Appeal from an order of the Superior Court of Orange County,

Barry S. Michaelson, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21.)

Affirmed.

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Daniel K. Lak, in pro. per., for Appellant.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Senior Assistant

Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General

for Intervener and Respondent.

2

Since 2015, the Orange County Department of Child Support Services (the

Department) has withdrawn money from Daniel Lak’s (Father) Social Security Disability

Insurance benefits (SSDI) to pay for child/spousal support arrears. Because Father

disputed the Department’s authority to withdraw money, it sought clarification from the

trial court. At the hearing, Father sought reimbursement for overpayments and

maintained the Department violated Family Code section 5246, subdivision (d)(3)

(section 5246(d)(3)), by collecting more than five percent from his SSDI (five percent

rule).

1

Father also requested the court impose sanctions against the Department for its

“improper collection activities.” The court denied Father’s requests and determined the

Department could continue withdrawing money from SSDI for support arrears.

On appeal, Father maintains the court misinterpreted the law and failed to

properly consider his motion for sanctions. Finding his contentions lack merit, we affirm

the court’s order that the Department did not overdraw money for arrears, Father failed to

demonstrate he qualified for section 5246(d)(3)’s five percent rule, and sanctions were

not warranted.

FACTS

After 18 years of marriage, Father and Jennifer Lak (Mother) entered into a

stipulated judgment of dissolution. They agreed Father would pay $2,000 per month in

child support and $750 per month in spousal support. (In re Marriage of Lak (June 18,

2014, G048304) [nonpub. opn.] (Lak).) The trial court entered the final judgment in

April 2011. (Lak, supra, G048304.)

I. Contempt Order

On June 5, 2015, Daniel admitted to six counts of contempt for his failure

to pay support in 2013 and 2014. Pursuant to a plea agreement, the trial court sentenced



1

All further statutory references are to the Family Code, unless otherwise

indicated.

3

Father to serve 30 days in jail, but suspended the sentence and placed Father on probation

for three years.

The court imposed several probation conditions, including that Father pay

$1,601 per month for child support plus $49 per month towards arrears for a total of

$1,650 per month starting on July 1, 2015. The contempt order contained a checked box

next to the following preprinted statement: “This contempt order does not operate to

modify the amount of child support [Father] owes, including any accrued arrears, nor

does it limit enforcement remedies.”

II. Disability Benefits

The same month as the court issued the contempt order (June 2015), Father

began collecting SSDI ($2,234 per month). The Department immediately started

withdrawing $1,116 from Father’s SSDI (approximately 50 percent) to pay Mother for

support arrearages.

The record contains very little information about the reason why Father

qualified for SSDI benefits other than Father’s unverified story in his legal memorandum.

Suffice it to say, Father claimed he qualified for SSDI because in April 2015 he was

hospitalized and diagnosed with depression, anxiety, and post traumatic stress disorder

(PTSD). Father explained his mental state deteriorated after he became homeless and

needed to rely on food stamps to survive. His misfortunes began when he lost the ability

to practice law (disciplinary suspension in August 2014, and disbarment in November

2015). After running out of personal property to sell, Father was evicted from his rental

home and temporarily lived in his car until it was repossessed. He maintained he was

currently living with his aunt and benefitting from therapy.

III. Father’s Motion to Modify Child/Spousal Support

Father maintained the Department continued withdrawing $1,116 for the

months of July through September 2015, but collected $4,834 in October 2015. In early

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November, Father filed a motion to modify child/spousal support, which was heard the

following year in February 2016.

While the motion was pending, Father asserted the Department withdrew

various sums in November, December, January, February, and March ($1,600, $2,233,

$2,233, $2,233, and $709 respectively). Starting in April 2016, the Department reduced

the amount it was collecting each month to $375 for arrearages.

The Department’s reduction was in response to the court’s ruling at the

February 2016 hearing. The court modified child support downward from $2,000 to

$836 per month, and reduced spousal support to $0, effective December 1, 2015. With

respect to arrearages, the court made the following orders: (1) “Father to be given credit

for $280[] per month in derivative benefits[;]” (2) “Court orders payment on

undetermined arrears at $375[] per month” starting in March 2016; (3) “[The

Department] is ordered to prepare an Arrears Audit and to serve it on the parties.” The

preprinted order cautioned, “No provision of this judgment can operate to limit any right

to collect all sums owing in this matter as otherwise provided by law.”

IV. Derivative Benefits & Father’s Motion for Sanctions

The following month (March 2016), Mother began receiving Social

Security derivative benefits of $1,116 per month because of Father’s qualification for

SSDI benefits. The Family Code provides Father must receive a credit for the derivative

benefit against his child support obligation. (§ 4504, subd. (b).) And in this case, the

$1,116 more than covered Father’s $836 monthly support obligation.

Father and the Department became embroiled in a dispute over whether the

derivative benefits should also be credited against the court-ordered $375 monthly arrears

payment. The Department maintained the court intended the $375 payment to be in

addition to the derivative benefit amount credited towards support and arrears. The

Department refused to stop withdrawing $375 each month from Father’s SSDI.

5

Because of this dispute and the Department’s failure to serve its Arrears

Audit, Father filed a motion to compel and requested sanctions for the Department’s

purported bad faith litigation tactics. The court’s June 5, 2017, minute order indicates it

denied sanctions on the grounds that Father’s statutory authority regarding discovery

abuse did not apply and the Department had not delayed the matter in bad faith. The

order also reflected the Department gave Mother and Father an Audit Report dated June

1, 2017.

Additionally, the court noted there was a hearing scheduled later that month

to correct/clarify the original 2010 support order. It continued the matter to July 2017,

and ordered the parties to meet and confer before then and together make a “list of all

disputed debts and credits.”

V. Determination of Arrearages

At the July 2017 hearing to clarify the original 2010 support order (which is

not at issue in this appeal), the court also addressed the issue of how much Father owed in

arrears. First, it determined the Department’s “Simple Report” given to the parties at the

last hearing was “the equivalent of the ‘[A]rrears [A]udit’ ordered to be provided to the

parties in the [February 1, 2016] order.”

