Opinion
H047138
02-27-2023
CASSIE C., Respondent, v. MITCHEL C., Appellant. SANTA CRUZ COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondents.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 16FL00462
THE COURTAppellant Mitchel C. appeals the trial court's 2019 orders requiring him to pay child support to respondent Cassie C. Mitchel contends he should not be required to pay child support, as the parties share equal custody of their child. He further argues that the court erred in determining Cassie's income, asserting that she is voluntarily unemployed. Mitchel objects to the participation of the Santa Cruz County Department of Child Support Services (DCSS) in the proceedings. We find no error in the trial court's child support orders and will affirm.
In order to protect the privacy of the parties' child, we shall refer to the parties by their first names.
I. Factual and Procedural Background
Cassie did not file a respondent's brief on her own behalf. The court's recitation of the factual and procedural background is limited to the portions of the record cited by Mitchel and DCSS in their briefs, insofar as they are relevant to the orders being appealed.
Mitchel and Cassie are the parents of one child, born in 2015. In May 2016, the trial court ordered Mitchel to pay $1,840 per month in child support. The trial court based its order on findings attributing Mitchel with about $15,000 per month in income, and 9 percent timeshare with the child. The court imputed half-time minimum wage income to Cassie.
Neither the minute order from the hearing, nor the written order filed with the trial court have the court's DissoMaster calculation attached. Copies of proposed orders submitted to the court but not adopted indicate the court attributed Mitchel with about $15,000 per month in income, and 9 percent timeshare with the child. The court used $850 per month as Cassie's income in the calculation.
In October 2018, Mitchel filed a request to modify child support, as the parties' timeshare with the child had been equalized. At the time, Mitchel alleged he had average monthly income of $4,015, including self-employment and rental income, and estimated Cassie's monthly income to be $4,790, based on "marketing job, yoga certifications, vending, trading, child support, and master's degree." Cassie opposed the request. She claimed she was earning $1,700 per month in self-employment income, and questioned Mitchel's claimed self-employment income, as he had previously earned $120,000 to $150,000 per year. While Mitchel expressed concern that Cassie was not working to be financially self-supporting or gainfully employed, Cassie argued that she was working hard to become self-supporting.
In January 2019 the court held an initial hearing on the child support modification request. Prior to the hearing, Mitchel filed updated information about his income, claiming he was no longer earning self-employment income, and was relying solely on his rental income, which was $2,321 per month on average. He claimed he was taking loans from his family to maintain his rental properties, as he was diverting income that he would otherwise use for that purpose to meet his child support obligation. He also alleged that he had previously reported higher income than he had earned due to an accounting error. Mitchel asked the court to order Cassie to "meet her own financial obligations and share equally in the financial responsibility for the care of our child."
The court reduced Mitchel's child support obligation to $617 per month, including add-ons for travel and education. It reserved jurisdiction to modify support retroactively, and ordered each party to file their 2018 tax returns and provide updated income and expense declarations (I.E.D.) prior to the next hearing. The court based child support on Mitchel earning $1,583 per month in self-employment income, and $2,321 per month in other taxable income. It used $1,700 per month as Cassie's income in the calculation.
Each party filed an updated I.E.D. in April 2019. Cassie claimed monthly income of $800, after business expenses. Mitchel alleged average monthly income of $1,417.31 in the 12 months preceding the I.E.D., although he claimed he had no income in the month prior to the hearing. He also indicated that he no longer had clients through his self-employment business, and was focused full time with property management and repairing his properties from vandalism.
At the hearing in April 2019, the court indicated it had been advised that the parties had "an open DCSS case." It set a further hearing in a different department of the court for May 2019, reserved jurisdiction to retroactively modify support to May 1, 2019, and ordered the parties to provide DCSS with the last 12 months of bank statements and profit and loss statements.
Pursuant to Family Code section 4251, subdivision (a), "All actions or proceedings filed by a party other than the local child support agency to modify or enforce a support order . . . for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances...."
