Henry v. Department of Child Support Services CA6

Filed 11/6/14 Henry v. Department of Child Support Services CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

DAVID HENRY, H039122 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CS109194)

v.

DEPARTMENT OF CHILD SUPPORT SERVICES,

Defendant and Respondent;

MICHELLE MITCHELL,

Respondent.

Plaintiff David Henry appeals from an October 2012 order denying his motion to set aside a June 2010 order determining child support arrearages. We affirm the order.

I. Factual and Procedural Background David Henry and Michelle Mitchell (formerly Michelle Henry) were previously married and are the parents of seven children. In 1997, David was ordered to pay unallocated child support in the amount of $1,105 per month to Michelle. In April 2005, the Department of Child Support Services (Department) registered this order for enforcement.

In 2007, the Department provided David with an accounting of his support payments. David then filed a motion to determine child support arrearages in February 2007. David argued that he owed no child support arrearages based upon his payments and allegations that various children lived with him throughout the period that he was ordered to pay support. The parties agreed to submit the matter to the trial court based on their respective declarations. The trial court then gave the parties the opportunity to file further declarations, which they did. The trial court took the matter under submission in January 2009. On March 24, 2009, the trial court issued an order finding that David owed $30,145.82 in child support arrearages. On April 30, 2009, David filed a motion to set aside the March 2009 order. David’s declaration stated: (1) he did not have counsel when he submitted his documents; (2) there was no provision for him to file a reply to Michelle’s documents that were produced in her response to his motion; (3) there was no provision for documentary evidence to be submitted; and (4) Michelle made false statements regarding the periods when the children lived with her, the amount of monies that she received, and the credits which he had been given. David requested that the trial court use its equitable powers to set aside the order and hold a hearing with evidence presented. David did not specify a statutory basis for his motion. About a month later, Michelle filed her response to David’s motion. She argued that the “motion for reconsideration” should be denied because it was not timely under Code of Civil Procedure section 10081 and failed to state new or different facts. On June 30, 2009, the trial court held a hearing on David’s motion. David was present with his attorney, Michelle appeared by telephone, and counsel for the Department was present. David asked that the trial court either reconsider the March 2009 order or, alternatively, set it aside. David acknowledged that though there is a