Marriage of Furie CA2/1 ( 2023 )

Filed 1/31/23 Marriage of Furie CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re Marriage of KELLY and B315405
RUSSELL FURIE.
(Los Angeles County
Super. Ct. No. PD048281)
KELLY FURIE,
Respondent,
v.
RUSSELL FURIE,
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Christine Byrd, Judge. Affirmed.
Russell Furie, in pro. per.; Holmes, Taylor, Athey, Cowan,
Mermelstein & Jones and Andrew B. Holmes for Appellant.
Law Offices of Rosenthal & Associates and Lisa F.
Rosenthal for Respondent.
____________________________
On June 14, 2021, Russell Furie filed in the trial court a
request for an order, as he characterized it, “to align the [trial
court’s] [December 30, 2015, December 17, 2014, and April 14,
2016 orders] in this case with [a] December 5, 2019 Statement of
Decision” the trial court had entered after briefing and an
evidentiary hearing. The trial court denied Russell’s1 motion
“based on untimeliness and on the merits.”
Russell contends on appeal that his motion was timely and
meritorious. Based on Family Code sections 2122 and 3691,2
however, we agree with the trial court that the motion was
untimely.3 We affirm the trial court’s order.
BACKGROUND
Kelly and Russell Furie married on November 2, 1996. The
couple had two children; one born in 1998 and the other in 2001.
Kelly petitioned to dissolve the marriage on August 25, 2009. In
1 The parties in this matter share a last name. We
therefore refer to the parties by their first names for ease of
reading and to avoid confusion.
2Further statutory references are to the Family Code
unless otherwise specified.
3The trial court appears to have been focused on section
2122. Additionally, the parties’ arguments here are centered
around section 2122. The result is the same, however, without
regard to whether the correct statute of limitations is section
2122 or section 3691.
2
February 2010, the trial court entered a stipulated judgment for
legal separation incorporating a settlement agreement.4
A. December 5, 2019 Findings and Order After Hearing
Russell’s arguments on the merits stem from the facts
underlying the following narrative, drawn from the trial court’s
findings and order filed on December 5, 2019 5:
“[Russell and Kelly’s] minor children were entitled to, and
received, Social Security derivative benefits based on [Russell’s]
disability.
“[A]t some point, Social Security notified [Kelly] that it had
overpaid benefits in past years and that [Kelly] was required to
pay back the Social Security Administration. [Kelly] was not
required to pay the entire amount immediately. Instead, Social
Security began offsetting amounts against the children’s monthly
Social Security derivative benefits. In other words, [Kelly] was
allowed to pay back the amount she owed over time.
“[I]n 2015, [Russell] questioned how [the Los Angeles
County Child Support Services Department (CSSD)] was
applying credits for the Social Security derivative benefits and
how CSSD was applying [Russell’s] payments to current support
versus arrears. On December 30, 2015, the [trial court] ordered
CSSD to prepare a report applying the credits and calculating
arrears.
4 Two earlier appeals provide other background information
not relevant to this appeal. (In re Marriage of Furie (Mar. 28,
2014, B241754) [nonpub. opn.] (Furie I); In re Marriage of Furie
(2017) 16 Cal.App.5th 816 (Furie II).)
5 The trial court characterized these facts as “not in
dispute.”
3
“[A]t a court hearing on April 16, 2016, CSSD provided its
report, concluding that arrears totaled $36,509.48. The parties
stipulated to the amount of arrears determined by CSSD and
signed a stipulated settlement agreement that reads, ‘The parties
agreed with the audit conducted by CSSD re: arrears and the
total arrears is $36,509.48, comprised of $32,158.17 principle [sic]
and $4351.31 interest as of April 12, 2016.’ The settlement
agreement was signed by the judge and filed.
