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Court of Appeal:
Denial of Continuance Effectively Denied Child-Support Motion Without a Hearing
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that a denial of a motion to continue that effectively denied a father’s motion to modify child support without a hearing constitutes an abuse of discretion where the many delays in the matter were caused by the court—wanting to wait until after the resolution of an ongoing custody dispute—and the opposing party who was not providing requested discovery.
Justice William Dato wrote the unpublished memorandum opinion, filed Wednesday, reversing an order by San Diego Superior Court Commissioner Deborah Cumba. Presiding Justice Judith McConnell and Justice Terry B. O’Rourke joined in the opinion.
Dato pointed out, in a footnote, that “[g]enerally the grant or denial of a continuance is not appealable….[h]owever…the portion of the court’s order denying Father’s motion to modify child support is reviewable by this court.”
Two Pending Actions
Appealing the order was Brett Marks, who separated from his wife Kara Winship in 2020. The couple share two young children.
After their separation, Marks filed a paternity action in family court in 2021. The County of San Diego Department of Child Support Services (“DCSS”) subsequently filed a complaint on Winship’s behalf in the Family Support Division (“FSD”), also in 2021.
These filings resulted in two pending actions—the paternity case in family court relating to Marks’ petition for joint legal and physical custody of the children and the FSD action relating to Marks’ financial support of the children.
In October 2021, then-Commissioner Pennie K. McLaughlin (now a San Diego Superior Court judge) ordered child support in the FSD matter. Marks lost his job within two months of the initial child support order.
In early 2022, McLaughlin decided to reserve her consideration of Marks’ request for modification to the child support order until August 2022, presumably planning to wait until after the paternity trial in June which would determine the custody arrangements. McLaughlin was replaced as hearing officer in the FSD matter by Cumba in September 2022.
Continuance Denied
The matters were continued multiple times due to Winship’s failure to comply with discovery orders and Winship’s hiring of a new attorney, Aaron Smith.
Marks’ attorney, Alexandra R. McIntosh, Smith, and the attorney for DCSS agreed to continue the FSD hearing date of March 9, 2022 in order to allow it to trail the paternity action.
On the hearing date, however, Cumba denied the request for the continuance, saying “any change in custody [was] not going to impact the support going back in time.” Cumba also declined to retain jurisdiction to retroactively adjust the child support order and failed to make any modifications.
Abuse of Discretion
Dato noted that DCSS concedes that the commissioner erred in denying the stipulated continuance request. Agreeing, he wrote:
“Our central concern with this case is that Father was penalized for delays caused primarily by the court and the opposing party. The procedural history shows there was a proverbial volley regarding discovery and sanctions between two separate benches that, at different times, thought the ball belonged in the other court.”
The jurist remarked that “[t]he substitution of commissioners probably did not help, nor did” the DCSS’s attorney’s “perplexing pivot” at the March 9 hearing in expressing concern over the continuance to which he had agreed. Dato continued:
“Other postponements were caused by Mother’s noncompliance regarding discovery and her retention of new counsel just days before the paternity trial was scheduled to start. Insofar as Father requested continuances, it was in response to action or inaction on Mother’s part.”
Dato said that “[i]t is unclear what else Father could have done to expedite the timeline” given his repeated requests for discovery compliance and requests for sanctions. Under these circumstances, he opined:
“The commissioner’s reasoning was not in accord with her earlier decision to continue the case until the paternity action was resolved, or the similar decisions made by Commissioner McLaughlin….The result of this decision was to penalize the party who had been diligent throughout the case, and to inadvertently reward the other party for avoiding her obligation to provide full financial discovery. This runs contrary to both reason and fairness.”
Finding an abuse of discretion, Dato declared:
“[T]he court’s comment that retaining jurisdiction to retroactively modify the child support order was unnecessary makes little sense given the ongoing need for Mother to supply sufficient financial information not only to Father, but also to the court. Even if a change in the physical custody arrangement between the parents would not affect child support retroactively, a fuller financial picture from both parties certainly could.”
The case is County of San Diego v. B.M., D082172.
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