Filed 8/12/20 County of Riverside v. Miller CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

COUNTY OF RIVERSIDE,

Plaintiff and Respondent,

v.

KEITH ANTHONY MILLER, SR.,

Defendant and Appellant.

E073212

(Super.Ct.No. FAM155651CIV)

OPINION

APPEAL from the Superior Court of Riverside County. Candice Garcia-Rodrigo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Keith Anthony Miller, Sr., in pro. per., for Defendant and Appellant.

Riverside County Department of Child Support Services and Hirbod Rashidi for Plaintiff and Respondent.

Defendant and appellant Keith Anthony Miller, Sr. (Father) requested an order from the family court directing the Riverside County Department of Child Support Services (the County) to return $8,975 Father paid for child support from September 1991 through November 1995 for his son, K.M. (Son). The family court denied Father’s request for an order. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Son was born in March 1976. Son’s mother, Corine Wilson (Mother), had physical custody of Son. In 1984, the County obtained a default judgment requiring Father to pay (1) $175 per month for child support; and (2) $5,157 to reimburse the County for public assistance benefits paid for Son from February 1, 1981, to April 30, 1984.

In June 1989, the family court issued an order assigning Father’s wages. The order reflected Father owed $15,279.52 in child support arrears for the period from February 1, 1981, to May 30, 1989. The order required Father’s employer to send the County (1) $175 per month for child support, and (2) $100 per month for the arrears. While living with Mother, Son benefitted from public assistance from February 1, 1981, to June 30, 1990, and again from December 1, 1990, to August 31, 1991. In September 1991, when Son was 15 years old, Son began living with Father in Missouri.

In March 2015, the County moved the family court for a determination of arrears owed by Father. The County asserted Father owed $7,003.66 in principal and $10,782.13 in interest for a total arrearage amount of $17,785.79. In February 2016, the family court found Father owed public assistance reimbursement arrears of $17,069.76 as of January 21, 2016. The court ordered Father to make payments of $92.30 every two weeks.

In November 2017, the County moved for a determination of child support arrears owed by Father. The 2017 motion was brought because the County learned from Mother “that there may be non-welfare arrears owed to her for periods of time that she had custody of [Son] and did not receive public assistance.” In December 2017, the family court found Father “still owes $11,909.28 and is to continue to pay welfare reimbursement.”

In October 2018, Father requested an order directing the County to “refund $33,279.71 in over collection of AFDC welfare reimbursement for 02/01/1981 through 04/30/1984 of $5,157.00. And the amount of $15,400 in a court ordered [sic] for the period of 05/01/1984 through 08/31/1991 for the minor [Son] born March 2, 1976.” On December 3, 2018, the family court ordered (1) the County “to conduct an accounting with respect to the remaining balance” owed by Father, and (2) Father to amend his request. The family court continued the hearing to January 2019; at the continued hearing the family court would “determine the refund amount and/or if the balance [owed by Father] shall remain in effect.”

On December 3, 2018, Father filed his amended request. Father requested $4,711.84 in child support payments be refunded to him because the County was only allowed to collect $92.30 biweekly from Father’s employer but the County went beyond that order by also collecting money owed to Father by the Social Security Administration, the U.S. Department of the Treasury, and Thrift Savings Plan. On January 22, 2019, the family court ordered the County to refund Father $3,921.76. The family court ordered that the County was to continue collecting $92.30 biweekly from Father and that $3,921.76 would be added back to the amount of arrears owed by Father.

In April 2019, Father requested an order refunding $8,975 in current child support collected during the time that Son was living with Father—from September 1, 1991, to November 30, 1995. Father attached an accounting reflecting that payments of $175 per month from September 1991 through November 1995 would total $8,925. Father certified, although not under penalty of perjury, that from September 1991 through November 1995 the County collected $8,925 from money owed to Father. Father also provided an “Individual Payment Report” that showed various amounts of money were paid from June 1986 through March 2015.

On June 18, 2019, the family court held a hearing on Father’s request. The County was present at the hearing. The family court inquired of Father and Father presented his arguments. A reporter’s transcript is not included in the record on appeal, so we do not have details of what occurred during the hearing. Ultimately, the family court denied Father’s request.