“[T]hereafter, CSSD continued to enforce and [Russell]
continued to pay. At first, the amount of child support was
$2,092/month because both children were minors. Once the older
child ‘aged out,’ the amount of child support for the remaining
minor child automatically reduced to $1307. CSSD applied the
Social Security derivative benefits as credits, thereby reducing
the child support owed by [Russell] each month.
“[O]n July 7, 2019, CSSD issued a notice of case closure on
the grounds that both children had now ‘aged out’ and, according
to the CSSD records, the arrears had been paid in full. The case
closure notice and report showing past payments and showing
that no further payments were due” was attached to the trial
court’s findings and order after hearing.
The trial court’s December 2019 finding and order was a
result of Kelly’s petition to the trial court for a recalculation of
Russell’s support payments and amounts of the children’s Social
Security derivative payments and her own repayments of the
amount erroneously overpaid to her, which she had repaid in the
form of offsets to later derivative benefit payments. After CCSD
gave notice that its audit concluded that there were no child
support arrears, Kelly filed a request for an order “claiming
[Russell owed] $14,475.48 in arrears.”
4
Kelly argued to the trial court that CSSD “ ‘used the wrong
number’ for the amount of child support owed each month and
that was the reason that their conclusion that [Russell’s] arrears
had been fully paid was in error. That argument [was] based on
the report that accompanied CSSD’s notice of case closure.”
The trial court ultimately concluded, based on the parties’
undisputed facts, that CSSD’s conclusion that there were no child
support arrears was correct. The trial court concluded that
Kelly’s calculations were based on the net amount of Social
Security derivative benefit payments she was receiving, while
CSSD’s calculations (resulting in no arrears) were based on the
total amount of Social Security derivative benefit payments Kelly
was receiving—not adjusted for the offset benefit amount that
accounted for her repayment of the erroneous overpayment.
“Offsetting was a convenient way for [Kelly] to pay off her
debt over time,” the trial court concluded. “It did not change the
amount of child support that [Russell] owed, nor did it change the
Social Security benefits to which the children were entitled.
What it did was change the net amount distributed to [Kelly]
each month. The effect of using the net amount after payment of
[Kelly’s] debt to Social Security instead of the full amount of the
children’s benefits before payment of [Kelly’s] debt to Social
Security would be to require [Russell] to ‘back fill’ the amounts
taken out by the Social Security Administration to satisfy
[Kelly’s] obligation. In effect, [Kelly’s] position would transform
her own obligation to repay the Social Security Administration
into a child support arrears obligation for [Russell] to pay. There
is no legal basis for doing so.”
On that basis, the trial court denied Kelly’s request for an
order to determine child support arrears.
5
After the trial court entered its December 2019 order,
Russell sought to use the trial court’s conclusion that there were
no arrears in December 2019 to modify the trial court’s earlier
orders in which the parties had agreed that there existed and the
trial court had found child support arrears.
B. Russell’s June 14, 2021 Motion
On June 14, 2021, Russell filed a motion in the trial court
seeking several orders. Pertinent to this appeal, Russell asked
the trial court to “set aside, vacate, or modify the [trial court’s]
December 30, 2015 order (and any other prior arrears orders) to
show no arrears pursuant to [Code of Civil Procedure section]
473[, subdivision ](d), extrinsic fraud, or any other equitable
relief; [and to] offset all remaining legal fees/costs owed by
[Russell] against [Social Security Administration] derivative
[benefit] overpayments . . . .” The motion purported to be based
on the trial court’s “December 5, 2019 [findings and order after
hearing] showing CSSD had properly applied [Social Security
Administration] [d]erivative [benefit] overpayments,” Kelly’s
“admission during the November 25, 2019 [hearing] that
confirmed she’d received the [Social Security Administration]
[d]erivative[ benefit] overpayments,” and “CSSD’s partial audit in
April 2016 which did not include credits for overpaid [Social
Security Administration] derivative [benefits] received by
[Kelly],” among other things.