Second, the court modified the portion of the February 2016 order

indicating Father would receive a $280 per month credit for derivative benefits “to reflect

that Father is to be given a credit for all derivative benefits received by the children.” It

noted the Arrears Audit “accurately reflect[ed] all derivative payments received by the

children through” May 31, 2017.

Third, the court determined the audit showed the support charged and

payments received were accurate through May 31, 2017 (with one exception not relevant

to this appeal). It calculated child support arrearages totaled $102,851.61, spousal

support arrearages totaled $60,750.80, for a total of $163,602.41.

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VI. The Department’s Motion for Clarification

Five months later, the Department filed a motion seeking clarification of

the arrears order because the parties disagreed about whether the Department could

collect $375 each month from Father’s SSDI, or if the court’s order was satisfied by

derivative benefit credits.

At a hearing held in January 2018, the court read aloud its tentative ruling,

which was included in the minute order. The court ruled, “[It] does not have the

authority to order, and did not state in the order of February 1, 2016, that there should be

any collection from [Father’s] disability.” The court asked the parties to prepare

additional briefing on several issues, including whether reimbursement was permissible,

and application of section 5346(d)(3)’s five percent rule. It continued the matter to

March. The court indicated these issues as well as Father’s request for sanctions would

be considered together at the March hearing.

Father filed supplemental briefing complaining the Department collected

more than what was legally permitted for over two years. He argued the Department’s

actions caused him to stop being an integral part of his children’s lives because he could

have used the wrongfully collected $29,000 to rent housing and regain joint physical

custody of his children. He maintained the children did not understand why their father

stopped being a part of their lives.

Father offered a specific example of the Department’s miscalculations. For

June 2016, the original support payment plus arrears was $1,211 (with each of his

children receiving a specific portion of that sum). In June 2016, one of his children

graduated from high school and the support payment dropped from $835 to $526.

Therefore, he owed $901 per month ($526 for support plus $375 arrears). Also in June,

Wife received $1,116 from SSDI derivative benefits and the Department collected $375

from Father’s SSDI (a total combined credit of $1,491). Father concluded the

Department should have stopped collecting money from his SSDI benefits because

7

Wife’s $1,116 derivative benefits were more than enough to cover what he owed for

support and arrearages ($901).

In addition, Father maintained section 5246(d)(3), precluded the

Department from withholding more than five percent of his monthly SSDI payment

($2,234). The Department was taking $375, while five percent would be only $111.70.

Father requested a refund of this overpayment in addition to 10 percent interest.

In its response, the Department argued Father failed to provide authority to

support his contention the money must be refunded. In addition, it maintained section

5247 precluded sanctions against the Department. Finally, the Department asserted it

was authorized to withhold up to 50 percent of Father’s SSDI’s benefits for child support,

but the Department took only $375 to comply with the court’s February 2016 arrears

order. The Department maintained section 5246(d)(3)’s five percent rule did not apply to

Father, who currently owed over $160,000 in arrears.

Father filed a “pretrial statement” that repeated his claim the Department

overcharged him. He provided additional legal analysis on the issue of whether the five

percent rule applied. Father asserted SSDI benefits should not qualify as ordinary income

because he was disabled and he owned less than $2,000 in assets. Father claimed the

Department had proof of his SSDI eligibility.

VII. The Court’s Final Ruling

At the March 23, 2018, hearing, the court stated it would not consider

Father’s untimely filed pretrial statement. The court considered argument from both

parties, most of which centered on whether Father met his burden of proof with respect to

section 5246(d)(3)’s five percent rule.

The court made the following rulings: (1) It lacked authority to refund

money the Department collected from Father’s SSDI benefits and had been distributed to

Mother; (2) Mother must be given the money the Department collected but had not yet

distributed; (3) the Department had authority to take $375 from Father’s SSDI benefits;

8

(4) section 5246(d)(3)’s five percent rule did not apply because Father “failed to produce

evidence of providing proof of his eligibility to [the Department];” (5) Father’s income

and expense declaration and his written declaration were insufficient to show he provided

proof of eligibility to the Department; (6) sanctions were unwarranted because there was

not “any evidence of any act or omission by [the Department] which would result in

sanctions being considered or ordered[;]” (7) the February 2016 order was corrected to

reflect Father must receive credit for all derivative benefits; and (8) the June 2015 order

that Father pay $49 in arrears was a condition of probation, not a support order.

On June 29, 2018, the Department and Father each submitted proposed

orders. The court adopted the Department’s order.

DISCUSSION

Father offers several different legal theories for why the Department

wrongfully withdrew money from his SSDI. Because the theories change depending on

the time period, we will begin our analysis in chronological order.

I. SSDI Withdrawals From June to December 2015

During these seven months, Father maintained the Department withdrew

various sums from his SSDI (ranging from $708 to $4,834 per month). At the same time,

the court’s contempt order was in effect, requiring Father, among other things, to pay $49

per month towards arrears. Father contends the maximum the Department could

withdraw was $49 from his SSDI. He views the contempt order as being the equivalent

of a final order modifying support. The Department asserts the court’s ruling regarding

arrears was merely a probation condition and the Department was authorized to withhold

up to 50 percent of Father’s SSDI income. (Cal. Code Regs., tit. 22, § 116100(a)(3).)

We begin by addressing the effect of the court’s $49 arrears order. As

noted by the Department, the order must be viewed in context of the entire ruling. The

payment obligation was one of nine probation conditions Father consented to as part of

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his plea agreement. Father’s 30-day jail sentence was suspended on the condition he

satisfy the probation conditions for three years.

We conclude an arrears payment as a probation condition does not have the

same effect as a final order modifying support. It is well settled the family law court has

broad authority to enforce its judgments by contempt. (§ 290.) Each month a party fails

to make a child/spousal support payment is punishable as a separate count of contempt.

(Code Civ. Proc., § 1218.5, subd. (a).) “Once a civil contemnor complies with the

underlying order, however, he or she is purged of the contempt and is free. In that

respect, civil contemnors hold the key to the jail cell in their own pocket and can secure

their release at any time by following the court’s order.” (33A Cal. Jur. 3d Family Law §

1421, fns. omitted; In re Nolan W. (2009) 45 Cal.4th 1217, 1236-1237.)

