Filed 6/22/20 Marriage of Levy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of MORTON and SELMA LEVY.

MORTON LEVY,

Respondent,

v.

SELMA LEVY,

Appellant;

SIDELL LEVY

Appellant.

G057288

(Super. Ct. No. 16FL000157)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Andre De La Cruz, Judge. Reversed. Appellant Sidell Levy’s request for judicial notice. Granted.

John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; O’Brien & Peterson and R. Thomas Peterson for Appellant Selma Levy.

The Buncher Law Corporation, Lauren Mullee; and Alan S. Yockelson for Respondent and Appellant Sidell Levy.

* * *

INTRODUCTION

In 1976, a New Jersey judgment of divorce terminated the marriage of Morton Levy and Selma Levy and ordered Morton to pay spousal support and child support. In 2016, almost 18 months after Morton’s death, Selma registered the New Jersey support judgment in California. The trial court held that the statute of limitations under Code of Civil Procedure section 366.2 did not apply, but that New Jersey’s equitable doctrine of laches barred registration of the support judgment.

We conclude the trial court correctly held that Code of Civil Procedure section 366.2 did not bar registration of the New Jersey support judgment; however, we also conclude trial court erred by applying laches to vacate the registration. The defenses to registration of an out of state support order are clearly specified by statute, and the use of laches to challenge the amount of arrears is not among them. We therefore reverse the trial court’s order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appeal No. 1

In a previous opinion, we summarized the facts as follows:

“Morton and Selma married in 1950 and had three children. In 1976, a New Jersey court issued a judgment of divorce, in which Morton was ordered to pay Selma $50 per week in spousal support and $50 per week in child support for their one minor child.[ ] Morton never made any of the support payments.

“Morton moved to California and married Sidell. Morton died on November 4, 2014; no probate proceeding was initiated to administer Morton’s estate,[ ] and no notice to creditors was sent. On August 10, 2015, Morton’s children from his marriage to Selma first received notice of his death.

“On April 28, 2016, Selma filed a notice of registration of out-of-state support order and a statement for registration of an out-of-state support order in the family law court in Orange County, California. Selma alleged Morton owed almost $600,000 in principal and interest for spousal support and child support. Sidell specially appeared in intervention, requesting that service of the registration of support be vacated or cancelled. Sidell also filed a request for an order quashing or dismissing the action on grounds of lack of personal jurisdiction over Morton, and of forum non conveniens.

“Following a hearing, the family law court dismissed the action without prejudice, finding ‘[t]he family law court lost jurisdiction once the husband died. This matter belongs in probate court.’ Selma timely filed a notice of appeal.” (Levy v. Levy (Jan. 5, 2018, G054014) [nonpub. opn.].)

We reversed the trial court’s order of dismissal because the stated ground for dismissal—the death of the party ordered to pay support—was not one of the statutory grounds for challenging a support order from another state registered in California. Because the trial court had not reached the statutory grounds, we reversed the matter with directions. (Levy v. Levy, supra, G054014.)

Appeal No. 2

On remand, Sidell filed a motion to dismiss on the grounds (1) registration of the judgment was barred by the statute of limitations, (2) registration of the judgment a should be vacated based on the doctrine of laches, and (3) the amount of arrears claimed was incorrect. In opposition to the motion to dismiss, Selma corrected the amount of claimed arrears for Hara’s unpaid child support.

The parties submitted declarations in which Selma and Hara unequivocally stated that Morton never made any child support or spousal support payments, while Sidell unequivocally stated that she and Morton made all required support payments. Selma declared that Morton had disappeared immediately after their divorce in 1976, she had hired a private detective to locate him, and the Hudson County Probation Department, to which Morton was to make his support payments, had advised her they did not have the resources to locate Morton. Eventually, Selma gave up looking for Morton because she lacked the resources to do so.

Sidell and Morton bought residential real property in Laguna Niguel in 1977. Selma filed an abstract of judgment in Orange County in 1979.

Hara’s declaration stated that she had resumed contact with Morton in 1995, after her husband located him via an internet search. From that time until Morton’s death in November 2014, she had had sporadic contact with Morton via telephone, e mail, and meetings; these meetings never occurred at either of their residences, and Hara did not know Morton’s address. Hara did not tell Selma she had been in contact with Morton. Hara first learned of Morton’s death in August 2015.

The trial court first ruled that Code of Civil Procedure section 366.2 does not apply to the enforcement of family law support judgments. After further briefing, the parties participated in another hearing, at which Sidell testified. Neither Hara nor Selma testified.