At the subsequent hearing, Mitchel provided a 2018 profit and loss statement (P&L), as well as some bank account information. Based on the P&L, DCSS argued that the court should calculate child support based on Mitchel earning $6,335 per month in self-employment income. DCSS's review of the P&L showed Mitchel had gross income of $162,230.23 in 2018, and total claimed expenses of $155,318, such that his reported net income for the year was $6,912.23. DCSS contended that certain expenses Mitchel had included as business losses in his P&L should instead be considered personal expenses, such as meals and entertainment, child support payments, groceries, medical expenses, pet expenses, clothes, other identified personal expenses, as well as "uncategorized expenses." Thus, DCSS contended that Mitchel's actual income available for child support was $76,025.27 per year. Mitchel did not assert that the P&L he provided to DCSS was inaccurate. However, he stated that he was borrowing money to pay his rent and had just enough income to pay his basic expenses, leaving him unable to pay the mortgages on his rental income properties.
There are handwritten notes on the P&L Mitchel provided, which Mitchel identified as his, that suggest Mitchel disagreed with some of the amounts listed on the P&L. He did not raise these points at the hearing.
The court adopted DCSS's adjustments to Mitchel's P&L, and accepted $6,335 as the appropriate monthly income to calculate child support. When considering the P&L the court determined that it would exclude $18,604.93 in uncategorized expenses as a deduction under Family Code section 4058, finding that the expenses were not "expenditure[s] necessary for the operation of the business." Based on Mitchel's request that the court put any questions about the P&L in writing to discuss with his accountant, the court stated that its order would be "modifiable" if Mitchel could present evidence proving that the expenses were necessary to the operation of his business.
Subsequent undesignated statutory references are to the Family Code.
Under section 4058, subdivision (a)(2), the gross income of a parent for purposes of calculating child support includes "Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business."
DCSS argued that Cassie's self-employment income was $968 per month, based on deposits into her bank account, minus payments she received from her roommate for the roommate's share of the rent and household expenses. The court questioned how Cassie was able to pay her monthly expenses. Cassie noted that she had been receiving $1,800 per month in child support; now she was in debt and paying her expenses with credit cards and loans. Cassie confirmed that she paid $2,000 per month for rent, such that the roommate's share was $1,000. Additionally, she paid other household expenses, such as internet service, gas, and electricity, for which the roommate reimbursed her $500 per month on average. Mitchel argued that the court had previously ordered Cassie to seek work that provided a higher income. While the court agreed that Cassie would need to improve her circumstances because child support would not be sufficient to cover the gap between her income and her monthly expenses, it declined to modify any previously issued seek work orders.
The court ordered Mitchel to pay Cassie $596 per month in child support based on its findings that Mitchel earned $6,335 per month, and Cassie earned $968 per month. It further ordered the parties to share the cost of the child's school tuition, with each to pay their half directly to the school as well as standard orders regarding health insurance and uninsured medical costs. The court set a review hearing in July 2019, which would only go forward if Mitchel could provide proof that the uncategorized expenses in his profit and loss statement were necessary for the operation of the business. Upon such proof, the court stated it would recalculate child support. The court also informed both parties that they could seek modification of support if "anything else significant changes" by filing a new motion.
The court filed a written order after hearing on May 30, 2019, which conforms to the orders made on the record at the hearing. Mitchel timely filed a notice of appeal from the child support orders issued in 2019.
In his notice of appeal, filed July 29, 2019, Mitchel identified the May 30, 2019 order as the order from which he is appealing. In the civil case information statement Mitchel filed with this court, he states he is appealing from orders filed October 23, 2018, November 26, 2018, November 29, 2018, January 30, 2019, April 30, 2019, and May 22, 2019, in addition to the May 30, 2019 order. As the appeal was timely as to the child support orders issued in 2019, we will review all of those orders in this appeal. To the extent the October and November 2018 orders are appealable, Mitchel did not timely notice an appeal from those orders, such that he has forfeited review of the orders. (Cal. Rules of Court, rule 8.104(a)(1); In re Baycol Cases I & II (2011) 51 Cal.4th 751, 762, fn. 8.)
II. Discussion
A. DCSS Properly Participated in this Action
Mitchel first seeks clarification from this court as to the nature of the Attorney General's interest in this appeal. He also objects to DCSS's involvement in the case. In his reply brief, Mitchel contends that he did not consent to DCSS's participation in the child support proceedings beyond seeking assistance from DCSS with monetary transfers in connection with the child support order.
