In California, and in fact, in the entire United States, there are two types of Child Support Orders. Temporary child support is an order for payments to a spouse as soon as the marital dissolution case is lodged. Permanent support orders are made at the end of the case, usually in the form of a Judgment. Judge Kleinberg had made a Temporary Support Order, under Fam 3600, and ordered Sameer to pay a base support from his wages. In addition, he had ordered Sameer to pay an additional support on his additional income. This referred to any income, as defined under Fam 4058.
“Immediately upon learning what his bonus is for any period, he shall notify counsel and parties shall meet and confer with respect to additional support payable from that bonus. If they are unable to stipulate, they shall agree upon a hearing date for the court to hear that issue. . .”
Sameer Khera, my ex-husband and the antagonist in the story, was refusing to make Court ordered payments, therefore a motion for revision of Temporary Support was made in April 2005 by my then attorney Stephen, seeking appropriate Child, Spousal Support, and reimbursement for childcare and medical expenses as per the law. Davila, Benett, Becker never allowed this motion to be heard, and even after Department of Child Support Services, Fresno County acquired jurisdiction on Child Support in September 2005, Davila, and his successor refused to allow this motion to be transferred to DCSS Courts. But we are jumping ahead of ourselves.
Child Welfare represents one of the major financial drains on the US government. A federal study has found that at least 22,000 babies are left in hospitals each year by parents unwilling or unable to care for them and the State spends between $22 million to $125 million annually in taking care of these babies. On any given day, there are nearly 424,000 children in foster care in the United States[1]. The average annual amount of federal foster care funds received by States ranges from $4,155 to $33,091 per eligible child[2]. An increased likelihood for these children to be maltreated, or sexually abused in the foster care system increases the expenses per child. Approximately 224,396 children and youth exit foster care each year. These children are more likely to experience behavioral, mental and physical health issues, housing problems and homelessness, employment and academic difficulties, early parenthood, incarceration and other potentially lifelong adversities, which is a state funded obligation towards these children.
If women dont abandon the children born out of wedlock or the children of divorce, these women are left with the enormous tasks of bearing all the expenses on their own. Enacted in 1980, under the Title IV program, Temporary Assistance for Needy Families Program (TANF) provides the same benefits for needy single mothers as it provided to Foster care parents. The number of households headed by a single mother and no partner present has remained constant at around 15million – 18 million in the last 20 years. Of these, about 17m live with single mothers, and about 3 million live with single fathers, taxing state and federal benefits even further.
All in all, the care for children costs the state and federal government a sizeable chunk of resources.
The legislature stepped in to manage this looming financial crisis by enacting Division 9 of the Family Court laws Fam 3950-4253, and by setting up a government entity called Department of Child Support Services (DCSS) for enforcement of these laws, thereby making it possible for the parents to afford the care of their children and making it the responsibility of the parents to fund children’s care as much as possible.
The Office of Child Support Enforcement (OCSE) partners with state, tribal and local child support agencies “to encourage parental responsibility so that children receive financial, emotional, and medical support from both parents, even when they live in separate households.” In California, OCSE works with the Department of Child Support Services (DCSS) an organization with 47 child support agencies across California. Each of these agencies reports to the local County, to establish and enforce child support and medical support orders.
DCSS acts as an enforcer and a disbursement unit. It has the authority to intercept tax returns, and obtain financial details about the obligor to assist in assessment of appropriate child support obligations, and collection of child support. Amount is garnished from the employer and paid to the obligee, maintaining a record of all child support payments made, as well as those not made. It provides a neutral go-between for parents, acting in the public interest. DCSS does not represent either side of a child support case, it represents the State interest, working with the goal of reducing the State’s liability towards children.
When the local child support agency is responsible for the enforcement of a support order pursuant to Section 17400 , the local child support agency may register a support order made in another county [Fam 5601(a)]
Once the Court order is registered by DCSS under Fam 5601(a), and it is assigned a case number, all authority related to support vests with DCSS. My case was assigned a number 05CEFS 02946 in the year 2005.
