Central Civil West (CCW), located at Sixth Street and South Commonwealth Avenue near downtown Los Angeles, is an imposing building covered in reflective silver glass. It can send shivers through the spines of attorneys who approach it to assist clients who have been served with a Child Support Services Department (CSSD) complaint or, worse, a default judgment. With knowledge of some of the intricacies of this court, however, practitioners may approach it with confidence.
Paternity and child-support issues were handled by a branch of the district attorney’s office. However, about two years ago, a new agency was created to address those issues. This agency is the CSSD. Although the agency was new, many procedures remained the same, as did the office’s addresses and its preference for finality of judgment over the needs of children or parents involved in the county’s child-support collection system. For example, a significant portion of the budget for the CSSD comes from state and federal agencies that link collections with their allocation of revenue to the department. The amounts collected and accounts receivable have an impact on the department’s financial support.
The documents that the CSSD and the CCW court use, and the procedures that they follow, are in many cases unique. Therefore, an understanding of how the process works may yield dramatically improved results for clients. With this in mind, the practitioner may consider the central principle of the application of family law at CCW.
Child-support matters addressed CCW boil won to money: child support, child-support arrears, and spousal support if accompanied by a child-support issue. Other issues (such as suspensions of driver’s and professional licenses, bank account liens, and wage garnishments) are related to the underlying actions for financial support. At the CCW, this issue guides three common activities: the establishment of a judgment, the setting aside of a default judgment, or the enforcement of a judgment.
When a case to establish child support commences correctly, the respondent-obligor — typically, the presumed father — is properly served with four things: a summons, a complaint, an answer to complaint form, and a proposed judgment. The initial critical question for the respondent client is whether or not to file an answer. If the client desires genetic testing to assist in determining paternity, the answer is yes, file an answer. However, if the client does not desire genetic testing and understands that this may be his only opportunity to obtain genetic testing, there may be a financial advantage to not filing an answer. In a great number of child support cases, the CSSD does not have sufficient or accurate financial information about a respondent when the initial set of documents is prepared and served. This is often apparent from the support amounts indicated on the proposed judgment (which generally turns out to be identical to the later, actual judgment). It may well be the case that your client’s actual income would yield a higher child support amount than that listed on the proposed judgment form. Therefore, filing an answer and providing financial information may result in a higher support order than the one that may result if the proposed judgment is allowed to become final.
The proposed Judgment form is a trap for the unwary. A layman who is served with the proposed judgment and believes that he may be the father may erroneously conclude that he is the father and that, therefore, the amount listed in the proposed judgment is the amount he must pay. The man often does not realize that he can contest both paternity and the amount of claimed child support. It would be far better if the forms simply explained that a child support order may be obtained by default without genetic testing results or financial information. This should be enough to inspire respondents to file their answers.
Attorneys and clients need to be aware that sometimes the CSSD may file an amended summons and complaint with actual financial information and a higher child support amount listed on the proposed judgment. Therefore, it is important for clients to remain in close contact with their attorneys and to provide copies of all documents that they receive from the CSSD. Counsel should check frequently to see if a default judgment has been entered. If a default is entered and the amount is higher than what the guidelines recommend according to a client’s actual (rather than supposed) economic circumstances, counsel can seek to set aside the judgment.
Many of the cases tried at CCW relate to setting aside a default judgment, often because the respondent was not aware that a case was filed against him. For example, he may have been improperly served (or not served at all) because: The county relied on an old driver’s license for the address, the service was performed at the claimant’s address, the process server did not actually perform the service, a person having the same name as the client was served in error, the service was performed by substituted service upon a family member at an address different from that of the respondent, or the information used to effect service was simply outdated. In this situation, an attorney can make a tremendous difference for a client. In fact, an attorney who represents a client who has been improperly served may be able to mount a much better defense than that provided by a public interest organization, paralegal service, or the Court Facilitator’s Office. An attorney can prepare a set-aside motion complete with a detailed declaration and thorough points and authorities, and this may be exactly what a client needs.
One argument that counsel may employ in a motion to set aside a default judgment is jurisdictional: If a respondent was not properly served, the court has no jurisdiction over the respondent and the resulting default judgment is, therefore, void. This argument, however, is outside the conceptual box, so to speak, of the CSSD. Instead, the department relies upon Code of Civil Procedure Sections 473 and 473.5 because of their reference to “actual knowledge” of the notice (although actual knowledge of a default judgment is irrelevant if the service was improper). Documentary evidence that establishes that the proof of service of the summons and complaint is erroneous, however, may be all the court needs to set aside the judgment.
