Opinion
G053745
03-08-2018
In re Marriage of GEORGE and CHERYL AGUAYO. GEORGE AGUAYO, Appellant, v. CHERYL AGUAYO, Respondent.
Law Offices of K. Sean Singh & Associates and K. Sean Singh for Appellant. Cheryl T. Aguayo, in pro. per. for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07D002910) OPINION Appeal from an order of the Superior Court of Orange County, Nathan R. Scott and Donald F. Gaffney, Judges. Affirmed. Law Offices of K. Sean Singh & Associates and K. Sean Singh for Appellant. Cheryl T. Aguayo, in pro. per. for Respondent.
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After voluntarily quitting his job, George Aguayo unsuccessfully sought to have his spousal support obligations reduced based on his claimed lack of income and inability to work. He appeals from the order denying his spousal support modification request, arguing the trial court erred by: (1) refusing to consider supplemental evidence he filed the day before the hearing on his request; (2) refusing to grant a continuance to allow his ex-wife, Cheryl Aguayo, the opportunity to review and respond to the supplemental evidence; (3) failing to evaluate each of the factors specified in Family Code section 4320 ; and (4) denying the modification request despite his testimony that he has a medical disability which prevents him from working. George also contends the court abused its discretion when it denied his subsequent motion for reconsideration of its decision to disregard his late-filed supplemental evidence. We find no error and affirm the challenged order.
All subsequent statutory references are to the Family Code unless otherwise indicated.
I
FACTS
Married for more than 28 years, George and Cheryl separated in 2006. More than seven years later, in February 2014, the marriage was legally dissolved. Leading up to that time, the parties were able to resolve many of the disputed financial and property related issues via stipulation. One of the issues left for the court to determine was spousal support.
As is common in marital cases, the parties share the same last name. We consequently refer to them by their first names for the sake of clarity. No disrespect is intended.
The court held a hearing concerning spousal support. George requested the court not order the payment of any spousal support. Although he worked at Boeing Corporation (Boeing), and had for several years, he claimed to have a medical condition affecting his hands that was leading him to "seriously consider[] changing his job or going into retirement." Cheryl noted that George's self-declared income was between $7,200 and $10,000 per month, and thus requested George be ordered to pay her $4,000 per month.
The court declined to accept either party's requested amount of spousal support. It reasoned that awarding no support would be a "severe abuse of discretion," and the $4,000 requested by Cheryl would be "unsustainable and impossible." After giving due consideration to all of the factors set forth in section 4320, the court determined $2,000 per month in permanent spousal support payable by George to Cheryl was appropriate under the circumstances.
The court's spousal support order, which accompanied the February 2014 judgment of dissolution, noted the court had not received any documentation indicating George had a medical condition with his hands. It also directed George "to continue to work at Boeing" and cautioned him to "not jeopardize his employment just to avoid paying his spousal support obligation."
In October 2015, George filed a request to modify the spousal support order to reduce his obligation to zero. He claimed his hands had been injured due to repetitive use and overuse of them at work, and that he eventually had to quit his job because he was unable to perform regular or light duties. With only about $600 per week in unemployment income, which was due to cease the following month, George stated he was unable to pay the court ordered spousal support. Aside from his own declaration, George did not initially file any documents to support his claimed medical disability.
Cheryl opposed the request. According to her, George fabricated his injuries and voluntarily quit his job in order to reduce his ability to pay spousal support. She noted he had since moved to Nevada to live with his new wife, and that, to her knowledge, his disability claims had been denied by the states of California and Washington. Cheryl also indicated she thought he was deliberately not reporting certain rental and self-employment income.
On the day before the hearing concerning George's modification request, George filed a supplemental declaration, attached to which was a 14-page neurosurgical consultation report. He claimed the report, which was dated four days prior, was "medical evidence" of his injuries.
At the hearing, the court first addressed the late-filed declaration and report. Cheryl stated she had been handed the papers for the first time right before the hearing. She did not request additional time to allow her to review and respond to them; rather, she simply urged the court not to consider them. In response, George's counsel explained he filed the documents as soon as he could after receiving a copy of the neurosurgical consultation report. He asked the court at least continue the hearing so Cheryl would have time to review and respond to the additional information. The court declined to do so. And, because the documents were not timely filed, it declined to consider them.
Based on the remaining papers filed, the court found George did not meet his burden of showing a material change in circumstances, and did not prove he lacked the ability or opportunity to work. It expressed doubt that he was disabled and unable to perform even the less labor intensive work to which he was assigned prior to quitting his job. Among the facts the court relied upon were that George filed a worker's compensation claim not long after entry of the February 2014 support order, he was cleared by a doctor to go back to his regular work duties, he reopened his worker's compensation claim, he voluntarily quit without any medical opinion or evidence he was unable to continue working, and he never received any worker's compensation award.
Dissatisfied with the outcome, George filed a motion for reconsideration. He asked the court to reevaluate the decision to not consider his late-filed supplemental declaration and the associated neurosurgical consultation report. He argued the documents were not previously considered by the court despite being directly relevant to his spousal support modification request, and they should be considered in the interest of judicial efficiency. Cheryl opposed the motion.