The trial court heard the motion on July 12, 2021. At that
hearing, counsel for Russell argued that the parties’ 2016
stipulated order regarding arrears did not account for the
erroneous Social Security derivative overpayment (or, implicitly
Kelly’s repayment by offset) because Russell was unaware of the
overpayment at the time.
6
Russell’s counsel identifies the trial court’s December 2019
order as the means by which Russell learned of the issues
regarding—as he characterizes it—the misapplication of the
Social Security derivative benefit overpayment. “Frankly,”
Russell’s counsel told the trial court, “because of the order that
[the trial court] issued in December of, I believe, it was 2019,
where we had gone through a lot of some of these analyses in
response to [Kelly’s] request for further payments because she
believes she’s been underpaid at the time. And your honor did a
fairly thorough analysis of what [CSSD] has done at the time. [¶]
We believe that this motion wouldn’t be necessary because we felt
that clearly showed that there had been overpayments that had
not never [sic] been properly applied.”
The trial court confirmed Russell’s timeline:
“The court: So what you’re saying is that the 2019 order
flagged this overpayment issue and –
“[Russell’s attorney]: Yes, your honor.
“The court: -- and now you want to go back to 2015 and
recalculate that number.
“[Russell’s attorney]: Well, it’s not exactly – I suppose you
can look at it that way. It’s just what we discovered was there
was a bucket of money, forty something thousand dollars, that
hadn’t been accounted for that was sitting in the possession of
[Kelly] at the time. And so nobody knew that. We learned about
it later. [¶] The 2019 series of orders kind of put it into [stark]
relief. And then in December of 2019, your honor issued an order
that it really showed what had happened. And so we asked or
Mr. Furie asked that [Kelly] to file satisfactions in light of these
things.”
7
At the July 2021 hearing, the trial court made alternative
findings. “First,” the trial court said, “the court finds that the
[motion] is untimely under [section] 2122. If there is a claim of
mistake, there is a time limit of one year. And certainly the
issues were fully ripe and known to [Russell] in 2019. So we’re
talking much more than one year from his declaration. [¶]
Paragraph 22 of [Russell’s] declaration appears that he was well
aware of the issue from his own perspective of, even though I
don’t agree with the way he’s approaching it, but he was aware of
it, of the overpayments in 2018.
“And so it’s untimely, . . . whether it’s a claim of mistake or
for fraud or perjury, all of the grounds under [section 2122] of the
Family Code, both of these requests are untimely.”
The trial court also denied the motion on the merits based
on Russell’s request that the derivative benefit overpayment be
credited to him without accounting for Kelly’s repayment by
offset.
In a minute order dated July 12, 2021, the trial court ruled
that Russell’s request to set aside arrears orders based on the
December 2019 trial court findings and order and the request to
offset remaining legal fees and costs against the derivative
benefit overpayments were both “denied based on untimeliness
and on the merits.”
The trial court entered an order on November 23, 2021,
memorializing its findings and orders entered at the July 12,
2021 hearing. Pertinent to this appeal, the trial court ordered
that the June 14, 2021 requests for orders related to the Social
Security derivative benefit overpayments were “denied as
untimely under [section] 2122,” among other orders not relevant
to this appeal.
8
Russell filed a timely notice of appeal. (§ 3554; Code Civ.
Proc., § 904.1, subd. (a)(10).)
DISCUSSION
As we noted in the opinion on Russell’s last appeal,
Russell’s “in propria persona status relaxes the restrictions
neither on our discretion nor on the permissible scope of our
review. Neither may we hold litigants in propria persona to
different standards than we hold attorneys.” (Furie II, supra, 16
Cal.App.5th at p. 824, citing Rappleyea v. Campbell (1994) 8
Cal.4th 975, 985 [“requiring or permitting exceptional treatment
of parties who represent themselves would lead to a quagmire in
the trial courts, and would be unfair to the other parties to
litigation”]; see Furie I, supra, B241754 at p. 6.)