Based on evidence in the record, DCSS was authorized to participate in the child support proceedings without either party's express consent. Section 17400, subdivision (a), requires each county to maintain a local child support agency that is responsible for "promptly and effectively establishing, modifying, and enforcing child support obligations....The local child support agency shall take appropriate action . . . to establish, modify, and enforce child support . . . if the child is receiving public assistance, including Medi-Cal...." At the May 2019 hearing, Cassie stated that she has Medi-Cal for the child's health insurance. This supported DCSS's involvement in the trial court proceedings. Under sections 17406, subdivision (a) and 17407, subdivision (a)(1), the Attorney General, on behalf of DCSS and representing the public interest, has authority to oppose the appeal. DCSS's interest in the trial court orders and the appeal of those orders is therefore authorized by law, as is the Attorney General's representation of DCSS on appeal.
B. No Error in the 2019 Child Support Orders
California has adopted a statewide uniform child support guideline (see §§ 40504070), which places children's interests as the state's top priority. (In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 528 (Macilwaine).) Guideline child support, calculated pursuant to the formula set forth in section 4057, is presumptively correct. (§§ 4052, 4053, subd. (k); Macilwaine, at p. 528.) "That presumption 'affect[s] the burden of proof' and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in section 4053...." (Macilwaine, at p. 528.)
When reviewing the appeal of the trial court's child support orders, we are bound by well-established principles of appellate review. "A trial court's determination to grant or deny a request for modification of a child support order will be affirmed unless the trial court abuses its discretion, and it will be reversed only if prejudicial error is found from examining the record below. [Citation.] [¶] Under this standard, we consider only 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] 'We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order.' [Citation.]" (Macilwaine, supra, 26 Cal.App.5th at p. 527.) We recognize that the trial court's discretion is limited to the discretion provided by rule or statute, given the highly regulated nature of child support. (Ibid.) Thus, the trial court abuses its discretion if it fails to follow the law. (Id. at pp. 527-528.)
Mitchel raises several legal challenges to the support order, but they do not persuade us that the trial court erred. We do not presume error on appeal. Rather, we presume that the trial court's order is correct, such that the appellant has the burden to affirmatively show an error by based on the law and the record on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Mitchel refers to several provisions of the Civil Code. These statutes do not demonstrate that the trial court erred when it set guideline child support, but rather state general principles of jurisprudence, e.g. Civil Code sections 3515 ["He who consents to an act is not wronged by it."], 3517 ["No one can take advantage of his own wrong."], 3521 ["He who takes the benefit must bear the burden."], 3526 ["No man is responsible for that which no man can control."]. These maxims provide no legal basis to invalidate the subject child support order.
Mitchel also cites Penal Code section 181, arguing that requiring him to pay child support violates the provision of the statute making it illegal to "pay []money or deliver[] anything of value, to another, in consideration of having any person placed in his or her custody," because it forces him to pay money to Cassie in consideration of having the child placed in her custody. But on its face, the purpose of Penal Code section 181 is to curb the crime of human trafficking. The statute thus is inapplicable to a child support order issued in compliance with the statewide uniform child support guideline, the purpose of which is to prioritize the interests of children and ensure that both parents are responsible for the support of their child. (§ 4053.)
Mitchel also contends that additional evidence demonstrates that Cassie earns more income than she claimed at the May 2019 hearing. Based on the affidavit attached to the brief, the evidence Mitchel relies on was obtained after the trial court issued the May 2019 order. We cannot consider this evidence in our appellate review of the trial court's decision. "It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. [Citation.] This rule preserves an orderly system of appellate procedure by preventing litigants from circumventing the normal sequence of litigation." (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) This evidence more appropriately should be raised by Mitchel in the trial court in a request for modification of child support, where the trial court is situated to make factual findings. (See In re Marriage of Prietsch &Calhoun (1987) 190 Cal.App.3d 645, 656 ["Our role as an appellate court is not that of factfinder; that is the role of the trial court."].)
Separate and apart from Mitchel's arguments, we have carefully reviewed the record. The trial court's findings regarding the parties' income were based on evidence available at the time, and the court thereafter issued a guideline support order based on that substantial evidence. (Macilwaine, supra, 26 Cal.App.5th at pp. 527-528.) As no error has been demonstrated and we find none on our review of the record, we cannot conclude that the trial court abused its discretion. We thus will affirm the trial court's 2019 child support orders.
In his reply brief, Mitchel raised additional legal arguments. We will not consider these points raised for the first time in the reply brief, as Mitchel has not shown good reason for failing to present them in the opening brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
III. Disposition
The orders filed March 21, 2019, and May 30, 2019, are affirmed.