Upon registration, the clerk of the court shall forward a notice of registration to the courts in other counties and states in which the original order for support and any modifications were issued or registered. No further proceedings regarding the obligor’s support obligations shall be filed in other counties. [Fam 5601(e )]
According to Fam 5601( e), once the DCSS becomes responsible for enforcement of Child Support, all other courts, and by inference, Edward Davila’s Court also, are/were statutorily prohibited from making a child support order. I had registered the Child Support order in DCSS, Fresno in 2005, and therefore, in 2008, Edward Davila, a Judge in Santa Clara County at least three hours and 200 miles away, had no authority to make or file a Child Support Order in Santa Clara County. Statutorily and procedurally speaking, Davila’s order had as much validity as a Child Support Order from the Traffic Court. DCSS have their special courts, and their own attorneys, and their own procedural steps to ensure that children receive fair and timely child support, which is considered the topmost priority of the State. Since the State interest is invariably tied to the interest of the child, children’s best interest becomes the highest priority of the state. The presence of a DCSS representative is mandated for all child support related issues so that the rights of the children, and the state are protected (Fam 4502). Davila refused to allow DCSS to assume their lawful charge, thus usurping jurisdictional authority of a governmental body. One may construe his actions as being an obstruction of justice – by wilfully usurping DCSS’s jurisdiction, he was obstructing a governmental organization – DCSS – from performing its duties. The Courts derive their jurisdiction from the state and federal constitution, and so jurisdiction of a court cannot be stipulated between the parties. On this basis also, once it was established that Fresno County had been assigned the right of support, Davila’s Court had no authority to initiate proceedings for child support order, or make an order on Child Support, or approve a below guideline support, .
In California, support obligations are computed by a software program called the Dissomaster. The Dissomaster takes in the income details of both the parents, the visitation schedule for the children, and other factors that may be used to determine the lifestyle that a child is entitled to under the state and federal laws. It computes figures that determine Guideline child and spousal support payments. Income for guideline support calculation purposes include
a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:
(1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.
(2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.
(3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. (Fam 4058)
The amount of child support established by the guideline is presumed to be the correct amount of child support to be ordered (Fam 4057). Therefore, Judge Davila violated the law when he excluded two third of Khera’s income from sale of Stock and Options, his self employment income, his investment income from computation of child support. Sameer’s gross income, as per his tax returns, was $23,000 – $125,000 per month for ten years preceding 2007. This income was arbitrarily reduced to $10,000 per month by Davila, from which he computed $2,800 per month in child support.
A judge has the discretion to not follow the guideline set forth by law as the Court held In Re Marriage of Smith & Ostler (1990), nevertheless, any deviation from the guideline has to be supported by a reasonable explanation in the Court Order justifying his reasons for deviating from the guideline (Fam 4056). Davila had the discretion to deviate from guidelines [Brother v Kern,154 Cal App 4th,126,64 Cal Rptr 3d 239(5thDist,2007)] but he was not authorized to deviate from guideline amount without hearing evidence on the issue [Sapinsley v Sapinsley,171,Ohio App 3d 74,2007 Ohia 1320,869 N E 2d 702(1st Dist Hamilton County,2007)].A trial Court cannot depart from the child support guidelines without making adequate written findings to support the departure [Bimonte v Martin Bimonte,679 So 2d 18(Fla Dist Ct App 4th Dist,1996)].Absent a clearly articulated justification, any deviation from the child support