Here, Father could avoid spending time in jail every month he paid at least

$1,601 child support and $49 for arrears. After three years of complying with his nine

probation conditions, Father would be purged of the contempt and free. In other words,

the probation condition arrears order was not permanent like a final support order.

Moreover, Father presented no case authority, and we found none, holding

a contempt hearing should or could replace the procedures and evidentiary requirements

described in sections 3650 to 3693 to modify a final support award. Under those

provisions, a party must introduce admissible evidence that demonstrates “changed

circumstances to justify a modification.” (In re Marriage of Brinkman (2003) 111

Cal.App.4th 1281, 1288.) No such evidence was required for the contempt proceedings,

and for this additional reason, we conclude a probation condition relating to child

support/arrears cannot be deemed a permanent modification of the final support

judgment.

Accordingly, the $49 order merely set a minimum payment obligation

lasting for three years of Father’s probation. Meanwhile, the 2011 support order (a total

of $2,750 for child and spousal support) remained in effect. The related question of

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whether there was a maximum limit for how much the Department could withdraw from

SSDI is addressed below.

II. SSDI Withdrawals From December 2015 to March 2016

In February 2016, the family law court modified the original support order,

concluding Father’s disability and inability to work was a change of circumstances

justifying a reduction (applied retroactively to when Father filed his motion in December

2015). In addition to changing Father’s monthly child and spousal support obligation, the

court “order[ed] payment on undetermined arrears” at $375 per month beginning in

March 2016.

During the four months Father’s motion to modify support was pending, he

claims the Department withdrew various sums from his SSDI (ranging from $709 to

$2,233 per month). Starting in April, the Department started consistently withdrawing

$375 each month. The parties raise several arguments concerning these actions. First,

what was the maximum amount the Department could withdraw from Father’s SSDI

benefits? Second, was the Department limited by section 5246(d)(3)’s five percent rule?

Third, what effect, if any, should Mother’s derivative benefits have on calculating

Father’s arrears obligation from SSDI benefits? Fourth, does the court have authority to

force the Department to reimburse Father for money collected from SSDI and paid

Mother for child support arrears?

A. Relevant Legal Principles About Maximum Withdrawals

Before analyzing the above issues, it is helpful to review the laws

governing child support collection and clarify the terminology regarding different Social

Security benefits.

Section 290 provides any support judgment/order can be enforced “by

execution, the appointment of a receiver, or contempt, or by any other order as the court

in its discretion determines from time to time to be necessary.” One method of

enforcement is the assignment of earnings. In addition to judicial earnings assignment

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orders (§ 5230, subd. (a)), there are alternate procedures in place for Title IV-D cases

when a local child support agency (the Department), is providing support enforcement

services under section 17400.2

Specifically, the Department may serve on an employer a notice of

assignment to withhold income for child support. This order has the “same force and

effect as an earnings assignment order signed by a judicial officer” and does not require a

judicial officer’s signature. (§ 5246, subd. (b).) The withholding order may include the

current ordered support and arrearages. (Cal. Code Regs., tit. 22, § 116100(a)(1), (2).) If

a court has not ordered arrears payments or additional arrears have accrued “the amount

withheld . . . shall not exceed 25 percent of the current support order, or when combined

with the current support amount, the maximum amount withheld cannot exceed 50

percent of the obligor’s disposable earnings.” (Cal. Code Regs., tit. 22, § 116100(a)(3),

italics added.)

This legal authority answers the first question regarding the maximum that

could be withdrawn from Father’s SSDI. If a court has not ordered an arrears payment,

the maximum permitted is 25 percent of the support order or 50 percent of the obligor’s

“disposable earnings” when combined with current support amount (25/50 percent rule).3





2

The statutory scheme refers to the Department as a local child support

agency. This is because the Social Security Act required each county to establish a local

child support agency (§ 17304), which agrees to “carry out the requirements of the Title

IV-D state plan for enforcing child, spousal, and medical support, and determining

paternity. (§§ 17000[, subd.] (h), 17304.)” (10 Witkin, Summary of Cal. Law (11th ed.

2019) Parent & Child § 511, p. 636.)

3

“Section 4059 governs calculation of ‘net disposable income.’ The

calculation subtracts nondiscretionary expenses from gross income to reach ‘net

disposable income.’ The subtracted expenses include state and federal taxes, employer

deductions for a pension plan, mandatory union dues, and child or spousal support paid

under court order. Only these unavoidable parental expenses are included in the

formula.” (In re Marriage of C. (1997) 57 Cal.App.4th 1100, 1105-1106, italics

omitted.)

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Applied to this case, the court’s first arrears order took effect in March 2016. Before the

order, the maximum the Department could withdraw would be 50 percent of Father’s

SSDI benefits (50 percent of $2,234 equals $1,117). After the March 2016 order, the

maximum amount permitted was $375.

B. Relevant Legal Principles About the Five Percent Rule

The second question (regarding application of the five percent rule) is more

complicated and requires digging deeper into the statutory scheme regarding the

Department’s authority to collect arrearages and terminology unique to Social Security

benefits. Generally speaking, the Department is authorized to collect arrearages from an

obligor’s employer (§ 5246, subd. (d)(2)), his SSDI benefits (§ 5246(d)(3)), or bank

accounts via a levy (§ 17450). The latter two provisions incorporate limitations against

arrear collections in cases where the obligor’s income comes from SSDI payments and he

or she satisfies a four part test demonstrating limited income and assets. (§§ 5246(d)(3),

17450, subd. (c)(2).)

With respect to section 5246(d)(3), the Department’s withholding orders for

arrears is limited to five percent of the obligor’s SSDI. Section 17450 is part of an article

added to the Family Code in 2004 titled “Delinquent Child Support Obligations and

Financial Institution Data Match” (FIDM), which established a statewide system for

obtaining payment of child support arrears by levying on banks accounts of obligors.

(Stats. 2004, ch. 806, § 6, p. 6152.) If an obligor meets the four part test, the Department

lacks authority to levy on his or her accounts. (§ 17450, subd. (c)(2), hereafter §

17450(c)(2) [exemption from bank levy].)