Following the hearing, the trial court issued its order concluding: “In summary, [Sidell] has shown that under New Jersey Law, laches is a defense to support payments. Applying the principles of laches to the facts here establishes that [Selma] is precluded from enforcing the support orders as she waited 40 years to enforce the order. The location of [Morton] and [Sidell was] sufficiently discoverable by a reasonable search, which was evidenced by [the] fact [Morton] and [Sidell] lived at one address in California since 1978 and [Selma] even filed an abstract of judgment in Orange County in 1979. It also appears likely [Morton] and [Sidell]’s location was known to the parties’ daughter. The long delay has caused [Morton] and [Sidell] to change their position as [they] believed [Selma] was never going to enforce the order, especially the now claimed ongoing child support for decades beyond the child attaining the age of majority, with [Selma] now seeking a forfeiture from [Morton]’s estate of $600,000 dollars. The delay has additionally caused prejudice as [Morton] can no longer testify as to his mental state and payments made, [Sidell] cannot now obtain documents to defend the claim after [Morton]’s death. The equities appear to favor [Morton] and [Sidell] and laches under New Jersey law must be applied.”

Selma filed a notice of appeal, and Sidell filed a notice of cross-appeal of the statute of limitations ruling.

DISCUSSION

We review questions of statutory interpretation de novo. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 188-189.) We review the trial court’s factual findings for substantial evidence. (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1043.)

This case is governed by the Uniform Interstate Family Support Act (UIFSA), codified in California as Family Code section 5700.101 et seq. UIFSA allows a support order from another state to be registered for enforcement in California. (Fam. Code, § 5700.601; Scheuerman v. Hauk (2004) 116 Cal.App.4th 1140, 1143 1144.)

In the previous appeal, a panel of this court concluded: (1) the New Jersey support judgment was registered pursuant to UIFSA when Selma filed the notice and statement for registration in April 2016, (2) Sidell bears the burden of proof on any issues challenging the registration of the New Jersey support judgment, and (3) only the defenses listed in Family Code section 5700.607, subdivision (a), may be raised to challenge the registration of the New Jersey support judgment. (Levy v. Levy, supra, G054014.) These conclusions are the law of the case. (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 40.)

I.

STATUTE OF LIMITATIONS

The trial court ruled that Selma’s action was not barred by the statute of limitations in Code of Civil Procedure section 366.2; Sidell challenges this ruling on appeal.

Under UIFSA, “[i]n a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state or foreign country, whichever is longer, applies.” (Fam. Code, § 5700.604, subd. (b).) Sidell concedes that Family Code section 291, subdivision (a) provides that a judgment for child support “is enforceable until paid in full or otherwise satisfied,” California’s statute of limitations applies in this case.

Sidell, however, points to Family Code section 291, subdivision (e), which provides: “Nothing in this section supersedes the law governing enforcement of a judgment after the death of the judgment creditor or judgment debtor.” Therefore, she asserts, this case is subject to the statute of limitations in Code of Civil Procedure section 366.2, subdivision (a), which provides: “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.”

We agree with the trial court’s conclusion that Code of Civil Procedure section 366.2 is not a basis for vacating registration of the New Jersey support judgment. “[A] judgment creditor’s request for payment from trust assets is not a new proceeding, and thus not an ‘action’ within the meaning of Code of Civil Procedure section 366.2 for purposes of measuring the one-year statute of limitations.” (Dobler v. Arluk Medical Center Industrial Group, Inc. (2001) 89 Cal.App.4th 530, 541.) “The claim against decedent had been reduced to a judgment before he died, thereby rendering the statute of limitations on a ‘cause of action’ where the ‘person against whom [the] action may be brought . . . dies’ [citation] inapplicable.” (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1310.) “Section 366.2, subdivision (a), by its terms, limits the time for bringing a ‘cause of action.’ Execution on a judgment lien is not a cause of action. [Citation.] Issues relating to a primary right had long passed away, allowing for the birth of a judgment lien with a long life. Section 366.2 does not apply.” (County Line Holdings, LLC v. McClanahan (2018) 22 Cal.App.5th 1067, 1071.)

Family Code section 291, subdivision (e) does not change our analysis. The purpose of section 291 was to simplify the rules regarding enforcement of family law judgments. The legislative history of the statute shows that the purpose of subdivision (e) was to ensure that the clarifications of section 291 would not affect the otherwise applicable rules regarding time limitations on filing creditor’s claims under the Code of Civil Procedure: “AB 2126 ensures that extending enforcement of all orders under the Family Code does not affect current law relating to the collection of assets from a judgment debtor’s estate after their death.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2126 (2005-2006 Reg. Sess.) as amended Apr. 20, 2006, p. 6.) As set forth ante, current law provides that Code of Civil Procedure section 366.2 does not apply to enforcement of existing judgments.

