Opinion
F078086
02-01-2021
ELIZABETH CURUTCHAGUE, Respondent, v. STANLEY BRADFORD CLARKE, Appellant.
Stanley Bradford Clarke, in pro. per., for Appellant. Wild, Carter & Tipton, Russell G. VanRoseboom and Richard A. Harris, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MFL004357)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge. Stanley Bradford Clarke, in pro. per., for Appellant. Wild, Carter & Tipton, Russell G. VanRoseboom and Richard A. Harris, for Respondent.
-ooOoo-
This appeal arises from appellant/respondent Stanley Bradford Clarke's unsuccessful motion, filed on June 28, 2018, for modification of child support retroactive to 2008, and for reimbursement of discretionary support add-ons, that is, travel expenses related to child visitation, in the amount of $49,290.62, incurred between 2007 and 2013. More specifically, Clarke's June 28, 2018 motion sought modification of an existing child support order entered on March 20, 2008, to reduce his basic guideline obligation of $498 per month for one minor child, retroactive to 2008. His motion further sought an order requiring appellee/petitioner Elizabeth Curutchague, to pay for his "travel expenses/fuel from 9-00-07 to 9-00-13 and legal interest of 10 percent per annum," totaling "$49,290.62," incurred for child visitation. The trial court declined to modify child support retroactive to any date preceding the date of filing of Clarke's request for modification and denied his request for reimbursement of travel costs for child visitation, incurred between 2007 and 2013. We affirm.
The March 20, 2008 child support order does not appear in the record on appeal.
FACTS AND PROCEDURAL HISTORY
Clarke and Curutchague were married in 1996 and had one son, A.C., who was born in 2002. The family lived in Madera, but in 2003, Curutchague left the marital home with A.C., eventually moving to Bakersfield; Clarke continued to live in Madera. On April 3, 2006, Curutchague filed a petition for dissolution of marriage with minor child, in Madera County Superior Court (the register of actions indicates the petition was transferred to Madera County from another county). Child support orders were entered in 2006, 2007, and 2008, requiring Clarke to pay child support to Curutchague (the child support orders are not included in the record on appeal but are indicated in various documents in the record on appeal). The marriage was dissolved and judgment entered on March 14, 2007.
The facts recited in this paragraph are gleaned from the register of actions and Clarke's filings in the trial court.
A final custody order was entered by the Madera County Superior Court (juvenile division) on September 18, 2007. The order granted joint legal and joint physical custody to both parents. The order specified that "the child shall reside primarily with the mother," but provided for visitation for the father. The order further specified: "Transportation of the child to and from all exchanges shall be provided by the Father. The issue of sharing costs incurred by Father for transportation shall be decided in Family Law Court." During the relevant period, the mother has lived in Bakersfield and the father in Madera.
A. Clarke's 2008 Motion to Modify Custody, Visitation and Child Support
On May 16, 2008, Clarke filed a motion to modify custody and visitation as well as child support. The motion was set for hearing on June 10, 2008. The motion itself does not appear in the record on appeal but is indicated on the register of actions. The record on appeal contains a minute order from the June 10, 2008 motion hearing. The minute order reflects the court addressed the issues of child custody and child support at the hearing. On the issue of child custody, the minute order reflects the child custody issue was continued to July 25, 2008, for "Review of Mediator's Report." On the issue of child support, the minute order notes: "The Court can make the child support order modifiable retroactively" and "If the Court attributes income to the Parties, it will attribute minimum wage to both Parties today." However, regarding child support, under the caption, "Court orders," the minute order provides: "[The] Court will continue this issue also." (Italics added.)
The next motion hearing regarding the issue of child support and travel costs, as reflected in the record on appeal, was held on July 22, 2010, regarding orders to show cause (OSC) on the issues of child custody and child support filed by Clarke on July 6, 2010. The orders to show cause filed by Clarke are not in the record on appeal but the record on appeal contains the reporter's transcript for the July 22, 2010 motion hearing. Clarke, appearing pro per, addressed the court with regard to his July 6, 2010 OSC regarding child support and travel costs: "[O]n the second Order to Show Cause, that has something to do with child support and travel expenses and that is something that in 2008, when we were last here, [a different attorney] was representing my ex-wife. We decided to take that off calendar at the time because we had reached an agreement in the property settlement. But there was also a motion to modify custody, child support, and the travel expenses. [¶] ... [¶] And you understand the price of gas over the years has fluctuated almost up to five dollars. It costs several hundred dollars a month to travel back and forth to Bakersfield. And I have to do all the traveling to pick him up and drop him [off], that's problematic."
