Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. FL060328
Reardon J.
Appellant Christine Phelps appeals the trial court’s order for spousal and child support and its denial of her motion for reconsideration, new trial or to vacate. She faults the court’s decision not to make support retroactive to the date of the first appearance on her order to show cause regarding support that she filed in another county, the same date to which the parties thereafter stipulated support would be retroactive. We reverse the orders to the extent they fail to provide for retroactive support to the agreed-upon date, and remand for calculation of the amount of offset due to respondent Michael Saffian.
I. BACKGROUND
Phelps commenced dissolution proceedings in Del Norte County. She filed an order to show cause concerning child and spousal support and other matters on June 6, 2005, with a June 10 hearing date. Thereafter the parties stipulated to continue the evidentiary hearing and that any orders would be retroactive to June 10, 2005, with any payments made by Saffian to Phelps credited against such order.
A hearing took place on the stipulated date of continuance and the matter was submitted pending receipt of closing briefs. Both parties’ posthearing briefs referenced their understanding that support orders would be retroactive to the date of the order to show cause for support. However, prior to entry of decision and order, venue was changed to Humboldt County, per stipulation and order filed April 4, 2006. At that time the clerk was also directed to transfer the file to the Humboldt County Family Law Clerk.
In July 2006 Phelps filed a motion for child and spousal support, “pursuant to her motion previously filed in 2005.” Phelps requested that support be retroactive to June 2005. She noted that Saffian’s income was “approximately 16 times” that of her own. Saffian is a medical doctor employed as an anesthesiologist; Phelps works part-time as a physician’s assistant.
At the commencement of the hearing, the court questioned whether it had authority to make an order retroactive to the original pleading where the matter was still under submission in another court. Among other matters, Saffian testified to the ways in which he supported Phelps from November 2004 until March 2006. Subsequently, the parties submitted letter briefing on the issue of retroactive support, with Phelps citing Code of Civil Procedure section 399, which provides at paragraph 3: “The court to which an action or proceeding is transferred under this title shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein, all prior proceedings being saved . . . .” Saffian requested that even if the court concluded it had authority to make the order retroactive, it should decline to do so because “he basically provided for all of Ms. Phelps’ support [from] the time they separated until the time she moved out of his house in April of 2006.” On November 15, 2006, the court entered its order for child and spousal support retroactive to March 1, 2006.
Phelps moved for reconsideration, new trial or to vacate the judgment, for the first time specifically mentioning the earlier stipulation to make any support orders retroactive to June 10, 2005. Saffian responded that a retroactive support order would be inappropriate because he had paid almost all of Phelps’s expenses during the requested retroactive period. The court denied the motion on December 29, 2006.
II. DISCUSSION
Phelps asserts that the trial court committed prejudicial error in denying support retroactive to June 10, 2005, as required by the parties’ stipulation, effectively denying her and the daughter nine months’ support.
This contention relies on several misstatements or misconceptions. First, the trial court did order support retroactive to March 2006. Second, for the period in question Saffian paid a significant portion of Phelps’s expenses.
However, it is true that the parties to a dissolution may agree, in writing, to spousal and child support. (Fam. Code, § 3580.) Here, the parties agreed in writing that any support orders would be retroactive to June 10, 2005, the date the matter was first set for hearing. An order for child or spousal support may be made retroactive to the date of filing the initial pleading or order to show cause, or to any subsequent date. (Id., §§ 4009, 4333.) With the order transferring venue of the cause from Del Norte to Humboldt County, the pleadings and papers, including the stipulation, were transferred to Humboldt County. (Code Civ. Proc., § 399.) Pursuant to section 399, Humboldt County “shall have and exercise over the same [matter] the like jurisdiction as if it had been originally commenced therein . . . .” Therefore, the stipulation had the same effect in Humboldt County as it had in Del Norte County.
Saffian suggests that the court had power to circumvent the parties’ agreement. That would be the case if the agreement purported to compromise either parent’s child support obligation or restrict the family court’s power to act on the child’s behalf in support proceedings, but it did not. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 294-295; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.) However, unless contrary to law, court rule or public policy, a stipulation of the parties is binding on the court. (Bechtel Corp. v. Superior Court (1973) 33 Cal.App.3d 405, 412.)
Phelps has consistently requested support retroactive to the date of her original order to show cause. The stipulation was part of the record and supported this request. After the hearing in Del Norte County, both parties reiterated their agreement concerning retroactivity. Following the Humboldt County hearing, the stipulation as well as the authority to impose a retroactive order notwithstanding the change of venue, were explicitly called to the court’s attention. On this record the court erred in denying retroactive support in keeping with the parties’ agreement.
Saffian urges that if the matter is remanded on the retroactivity issue, he is entitled to an offset for payments made for the benefit of Phelps and his daughter. The stipulation specifically stated that “any payments Respondent makes to Petitioner will be credited against any” retroactive support order. Phelps argues that the stipulation only entitles Saffian to reimbursement for direct payments, and do not include, for example, offsets based on the fact that she and their daughter lived in Michael’s second home for a period of time while Michael made the mortgage payments on that home.
Literally, the stipulation only covers payments “to” Phelps, not payments on her behalf. However, the other side of the coin is that Phelps’s expenses were reduced to the extent Saffian paid them. For example, her income and expense statement of July 13, 2006, lists rent in the average monthly amount of $1,200. Obviously, prior to moving out of Michael’s second home, she did not have or incur that expense. Thus, Phelps’s literal interpretation does not assist her. Phelps also counters that absent an agreement for compensation, Saffian is not entitled to any setoff for the second home or other expenses he said he paid, citing Family Code section 3951, subdivision (a). But of course, there was an agreement for retroactive support, subject to offset.
This provision states that a parent “is not bound to compensate the other parent . . . for the voluntary support of the parent’s child, without an agreement for compensation.”
Phelps also asserts that offsets would be dealt with relative to the division of community assets. But the house is Saffian’s separate property asset, and payments made by Saffian for the mortgage and other items were made postseparation, from his earnings. If there is a community property issue with respect to the home, that matter will be decided on remand.
Phelps further complains that Saffian did not present substantial evidence of actual credits. Saffian did testify that the mortgage was approximately $1,150 per month and that he paid $70 to $80 per month in utility bills and covered other expenses. Phelps does not dispute that Saffian made these payments and covered these expenses. In any event, the offset amount will be decided on remand, not by this court.
III. DISPOSITION
We reverse the orders of November 15, 2006, and December 29, 2006, to the extent they deny child and spousal support retroactive to June 10, 2005. The matter is remanded to determine the amount of offset for support payments made to or on behalf of Phelps and their daughter during the period in question. Saffian to pay costs on appeal.
We concur: Ruvolo, P.J., Sepulveda, J.