DISCUSSION

A. CONSIDERATION OF EVIDENCE

Father contends the family court erred by denying his refund request without considering the evidence he provided in support of his request. It is an appellant’s obligation to “provide a record sufficient to determine whether the asserted errors are meritorious.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) Because Father has not provided a reporter’s transcript on appeal, we do not have details of what occurred at the family court’s hearing on Father’s request. The minute order from the hearing reflects the family court: (1) inquired of Father; (2) read the minute orders dated December 3, 2018, and January 22, 2019; and (3) listened to argument from Father and the County.

Thus, the record reflects the family court considered the history of the case because it read prior minute orders. The family court did not summarily deny Father’s request because the court inquired of Father and listened to argument from both parties. Therefore, on the record before us, we can conclude that the trial court did not summarily deny Father’s request.

Father did not provide an adequate record for this court to examine specifically whether the family court considered Father’s evidence. In order to review the issue of whether the family court considered Father’s evidence, we would need a reporter’s transcript or a statement of decision. Because Father has not provided this court with an adequate record to resolve this issue, we must resolve the issue in favor of the County. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

B. SUFFICIENCY OF THE EVIDENCE

Father contends the family court erred by denying his refund request because sufficient evidence established that the County was unjustly enriched by retaining the $8,975 in current child support that it collected while Son was residing with Father.

“On all motions the burden is on the moving party in the trial court.” (Scott v. Renz (1945) 67 Cal.App.2d 428, 431.) “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) “ ‘[W]here the issue on appeal turns on a failure of proof [in the lower court], the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.’ ” (Id. at p. 466.)

“Unjust enrichment is not a cause of action . . . or even a remedy, but rather ‘ “ ‘a general principle, underlying various legal doctrines and remedies’ ” . . . . [Citation.] It is synonymous with restitution. [Citation.]’ [Citation.] Unjust enrichment has also been characterized as . . . ‘ “the result of a failure to make restitution.” ’ ” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387.)

Attached to Father’s request for the return of $8,975 in current child support is an accounting that reflects $175 per month from September 1991 through November 1995 would total $8,925. Along with that math is a statement by Father reflecting, “I certify that the accounting depicted in this spread sheet [sic] is a true representation of child support collected by the non-custodial benefactor, County of Riverside on behalf of the minor.” The family court could reasonably conclude that Father’s assertion that the County collected $175 every month for current child support lacked evidentiary value because Father’s statement was not signed under penalty of perjury. (Code Civ. Proc., § 2015.5 [requirement of certificate or declaration of truth under penalty of perjury]; People v. Engstrom (2011) 201 Cal.App.4th 174, 184 [“unsworn declarations are of little to no evidentiary value”].)

At oral argument in this court, Father directed this court to a declaration by Father pertaining to an Individual Payment Report, discussed post, and asserted he attested to the truth of the accounting. Because the declaration pertains to the Individual Payment Report, and does not pertain to the accounting, we do not rely upon the declaration when evaluating the accounting. Father attached multiple declarations to his request, but none were related to the accounting.

In the first declaration attached to his request, Father recounted some of the procedural history of the case and then argued that the County “remains in violation of the oath took before this court, in noncompliance to policies of the Department of Child Support Services.” Nothing in Father’s declaration reflects that Father paid $175 per month in current child support while Son was residing with Father.

Father also attached the 1984 default judgment to his request. The judgment required Father to pay (1) $175 per month for child support; and (2) $5,157 to reimburse the County for public assistance benefits paid for Son. The default judgment does not reflect that Father paid $175 per month in current child support while Son resided with Father.

Father attached, to his request for a refund, a second declaration by Father. In the second declaration, Father made a legal argument and asserted, “The Riverside County DA used an ex parte order to bypassed [sic] applicable laws.” Nothing in Father’s second declaration reflects Father paid the County $175 per month in current child support while Son was in Father’s care. The next attachment to Father’s request was the 1989 wage assignment order. Nothing in the wage assignment order reflects payments were made to the County.

Father attached, to his request, a third declaration by Father. In the third declaration, Father explained that an Individual Payment Report was attached to his declaration. Father did not indicate who prepared the Individual Payment Report. Father declared the County collected $11,475 from September 1, 1991, through November 30, 1995. Father did not explain if the $11,475 was for (1) public assistance reimbursement; (2) child support arrears; and/or (3) current child support. The Individual Payment Report was attached to Father’s third declaration. It is unclear who prepared the report. The report lists various payments from June 1986 through March 2015. It is unclear to whom the payments were made, what the payments were for, and on whose behalf the payments were made.