Curutchague's counsel identified specific procedural and substantive defects in Clarke's OSC on the issue of child custody and the issue of child support, defects that Clarke largely did not dispute. The court then ruled: "Mr. Clarke, what I'm going to do is I'm going to deny the motions at this time without prejudice. I can't give you legal advice, but [Curutchague's attorney] has already pointed out what you need to do. If you refile [them], you need to articulate a significant change in circumstance [as to the custody modification issue]. You would need to - if you are requesting anything that has to do with child support or travel expenses, and the Court's not making any indication at this point the likelihood of success, but you definitely would have to file an Income and Expense Declaration at the same time that you file your papers. [¶] You also, as [Curutchague's attorney] indicated, not only serve her office but serve Ms. Curutchague with the papers. And, again, those are the things that you would need to do if you choose to proceed further with this. So the Court is going to deny the motions." (Italics added.) The record indicates that a written order after hearing, regarding the July 22, 2010 hearing, was entered by the court on July 29, 2010.
The written order after hearing is not included in the record on appeal, which contains only a minute order pertaining to the custody issues addressed at the hearing.
B. Clarke's 2013 Motion to Modify Custody, Visitation, and Child Support
On March 19, 2013, Clarke filed a new Request for Order (RFO) for modification of child custody, visitation, and child support (including "transportation costs"). In papers filed in support of the RFO, Clarke stated the family division of the Madera Superior Court had entered a child support order in 2006, but Clarke had "fallen in arrears" with regard to his child support obligation and "Kern County Child Support [had] suspended [his] driver's license privilege." Clarke requested modification of the existing child custody order to reflect that the child's primary residence would be "with father instead of mother," explaining he was also "seeking a modification of the child support amount based upon the outcome of the child custody determination." He further stated that, even without a modification of the existing custody order, the child support "amount should still be corrected for actual income, not imputed income," as the "original support [amount] was computed based by imputing" incomes to both parents that had subsequently changed. In this regard, he requested "[m]odification and retroactive crediting of child support fees due based upon the actual incomes of both parents from the beginning of the child custody and support orders." In addition, Clarke noted that in "the summer of 2006," he "began traveling to Bakersfield to pick up and deliver [his son, A.C.] for visitation," and requested "an order retroactively crediting [him] for transportation costs incurred from the beginning of the child custody and visitation commencing in the summer of 2006." On April 26, 2013, Curutchague filed a responsive declaration and other papers in opposition to Clarke's RFO; however, Curutchague's filings are not included in the record on appeal.
An exhibit to a declaration filed in support of his motion indicated that Clarke owed approximately $34,000 in arrears as of April 1, 2013.
Clarke attached a travel log as an exhibit to a declaration filed in support of his motion; the travel log reflected that Clarke had spent approximately $29,000 in travel expenses (with interest added) related to visitation from 2007 to 2013.
The hearing on the matter was set for May 7, 2013, but was continued to May 16, 2013. A hearing was held on May 16, 2013. The court referred the parties to Family Court Services "for a report." The court further ordered the parties to "comply with requirements of Income and Expense Declaration by attaching pay stubs and latest Tax Returns." The court then continued the matter to July 1, 2013. A hearing was held on July 1, 2013. The court addressed various points on the custody question, then continued the matter to July 19, 2013, for review of the mediator's report and the travel expenses issue. A hearing was held on July 19, 2013. A minute order from the July 19, 2013 hearing states that the "[p]arties have reached a stipulation" and that the court "adopts the stipulation as the order of the Court."
Curutchague had previously filed, on April 26, 2013, an Income and Expense Declaration, along with recent pay stubs and a 2012 W-2 Wage and Tax Statement; she re-filed these documents on June 27, 2013, as required by the court. Whether Clarke complied is not reflected in the record.
The record reflects that on May 15, 2015, Clarke paid a new filing fee and filed a new ex parte family law motion. The register of actions shows a hearing was held on May 18, 2015. Thereafter, on May 19, 2015, an order after hearing was filed indicating the matter was continued on the issue of "Modification of Child Support, Reimbursement of Travel Expenses for Custody and Visitation." The record on appeal does not contain further information regarding the ex parte motion.
C. Clarke's 2018 Motion to Modify Custody, Visitation and Child Support
On June 28, 2018, Clarke filed another, new request for order for modification of child custody and child support (including travel expenses). In the RFO and supporting papers, Clarke contended the court should modify the existing child support order based on a motion Clarke filed on June 10, 2008, as Clarke was still seeking a final order on that motion. Specifically, Clarke stated: "I am asking the court to make a retroactive child support order with a beginning date of June 10, 2008. I am asking the court to set the incomes of the parties at minimum wage until January 2010 ... at which time father's income became zero, mother's income increased to 3800.00 per month ... [subsequently, in 2015] mother's income increased to 6000.00 per month." Clarke noted he owed $75,882.18 in accumulated child support arrears as he had been paying $100 monthly in child support, rather than $498 monthly as ordered by the court. Clarke also asked the court to order Curutchague to pay for Clarke's "travel expenses/fuel from 9-00-07 to 9-00-13 and legal interest of 10 percent per annum thereupon totaling $49,290.62." Clarke further asked for unspecified changes to the existing custody order. Finally, he asked the court to order Curutchague to pay "the court costs and filing fees for this motion $115.00." Curutchague filed responsive papers in opposition to Clarke's RFO on July 13, 2018; her responsive papers are not included in the record on appeal.