In some cases, a respondent may make support payments through a wage assignment for some time before hiring counsel and bringing a motion to set aside the default judgment. If you seek to set aside a default judgment that was filed less than six months previously, you can save your client money by simply filing a “Bobb set-aside order” (named after Aviva K. Bobb, the current supervising judge in Department 2 of the Los Angeles Superior Court). The Bobb set-aside order is a one-page form (obtained on the third floor) that requires only the case number and entry date of the default to be completed. The only required attachment is an answer to the complaint admitting or denying parentage. If the filing of the default judgment took place more than six months previously, a formal noticed motion to set aside the default judgment is required. The forms required for this motion are the Notice of Motion cover page, the Application for Order and Supporting Declarations, the Answer to Complaint, the Points and Authorities (not required but highly recommended), and the Income and Expense Declaration.
When appropriate, you may seek to set aside only the financial terms of a default judgment pursuant to Family Code Section 17432(c), Family Code Section 4071, or both. If the default judgment is over six months old and is based upon imputed income (which is specified in a box on the proposed judgment form), and if no monies have been taken from any source for over one year, counsel may argue that the financial terms should be set aside because a substantial difference between imputed and actual income exists or because an extreme financial hardship would result if the default figures remain in effect.
Other issues related to enforcement of a judgment that are frequently heard at CCW include orders to show cause to release a driver’s license or professional license, reduction of a 50-percent wage assignment, and lien releases on bank accounts. License suspensions, liens, and 50-percent wage assignments are the most common enforcement tools used by the CSSD. Even though there is debate among the judiciary about seeking relief ex parte (rather than through a noticed motion), ex parte motions are often used in advance of a noticed motion to set aside the default judgment. The ex parte motion is treated as a special appearance. A stipulation for this ex parte relief avoids a court appearance and usually consists of a temporary payment plan pending the outcome of the set-aside motion.
Many clients think they are on a payment plan because a computer-generated wage assignment is served on their place of employment. However, the CSSD does not consider this wage assignment to be a payment plan. An actual stipulation filed with the court or an order after hearing is required to limit the amount ordered and to prevent additional enforcement penalties, such as license suspensions, from being imposed.
Another potentially money-saving action that an attorney can take for a respondent-obligor is to request an audit. An audit may find a significant error in the billing statements. It is not unusual for an audit to reveal that the client owes thousands of dollars less than what is reported on the most recent billing statement. Respondents are required to submit self-audits before the CSSD is willing to generate one for them. Be aware, however, that if your client has not paid child support for more than 90 days, the client is exposed to criminal prosecution. Therefore, you may want to appear ex parte and ask the court to waive the self-audit requirement so that the county’s audit can be prepared without having the client first submit a potentially self-incriminating public record. Audits can take a long time to prepare, so the court date should be set at least six weeks from the filing date of the order to show cause requesting an audit and determination of arrears. By doing so, the audit has a better chance of being completed by the hearing date.
In addition to audit requests, the courts at CCW will consider requests on behalf of respondents regarding credit against arrears for custodial time and credit for direct payments to the obligee parent. If a minor child lived with the noncustodial parent for a time, or if the noncustodial parent made payments directly to the custodial parent, the noncustodial parent may receive credit against child support arrears.
Recently, the CSSD initiated two programs to assist in adjusting current child support and child support arrears. First, the Child Support Improvement Program is an internal review program in which cases are set by the CSSD to special departments (namely, 2Y and 2Z). Cases are referred to when a noncustodial parent’s child support or child support arrears should be lower than they are. These situations may arise when the noncustodial parent’s child support or child support arrears should be lower than they are. These situations may arise when the noncustodial parents are or have been incarcerated during some or all of the child support arrears period, are no longer employed, or received a judgment by default that was based on presumed income imputed from an actuarial table listing the “average living wage” instead of the current minimum wage. Second, a new state statute, Family Code Section 17550, has prompted what is called the compromise program, which enables respondents, under a particular set of circumstances, to save hundreds or even thousands of dollars on their child support arrears.