guidelines is an abuse of discretion [Gress v Gress,274 Neb 686,743 NW 2d 67(2007)].Findings of facts must show a justification for the deviation,and the basis for the amount ordered [In re Marriage of Payan,890,P2d 264(colo Ct App,1995)],and must include enough detail and exactness to allow for effective appellate review of those findings [Berthiaume v Berthiaume,368 NW 2d 328(Minn Ct App 1985); Baumgartener v Moore,14 Va App 696,419,S E 2d 291(1992)]. Specifically,the findings must identify the factors justifying the deviation from the guidelines,and explain why and to what extent the factors justify an adjustment [Fam 4056;Knippelmier v Knippelmier,238,Neb 428,470 N W 2d 798(1991); Baugartner v Moore,Supra(1992)].Where the amount of child support awarded constitutes a downward deviation of more than 5% from the guideline amount, the trial Court must make a written finding explaining why the guideline amount is unjust or inappropriate [Burton v Burton,697 So 2d 1295(Fla Dis Ct App 1st Dist 1997)].A trial Court’s failure to explain a downward deviation from child support guidelines in determining a child support obligation warrants a reversal [In Re Mariage of Charles,284 Ill App 3d,339,219,Ill Dec 742,672 N E 2d 57(4th Dis,1996)].Even rounding off a child support amounts to an improper deviation from child support guidelines without oral or written reasons [Henley v Henley,618 So 2d 1(la Ct App 3rd Cir,1993)] must justify reversal. In exceptional circumstances, the parties may stipulate to a below guideline prospective support, but the law mandates that such a stipulation has to be co-signed by a DCSS representative [Fam 4065(c )] to better protect the child’s and the state’s interest. Given that tax returns and supporting documents could show that KHERA’s income was between $23,000-$125,000 per month, a child support award of $2,800 per month, when Dissomaster calculations, DCSS, Fresno, and the law posited it to be $8,180 per month, was unjustified. Davila stubbornly disallowed the presence of a DCSS representative who may have overseen procedural justice.
Davila unilaterally ordered that all child (and spousal support) arrears, reimbursement claims, interests outstanding, an amount of over $3 million, were to be waived. In paragraph 2, he stated:
“Parties each waive and mutually release each other from any and all actions,liabilities,claims,demands,and obligations of any kind or character,both in and in equity;that either of them ever now has,or may have against the other upon or by reason of any and all(a)Watts,Épstein,52640 Fam.C.,and other reimbursement claims;(b)support arrears that accrued prior to June 1,2007(including,but not limited to,child support,spousal support,and child care expenses);…(e)prior sales of ESPP stock;(f)prior sales of stock options…(h)COBRA coverage and medical expenses(insured and uninsured);(i)education expenses…(k)taxes.
Contrary to his orders, the state law, Fam 3651[3], and the federal law, 42 USC 666(a)(9)(c ) specifically prohibit any retrospective waiver of Child Support arrears. If a retrospective waiver is negligently granted by any Court, that waiver is deemed void, and the parent who is to receive the child support arrears can return at any time to enforce the operative child support order, and also seek interest on the unpaid child support. The law forbids any waiver of interest on unpaid child support. Even if one were to assume that I was not coerced, and had voluntarily entered into a stipulation, Davila was still required to reject such a stipulation as being contrary to the law [Fam 3651, 42 USC 666(a)(9)( c)], contrary to public interest (CCP XXXX) and contrary to the Appellate and Supreme Court precedents. All across the country, and in California also, these laws have been upheld. In Re Marriage of Cheritan (2001), where David Cheritan, the father, also worked for Cisco Systems like Sameer and drew a near amount of income. The Cheritan Court stated:
. . .the trial court’s refusal to consider David’s substantial wealth in setting child support effectively permits him to avoid his obligation to support his children according to his “ability,” his “circumstances and station in life,” and his “standard of living.” 13 (§ 4053, subds.(d), (a), (f).) . . . The challenged child support order thus offends the statutory policies of this state.
