Family Law Tentative Rulings - Courtroom 20

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707)-521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1. SFL 076556 WAITE DISSOLUTION

Respondent’s Motion to Set Aside Support Order per California Code, Family Code-FAM §2122(c), and California Code, Code of Civil Procedure-CCP §473(d) is DENIED.  The motion is untimely, and Respondent fails to present sufficient evidence or explanation demonstrating the bases for his requested relief.  This order is without prejudice to Respondent filing a request to modify the child support order based on changed circumstances or income.  Should Respondent wish to seek a modification of the current child support order, he may therefore file a request for order asking the court to change the support order.

Facts

Petitioner filed this action for dissolution of marriage with minor children (the “Children”) on April 13, 2017.  Of the four Children, two are over 18 and no longer minors.   

Sonoma County Department of Child Support Services (“DCSS”) filed a notice of assigned support and substitution of payee for child support on October 15, 2019.  The court entered an order regarding child support on August 4, 2020, requiring Respondent to pay $75 a month in total child support. 

DCSS filed a motion for modification of child support on June 3, 2024, asking the court to increase the child support obligation based on Respondent’s greater monthly income.  In its motion to modify, DCSS relied on Respondent’s Income and Expense Declaration which reflected Respondent’s monthly income from worker’s compensation and the fact that Respondent had 0% timeshare with the minor Children.

At the hearing on DCSS’s motion, on July 30, 2024, all parties were present.  DCSS asked for a continuance to allow Respondent time to file his worker’s compensation documentation.  The court granted the continuance to September 24, 2024, and directed Respondent to file the supporting documentation at least 10 days prior to the hearing.  By that time, one of the Children was over 18 and emancipated, and three were still minors.

At the hearing of September 24, 2024, all parties were again present.  Both parties contested the guideline support calculation and both parties provided argument and addressed Respondent's disability status.   The court entered an order (the “September 2024 Order”) requiring Respondent to pay child support of $407 per month.  The order required support for the three Children who were still minors at that time. 

Since that time, one more of the Children has reached the age of 18 and child support for that child is ending as a result. 

Motion

In his Request for Order (“RFO”) and Motion to Set Aside Support Order per California Code, Family Code-FAM §2122(c), and California Code, Code of Civil Procedure-CCP §473(d), Respondent moves the court to set aside the September 2024 Order.  In addition to those cited provisions, he also relies on Family Code section 3691(b).  He asserts that two days before the hearing his probation officer “used scare tactics and discipline following an unofficial California call, to intimidate me regarding this case.  This extrajudicial interference created extreme duress and violated my due process rights under [CCP section] 473(d).”  He claims that by doing so, the officer “deliberately prevented” him from participating in the proceedings by destroying his free will and making it impossible for him to present his position at the hearing.  He adds that his “actual income is $0,” he has “permanent work restrictions and disabilities from a February 2024 ankle fracture,” and he is seeking union retraining.

DCSS opposes the motion.  DCSS contends that Respondent participated in the hearing, presented his arguments, and did not enter into any agreements.  Therefore, DCSS reasons, Respondent was not prevented from participating in the hearing and he was not coerced into any agreement.  DCSS also notes that child support is ending for one of the three Children for whom Respondent was ordered to pay child support. 

Respondent replied to the opposition on April 13 and April 15, 2026; however, Respondent failed to file proofs of service indicating the two pleadings were served on DCSS and Petitioner and thus the pleadings were not considered. 

Petitioner did not respond to Respondent’s RFO.

Applicable Authority

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. Code”) section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”).  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022 (discovery); In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911 (discussing the applicability of Code of Civil Procedure section 473 when a party seeks relief from orders in family proceedings).

Relief from support orders in family-law cases may be based on the grounds generally applicable to motions to vacate under CCP section 473, or, after that deadline, only in accordance with the grounds in Fam. Code sections 2121, 2122, and 3691.  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911; see also CRC 5.2(d) (provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided).  As the Marriage of Zimmerman court explained,

Aside from the six-month period specified in Code of Civil Procedure section 473, subdivision (b) for moving to set aside an order, section 3691 is the exclusive set-aside remedy. An authority stated, “After the CCP § 473(b) six-month time limit has run, the trial court may ... relieve a party from a support order ... based only on the grounds and within the time limits set forth in Fam.C. § 3690 et seq….” [Citation.]

Fam. Code section 3691 governs requests to set aside support orders, including both spousal and child support as set forth in the definition of “support” in Fam. Code section 3650.  It states, in pertinent part and with emphasis added,  

The grounds and time limits for an action or motion to set aside a support order, or part thereof, are governed by this section and shall be one of the following:

(a) Actual fraud. Where the defrauded party was kept in ignorance or in some other manner, other than through the party's own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud.

(b) Perjury. An action or motion based on perjury shall be brought within six months after the d   ate on which the complaining party discovered or reasonably should have discovered the perjury.

Accordingly, a motion to set aside a support order based on fraud or perjury must be brought within six months after the party discovered, or reasonably should have discovered, the fraud or perjury.  Fam. Code section 3691(a), (b).

Discussion

The motion is untimely.  Respondent filed this motion almost a year and a half after the September 2024 Order was entered.  Respondent demonstrates he knew of the events which led to the entry of the September 2024 Order and which form the basis of his motion.  Additionally, the record shows that he was present, remotely, at both child support hearings in 2024 and presented his arguments regarding guideline child support.  This means that his motion is untimely under both CCP section 473 and Fam. Code section 3691 and must be denied.

Even if the motion was timely, Respondent has failed to provide sufficient evidence or explanation supporting the order he requests.  He only vaguely claims that a probation officer used unspecified “scare tactics and discipline” to coerce him into not contesting the DCSS motion.  However, he provides no evidence or explanation of what this conduct was or how it prevented him from presenting his arguments and evidence to the court.  The record, as DCSS points out, also shows that Respondent was in fact present and did in fact present his position and arguments, challenging the requested order.  Finally, even if Respondent had demonstrated coercion which robbed him of his ability to defend himself, he presents no evidence which would support a different order.  He only vaguely claims that his income since that order was reduced to $0, but he provides no specific evidence showing this.  He also fails to demonstrate that the September 2024 Order was incorrect, or based on incorrect income data, at the time.  Should Respondent wish to modify the current child support order based on changed circumstances and income, he may present a motion seeking that relief.  Claiming that his circumstances have changed since the September 2024 Order is different from claiming that the September 2024 Order should be set aside.  This order does not bar him from requesting a modification of the child support order. 

Conclusion

The court DENIES the motion for the reasons set forth above.  The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. The opposing party shall inform the preparing party of objections as to form, if any, or whether the form of the order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.           

[END OF TENTATIVE.]