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It is notable that section 5246(d)(3) [limiting SSDI income withholding]

and section 17450(c)(2) [bank levies exemption], originate from the same assembly bill.

4



Each provision contains identical language regarding the enforcement of delinquent

support from a disabled obligor’s SSDI benefits if they lack sufficient assets and income.

(Legis. Counsel’s Dig., Assem. Bill No. 891 (2001-2002 Reg. Sess.) Simply stated, both

provisions contain the exact same four part test.

Section 5246(d)(3), in its entirety provides the following: “[If] an obligor

is disabled, meets the SSI resource test, and is receiving Supplemental Security

Income/State Supplementary Payments (SSI/SSP) or, but for excess income as described

in [s]ection 416.1100 et seq. of Part 416 of Title 20 of the Code of Federal Regulations,

would be eligible to receive SSI/SSP, pursuant to [s]ection 12200 of the Welfare and

Institutions Code, and the obligor has supplied the local child support agency with proof

of eligibility for and, if applicable, receipt of, SSI/SSP or Social Security Disability

Insurance benefits, then the order/notice to withhold income issued by the local child

support agency for the liquidation of the arrearage shall not exceed [five] percent of the



4

Assembly Bill No. 891 amended section 5246 and Revenue and Taxation

Code section 19271 to include the language regarding disabled obligors receiving SSDI

benefits. (Legis. Counsel’s Dig., Assem. Bill No. 891 (2001-2002 Reg. Sess.) In 2004,

the Legislature repealed Revenue and Taxation Code section 19271, and replaced it with

section 17450. (Assem. Bill No. 2358 (2003-2004 Reg. Sess.) Consequently, the same

language is now contained in section 5246(d)(3) and section 17450(c)(2).

14

obligor’s total monthly Social Security Disability payments under Title II of the Social

Security Act.”5

(Italics added.)

Fortunately, this lengthy sentence can be broken down into a fairly simple

four part test. However, before discussing each element it is helpful to quickly review

the Social Security benefit terminology used extensively in the statute.

1. Social Security Disability Insurance (SSDI) – The Social Security

Administration pays these benefits to workers who have earned enough credits but can no

longer work due to a disability. (42 U.S.C. § 423, subd. (a); 2 Soc. Sec. Law & Prac.

(Feb. 2020) § 14:22.) Because it is an earned benefit based on the disabled person’s

contributions to Social Security, the monthly payment can be substantial if the disabled

person was previously a high wage earner. Moreover, because SSDI is not a meanstested benefit, a person with substantial assets can still qualify for SSDI benefits.

(https://www.ssa.gov/pubs/EN-05-10029.pdf;

https://www.ssa.gov/redbook/eng/overview-disability.htm.) In short, qualifying for SSDI

benefits does not mean an obligor necessarily lacks the income or assets to pay support or

arrears.



5

Section 17450(c)(2) provides: “If an obligor is disabled, meets the federal

Supplemental Security Income resource test, and is receiving Supplemental Security

Income/State Supplementary Payments (SSI/SSP), or, but for excess income as described

in [s]ection 416.1100 and following of Part 416 of Title 20 of the Code of Federal

Regulations, would be eligible to receive as SSI/SSP, pursuant to [s]ection 12200 of the

Welfare and Institutions Code, and the obligor has supplied the local child support

agency with proof of his or her eligibility for, and, if applicable, receipt of, SSI/SSP or

Social Security Disability Insurance benefits, then the child support delinquency shall not

be referred to the department for collection, and, if referred, shall be withdrawn,

rescinded, or otherwise recalled from the department by the local child support agency.

The department shall not take any collection action, or if the local child support agency

has already taken collection action, shall cease collection actions in the case of a disabled

obligor when the delinquency is withdrawn, rescinded, or otherwise recalled by the local

child support agency . . . .”

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2. Supplemental Security Income (SSI) – “The basic purpose underlying

the [SSI] program is to assure a minimum level of income for people who are age 65 or

over, or who are blind or disabled and who do not have sufficient income and resources

to maintain a standard of living at the established federal minimum income level.” (20

C.F.R. § 416.110.) In addition to age, blindness, or having a disability, SSI eligibility

requires (1) a certain residency or U.S. citizenship status, (2) evidence the person is not a

“fugitive fleeing” or in violation of a probation condition or parole, (3) “income within

specified limits,” and (4) “resources within specified limits.” (2 Soc. Sec. Law & Prac.

(Feb. 2020) § 18:2.) An unmarried recipient will typically receive SSI benefits of $630

per month. (Welf. & Inst. Code § 12200, subd. (c).) The Department has no authority to

collect arrears from an obligor surviving on SSI benefits.

Unlike SSDI, SSI is not an earned benefit based on contributions to Social

Security through employment. “[P]ayments are to be made to . . . people who have

income and resources below specified amounts. This provides objective measurable

standards for determining each person’s benefits.” (20 C.F.R. § 416.110(a), italics

added.) As noted below, a person’s income is measured differently than his or her

“resources.”

(a) SSI Income Test: “Income means the receipt by an individual of any

property or service which he can apply, either directly or by sale or conversion, to

meeting his basic needs.” (20 C.F.R. § 416.120(c)(2).) “[T]he amount of income . . . is a

major factor in deciding [eligibility] for SSI benefits and the amount of [a person’s

benefit].” (20 C.F.R. § 416.1100.) The more income a person has, the less the benefit

will be. Not all income is considered to determine eligibility (see 20 C.F.R. § 416.1100-§

416.1104 [defining what is counted as income]). The income limit is based on the federal

benefit rate (FBR). In 2019, the FBR was $771 per month for individuals, and therefore

to qualify, an individual’s countable income could not exceed $771. But as mentioned,

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because not all income is counted, one may earn more than $771 and still qualify for SSI

benefits.

(b) SSI Resource Test: “Resources means cash or other liquid assets or

any real or personal property that an individual owns and could convert to cash to be used

for support and maintenance.” (20 C.F.R. § 416.120(c)(3); see § 416.1201(a) [resources

defined].) An unmarried claimant having countable resources in excess of $2,000 will

not be eligible for SSI. (2 Soc. Sec. Law & Prac. (Feb. 2020) § 20:14.)