The CSSD notice of a court date is confusing. It lists a time to appear and a courtroom on the 16th floor, but the notice does not mention that the respondent should first go to the 18th floor. Clients should sign in at the window on the 18th floor and wait for their name to be called for a pretrial conference. Attorneys must sign their names, clients’ names, case numbers, and arrival times on clipboards at the security desk on the 18th-floor waiting room. Attorneys should also note if they are appearing ex parte; doing so may expedite being called. If the issues can be resolved during the conference, a stipulation and order are drafted. Proper respondents must then wait for their case to be heard by the court so that the court may satisfy itself that the respondents understand the stipulation. Respondents represented by counsel do not have to wait for this step and may leave the courthouse after the stipulation is signed and conformed on the 18th floor.
If a satisfactory agreement is not reached with the staff attorney on the 18th floor during the pretrial conference, client and attorney are sent to a courtroom on the 16th floor and wait for the file from upstairs to be delivered to court. It is not uncommon for a different staff attorney to be arguing the case in the courtroom. Lead staff attorneys are assigned to each courtroom and handle more routine matters. Cases requiring special handling, in contrast, are usually pursued by one staff attorney. Once in court, counsel will be asked by the bailiff to have the client review and sign a waiver form that allows the commissioner to hear the case. If your client signs the waiver, you may still object to the commissioner who is deciding the case by stating at the commencement of your appearance, “I appear pursuant to Family Code Section 4251(c).” The section indicates: “If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within ten court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error.” If, when the hearing has ended, you are content that the result is a fair one, you may waive your objection. If you do not believe the result was fair, you may confirm your objection by filing a notice of objection within ten days of the hearing date. You will be mailed a notice of the hearing date for a trial de novo (which will occur at 111 North Hill Street, downtown).
Sometimes a commissioner may warn counsel that filing an objection may expose the client and the attorney to sanctions for filing a frivolous lawsuit. This warning may come if the commissioner believes that you are simply attempting to get a second bite of the apple. However, negative consequences for making a Section 4251(c) objection are rare, and a reasonable argument often succeeds in avoiding sanctions even when the commissioner’s decision is ultimately confirmed. Counsel may or may not raise the Section 4251(c) objection at a hearing even if the commissioner has already heard the case on other issues. This is different from regular family law court matters, in which the failure to object to a commissioner at the outset of the first appearance waives the right to do so on subsequent appearances.
The procedure for ex parte appearances differs from noticed appearances. The CSSD must receive notice before 10 a.m. (by telephone is acceptable) the day before an ex parte appearance. On the day of the appearance, the attorney must check in with the back-office clerks of the appropriate courtroom before 10 a.m. Counsel should proceed to the filing room on the third floor to pay the ex parte appearance fee, then return to the 18th floor to sign in and wait to be called.
All regular rules of evidence apply at CCW. Be especially sure to comply with Local Rule 14.6, which specifies which documents are mandatory for your client to provide at the time of filing the motion or, failing that, at the time of trial. Failure to comply can result in the removal of your case from the calendar or, in the extreme case in which the respondent has brought several similar motions in the recent past, the imposition of sanctions for being a vexatious litigant. For example, a modification of child support requires that the respondent has experienced a material change in circumstances from those in effect at the time of the order (unless the previous order was under guideline). Filing orders to show cause for a downward modification without supporting documentation may result in monetary sanctions and an order precluding the party from bringing another motion for a specified time.
With very few exceptions, the CSSD staff attorneys and the commissioners try to assist the people who come to court. That does not mean that counsel should not ask the court to deviate from the guidelines if special circumstances exist or should not make an appropriate Section 4251(c) objection. For example, counsel may be able to make a persuasive showing — with supporting documentation — that the imposition of the child support guidelines would not allow the respondent to meet the basic necessities of life. This showing may persuade the commissioner to deviate from the guidelines and order an amount that allows the respondent to meet his basic monthly expenses. Basic courtesy goes a long way with the staff attorneys and commissioners, but courtesy should not be confused with obsequiousness, just as advocacy should not be seen as aggression. Therefore, do not hesitate to assert your client’s priorities when necessary.
Practitioners who are familiar with some common issues and procedures related to practicing law at CCW can approach that imposing silver building with confidence. It can be overwhelming for a person to deal with paternity and child support issues at the CSSD; it does not have to be for that person’s attorney as well.
John Adam Lazor is an Associate in family law with Feinberg, Mindel, Brandt & Klein in Los Angeles.