Russell’s argument on appeal is that Kelly received an
overpayment of Social Security derivative benefits in favor of the
couple’s children that should have been deducted from the child
support he had been ordered to pay (without regard to
repayment). Russell contends that the trial court should have
vacated or modified orders dated December 17, 2014, December
30, 2015, and April 14, 2016 (and presumably any others before
the December 5, 2019 order that concluded there were no longer
any arrears) because if the overpayment had been applied as he
argues it should have been, he would not have been in arrears.
Russell grounds his argument in section 4504. Because the
trial court concluded his motion was untimely, however, Russell’s
argument here is primarily that section 4504 is self-contained
and has no statute of limitations: “[Section] 4504 mandates
certain credits,” father argues, “and no time limit applies to the
application of this portion of the statute.”
9
Section 4504 provides in pertinent part: “If the court has
ordered a noncustodial parent to pay for the support of a child,
payments for the support of the child made by the federal
government pursuant to the Social Security Act . . . because of
the retirement or disability of the noncustodial parent and
received by the custodial parent or other child support obligee
shall be credited toward the amount ordered by the court to be
paid by the noncustodial parent for support of the child unless
the payments made by the federal government were taken into
consideration by the court in determining the amount of support
to be paid. Any payments shall be credited in the order set forth
in Section 695.221 of the Code of Civil Procedure.” (§ 4504, subd.
(b).)
Russell explains in his opening brief: “In a Ruling on
December 5, 2019, the [trial court] made findings pertaining to
child support credits done by CSSD” regarding the overpayment
of Social Security derivative benefits to Kelly and their effect on
the child support arrears. “Based on the findings in the December
5, 2019 Ruling,” Russell continued, “on June 14, 2021, [Russell]
filed a [request for order] to” set aside any previous orders finding
him in arrears.
The trial court concluded alternatively that Russell’s
motion was untimely based on section 2122 and that it was not
meritorious because it sought to credit Russell with the
overpayment, but sought to deny Kelly any accounting for
repayment.
A. Section 2122
In section 2120, the Legislature “f[ound] and declare[d]”
that “[i]t occasionally happens that the division of property or the
award of support, whether made as a result of agreement or trial,
10
is inequitable when made due to the nondisclosure or other
misconduct of one of the parties.” (§ 2120, subd. (b).) The
Legislature further declared that “[t]he public policy of assuring
finality of judgments must be balanced against the public interest
in ensuring proper division of marital property, in ensuring
sufficient support awards, and in deterring misconduct.” (§ 2120,
subd. (c).) To that end, the Legislature provided that “[i]n
proceedings for dissolution of marriage, for nullity of marriage, or
for legal separation of the parties, the court may, on any terms
that may be just, relieve a spouse from a judgment, or any part or
parts thereof, adjudicating support or division of property, after
the six-month time limit of Section 473 of the Code of Civil
Procedure has run, based on the grounds, and within the time
limits, provided in this chapter.” (§ 2121, subd. (a), italics added.)
The Legislature set out those time limits in section 2122,
which states in full:
“The grounds and time limits for a motion to set aside a
judgment, or any part or parts 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 was fraudulently prevented
from fully participating in the proceeding. An action or motion
based on fraud shall be brought within one year after the date on
which the complaining party either did discover, or should have
discovered, the fraud.
“(b) Perjury. An action or motion based on perjury in the
preliminary or final declaration of disclosure, the waiver of the
final declaration of disclosure, or in the current income and
expense statement shall be brought within one year after the date
11
on which the complaining party either did discover, or should
have discovered, the perjury.
“(c) Duress. An action or motion based upon duress shall be
brought within two years after the date of entry of judgment.
“(d) Mental incapacity. An action or motion based on
mental incapacity shall be brought within two years after the date
of entry of judgment.
“(e) As to stipulated or uncontested judgments or that part
of a judgment stipulated to by the parties, mistake, either mutual
or unilateral, whether mistake of law or mistake of fact. An
action or motion based on mistake shall be brought within one
year after the date of entry of judgment.