(c) When Income May Be Considered an SSI Resource: “SSA policy

states that, in general, anything that a claimant receives in a month, from any source, is

considered income to the claimant provided that the claimant can use the item to meet his

or her needs for food or shelter. However, anything that a claimant owned prior to a

given month is considered a resource for that month.” (2 Soc. Sec. Law & Prac. (Feb.

2020) § 19:3, fns. omitted.) Furthermore, “[A]ny item received in a current month is

generally income for the current month only[, and] the item may be subject to the

resource counting rules if it is held by the claimant until the following month.” (Ibid.)

3. State Supplementary Payment (SSP) – California provides additional

cash benefits to augment federally funded SSI benefits. (20 C.F.R. § 416.2001.) The

Social Security Administration administers both SSI and SSP benefits.

In light of the above definitions, we return to our discussion of section

5246(d)(3)’s five percent rule. The Department’s arrears collection efforts from an

obligor’s SSDI are limited to five percent if the following four elements are satisfied:

First, the “obligor is disabled.”

Second, the obligor “meets the SSI resource test.”

Third, the obligor is either “receiving” SSI/SSP “or, but for excess income

as described in [the federal regulations], would be eligible to receive SSI/SSP.”

Fourth, “the obligor has supplied the [Department] with proof of eligibility

for and, if applicable, receipt of, SSI/SSP or [SSDI].” (§ 5246(d)(3).)

17

The first element clearly includes all SSDI recipients, who must prove they

are disabled to be eligible for benefits.

The second and third elements sound similar but address different

legislative concerns. As discussed, the federal regulations define a person’s monthly

resources differently from his or her counted income. An obligor may meet the SSI

resource test, but not the income test, and vice versa.

Accordingly, the second element clearly includes all obligors who receive

SSI benefits (having met the SSI resource test to qualify for those benefits). This element

also embraces SSDI recipients who meet the SSI resource test (having less than $2,000 in

sellable assets) but were disqualified for other reasons.

The third element is slightly more complicated due to its reference to all

SSI eligibility elements and the use of the word “or”—signaling a disjunctive test. It

requires that the obligor either receive SSI benefits, or would be eligible for those

benefits but for excess income (as uniquely defined in the federal regulations).6

Thus, the

latter part of this third element refers to the two remaining SSI requirements other than

the income test or the SSI resource test (previously established in the second element).

As discussed above, eligibility for SSI benefits also requires both a certain

residency/citizenship status and excludes fleeing fugitives and probation/parole violators.

Thus, the third element prohibits obligors falling into those categories from taking

advantage of the five percent rule.



6

“There are different types of income, earned and unearned, and we have

rules for counting each. The earned income rules are described in [sections] 416.1110

through 416.1112 and the unearned income rules are described in [sections] 416.1120

through 416.1124. One type of unearned income is in-kind support and maintenance

(food or shelter). The way we value it depends on your living arrangement. . . . In some

situations we must consider the income of certain people with whom you live as available

to you and part of your income. . . . We use all of these rules to determine the amount of

your countable income—the amount that is left after we subtract what is not income or is

not counted.” (20 C.F.R. § 416.1104.)

18

The fourth element, clarifies the burden is on the obligor to provide proof

of eligibility and proof of receipt of SSI/SSDI benefits. The obligor, rather than the

Department, is in the best position to present evidence of his or her financial

circumstances, applications, and receipt of benefits.

To briefly summarize, an SSDI recipient can satisfy the four elements of

the five percent rule if he or she meets all the SSI eligibility requirements, with the

exception of the specified limitation on countable income. Our standard of review is well

settled. We review de novo issues concerning the Department’s authority to collect

arrears from Father’s SSDI benefits, “[t]he court’s factual findings, however, are subject

to the substantial evidence standard of review. [Citation.]” (Land Partners, LLC v.

County of Orange (2018) 19 Cal.App.5th 741, 745.)

C. Analysis of Five Percent Rule

The parties and trial court agreed Father clearly established the first and

fourth elements of the five percent rule, i.e., he was disabled and could prove receipt of

SSDI benefits. As for the rule’s third element, the parties dispute whether Father

presented sufficient evidence he met the requirements of the SSI resource test. At the

hearing and on appeal, Father maintained his income and expense declaration provided

sufficient evidence he held less than $2,000 in assets, as defined by the federal

guidelines. On appeal, Father raises the additional argument that we should adopt the

holding of In re Marriage of Hopkins (2009) 173 Cal.App.4th 281, 287 (Hopkins). The

Hopkins court interpreted the statutory language found in section 17450(c)(2) [collection

action/bank levies exemption], as meaning an obligor need only prove he is disabled and

received SSDI benefits, and nothing else. In other words, Father asks us to hold he only

needed to establish receipt of SSDI benefits and he did not have to demonstrate he met

the SSI resource test.

We begin with Father’s evidentiary claim. The trial court did not elaborate

in its ruling as to why Father’s income and expense declaration or personal declarations

19

were insufficient to trigger the five percent rule. At the hearing, Father asserted his

income and expense declaration clearly showed he had zero assets. Indeed, Father wrote

“0” on the line asking him for balances in his savings and checking accounts. However,

as noted by the Department in its briefing, Father left blanks next to the sections asking

the declarant about other assets such as stocks, bonds, real or personal property.

It would have been unreasonable for the court to infer Father intended those

blank lines to be treated as zeros because he was inconsistent and did not leave all the

lines blank. Moreover, when the court asked Mother if she had anything to add to the

discussion about Father’s income and resources she responded as follows: “I want to

know if [he] still owns the horse. Is a horse an asset?” As defined by the federal

regulations, the SSI resource test takes into consideration anything the obligor “could

convert to cash to be used for support and maintenance,” which would certainly include a

horse. (20 C.F.R. § 416.120(c)(3); see § 416.1201(a) [resources defined].)