In Sabine v Toshio (2007), where the children had undergone sexual abuse like Utsav and Kabir, Sabine had signed an Agreement in May 2003 with Toshio. The outstanding arrearages, not including interest, totalled about $365,863-$40,418 for $253,000 in child and spousal support incurred after the Judgment, and $72,445 for the child’s medical expenses. Toshio offered $100,000 in exchange for, among other things, a release as to the remaining amount of $265,863 owed to Sabine, and thereafter argued that parties had contracted to forgive the past due payments. The Court had held that “the law is to the contrary.” The Court stated the following:
“California has a strong public policy in favor of adequate child support”,with the interests of children the state’s top priority.[Marriage of Cheriton,(2011),92 Cal.App.4th]“the trial court has “a duty to exercise an informed and considered discretion with respect to the[parent’s child]support obligation….”(In re Marriage of Muldrow(1976)61 Cal.App.3d 327,332[132 Cal.Rptr.48].)Furthermore,”in reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law,and the only discretion a trial court possesses is the discretion provided by statute or rule.[Citations.]”(In re Marriage of Butler&Gill(1997)53 Cal.App.4th 462,465[61 Cal.Rptr.2d 781].)In short,the trial court’s discretion is not so broad that it “may ignore or contravene the purposes of the law regarding…child support.[Citations.]”(County of Stanislaus v.Gibbs(1997)59 Cal.App.4th 1417,1425[69 Cal.Rptr.2d 819].)…”Agreements and stipulations compromising the parents’ statutory child support obligation…are void as against public policy.”(Hogoboom& King, Cal. Practice Guide: Family Law 1,¶ 6:23,pp.6-11 to 6-12,original italics.).
As originally enacted,Civil Code section 4811 provided: “(a)․ All ․ orders for child support,even when there has been an agreement between the parties on the subject of child support[,]may be modified or revoked at any time at the discretion of the court,except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.[¶](b)․ The provisions of any agreement or order for the support of either party shall be subject to subsequent modification or revocation by court order except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke․”(Stats.1969,ch.1608,§ 8,p.3336,italics added.) Although this language differs somewhat from that of Section 3651(c)(1),no substantive change was intended. (See Cal.Law Revision Com.com.,29E West’s Ann.Fam.Code,supra,foll.§ 3651 at p.507.)
Several Courts of Appeal have held that Section 3651(c)(1)precludes a trial court from modifying or forgiving accrued support payments-arrearages. (See County of Santa Clara v.Wilson(2003)111 Cal.App.4th 1324,1327,4 Cal.Rptr.3d 653[“retroactive modification of accrued child support arrearages is statutorily barred”]; In re Marriage of Cordero(2002)95 Cal.App.4th 653,667-668&fn.21,115 Cal.Rptr.2d 787[trial courts lack authority to waive or forgive interest on past due child and spousal support for same reason courts cannot retroactively modify or terminate arrearages themselves]; In re Marriage of Perez(1995)35 Cal.App.4th 77,80,41 Cal.Rptr.2d 377[trial court exceeded its jurisdiction in reducing child support arrearages from $5,000 to $2,000].) One Court of Appeal has concluded that,just as a trial court cannot modify or forgive arrearages,the parties cannot waive arrearages by agreement or other conduct. (See In re Marriage of Hamer(2000)81 Cal.App.4th 712,718-722,97 Cal.Rptr.2d 195.)
As our Supreme Court made clear long before any state statute addressed the subject: “[A]decree for alimony may be modified as to installments to become due in the future. As to accrued installments it is final. [Citations.]
“A subsequent order which relieves the husband from paying accrued alimony ․,and discharges said alimony by offsetting it against an indebtedness of the wife to the husband existing at the time of entry of the divorce decree is a modification as to past due installments,․ as is an order requiring the wife to accept in full settlement of accrued alimony less than the full amount due.
“․ To hold that alimony decrees may be modified retroactively in the manner contended for herein would be contrary to the rule of finality as to past due installments․”(Keck v.Keck(1933)219 Cal.316,320-321,26P.2d300,italics added.)
More recently,another court has explained: “[T]he current state of the law is that a judgment for child or spousal support,once entered,is per se enforceable until paid in full,and is not retroactively modifiable either as to accrued arrearages or any interest due thereon.” (In re Marriage of Hamer,supra,81 Cal.App.4th at p.722,97 Cal.Rptr.2d 195.) And according to a leading treatise: “The[trial]court,in its discretion,may craft a schedule or plan for payment of support arrearages,but it has no discretion to waive or forgive any part of a support arrearages debt. Support orders are not retroactively modifiable as to accrued arrearages․[¶]This rule also applies to accrued interest on unpaid support arrearages. [A]ny forgiveness of accrued interest would ․ be an impermissible retroactive modification.” (Hogoboom&King,Cal.Practice Guide: Family Law(The Rutter Group 2007)¶ 18:13,pp.18-6 to 18-7.)
