and Respondent.
Since 2015, the Orange County Department of Child Support Services (the Department) has withdrawn money from Daniel Lak's (Father) Social Security Disability Insurance benefits (SSDI) to pay for child/spousal support arrears. Because Father disputed the Department's authority to withdraw money, it sought clarification from the trial court. At the hearing, Father sought reimbursement for overpayments and maintained the Department violated Family Code section 5246, subdivision (d)(3) ( section 5246(d)(3) ), by collecting more than five percent from his SSDI (five percent rule).1 Father also requested the court impose sanctions against the Department for its "improper collection activities." The court denied Father's requests and determined the Department could continue withdrawing money from SSDI for support arrears.
On appeal, Father maintains the court misinterpreted the law and failed to properly consider his motion for sanctions. Finding his contentions lack merit, we affirm the court's order that the Department did not overdraw money for arrears, Father failed to demonstrate he qualified for section 5246(d)(3)'s five percent rule, and sanctions were not warranted.
After 18 years of marriage, Father and Jennifer Lak (Mother) entered into a stipulated judgment of dissolution. They agreed Father would pay $2,000 per month in child support and $750 per month in spousal support. (In re Marriage of Lak (June 18, 2014, G048304), 2014 WL 2769981 [nonpub. opn.] (Lak ).) The trial court entered the final judgment in April 2011. (Lak, supra , G048304.)
On June 5, 2015, Daniel admitted to six counts of contempt for his failure to pay support in 2013 and 2014. Pursuant to a plea agreement, the trial court sentenced Father to serve 30 days in jail, but suspended the sentence and placed Father on probation for three years.
The court imposed several probation conditions, including that Father pay $1,601 per month for child support plus $49 per month towards arrears for a total of $1,650 per month starting on July 1, 2015. The contempt order contained a checked box next to the following preprinted statement: "This contempt order does not operate to modify the amount of child support [Father] owes, including any accrued arrears, nor does it limit enforcement remedies."
The same month as the court issued the contempt order (June 2015), Father began collecting SSDI ($2,234 per month). The Department immediately started withdrawing $1,116 from Father's SSDI (approximately 50 percent) to pay Mother for support arrearages.
The record contains very little information about the reason why Father qualified for SSDI benefits other than Father's unverified story in his legal memorandum. Suffice it to say, Father claimed he qualified for SSDI because in April 2015 he was hospitalized and diagnosed with depression, anxiety, and post traumatic stress disorder
(PTSD). Father explained his mental state deteriorated after he became homeless and needed to rely on food stamps to survive. His misfortunes began when he lost the ability to practice law (disciplinary suspension in August 2014, and disbarment in November 2015). After running out of personal property to sell, Father was evicted from his rental home and temporarily lived in his car until it was repossessed. He maintained he was currently living with his aunt and benefitting from therapy.
Father maintained the Department continued withdrawing $1,116 for the months of July through September 2015, but collected $4,834 in October 2015. In early November, Father filed a motion to modify child/spousal support, which was heard the following year in February 2016.
While the motion was pending, Father asserted the Department withdrew various sums in November, December, January, February, and March ($1,600, $2,233, $2,233, $2,233, and $709 respectively). Starting in April 2016, the Department reduced the amount it was collecting each month to $375 for arrearages.
The Department's reduction was in response to the court's ruling at the February 2016 hearing. The court modified child support downward from $2,000 to $836 per month, and reduced spousal support to $0, effective December 1, 2015. With respect to arrearages, the court made the following orders: (1) "Father to be given credit for $280[ ] per month in derivative benefits[;]" (2) "Court orders payment on undetermined arrears at $375[ ] per month" starting in March 2016; (3) "[The Department] is ordered to prepare an Arrears Audit and to serve it on the parties." The preprinted order cautioned, "No provision of this judgment can operate to limit any right to collect all sums owing in this matter as otherwise provided by law."
The following month (March 2016), Mother began receiving Social Security derivative benefits of $1,116 per month because of Father's qualification for SSDI benefits. The Family Code provides Father must receive a credit for the derivative benefit against his child support obligation. ( § 4504, subd. (b).) And in this case, the $1,116 more than covered Father's $836 monthly support obligation.
Father and the Department became embroiled in a dispute over whether the derivative benefits should also be credited against the court-ordered $375 monthly arrears payment. The Department maintained the court intended the $375 payment to be in addition to the derivative benefit amount credited towards support and arrears. The Department refused to stop withdrawing $375 each month from Father's SSDI.
Because of this dispute and the Department's failure to serve its Arrears Audit, Father filed a motion to compel and requested sanctions for the Department's purported bad faith litigation tactics. The court's June 5, 2017, minute order indicates it denied sanctions on the grounds that Father's statutory authority regarding discovery abuse did not apply and the Department had not delayed the matter in bad faith. The order also reflected the Department gave Mother and Father an Audit Report dated June 1, 2017.
Additionally, the court noted there was a hearing scheduled later that month to correct/clarify the original 2010 support order. It continued the matter to July 2017, and ordered the parties to meet and confer before then and together make a "list of all disputed debts and credits."
At the July 2017 hearing to clarify the original 2010 support order (which is not at issue in this appeal), the court also addressed the issue of how much Father owed in arrears. First, it determined the Department's "Simple Report" given to the parties at the last hearing was "the equivalent of the ‘[A]rrears [A]udit’ ordered to be provided to the parties in the [February 1, 2016] order."
Second, the court modified the portion of the February 2016 order indicating Father would receive a $280 per month credit for derivative benefits "to reflect that Father is to be given a credit for all derivative benefits received by the children." It noted the Arrears Audit "accurately reflect[ed] all derivative payments received by the children through" May 31, 2017.
Third, the court determined the audit showed the support charged and payments received were accurate through May 31, 2017 (with one exception not relevant to this appeal). It calculated child support arrearages totaled $102,851.61, spousal support arrearages totaled $60,750.80, for a total of $163,602.41.
Five months later, the Department filed a motion seeking clarification of the arrears order because the parties disagreed about whether the Department could collect $375 each month from Father's SSDI, or if the court's order was satisfied by derivative benefit credits.
At a hearing held in January 2018, the court read aloud its tentative ruling, which was included in the minute order. The court ruled, "[It] does not have the authority to order, and did not state in the order of February 1, 2016, that there should be any collection from [Father's] disability." The court asked the parties to prepare additional briefing on several issues, including whether reimbursement was permissible, and application of section 5346(d)(3)'s five percent rule. It continued the matter to March. The court indicated these issues as well as Father's request for sanctions would be considered together at the March hearing.
Father filed supplemental briefing complaining the Department collected more than what was legally permitted for over two years. He argued the Department's actions caused him to stop being an integral part of his children's lives because he could have used the wrongfully collected $29,000 to rent housing and regain joint physical custody of his children. He maintained the children did not understand why their father stopped being a part of their lives.
Father offered a specific example of the Department's miscalculations. For June 2016, the original support payment plus arrears was $1,211 (with each of his children receiving a specific portion of that sum). In June 2016, one of his children graduated from high school and the support payment dropped from $835 to $526. Therefore, he owed $901 per month ($526 for support plus $375 arrears). Also in June, Wife received $1,116 from SSDI derivative benefits and the Department collected $375 from Father's SSDI (a total combined credit of $1,491). Father...
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