The court denied the motion for reconsideration, stating: "There are no new facts, circumstances or law presented in this motion. . . . The respondent objected to the declaration because it had just been served on her that morning. It was not admitted into evidence. That decision appears to be entirely consistent with the law."
George purports to appeal from both the order denying his request for a spousal support modification and the order denying his motion for reconsideration. The latter, however, is not a separately appealable order. (Code Civ. Proc., § 1008, subd. (g).) We, therefore, treat his appeal as being from the order denying the support modification, and consider his challenge to the reconsideration denial as part of that timely appeal. (Ibid.; Cal. Rules of Court, rule 8.108 (e)(3).)
II
DISCUSSION
George argues the court abused its discretion in failing to consider his supplemental declaration and the neurosurgical consultation report, failing to grant his last-minute request for a continuance of the hearing, and failing to consider the factors set forth in section 4320. He also contends that even in the absence of his supplemental evidence, his modification request should have been granted. Lastly, he asserts his motion for reconsideration should have been granted because he submitted new facts and new evidence. None of these arguments have merit.
Modification of a spousal support order may be made at any time the court determines it necessary. (§ 3651, subd. (a).) The party requesting the modification bears the burden of showing a material change in circumstances since the time of the last support order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) Thus, "'a modification order must be based on current facts and circumstances.' [Citation.]" (Ibid.)
"Although the trial court may not modify spousal support without proof of a change in circumstances, the converse is not true. '"[A] showing of changed circumstances does not necessarily mandate a modification of spousal support."' [Citation.] '"A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order."' [Citation.]" (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 956, fn. omitted (Minkin).) Its discretion is broad. (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.)
On appeal, we review the modification decision for an abuse of discretion. (Minkin, supra, 11 Cal.App.5th at p. 957.) "We presume the court's decision is correct and the appealing party must affirmatively show error." (Ibid.) "An abuse of discretion is shown only when, '". . . after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances. [Citation.]"' [Citation.]" (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 575.)
Turning first to the evidentiary issue, though George requested the court consider his untimely evidence, it was under no obligation to do so. The only reason George gave for why the untimely documents should be considered was that he submitted them to the court as soon as the neurosurgical consultation report was ready. But, he provided no explanation for why he did not obtain, or could not have obtained, a medical evaluation and report before he chose to quit his job in March 2015, or in the nine months between that time and the evidence submittal deadline prior to the modification hearing. He was well aware from the original trial concerning spousal support that he needed evidence of any claimed medical disability. Given the circumstances, the court did not abuse its discretion in disregarding George's eleventh-hour evidence. (Peterson v. Peterson (1953) 121 Cal.App.2d 1, 9.)
Similarly, George fails to demonstrate it was an abuse of discretion for the court to deny his request for a continuance. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 ["[r]eviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing"].) Continuances are granted on a showing of good cause. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) In addition to the above issues, George made no effort to request a continuance until it was clear the court was not going to consider his belated evidence. Accordingly, on the record before us, we cannot say the trial court abused its discretion in denying the continuance request.
As for the substance of George's spousal support modification request, he based the request on his lack of income which resulted from him quitting his job. Accordingly, he needed to demonstrate he lacked the "ability and opportunity to earn"—i.e., that he did not quit his job merely to avoid his spousal support obligations. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1304.) With the exclusion of the supplemental declaration and the neurosurgical consultation report, the only evidence of George's inability to work was his own self-serving statements. But, the trial court did not believe him.
In continuing to assert he has a medical condition which prevents him from working, George is, in effect, asking us to reweigh the evidence and make our own credibility determination. That is not our role. The trial court is the sole judge of credibility; we do not reassess it ourselves on appeal. (Minkin, supra, 11 Cal.App.5th at pp. 952-953; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
We are also unpersuaded by George's assertion that the trial court failed to consider the factors set forth in section 4320. At the beginning of the hearing, the court stated it had read, among other things, George's moving papers. Those papers contained the facts George believed were relevant to each of the section 4320 factors. In the absence of evidence to the contrary, we presume the court followed the law and considered all the necessary factors. (Evid. Code, § 664 ["presumption that official duty has been regularly performed"]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1533-1534.)
As for the reconsideration motion, the court applied the correct standard and its denial was not an abuse of discretion. Code of Civil Procedure "[s]ection 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]" (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
The only things George claimed, and continues to claim, were "new" are his supplemental declaration and the neurosurgical consultation report. However, those same documents were before the court when it made its original decision not to consider them. There was simply nothing new or different relative to the determination George asked the court to reconsider. (People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974 ["Facts of which a party seeking reconsideration was aware at the time of the original ruling are not 'new or different facts,' as would support a trial court's grant of reconsideration"].) The court did not abuse its discretion in denying the motion for reconsideration.
On the eve of oral argument, George filed a request for judicial notice, asking we take notice of a "Notice of Decision" from the Social Security Administration dated February 12, 2018, which he asserts supports his claimed disability. "While [we] may take judicial notice of matters not before the trial court, [we] need not do so." (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) We decline George's request. To the extent he believes the document is relevant to his support obligations, he may follow the required procedures for bringing it to the attention of the trial court in the first instance. --------
III
DISPOSITION
The order is affirmed. Respondent is entitled to her costs on appeal.
MOORE, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.