At oral argument in this court, Father directed the court to the “IMSB Case and Member Information Report,” which lists payment categories. One of the payment categories is “CS,” which we infer means child support. A second payment category is “AFC,” which we infer means aid to families and children. There are two reasons the IMSB Report is not persuasive. First, it is unclear if the payments listed in the report were directed to new bills or past bills, e.g., whether in 1994, Father was paying an amount originally billed in 1989. Second, the IMSB Report was attached to Father’s October 2018 request for reimbursement, and we are reviewing the ruling on Father’s April 2019 request for reimbursement. Father does not indicate that the IMSB Report was submitted with the April 2019 request so as to be considered by the family court in 2019.

Father attached, to his April 2019 request, a fourth declaration by Father. In the fourth declaration, Father asserted the County erred by believing Mother “could assign current child support rights to a third party” when she was a non-custodial parent. Nothing in Father’s fourth declaration reflects he paid $175 per month in current child support while Son resided with Father.

Also attached to Father’s request was a child/spousal support and medical support notice and agreement, dated in December 1990, reflecting Mother agreed to cooperate with the County. A child support questionnaire, dated January 1991, was also attached to Father’s request. Neither document indicates if Father paid $175 per month in current child support while Son resided with Father.

Father attached, to his request, a fifth declaration by Father. Father declared that he attached a final decision from an administrative law judge to the fifth declaration. Also in the fifth declaration, Father asserted, “[T]he hearing official ignored many of the facts presented before the official.” Father also declared, “As of the date of this declaration the [County] has collected in excess of $50,000, this is why they refuse to perform an independence [sic] audit. The intent of the [County] was to collect $62,275.00 from [Father] by any means necessary including denying current child support to the child and family.” Nothing in the fifth declaration reflects Father paid $175 per month in current child support while Son was in Father’s care.

Father attached, to the fifth declaration, the administrative law judge’s final decision. The administrative ruling pertained to (1) Mother’s assertion that she did not assign her rights to receive child support to the County while she was receiving public assistance; and (2) Mother questioning “why she was not entitled to receive current child support for the period from September 1, 1991, to November 30, 1995.” The administrative law judge denied Mother’s complaint as to those issues. The administrative law judge found “[the County] received school records that verified that [Son] was in the home of [Father] for the period of September 1, 1991, to November 30, 1995. The [County] did not charge child support for this period and child support ended as of August 31, 1991. Child Support was ended pursuant to department policy to end current support if there is a change of custody. However, [Father] was and still is responsible to repay the permanently assigned arrears even though [Son] was in his care.” The administrative law judge’s decision reflects that Father did not pay current child support while Son was in his care because the current support obligation ended when Son moved in with Father.

Father attached, to his request, a sixth declaration by Father. Father declared that Son’s school records for September 1991 through November 1995 were attached to the sixth declaration. Nothing in the sixth declaration reflects Father paid $175 per month in current child support while Son was in Father’s care. The school records reflect Son attended school in Missouri.

In sum, Father provided no competent evidence reflecting he paid $175 per month in current child support while Son was residing with Father. Father actually provided evidence reflecting he did not make current child support payments while Son was residing with Father, e.g., the administrative law judge’s ruling. Therefore, the evidence did not compel a finding in favor of Father as a matter of law. We conclude the family court did not err.

C. COUNTY’S CONTENTIONS

The County requests this court dismiss Father’s appeal. We deny the County’s request. The County asserts Father forfeited his appellate arguments by failing to provide proper citations. We decline to apply the forfeiture rule. (See Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365 [declining to find forfeiture].)

DISPOSITION

The order is affirmed. The parties are to bear their own costs of appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

Parties and Attorneys
County of Riverside v. Keith Miller
Case Number E073212
Party Attorney

County of Riverside : Plaintiff and Respondent
Hirbod Rashidi
Riverside County Department of Child Support Services
2041 Iowa Avenue
Riverside, CA 92507-3212

Keith Anthony Miller, Sr. : Defendant and Appellant
417 Enon Spring Road East, Apt H119
Smyrna, TN 37167 Pro Per