We conclude there was ample evidence to support the court’s factual

finding Father did not present sufficient documentation to satisfy the second element of

the five percent rule. Little weight should be given to an incomplete income and expense

declaration filed three years before the hearing. Likewise, the court may reject Father’s

uncorroborated, self-serving declarations of hardship. Father needed to supply financial

documents demonstrating his assets fell below the $2,000 limit required by the SSI

resource test.

Turning next to the Hopkins case, we respectfully decline to follow its

statutory interpretation of the four elements applicable to SSDI recipients. (Hopkins,

supra, 173 Cal.App.4th at pp. 288-289.) As aptly noted by the Hopkins court in its 2009

opinion, “there is a dearth of reported case law addressing this statutory scheme.” (Id. at

p. 287.) The same holds true over a decade later. We found no published cases, other

than the Hopkins decision, analyzing the legislature’s decision in 2001 to place limits on

20

the collection of delinquent child support obligations from SSDI benefits (§ 5246(d)(3))

and bank accounts (§ 17450, subd. (c)(2)).

In Hopkins, the court was concerned with interpretation of the four part test

in the context of interpreting section 17450(c)(2). (Hopkins, supra, 173 Cal.App.4th at

p. 286.) Although this is a different statute from the one at issue in this case, Father is

correct that the same statutory interpretation would apply to both section 17450(c)(2),

and section 5246(d)(3), because the language is identical, enacted as part of the same

assembly bill to provide relief to impoverished and disabled SSDI recipients. (Legis.

Counsel’s Dig., Assem. Bill No. 891 (2001-2002 Reg. Sess.)

It is also true that while we typically follow the decisions of other appellate

districts or divisions, those decisions are not binding on us, and we follow them only if

we lack good reason to disagree. (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187,

1194.) After our review of the federal guidelines, Social Security Act terminology, the

statutory language, and the applicable legislative history, we have good reason to

disagree with the Hopkins court’s analysis of the statutory language.

In Hopkins, the court held the obligor’s undisputed receipt of SSDI

exempted his assets from levy because he satisfied the first and fourth parts of the test.

(Hopkins, supra, 173 Cal.App.4th at p. 289.) It rejected the Department’s interpretation

that an obligor must also provide evidence related to parts two and three “because they

are mutually exclusive.” (Id. at p. 288.) It reasoned, “Either an obligor meets the income

test and is receiving SSI/SSP payments or the disabled obligor does not meet the income

test and therefore is not receiving SSI/SSP payments, but receives SSDI benefits instead.

Second, if an obligor meets parts one and four of the Department’s stated test, then the

obligor necessarily must have met either part two or three. [¶] An obligor who is

disabled and who has provided proof of receipt of SSI/SSP or SSDI payments necessarily

must have either met the income test for receipt of SSI/SSP payments or exceeds the

income requirement but is otherwise eligible. Title 20 of the Code of Federal

21

Regulations part 416.202 (2009) sets forth the eligibility requirements for receipt of

SSI/SSP payments: A person who (1) is disabled, (2) is a citizen or legal resident, (3)

meets the income limitations, and (4) is not in violation of parole or probation or fleeing

prosecution for a crime.” (Id. at pp. 288-289.) The court stated that to interpret the

statute as excluding an obligor collecting SSDI benefits, but who do not meet “the

income test for SSI/SSP payments” would render “the reference to SSDI benefits in the

subdivision surplusage” and “would vitiate the express reference to SSDI payments.”

(Id. at p. 289.)

It appears the Hopkins court’s legal analysis is based on the premise that

the SSI resource test and SSI income test are indistinguishable, referring collectively to

the two tests as relating to the requirement of meeting certain “income limitations.”

(Hopkins, supra, 173 Cal.App.4th at p. 289.) Our review of the applicable federal

regulations revealed there are five, not four, SSI/SSP eligibility requirements because the

terms “income” and “resources” are distinguishable limitations to SSI/SSP benefits. The

SSI resource test involves examination of a person’s preexisting assets that could be

“converted to cash” such as a horse. While the income limitation involves consideration

of what the person receives each month from outside sources, such as employment or

other benefits. For this reason, it is possible that an SSDI recipient could satisfy the third

element (SSI eligible but for excess income) but not the second element (SSI resource

test).

This interpretation is supported by the legislative history. “This bill arises

from circumstances in which disabled non-custodial parents have been unable to get a

modification on their child support obligations even though they are no longer able to

work and subsist on public disability checks. [¶] As originally introduced, the bill was

much broader, seeking to amend several sections of the Family Code . . . [¶] . . . however,

the bill was substantially narrowed and simplified. In its current form, the bill would

prohibit the [Department] from garnishing a disabled obligor’s benefits in an amount that

22

would reduce his or her income below that allowed by certain public benefits programs

for disabled persons.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 891 (2001-

2002 Reg. Sess.) as amended Apr. 23, 2001, pp. 1-2., italics added.) The Legislature was

clearly focused on helping SSDI recipients who were nearly or already destitute, having

no means for survival other than disability checks.

The committee discussed letters sent in support of the five percent rule,

who had “first-hand experience with ‘the real hardship child support obligations have on

the disabled poor.’” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 891 (2001-2002

Reg. Sess.) as amended Apr. 23, 2001, p. 3.) As noted by one Los Angeles

commissioner, “[C]urrent law already exempts a non-custodial parent’s SSI benefits from

child support collection because ‘it has long been recognized that such benefits are

scarcely enough to sustain a human life,’ . . . .” (Ibid.) The bill was designed to “extend

this safety net to disabled individuals whose income from other disability benefits is at or

below the very low SSI benefit amount.” (Ibid.) According to the author, the bill was to

“keep disabled non-custodial parents from becoming homeless” because they often

cannot modify their support obligation before they owe thousands of dollars in arrears.”

(Ibid.) “[The Department] will garnish the obligor’s benefit checks or bank account to

pay the county for back welfare payments. In an example cited by supporters of the bill,

a disabled obligor whose disability check was garnished in this fashion no longer had the

funds to pay for his board and care facility, which evicted him.” (Ibid.)