“(f) Failure to comply with the disclosure requirements of
Chapter 9 (commencing with Section 2100). An action or motion
based on failure to comply with the disclosure requirements shall
be brought within one year after the date on which the
complaining party either discovered, or should have discovered,
the failure to comply.” (Italics added.)
Section 2122 is, by its terms and its title (“Grounds for
relief; limitation of actions”), a statute of limitations. “ ‘Statue of
limitations’ is the collective term applied to acts or parts of acts
that prescribe the periods beyond which a plaintiff may not bring
a cause of action. [Citations.] There are several policies
underlying such statutes. One purpose is to give defendants
reasonable repose, thereby protecting parties from ‘defending
stale claims, where factual obscurity through the loss of time,
memory or supporting documentation may present unfair
handicaps.’ [Citations.] A statute of limitations also stimulates
plaintiffs to pursue their claims diligently. [Citations.]” (Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).)
12
Because Russell’s motion was filed outside any of the time
limits listed in section 2122, the trial court did not determine
whether any of the grounds for relief in section 2122 existed.
(See § 2121, subd. (b) [“In all proceedings under this chapter,
before granting relief, the court shall find that the facts alleged
as the grounds for relief materially affected the original outcome
and that the moving party would materially benefit from the
granting of the relief”].) We will not make any finding here,
either. But Russell’s brief demonstrates that he made his June
14, 2021 motion well outside any of the time limits in section
2122.
At the hearing on Russell’s motion, Russell’s attorney
argued that Kelly had engaged in a “deliberate cover up, fraud,
hiding of the existence of these overpayments” and “that separate
fraud would allow us to get around any time limits . . . .” But he
acknowledged at that hearing that Russell knew about the
alleged fraud (again, we do not determine here that there was
any fraud) by December 2019, at the very latest. If we were to
accept Russell’s statement at face value (and ignore pieces of the
record that demonstrate that Russell should have known about
the overpayment much earlier), then his motion should have been
filed within one year of the hearing that resulted in the December
2019 order.
None of section 2122’s other limitations provisions would be
any more favorable for Russell. Subdivisions (a), (b), and (f) each
contain a version of the “ ‘discovery rule,’ which postpones accrual
of a cause of action until the plaintiff discovers, or has reason to
discover, the cause of action.” (Fox, supra, 35 Cal.4th at p. 807.)
In this context, section 2122, subdivisions (a), (b), and (f)
postpone accrual of the “complaining party’s” deadline to file an
13
action or motion until “one year after the date on which the
complaining party either” discovered or should have discovered
the grounds for the action or motion. Each of those limitations
periods would have expired, at the very latest, in December 2020.
The remaining provisions—subdivisions (c), (d), and (e)—
are limitations based on the date of the entry of the judgment
sought to be set aside or otherwise disposed of. Subdivisions (c)
and (d) provide for circumstances that allow an action or motion
to be brought within two years of the date of the entry of
judgment. Subdivision (e) provides that an action or motion
under its terms shall be brought within one year after the date of
entry of judgment. None of those provisions allows for tolling
based on the discovery rule. The dates of the orders Russell’s
motion sought to have vacated were December 17, 2014,
December 30, 2015, and April 14, 2016. All of those orders were
well outside the time limits imposed by section 2122, subdivisions
(c), (d), and (e).
If section 2122 is the correct statute of limitations, then
Russell’s motion was untimely.
B. Section 3691
We agree with the trial court’s analysis under section 2122.
But based on Russell’s request in the trial court and the orders he
sought to have vacated, we view the correct statute of limitations
as section 3691.