“[T]he Family Code does not expressly address whether a waiver defense(voluntary relinquishment of[a]known right)may ever be cognizable in an action to collect unpaid child support. No known reported authority under current law,however,has recognized such a waiver defense based on conduct(i.e.,implied or inferred waiver). And,conceptually,it seems difficult to reconcile an implied waiver rule with the statutes making support orders enforceable until paid in full(Fam.C.§§ 291(a),17400(e))and barring retroactive modification of arrearages and interest thereon(Fam.C.§ 3651(c)).” (Hogoboom&King,Cal.Practice Guide: Family Law,supra,¶ 6:739.10,pp.6-293 to 6-294.) The same is true for spousal support arrearages. (See id.,¶ 6:1126,p.6-412.8.) 1
Quite simply,Toshio offered Sabine less than one-third of the arrearages in exchange for a release as to the rest. We fail to see how this resolved a bona fide dispute. “[A]n agreement for payment of a part of the amount due is without consideration.” (Occidental Life Ins.Co.v.McCracken(1937)19 Cal.ApP.2d239,241,65P.2d130; accord,Grant v.AerodraulicsCo.(1949)91 Cal.ApP.2d68,75,204P.2d683.) Put another way,a “legal obligation to perform an act may not constitute consideration for a contract.” (O’Byrne v.Santa Monica-UCLA Medical Center(2001)94 Cal.App.4th 797,808,114 Cal.Rptr.2d 575; accord,Alhino v.Starr(1980)112 Cal.App.3d 158,168,169 Cal.Rptr.136; Watkins v.Clemmer(1933)129 Cal.App.567,577-578,19P.2d303; see generally 1 Witkin,Summary of Cal.Law(10th ed.2005)Contracts,§ 218,pp.251-252.) “Performance of a legal duty to a promisor which is neither doubtful nor the subject of honest dispute is not consideration․”(Rest.2d Contracts,§ 73,p.179; see Civ.Code,§ 1605[no contract is formed where promisor receives that to which she is lawfully entitled or where promisee consents to provide what he is lawfully bound to provide].)
In short,“a person has the ability to prospectively waive court-ordered support.” (Paboojian,supra,189 Cal.App.3d at p.1438,235 Cal.Rptr.65,italics added; see Colby v.Colby(1954)127 Cal.ApP.2d602,274P.2d417[where mother agreed to forgo monthly child support in exchange for one lump-sum payment,father was relieved of obligation to make further monthly payments]; see also In re Marriage of Armato(2001)88 Cal.App.4th 1030,106 Cal.Rptr.2d 395[written settlement agreement modifying future child support may be enforced in dissolution action through summary procedure established by Code Civ.Proc.,§ 664.6].) 2
The doctrines of waiver and estoppel have their place in support proceedings. (See In re Marriage of Damico,supra,7 Cal.4th at p.681,29 Cal.Rptr.2d 787,872P.2d126.) But,in general,arrearages-support payments that are past due-cannot be forgiven. Courts previously recognized an exception to the general rule,applying the doctrine of laches to bar the recovery of arrearages. (See In re Marriage of Fellows(2006)39 Cal.4th 179,184-185,46 Cal.Rptr.3d 49,138 P.3d 200[discussing cases].) In 2002,however,the Legislature enacted section 4502,subdivision(c)(now§ 291,subd.(d)),limiting the defense of laches to “any portion of the judgment owed to the state.” (Stats.2002,ch.304,§ 1,italics added; see Stats.2006,ch.86,§ 4.)This statute is retroactive. (See In re Marriage of Fellows,at pp.186-188,46 Cal.Rptr.3d 49,138 P.3d 200.)