As explained previously in this opinion, not all SSDI recipients are on the

verge of homelessness. The second element of the five percent rule squarely addresses

this point, requiring that obligors who receive SSDI payments in lieu of income must also

satisfy the SSI resource test, i.e., lack of assets available to sell to avoid eviction.

For the above reasons, we decline to follow the Hopkins court’s holding

that the Legislature intended all obligors receiving SSDI to benefit from the safety net

created by sections 5246(d)(3) and 17459(c)(2). The plain language and legislative

23

history support the conclusion every element of the four part test must be satisfied.

Some, but not all, disabled obligors receiving SSDI benefits will be able to establish he or

she “meets the SSI resource test” (as defined by the federal regulations), but was denied

SSI benefits for other reasons. The SSI resource and income tests are not mutually

exclusive.

Consequently, to take advantage of the garnishment five percent rule,

Father was required to establish he satisfied the SSI resource test and would have

qualified for SSI but for the SSI income test, in addition to proving he received SSDI

benefits. He failed to do so, and therefore, the Department had authority to withhold up

to a maximum of 50 percent of his SSDI benefits for arrears until the court ordered he

need only contribute $375 per month.

D. Effect of Mother’s Derivative Benefits

Father maintains the Department could not withhold money from his SSDI

because the Social Security Agency (SSA) was paying Mother derivative benefits that

exceeded his monthly support and arrears obligation. We disagree.

“A child not living in the same household as the disabled person may

receive derivative benefits on account of a parent’s disability. (42 U.S.C. § 402(d).) If a

beneficiary is under the age of 18, the SSA will generally pay benefits to a representative

payee, preferably the custodial parent. (20 C.F.R. §§ 404.2001(b)(2), 404.2021(c)(1)

. . . .)” (Y.H. v. M.H. (2018) 25 Cal.App.5th 300, 305 (Y.H.).) California law, section

4504, subdivision (a)), makes this preference mandatory by directing the child’s custodial

parent to receive these payments and directing the non-custodial parent to “cooperate

with the custodial parent” in completing any necessary paperwork. (§ 4504, subd. (a).)

In this case, Mother received $1,116 per month in SSDI derivative benefits as the

representative payee for her children.

We begin with an overview of how a child’s derivative benefit is treated for

child-support purposes. Section 4504, subdivision (b), provides, “If the court has ordered

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a noncustodial parent to pay for the support of a child, payments for the support of the

child made by the federal government . . . because of the . . . disability of the

noncustodial parent and received by the custodial parent . . . 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 [s]ection 695.221 of the Code of Civil Procedure.”

“Code of Civil Procedure section 695.221 provides money should be

credited in the following order: (1) ‘against the current month’s support’; (2) ‘against the

principal amount of the judgment remaining unsatisfied’; and then (3) ‘against the

accrued interest that remains unsatisfied.’” (In re Marriage of Hall & Frencher (2016)

247 Cal.App.4th 23, 26.) Accordingly, a trial court has the option of choosing one of two

approaches: (1) it may consider the derivative benefits in fixing the guideline formula

support amount; or (2) it may allow a direct-benefit credit against the formula amount.

(In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1162.) For example, under the

second approach, a court may exclude the derivative benefit in calculating the amount of

child support owed by the noncustodial parent, and then credit the benefit against any

payments owed. (In re Marriage of Daugherty (2014) 232 Cal.App.4th 463, 466.)

Here, the parties do not say which approach was utilized. Based on the

figures listed in the court’s guideline calculation sheet contained in our record, it appears

the court utilized the second approach when it modified Father’s support obligation in

February 2016. The court attributed Father’s SSDI benefits as income, but did not

include the derivative benefit in fixing the guideline formula support amount of $836.

However, for reasons unknown, the court did not credit the entire derivate

support benefit as set forth in Code of Civil Procedure section 695.221. Instead, the court

initially ordered only a $280 credit for the derivative benefits and required that Father pay

$375 per month for arrears. This order was not in compliance with section 4504 or Code

25

of Civil Procedure section 695.221. Several months later, the court correctly “modified”

the order to reflect Father must receive credit for the entire derivative benefit as required

by law.

Accordingly, Father was correct that derivative benefits completely

satisfied his $836 child support obligation. And when one of the children emancipated,

the support obligation decreased to $526, leaving a larger sum to be credited against

arrears. Any excess amount, before or after the reduction, must be applied to what Father

owed for unpaid support arrears. (§ 4504, subd. (a); Code Civ. Proc., § 695.221.)

Father provides no authority, and we found none, to support his argument

the excess amount should not be applied towards his $160,000 in arrears but rather must

be credited against the small payment ($375) the court ordered Father to pay each month.

The court had authority to order Father pay a minimum amount of $375 each month

towards arrears in addition to the credit he would receive from derivative benefits.

Similarly, we found no support for the Department’s assertion the court

ordered it to withdraw $375 from Father’s SSDI benefits. The record clearly shows the

court’s order simply stated Father must pay $375 each month towards arrears. However,

we recognize section 5246 gave the Department authority to issue an income withholding

order from Father’s SSDI benefits to cover the amount of court-ordered arrears. As

discussed above, the 25/50 rule applied unless Father (1) established he qualified for the

five percent rule or (2) the court ordered a specific arrears payment. In this case, the

court ordered a specific payment of $375, eliminating the Department’s ability to

continue applying the 25/50 rule. We conclude the court sensibly balanced Father’s

disability and reduced SSDI income of $2,234 against his obligation to repay over

$160,000 owed to his children and spouse for their support. It was reasonable to

determine the children will directly benefit from receiving $375 per month plus use of the

SSDI derivative benefit payments.

26

E. Relevant Legal Principles About Reimbursement

The final question concerns whether the Department must reimburse Father

for any overpayments made towards arrears. To briefly summarize, the Department

could withdraw $1,116 each month under the 25/50 rule until March 2016, and then it

was limited to the court’s order of $375 per month. The Department does not maintain it

strictly adhered to withdrawing these sums. It does not dispute it may have over

collected from Father’s SSDI funds to pay Mother for past owed support.

Father asserts section 3653 and In re Marriage of Dandona & Araluce

(2001) 91 Cal.App.4th 1120 (Dandona), support his theory the court can require the

Department to reimburse Father for overpayments to arrears. He misconstrues the reach

of this legal authority.

