Filed 11/22/19 Marriage of Beasley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

In re the Marriage of TRACY and ERIK BEASLEY. C086006

TRACY N. BEASLEY,

Appellant,

v.

ERIK BEASLEY,

Respondent.

(Super. Ct. No. FL911089)

Tracy N. Beasley (Tracy) appeals from a postjudgment order that, among other things, struck over $57,000 in spousal support arrears owed by Erik Beasley (Erik). On appeal, Tracy contends the trial court erred in refusing to consider arrears arising from the court’s 1992 order for temporary spousal support in calculating arrearages.

She further contends the trial court acted in excess of its jurisdiction in vacating the spousal support arrears owed by Erik. We agree. We reverse the court’s orders and remand the matter for the trial court to determine the amount of spousal support arrearages owed from December 1992 to the present.

FACTS AND LEGAL PROCEEDINGS

In March 1993, the trial court ordered Erik to pay to Tracy $410 each month in temporary spousal support, retroactive to December 1, 1992. In May 1995, the court entered a judgment of legal separation, including an order for spousal support of $375 per month, payable by Erik to Tracy, beginning January 1, 1995.

In 1998, a wage assignment order issued, reflecting spousal support arrearages totaling $16,250 as of August 31, 1997. The arrears included unpaid spousal support ordered in 1993 and 1995.

In August 2016, Tracy filed a request for order seeking spousal support arrears totaling $35,189.94. The matter was set for trial.

Erik opposed Tracy’s request for order. He asked the court to “terminate and excuse any support obligations” to Tracy. He claimed Tracy had “improperly obtained spousal and child support from [him] for over twenty years.” He also claimed the court, in 2001, ordered Tracy to pay him child support and she never did.

In May 2017, Tracy filed a declaration revealing that spousal support arrears, including unpaid support from the 1993 and 1995 orders, had reached $57,133.

The matter went to trial on November 9, 2017. Erik appeared with counsel; Tracy appeared in pro per. Erik filed a motion in limine seeking to “exclude all evidence related to child and spousal support obligations between [Erik] and [Tracy] prior to January 1995 as in violation of California’s one judgment rule, sometimes referred to as the final judgment rule.” In support of his motion, Erik argued that because Tracy “chose not to select the box incorporating prior judgments into the final order,” she was precluded from enforcing any support order issued prior to January 1995.

The court ruled in Erik’s favor, over Tracy’s objection: “Well, you’re going to have to take that up with the appellate court because that is the ruling of this Court that the One Judgment Rule applies and that no claimed arrearage prior to May 8th of 1995 is to be entertained by this court.”

Susan Harris, a representative from the Department of Child Support Services (DCSS) testified at trial. She prepared an audit from the 1993 support order through September 2017 and concluded that Erik owed Tracy $57,937.29 in spousal support arrearages. The total amount of arrearages for spousal support from January 1995 through May 2017 was $22,381.13. Erik stipulated to the content of the audits, as well as the court’s file.

Erik’s counsel asked the court to eliminate all the spousal support arrears. He argued “[t]his was a six-year marriage, and I’m sorry, [Tracy] had a duty to come to court if she was not getting spousal support in the twenty-some years.” Tracy asked the court to order Erik to pay the support he was already ordered to pay. She argued it would be “unconscionable” to eliminate the arrears.

After hearing from both sides, the trial court reduced the order for spousal support to zero, effective May 1, 2017. The court also “vacated” the spousal support arrears, finding that “paying spousal support arrears at this point in this case serves no purpose other than to serve as a penalty. It does not serve as interim support for [Tracy], therefore I’m vacating and reducing to zero the amount of the spousal support arrears.”

Tracy appeals from this order.

DISCUSSION

I

Spousal Support Arrears Arising from 1993 Order for Temporary Support

Tracy contends the trial court erred in refusing to consider arrears arising from the 1993 order for temporary spousal support in calculating spousal support arrearages. We agree.

Here, the trial court found that because the order for temporary support was not incorporated into the final judgment, the “one judgment rule” resulted in the temporary order being superseded by the final judgment. This finding is not supported by the law. A temporary spousal support order “is operative from the time of pronouncement and ‘is directly appealable as a final judgment.’ [Citation.] If a party does not appeal the order, the issues determined by the order are res judicata.” (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 208.) Temporary support orders are not affected by — and do not affect — the remainder of the proceedings. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.) “This constitutes a necessary exception to the one final judgment rule.” (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638.)

The 1993 order for temporary support was, therefore, a final and enforceable order. It was not rendered unenforceable by the subsequent judgment. Accordingly, the trial court erred in refusing to consider arrearages resulting from the 1993 order for temporary spousal support in calculating spousal support arrearages.

II

Spousal Support Arrearages

Tracy further contends the trial court acted in excess of its jurisdiction “by excusing Erik from paying any spousal support arrearages.” Again, we agree.

“With exceptions not relevant here, [Family Code] section 3653, subdivision (a) states that ‘[a]n order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date.’ ([Fam. Code, ]§ 3653, subd. (a); [unless otherwise stated, statutory section references that follow are to the Family Code;] see also 42 U.S.C. § 666(a)(9)(C) [retroactive modification of support order only permissible to date that notice of a pending petition for modification has been given].) Section 3651 provides the same. (§ 3651, subd. (c)(1) [‘Except as provided in paragraph (2) and subdivision (b) [exceptions not relevant here], a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate’].) Section 3603 likewise states, ‘[a]n order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.’ (§ 3603.)

“By their plain terms, these statutory provisions ‘permit[] the trial court to make its ruling retroactive to the filing date of the motion, but no earlier.’ [Citation.] ‘The filing date, in other words, establishes the outermost limit of retroactivity.’ [Citation.] [¶] . . . [¶]

“A court order modifying support retroactive to any time period before the filing date of a modification motion would thus violate the governing statutory scheme. Such an act, moreover, would be in excess of the court’s jurisdiction. [Citation.] ‘ “A court acts in excess of jurisdiction ‘where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ ” ’ [Citation.]” (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 26.)

By vacating the spousal support arrears, the trial court retroactively modified the court’s prior spousal support orders to zero. This was an act in excess of the court’s jurisdiction. (See In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595; see also In re Marriage of Gruen, supra, 191 Cal.App.4th at p. 639.) Tracy’s delay in seeking enforcement of those orders does not excuse Erik from paying them, laches is not a defense to paying spousal support arrears. (§ 291, subd. (a) [laches available only to portion of the judgment owing to the state].) Nor is it legally relevant that the trial court believed ordering Erik to pay his arrears would only “serve as a penalty,” “a support order may not be set aside . . . simply because subsequent circumstances caused the support ordered to become excessive or inadequate.” (§ 3692; see also Stover v. Bruntz, supra, 12 Cal.App.5th at p. 27.)

The trial court acted in excess of its jurisdiction when it vacated the spousal support arrears owed by Erik. We will reverse the court’s order.

DISPOSITION

The trial court’s November 9, 2017, order limiting the calculation of spousal support arrears to those accruing after January 1995, and “vacating” all spousal support arrears is hereby reversed. The matter is remanded to determine the amount of spousal support arrearages owed from December 1, 1992, to the date of calculation. Costs on appeal are awarded to Tracy. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

HULL, Acting P. J.

We concur:

MURRAY, J.

KRAUSE, J.