[Toshio]argues that the Agreement extinguished more than two-thirds of the support and medical expense payments that became due during that time. By way of the Agreement,he sought a retroactive reduction in nearly eight years of missed payments. In the trial court,he sought an order modifying the amount that accrued before the Agreement. The law does not countenance such a result. (See Section 3651(c); County of Santa Clara v.Wilson,supra,111 Cal.App.4th at pp.1326-1327,4 Cal.Rptr.3d 653; In re Marriage of Cordero,supra,95 Cal.App.4th at pp.667,668,fn.21,115 Cal.Rptr.2d 787; In re Marriage of Hamer,supra,81 Cal.App.4th at pp.718,722,97 Cal.Rptr.2d 195.) Equity does not permit it either. (See County of Santa Clara v.Wilson,supra,111 Cal.App.4th at pp.1325-1327,4 Cal.Rptr.3d 653,distinguishing In re Marriage of Dancy(2000)82 Cal.App.4th 1142,1148-1149,98 Cal.Rptr.2d 775; In re Marriage of Everett(1990)220 Cal.App.3d 846,854-856,269 Cal.Rptr.917; Hogoboom&King,Cal.Practice Guide: Family Law,supra,¶ 6:1094.1,p.6-407.) To avoid the arrearages,Toshio could have requested that the trial court modify his support and medical expense obligations before the payments became due. (See In re Marriage of Hamer,supra,81 Cal.App.4th at p.723,97 Cal.Rptr.2d 195; In re Marriage of Perez,supra,35 Cal.App.4th at pp.80-81,41 Cal.Rptr.2d 377.) He made no such effort.
Under section 3651(c)(1),the trial court had no authority in these circumstances to enter “an order requiring[Sabine]to accept in full settlement of accrued[support]less than the full amount due.” (Keck v.Keck,supra,219 Cal.at p.321,26P.2d300.) Accordingly ,the trial court properly concluded that Toshio was liable for the arrearages that accrued before May 2003.
The statutory laws, on which the precedents from the higher courts are predicated appear to keep the best interest of the children at heart but they are basically aligned to reduce the State’s financial burden of caring for the child. Best Interest Of The Child is a magic bullet that overcomes all oppositions not just across California, but across the entire nation. Courts adhere to them stringently, and do not deviate even for the most extreme conditions. For example, the child support arrears, and the interest accrued on them, cannot be waived even if one is incarcerated, or in a war, or has been taken as a war prisoner. They cannot be waived even in bankruptcy or other forms of insolvencies. If it is learnt that the child being supporting is not yours, submitting some DNA results to a family court will not lead to release from the court’s child support order, because the release, and the consequential waiver of child support arrears will not be in the best interest of the child. Arrears cannot be waived even after a person dies, they are paid from the estate of the diseased. There is no statute of limitations to bring the enforcement action against an obligor, and there the Court order is not subject to latches.
Given these conditions, it is clear that Davila’s Judgment, waiving over $1.2 million in Child Support arrears, plus interest that had accrued on this $1.2million was a blatant violation of constitutional laws as well as state and federal laws. Even if an argument was made that I had willingly stipulated to waiving support arrears, A trial court need not “blindly enforce any type of…support agreement signed by the parties.”(In re Marriage of Armato,supra,88 Cal.App.4th at p.1045.)[153 Cal.App.4th 1218]. And then, his refusal to overturn the order for the next twenty years, from 2007 – 2022 under one pretext or the other, represented further violation of Supreme Court precedents. To be sure, he may not have personally refused to overturn the order after 2010 as he was “promoted” to federal court, but the string of Superior Court and Appellate Court Judges and Justices – prominent among them being his successor Theodore Zayner, and his wife, Justice Mary Greenwood, the presiding Justice at the Sixth Appellate District of California, towed Davila’s line, refusing to overturn the order. They were smart enough to use string of procedural manipulations to silence me. Refusal to grant a Court Fee Waiver, refusing to provide records and transcripts for appeal, dismissing motions/complaints/appeals during the time I was travelling, and had informed the Court of my travel plans. The Court allowed the opposing parties to file motions – or probably instigated them and advised them to file motions – to have the case dismissed in my absence. Sometimes the Judges would do worse – the Court would not only dismiss the case in my absence, they would grant an unopposed, default motion for sanctions against me during my noticed unavailability. Thus, in their attempts to dissuade me from seeking my rights to child support, spousal support and property, the Judges piled up over $350,000 in sanctions to silence me.