II.

LACHES

A.

Laches Is Not a Ground Under Family Code Section 5700.607
for Challenging Registration of an Out of state Judgment.

Sidell argues she could assert laches as a defense even though it is not identified as a ground for challenging an out-of-state judgment. (See Fam. Code, § 5700.607, subd. (a).) Sidell first argues that UIFSA requires that the defenses identified in Family Code section 5700.607, subdivision (a) must be liberally construed and broadly interpreted. This is not the law, however. (See County of Los Angeles Child Support Services Dept. v. Superior Court (2015) 243 Cal.App.4th 230, 237-238 [grounds set forth in statute are the only ones available to challenge registration of out of state support order; claim that genetic testing would prove real party in interest was not the father of the supported child was not a proper defense under UIFSA].)

Sidell next argues that laches was a proper ground for challenging the New Jersey support judgment because application of the doctrine creates a defense under California law. Her argument posits that, if Selma is barred from enforcing the New Jersey support judgment under New Jersey’s laches doctrine, there is no longer a valid judgment to register or enforce in California. (See Scheuerman v. Hauk, supra, 116 Cal.App.4th at p. 1142 [under UIFSA California cannot enforce invalid out of state judgment; Arizona had modified its original support order to find no arrears were owed, so California court had nothing to enforce].) Here, by contrast, no New Jersey court has in any way modified the New Jersey support judgment. A finding of laches does not retroactively invalidate a support order; rather, it concludes that the competing equities would make it unfair to enforce the order. Therefore, New Jersey’s laches doctrine is not a defense to the New Jersey support judgment under California law. (Fam. Code, § 5700.607, subd. (a)(5).)

Finally, Sidell argues that the application of New Jersey’s laches doctrine is a proper challenge to the New Jersey support judgment because a determination that the claim was barred by laches would be the same as a determination that the amount of arrears claimed was overstated, pursuant to Family Code section 5700.607, subdivision (a)(6). For the same reason that laches does not invalidate a support order, it does not invalidate the arrearages of such a support order.

B.

Should New Jersey’s Law on Laches Nevertheless Be Applied?

Sidell argues that although the equitable doctrine of laches is not one of the statutory grounds for challenging an out-of-state support order, it was still proper for the trial court to consider it in this case because (1) the defenses identified in Family Code section 5700.607, subdivision (a) are not exclusive, and (2) the trial court was required to apply New Jersey law when interpreting the New Jersey support judgment.

Sidell cites de Leon v. Jenkins (2006) 143 Cal.App.4th 118 (de Leon) and Cima Sorci v. Sorci (2017) 17 Cal.App.5th 875 in support of her argument that she was entitled to raise a defense other than those listed in Family Code section 5700.607, subdivision (a). Her reliance on these cases is misplaced. In de Leon, the court held that the obligee mother could assert, after the out-of-state support order was confirmed, that the arrears claimed by the registering party—the Department of Child Support Services—were understated. (de Leon, supra, 143 Cal.App.4th at pp. 125-126.) While section 5700.607 allows for a claim that the arrears were overstated, it does not allow for a claim that the arrears were understated. Therefore, the obligee mother could not have raised her argument at the time of registration. (Ibid.) This case does not support an argument that a challenge not set forth in the statute can be raised to challenge the registration of the New Jersey support judgment. Indeed, as the Cima Sorci v. Sorci court held, de Leon “does not stand for the proposition that objections to registration can be made on grounds other than the defenses set forth in section [5700.607].” (Cima-Sorci v. Sorci, supra, 17 Cal.App.5th at p. 885.)

Sidell next argues that because Selma was attempting to enforce a support judgment issued by New Jersey, the California trial court was required to apply the substantive law of New Jersey. Family Code section 5700.604, subdivision (a) provides, in relevant part: “[T]he law of the issuing state or foreign country governs: [¶] . . . [¶] (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order.” The question thus becomes: Does the equitable doctrine of laches affect “the computation and payment of arrearages and accrual of interest on the arrearages under the support order” within the meaning of the statute? We conclude the answer is no.

Family Code section 5700.604 refers to the rules applicable to arrears and interest, such as whether simple or compound interest accrues, and whether payments apply to the oldest or newest portion of the arrearage. It does not and cannot create a new defense to the registration of an out of state order that does not already exist.