Section 3653, subdivision (a), provides modification or termination of a

support order may be retroactive only to the filing date of the notice of motion or to any

subsequent date. Subdivision (d) of section 3653 provides that when the court enters

orders that decrease or terminate support retroactively, it may order the support recipient

to repay the obligor for any overpayments. “The court may order that the repayment by

the support obligee shall be made over any period of time and in any manner, including,

but not limited to, by an offset against future support payments or wage assignment, as

the court deems just and reasonable. In determining whether to order a repayment, and in

establishing the terms of repayment, the court shall consider all of the following factors:

[¶] (1) The amount to be repaid. [¶] (2) The duration of the support order prior to

modification or termination. [¶] (3) The financial impact on the support obligee of any

particular method of repayment such as an offset against future support payments or

wage assignment. [¶] (4) Any other facts or circumstances that the court deems

relevant.” (Italics added.)

Section 3653 does not support Father’s reimbursement theory. First, it

clearly applies to a specific kind of overpayment, i.e., one created when a trial court

27

orders a retroactive reduction in monthly support. It plainly does not concern payments

made towards arrearages. We have no grounds to broadly interpret the statute to require

repayment anytime an obligor overpays support or arrears. Second, the statutory

provision requires that repayment come from the person who received the funds (“the

support obligee”) not the Department. (§ 3653.)

The Dandona court applied section 3653 to a case where the trial court

ordered the support obligee to repay child/spousal support to an obligor due to a

retroactive reduction in support. (Dandona, supra, 91 Cal.App.4th at p. 1123.) In that

case, Father filed a motion to modify support in January 1999, and the court granted his

request over a year later in March 2000. (Ibid.) The trial court determined that “while

[Father’s] motion was pending, he overpaid [Mother] $6,734 for child support and $4,256

for spousal support” and ordered Mother to repay Father “the overpayment of $10,990.”

(Ibid.) The court rejected Mother’s theory she was not required to reimburse Father for

his 1999 overpayments. She asserted the Legislature amended section 3653 in 1999 to

eliminate the repayment obligation and did not add it back into the statute until 2000. (Id.

at pp. 1123-1124.) The Dandona court resolved the issue of whether the 2000

amendment was retroactive to support payments made in 1999. (Id. at p. 1124.)

Father misreads the Dandona case as “expanding” section 3653 to provide

reimbursement for “‘“any amounts previously” overpaid under prior court orders.’” This

quoted fragment must be read in context. The court held the amended statute was

retroactive for the following reason: “Section 3653 does not expressly state it applies to

recovery of 1999 overpayments. But the language of the section shows the Legislature

intended it to be retroactive. Support obligors are to be reimbursed for ‘any amounts

previously’ overpaid under prior court orders. (§ 3653, subd. (c).)” (Dandona, supra, 91

Cal.App.4th at p. 1124.)

Thus, for purposes of its analysis on retroactivity, the court shortened the

statutory provision substituting “overpaid” for the portion of the statute providing

28

reimbursement for “‘any amounts previously paid by the support obligor pursuant to the

prior order that are in excess of the amounts due pursuant to the retroactive order.’”

(Dandona, supra, 91 Cal.App.4th at p. 1124, original italics omitted, italics added.) The

court did not expand section 3653 to require repayments for all types of overpayments.

Moreover, the case is factually inapt for the additional reason that there was no indication

Father owed arrears. His overpayment was towards support only. (Id. at p. 1123.)

Neither party offered any legal analysis for the situation where there has

been an overpayment for reasons other than a retroactive court order modifying support.

We are aware of legal authority holding a court has the discretion to credit overpayments

of support to outstanding arrears. “‘[T]he trial court may give credit for past

overpayment (In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980-981) . . . or take

into consideration “whether the debtor had satisfied or otherwise discharged the

obligation imposed by the original order.”’ [Citation.]” (Y.H., supra, 25 Cal.App.5th at p.

307.) Moreover, under section 290, the court had “broad enforcement power to

determine the manner in which its child support order is enforced” and may give credit

against arrears for past overpayments to support. (Ibid.) We found no case authority or

policy served by authorizing reimbursement of overpayments to arrears when an obligor

owes in excess of $160,000 in past unpaid support. Father was not without a remedy to

halt unauthorized withdrawals from his SSDI. He may move to quash an inaccurate

assignment order (§ 5270). In light of all of the above, we conclude the court properly

denied Father’s request for reimbursement of funds given to Mother for past owed

support.

III. Remaining Arguments

Father’s opening brief is broken into five sections. The “ARGUMENT”

section (from pages 15 to 31), which has a subsection titled, “DISCUSSION,” raises all

the issues we have analyzed above. The last section titled, “STANDARD OF REVIEW”

lists six issues, three raised earlier in the discussion section, and three new issues.

29

Specifically, Father raises for the first time in his brief the court abused its discretion by

(1) “failing to approve [his] [proposed] judgment for the March 23, 2018 hearing[;]”

(2) “failing to continue evidentiary hearings . . . regarding the availability of sanctions

against the Department . . . ultimately ruling that sanctions were not available, as [it] did

not even read [his] brief on the subject at anytime whatsoever prior to the March 23, 2018

hearing as shown above[;]” and (3) claiming the court did not receive Father’s brief

before the hearing about whether the five percent rule applied, depriving Father of a fair

trial.

Because Father merely offers his opinion about these three issues, without

providing legal analysis or supporting record citations, we deem them waived. (See

Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [must present relevant

legal authority and reasoned argument on each point made]; Kim v. Sumitomo Bank

(1993) 17 Cal.App.4th 974, 979 [appellate court not required to consider points not

supported by citation to authorities or record].) It is not this court’s duty to develop legal

arguments for the parties. (Jefferson Street Ventures, LLC v. City of Indio (2015) 236

Cal.App.4th 1175, 1196, fn. 2.)

We affirm the court’s June 2018 order confirming Respondent may withdraw money from Appellant’s SSDI benefits for arrears, it need not repay Appellant for any overpayments to arrears, and sanctions were not warranted.