If the readers are as innocent, and gullible as I was in the early stages of the litigation, they will wonder, like I did, why the Judges would go to all these lengths to rob me ? Why did they allow Sameer to steal from me ? They will wonder that if there had been a mistake on their part, if Sameer’s fraud had fooled them, why wouldn’t they all overturn Judge Davila’s Judgment once the fraud was discovered? They will wonder if my briefs had plead the fraud appropriately. Or perhaps the Statute of Limitation had run out? Surely such a massive fraud could not have gone undetected? So there may have been some error on my part that had precluded the justice from having being dispensed.
These questions, raised by the audience, are genuine. Like me, the reader has to burn in the fires from the smithy of each day of our life, live thru our emotions that range from helplessness, ignorance, incredulity, disbelief, surrealism, shock, grief, acceptance, and eventual desensitisation because our audience, like me, has been brought up to believe in the constructs of Justice. It would take me over twenty years to understand how the Justice system works and staging this understanding of the Justice system in the way it unfolded in my real life would enhance the nature of narrative. For this reason, most of the analysis is deferred till later. There is one aspect that raises its head though, even though at the time I did not know Judge Davila, I had not researched him, and therefore did not know about his background.
Before Judge Davila was transferred into the Family Court Division, he had presided over a Civil Trial in 2006 that remains perhaps his most famous case – the Chili Hoax Case where he ruled for the defendant. A certain Anna Ayala brought a compensatory lawsuit against a Wendy’s restaurant in San Jose, California. She had found a human finger in the Chili Bowl. The suit cost the Wendy chain $21m in lost revenue. Over time, the Court convicted Anaya Ayala on other unrelated convictions regarding filing a false police report and felony firearm possession thus turning public opinion against Ayala until Anna Ayala could be safely deemed a menace for society and sent to prison for 13 years. What is of relevance to my Child Support case is that Anna’s boyfriend Placencia, also sentenced for nine years in prison in 2006, had 3 extra years added to his prison sentence for his failure to pay child support arrears. This order, made in 2006, had a wide implications for my case. It means that a few months later, in May 2007, when Davila forced me to waive millions in child support arrears, he had been well aware that arrears could never be waived under state law [Fam 3651) and federal law [42 USC 666(a)(9)(c )], and that failure to pay child support was a state and federal crime that was punishable by incarceration [18 USC 228]. He must have known the law because he had gone thru an extensive trial, where he was made aware of Child Support law, and based on that briefing by the State prosecutor, had prepared a detailed order for Placencia’s incarceration, adding an extra three years for his failure to pay Child Support arrears. So Davila’s effort of forcing me into waiving such large amounts of child support right after he prepared this order in 2006, could not possibly have been an act of negligence. He had been well informed about Child Support laws. Therefore, it could only be an intentional act. An act of wilful rebellion against the State and federal laws. Perhaps Placencia had been unable to offer Davila a large enough bribe to secure a waiver on Child Support arrears.
Another argument that subsequent Judges and Appellate Court justices heaped on me when they denied the requests to overturn these Judgments was the argument about judicial discretion. Apparently, Judges have a certain amount of discretion even if they decide to act against the law.
