California Family Law Report

Case of the Month (from CFLR Monthly)

Kellett does not require charging all known offenses in the same complaint and is inapplicable here . . .

In reversal, Third District holds that mother was not precluded from bringing OSC re contempt for each month of unpaid child support that was not charged in previous contempt action; each month is a separate act of contempt that is not so interrelated with the others as to require charging them simultaneously

In May 2006, the trial court ordered Thomas Eaton to pay child support of $2,524 per month for his 7-year-old daughter, retroactive to January 2005. When he failed to pay as ordered, the girl’s mother, Lorain Rice, contacted the Placer County Dept. of Child Support Services (DCSS) to ask them to enforce the order. DCSS opened an enforcement case in April 2008. In August, it filed an OSC re contempt, alleging that Thomas failed to pay child support for May, June, and July 2008. Thomas was served, but failed to appear at the contempt hearing. DCSS told the trial court that he owed child support arrearages of more than $96,000, and the court issued a $50,000 bench warrant for his arrest. Lorain, who appeared by phone and in pro per, asked why Thomas was being charged with only three months’ arrearages when he hadn’t paid a penny since May 2006. The trial court replied that the number of counts charged was up to DCSS, but Lorain could file her own motion to address the other arrearages.

After signing a “Promise to Appear,” Thomas did appear with counsel at a hearing on January 7, 2009 concerning the contempt charges. Lorain again appeared in pro per by telephone. When DCSS told the court that it had worked out a plea bargain with Thomas and counsel, Lorain expressed surprise and asked for a continuance. Lorain said that she and DCSS had scheduled a hearing with an Administrative Law Judge to address problems between them and that she believed the contempt charges would be changed after that hearing. The trial court declined to order a continuance, but reminded Lorain that she was free to file her own OSC re contempt. DCSS then advised Lorain that the plea deal did not operate to excuse any of the uncharged arrearages, but Lorain countered that DCSS didn’t know the correct amount of the existing arrearages. After more back and forth discussion between Lorain and DCSS, the trial court stepped in, denied Lorain’s request for a continuance, and accepted Thomas’s guilty plea to two counts of contempt. The court sentenced him to 10 days in jail, suspended, one year’s probation, and payment of $2,524 a month for child support, plus $676 a month for arrearages, or a total of $3,200 per month. If Thomas successfully completed his probation, the trial court would dismiss the remaining contempt charge.

Not long after, Lorain filed her own OSC re contempt, claiming that Thomas failed to pay 26 months of child support between May 2006 and December 2008. At the hearing, Thomas entered a not guilty plea to all 26 counts. When the trial court noted that the total arrearages had yet to be determined, Thomas pointed to a DCSS audit, but Lorain disputed that amount and said that a hearing on arrearages was set for later. In response to a trial court inquiry, Lorain said that DCSS was still involved in her case, but she had filed her own OSC at the trial court’s earlier suggestion. DCSS told the court that it had no objections to Lorain’s action, which was authorized by statute, and explained that its audit was for informational purposes. After taking other motions under submission, the trial court scheduled trial for August 10, 2010. At that trial, which was to include determination of arrearages, Thomas moved to dismiss the OSC on the grounds of double jeopardy, claiming that his prior guilty plea included all existing claims. Relying on Kellett v. Superior Court (1966) 63 Cal.2d 822, 409 P.2d 206, 48 Cal.Rptr. 366 [alleged contemnor cannot be prosecuted serially for acts of contempt occurring during same course of action], the trial court questioned whether Lorain could bring an OSC re contempt for contempt counts that were known when DCSS brought its action. Thomas argued that Lorain’s claims were barred by Kellett and also contended that his probation encompassed all existing arrearages, not just those charged in the prior OSC for May-July 2008, which meant that Lorain’s claims constituted double jeopardy. Lorain pointed out that the full extent of the arrearages was not known when Thomas was placed on probation and that DCSS’s action covered only the three months since it opened its file in the matter. The trial court then invited additional briefing and argument, obtained a reporter’s transcript of the January 2009 contempt hearing, took the matter under submission, and ordered the parties to return for further hearing.

At the next hearing, Thomas renewed his contentions regarding double jeopardy and Kellett, while Lorain again objected to both. DCSS agreed with Lorain as to why it alleged only three counts and added that Thomas’s entire arrearages were never discussed during plea negotiations; Thomas was only concerned that his payments would be “ ‘a round number.’ ” The trial court found that DCSS knew about other earlier-accrued arrearages but chose to limit its contempt action to three counts. Thus, per Kellett, that knowledge precluded Lorain from bringing an action for the uncharged counts. The trial court then granted Thomas’s motion to dismiss. Lorain promptly moved for reconsideration, a new trial, or vacating of the dismissal order, but the trial court denied her motion and ordered her to pay sanctions of $1,000 in attorney’s fees to Thomas, per Fam C §271 [fees as sanctions for actions frustrating settlement].

Lorain appealed, and in a partially-published opinion, the Third District reversed with directions.

Month after month . . .
The justices first explained that a contempt action is in the nature of a criminal proceeding; thus, the alleged contemnor is entitled to the constitutional protections afforded to criminal defendants, such as freedom from double jeopardy. Moreover, as the Supremes held in Kellett , the contemnor “cannot be serially prosecuted for contemptuous acts that occur in the same course of conduct . . . .” However, the panel found, those legal principles did not apply to the facts in this case. The panel noted that for Kellett to apply, there must have been a series of acts that are “ ‘too interrelated to permit their being prosecuted successively.’ ” Thus, a prosecutor is not required to charge all known offenses in the same complaint, but rather, only those that are sufficiently interrelated. This contempt action, the justices continued, involved a series of unpaid monthly child support obligations. And, under the applicable statute, CCP §1218.5, each month of unpaid child support may be alleged as a separate count of contempt. Therefore, Thomas’s months of unpaid child support did not “constitute a continuing course of conduct that must be charged simultaneously.” In addition, the panel found, the months of unpaid child support did not overlap, occurred at different times, and were not evidence that any other month was also unpaid. Given all that, the justices concluded that Kellett was inapplicable and the trial court erred by granting Thomas’s motion to dismiss. Therefore, they reversed and vacated the trial court’s orders regarding dismissal and remanded for a trial on Lorain’s OSC re contempt.

Non-pub . . .
In the unpublished part of the opinion, the panel held that the trial court erred in imposing sanctions and concluded that Thomas failed to show that Lorain’s OSC subjected him to double jeopardy. Thus, the justices reversed the sanctions order.