Application of section 2122 or section 3691 appears to turn
on whether the motion or action seeks to set aside a judgment as
distinct from an order. Section 2122 “applies to property division
and support judgments entered on or after January 1, 1993 in a
dissolution, nullity or legal separation proceeding. As to such
judgments, all prior law on ‘equitable’ set-aside relief is
14
preempted.” (Hogoboom et al., Cal. Practice Guide: Family Law
(The Rutter Group 2022) ¶ 16:101, original italics.) “The Family
Code also preempts traditional equitable set-aside law with
regard to support orders (as distinguished from support
‘judgments’ entered in a marital status case). But those set-
asides are governed by other statutes [citation].” (Id. at ¶
16:101.2, original italics.) Section 3691 is the statute of
limitations that “govern[s] relief from a support order after the
time for [Code of Civil Procedure section 473, subdivision (b)]
relief expires.” (Hogoboom et al., at ¶ 16:164, original italics.)
“Section 3691 specifically applies to ‘An action or motion to set
aside a support order’ . . . , while section 2122 applies to ‘a motion
to set aside a judgment.’ ” (In re Marriage of Zimmerman (2010)
183 Cal.App.4th 900, 910, original italics omitted, italics added.)
Section 3690 provides that “[t]he court may, on any terms
that may be just, relieve a party from a support order, or any part
or parts thereof, after the six-month time limit of Section 473 of
the Code of Civil Procedure has run, based on the grounds, and
within the time limits, provided in this article.” (§ 3690, subd.
(a).) As in section 2121, section 3690 requires the trial court,
“before granting relief” to “find that the facts alleged as the
grounds for relief materially affected the original order and that
the moving party would materially benefit from the granting of
the relief.” (§ 3690, subd. (b).)
Section 3691’s limitations periods are shorter than those
provided in section 2122:
“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:
15
“(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 date on which the
complaining party discovered or reasonably should have
discovered the perjury.
“(c) Lack of notice.
“(1) When service of a summons has not resulted in notice
to a party in time to defend the action for support and a default
or default judgment has been entered against the party in the
action, the party may serve and file a notice of motion to set aside
the default and for leave to defend the action. The notice of
motion shall be served and filed within a reasonable time, but in
no event later than six months after the party obtains or
reasonably should have obtained notice (A) of the support order, or
(B) that the party’s income and assets are subject to attachment
pursuant to the order.
“(2) A notice of motion to set aside a support order pursuant
to this subdivision shall be accompanied by an affidavit showing,
under oath, that the party’s lack of notice in time to defend the
action was not caused by avoidance of service or inexcusable
neglect. The party shall serve and file with the notice a copy of
the answer, motion, or other pleading proposed to be filed in the
action.
16
“(3) The court may not set aside or otherwise relieve a party
from a support order pursuant to this subdivision if service of the
summons was accomplished in accordance with existing
requirements of law regarding service of process.” (Italics added.)
Under any of these provisions, then, Russell’s motion would
also have been untimely.
Again, we make no finding regarding whether any of the
listed grounds for the filing of a motion ever occurred. But based
on the substance of the motion, the relief sought, and the
statutory framework, Russell’s allegations implicate section
3691’s deadlines within which he was required to file any motion
to set aside the trial court’s orders setting his support obligations.
C. The “mandatory” nature of section 4504 does not
render it exempt from statutes of limitations
Russell urges us to ignore the Family Code’s limitations
provisions based on the fact that none of the limitations
provisions is specifically included or referenced in section 4504.
“In [section] 4504,” Russell argues, “the phrase ‘shall be credited
is used three times. In [Y.H. v. M.H. (2018) 25 Cal.App.5th 300(Y.H.)], when referencing [section] 4504, the phrase ‘shall be
credited’ is referenced eight times to emphasize that credits are
mandated. In turn, mandate is referenced four times relating
back to [section] 4504. [¶] There is no ambiguity in the phrase
‘shall be credited’ and the word ‘mandate.’ There are no
limitations or ambiguity in the language of [section] 4504 that
would time-bar credits.” (Italics added, underlining original.)