The law posited that Davila lacked any discretion on matters related to Child Support:
“California has a strong public policy in favor of adequate child support”,with the interests of children the state’s top priority.[Marriage of Cheriton,(2011),92 Cal.App.4th]“the trial court has “a duty to exercise an informed and considered discretion with respect to the[parent’s child]support obligation….”(In re Marriage of Muldrow(1976)61 Cal.App.3d 327,332[132 Cal.Rptr.48].)Furthermore,”in reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law,and the only discretion a trial court possesses is the discretion provided by statute or rule.[Citations.]”(In re Marriage of Butler&Gill(1997)53 Cal.App.4th 462,465[61 Cal.Rptr.2d 781].)In short,the trial court’s discretion is not so broad that it “may ignore or contravene the purposes of the law regarding…child support.[Citations.]”(County of Stanislaus v.Gibbs(1997)59 Cal.App.4th 1417,1425[69 Cal.Rptr.2d 819].)…”Agreements and stipulations compromising the parents’ statutory child support obligation…are void as against public policy.”(Hogoboom&King,Cal.Practice Guide: Family Law 1,¶ 6:23,pp.6-11 to 6-12,original italics.).
But Davila had insisted on disregarding the law and creating his own laws, his own parallel government. He had donned on the role of the legislature, and legislated from the judicial bench. This was his usual personality – a total and reckless disregard for law – that stood out in all his rulings, not just in my case. For example, in the Ayala case, the Appellate Division had reversed part of his Judgment, specifically stating: “we must conclude that the district court’s ruling on Ayala’s motion to suppress was not harmless error.. . . we reverse the district court’s judgment of conviction and remand this matter to the district court for a new trial.” Later, the Supreme Court also partially reversed some of his subsequential Judgment on procedural grounds, stating: “The judgment is reversed and remanded to the trial court for the limited purpose of resentencing consistently with this opinion, Blakely, supra, 542 U.S. 296, Cunningham, supra, 549 U.S. [ 127 S.Ct. 856], Black II, supra, 41 Cal.4th 799, and Sandoval, supra, 41 Cal.4th 838. Bamattre-Manoukian, Acting P. J., and McAdams, J., concurred.” Once again, Davila had – as usual – recklessly refused to comply with the precedents. His refusal to accept the state and federal laws, and precedents had cost the taxpayer millions on the appeals in People v Ayala, and tens of millions in Khera v Sameer and all the related cases that subsequently spawned from this family law case over the next twenty years.
Many in the know – in the Superior Court and in Appellate Court – have tried to justify his behavior as being within the scope of Judicial Discretion. The statutory codes, and the precedents from In The Marriage of Cheritan (2001) clearly shoot down this argument because Davila did not have any discretion, but even if his Court had any discretion to set any support,or follow,or not to follow certain laws and rules, Courts have ruled that such discretion cannot be absolute:
“The trial court’s discretion is not absolute: ‘The discretion intended…is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion,to be exercised ex gratia,but a legal discretion,to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”(Bailey v.Taaffe(1866)29 Cal.422,424.).Judicial power is never exercised for the purpose of giving effect to the will of the Judge ;always for the purpose of giving effect to the will of the Legislature;or,in other words,to the will of the law.”[Osborn et al.v.The Bank of the United State(1824,U.S.).Wheat.738,866.].
Davila was aware – thru his work on the Ayala case – that Child Support arrears could not be forgiven, and so his discretion was intentionally not exercised in furtherance of justice. It was intentionally exercised to further injustice and crime. Davila, and the string of Judges and Justices that followed him blindly over the past fifteen years, like the mice following the Pied Piper to their doom, failed to exercise their discretion in furtherance of justice, in public good[People v.Beasley,5 Cal.App.3d 617,637[85 Cal.Rptr.501]. At the least, he could defend his actions by saying that that he failed to exercise discretion. A failure to exercise discretion is an abuse of discretion [Dickson,Carlson & Campillo v.Pole (2000) 83 Cal.App.4th 436,449] which necessitates that the Judgment be reversed.
[1] In 2019, this number ballooned to over 672,000 children
[2] Based on three year average claims from FY2001 through FY2003
[3] Except as provided in paragraph(2)and subdivision(b),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.[ Fam 3651(c)]
Samsaara - A Pentalogy of Memoirs 