The comment to UIFSA is helpful to our analysis: “This section identifies situations in which local law is inapplicable. A basic principle of UIFSA is that throughout the process the controlling order remains the order of the issuing State, and that responding States only assist in the enforcement of that order. Absent a loss of continuing, exclusive jurisdiction and a subsequent modification of the order, the order never becomes an ‘order of the responding State.’ Ultimate responsibility for enforcement and final resolution of the obligor’s compliance with all aspects of the support order belongs to the issuing State. Thus, calculation of whether the obligor has fully complied with the payment of current support, arrears, and interest on arrears is the duty of the issuing State. For example, under Subsection (a) the responding State must recognize and enforce an order of the issuing State for the support of a child until age 21, notwithstanding the fact that the duty of support of a child ends at age 18 under the law of the responding State, see Robdau v. Commonwealth, Virginia Dept. Social Serv., 543 S.E.2d 602 (Va. App. 2001); State ex rel. Harnes v. Lawrence, 538 S.E.2d 223 (N.C. App. 2000). Similarly, the law of the issuing State governs whether a payment made for the benefit of a child, such as a Social Security benefit for a child of a disabled obligor, should be credited against the obligor’s child support obligation. The amendments of 2001 to Subsection (a) are intended to clarify the range of subjects that are governed by the choice of law rules established in this section.” (UIFSA (2001), com. to § 604, pp. 82-83.)

The comment’s examples of the issuing state’s laws that must be applied when recognizing and enforcing a support order tend to imply which laws do not come within the statute. The equitable doctrine of laches is not comparable to laws setting the age of majority or determining credits against support payments.

Sidell cites three out of state cases as authority for her position. When interpreting uniform laws such as UIFSA, case law from other states may be persuasive. (Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1087.) However, none of the cases is on point, and the facts of two of them actually undermine Sidell’s argument.

In Miller v. Miller (Ind.Ct.App. 2003) 790 N.E.2d 133, 134, the original child support order was issued in South Carolina in 1989. The mother registered the order in Indiana in 2001 and alleged child support arrears and interest in excess of $65,000. (Id. at p. 135.) After the order was registered, the mother sought sanctions for nonpayment of support and a contempt order from the Indiana court. (Ibid.) The appellate court held that the doctrine of laches, although unavailable under Indiana law, was applicable to defend against an alleged arrearage under South Carolina law. (Id. at pp. 135 136.) It is important to note that the Indiana court registered the South Carolina order; the issue of laches was not raised until the mother sought to enforce the order through sanctions and contempt. The case does not stand for the proposition that the home state’s equitable doctrine of laches may be used to cancel registration of a support order in a new state under UIFSA.

In State ex. Rel. George v. Bray (N.C.Ct.App. 1998) 503 S.E.2d 686, 688, the mother and the father divorced in 1981; their Indiana divorce decree included a child support obligation. At some point, the father moved to North Carolina. In 1996, the North Carolina child support enforcement agency brought an action to register the Indiana support order in North Carolina, and to recover ongoing support and arrears. (Ibid.) The trial court reduced the amount of arrears due, based on laches under North Carolina law. (Ibid.) The appellate court held that the law of Indiana, not North Carolina, would apply to defenses against the enforcement of the support order. Importantly for our analysis, however, the court held that the father could not use Indiana’s law on laches to challenge the registration of the support order in North Carolina. “If defendant wishes to pursue his equitable defenses he must do so in Indiana. If he is successful in Indiana he may then contest enforcement of this order in North Carolina under G.S. 52C-6-607(a)(3) on the grounds that the order has been modified.” (Id. at p. 691, italics added.)

Finally, in Owens v. Department of Human Resources (Ga.Ct.App. 2002) 566 S.E.2d 403, 404, the father was ordered to pay child support in a divorce judgment in Florida in 1974. The father later moved to Georgia. (Ibid.) In 1999, the Georgia Department of Human Resources filed a petition to register the Florida judgment in Georgia, under that state’s version of UIFSA. (Ibid.) The appellate court held that Florida law, not Georgia law applied to the father’s defense of laches, but the father had not carried his burden of proof. (Id. at p. 405.)

Sidell’s attempt to use New Jersey’s laches doctrine to cancel registration of the New Jersey support judgment in California is either an attempt to apply a defense to registration of the support judgment that is not recognized by Family Code section 5700.607, or an improper collateral attack on the New Jersey support judgment. In either case, the trial court erred, and the order must be reversed.

DISPOSITION

The order vacating registration of the New Jersey support judgment is reversed. Defendants and Appellants to recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.