It is of no consequence that the derivative benefit payment
to Kelly may have been outside the time referenced in either
section 2122 or section 3961. What matters for purposes of those
statutes of limitations—at least for purposes of the arguments
17
that Russell advances—is when Russell discovered the
overpayments.
The fact that the limitation is not written into section 4504
is irrelevant. Statutes of limitations are generally entirely
separate and apart from the substantive or other procedural
statutes that they govern. That does not make them any less
applicable. Yet were we to adopt Russell’s position here, a
complaining party could presumably bring a motion or action to
reconsider support obligations decades into the future without
regard to the date of an order or to discovery rule considerations;
family law litigation involving Social Security derivative benefit
payments would foreseeably last until the death of one party or
another.
Neither does it matter how frequently a substantive statute
uses the term “mandate” or some variant thereof. Many things
are legally mandatory but ultimately unenforceable because of a
statute of limitations.
Russell cites Y.H. and In re Marriage of Hall & Frencher to
argue that “the retroactive credits done in [Y.H.], In re Marriage
of Hall & Frencher, or any other similar case could not be done if
[sections] 2120 and 2122 were applicable. This would run
contrary to State law mandating credits [p]ursuant to [section]
4504.” Russell would presumably make the same argument
regarding section 3691.
Neither Y.H. nor In re Marriage of Hall & Frencher
presented a statute of limitations issue. In Y.H., it appears that
a father sought modification of a support order based on his
discovery of the mother’s receipt of derivative benefits: “Starting
in March 2016, DCSS withheld $123 per month from Father’s
SSDI for the balance and credited Father for his overpayments
18
during the previous nine months.” (Y.H., supra, 25 Cal.App.5th
at p. 303.) Father then filed a request for an order seeking relief
for the misapplication of the derivative benefit payments. (Ibid.)
“The [trial] court heard argument on Father’s request for order
and motion to compel in December 2016.” (Ibid., italics added.)
Y.H. has no discussion of the statute of limitations. It
appears likely from the face of the opinion that the father’s
motion was timely based on his March 2016 discovery of
overpayments and the trial court’s December 2016 hearing and
order.
In re Marriage of Hall & Frencher (2016) 247 Cal.App.4th
23, 25 is no more helpful for Russell. In Hall & Frencher, “Social
Security paid $960 per month to Hall in derivative benefits for
[the couple’s daughter] beginning in June 2014. Social Security
also sent a lump sum payment of $20,824 in derivative benefits,
for the period from July 2012 to April 2014.” The hearing
resulting in the order from which the father appealed—regarding
proper application of payments that began in June 2014—was
held on January 13, 2015. (Ibid.)
As with Y.H., the statute of limitations was not at issue in
Hall & Frencher. And as in Y.H., it appears from the face of the
opinion that the issue was raised in the trial court well within
the time limits in either section 2122 or 3691.
Finally, Russell tells us that he “did not seek a
determination of the balance of the unapplied [Social Security]
[b]enefits in the 2019 litigation due to the complexity of issues
before the [trial court] at that time.” As we understand the trial
court’s December 2019 order, however, the issue before the court
at that time was the proper determination of how to apply the
erroneous overpayment and Kelly’s repayment to Russell’s support
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obligation. December 2019 was the time that the issue was
litigated. It appears from Russell’s argument here that he made
a strategic decision to not raise his interpretation of section 4504
so that the trial court could consider that argument at the
December 2019 hearing—when that issue was before the court.
Although we conclude that the correct statute of limitations
was section 3691 and not, as the trial court appears to have
concluded, section 2122, we agree with the trial court that the
motion to set aside the trial court’s December 30, 2015, December
17, 2014, and April 14, 2016 orders and to offset any of Russell’s
remaining support or other obligations against the derivative
benefit overpayment was untimely by any measure. Because we
conclude the motion was untimely, we do not reach the merits of
the motion. We affirm the trial court’s order denying the motion.
DISPOSITION
The trial court’s order is affirmed. Respondent is entitled
to costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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