Clarke was evidently referring to the motion he filed on May 16, 2008.
A hearing on the RFO was held on July 24, 2018. The judge before whom this hearing was held was the same judge who had handled the prior proceedings described above. The reporter's transcript of the July 24, 2018 hearing is included in the record on appeal. The court stated its tentative rulings at the beginning of the hearing. The court noted:
"The Court would be inclined to deny any immediate change to the schedule of custody and visitation, but I would be inclined to offer to the parties to go to Family Court Services for mediation. It's been quite some time since this case has had anything going on with it, and, therefore, it's been quite some time since the parties have been to mediation. That would almost be a requirement.
"The Court is inclined not to make any change to the transportation cost or to make retroactive the child support beyond July 1st of this year.
"The Court would either set the matter for trial on the issue of child support or set it at zero given that the only information that the Court has at this time is that the father has no income."
Clarke told the court that a child support modification should be made "going back to June 10th of 2008 when the motion for this was filed." Clarke contended that the matter had continually been "postponed" since June 10, 2008. The court responded, based on the minute order of the June 10, 2008 hearing on Clarke's child support modification motion from earlier that year: "It is true that as we were going through the proceedings back in 2008, the Court had indicated a reservation of the child support issue and the ability to modify it retroactively, and the Court certainly would have considered that at that time. [¶] But, again, after 10 years, it's - it's not reasonable for the Court to modify it retroactively. The Court would certainly go back to the filing and service of the current request for order."
Clarke argued that "[t]he Court did say in the minute order from June 10th, 2008, that it would attribute minimum wage income to both parties," and that "there was never a final order" on the 2008 motion (the record indicates the motion was filed on May 16, 2008). Curutchague's attorney argued in response: "Your Honor, this Court made a ruling on July 22nd, 2010, which was embodied in the Order after Hearing filed July 29th, 2010, where the Court denied the issue of child support and denied the issue of travel expenses. And that - I think that precludes this Court from going back to 2008 for any purpose because the Court made a final ruling on that order." Curutchague's attorney added: "Further, if Mr. Clarke is wanting to persuade this Court to impute to both parties minimum wage, as the Court may very well be aware, that would result in Mr. Clarke owing child support to Ms. Curutchague just on the imputation of minimum wage because he does have a zero percent custodial time-share. But I think the order of July 29th, 2010, precludes all of this argument." Counsel indicated that the child, A.C., who was 16 years old in 2018, had been unwilling to participate in visitation and had not seen Clarke since 2015 (Clarke confirmed he had not seen the child since 2015). Counsel added: "[W]e went on for years in this case, and Mr. Clarke has been ruled against several times, including by this Court, definitively on July 22nd, 2010."
Counsel further noted, regarding the current RFO: "[Clarke] did not timely file his Income and Expense Declaration, nor did he provide this Court with the documentation necessary under the Code and the local rules. I would ask that his request for child support - I have no problem with it being set at zero because Mr. Clarke has never had any intention of paying it anyways, but I would ask the Court not to set it for hearing because it's procedurally not properly before the Court pursuant to the code and local rule. His Income and Expense Declaration was dated July 16th, 2018. So there's absolutely no way it could have been timely served. And I know that this Court really hates to do things on procedural nitpicking, but this is a case that begs for that, your Honor." Counsel specified that local rules required that "[Clarke] file 2 years of tax returns ... and he did not do that." The court consulted its order from the July 22, 2010 hearing, that was filed on July 29, 2010; counsel noted that "Page 2, line 2, 3, and 4," reflected that "the Court made a specific denial" on the issue of child support and travel costs. As mentioned, this order is not included in the record on appeal.
The court ruled: "All right. The Court is going to, again, maintain its tentative. The Court is going to deny the transportation costs. The Court is going to set child support at zero temporarily. The Court will, again, review that at either party's request at the next hearing." On the issue of child custody and visitation, the court referred both parties to Family Court Services to begin the mediation process as to that issue.
Clarke then argued: "[As to] the issues of modifying the child support order and making it retroactive, there's no case law and there's no statute that puts a time bar on when you can modify the child custody and support ... So those are still on the table." Curutchague's attorney responded: "Mr. Clarke needs to read ... the Code [section] that says the Court cannot modify child support retroactively further back from the date of filing of the motion.... Child support should be at issue only from, as the Court said, July 1st, 2018, forward, not retroactive." The court ruled: "Well, that's the date that the Court would utilize. I've indicated that because I believe this was filed on - if I'm recalling correctly, on June 28th, and the Court has discretion from that point forward. It seems to me July 1st would be appropriate, and that's what the Court has utilized."
Counsel was referring to Family Code section 3653, subdivision (a), which prohibits retroactive adjustment of child support to a date before the motion seeking the modification was filed. Specifically, Family Code section 3653, subdivision (a), provides, in relevant part: "An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date." (Italics added.)
The court set a further hearing for September 24, 2018. The court issued a minute order from the July 24, 2018 hearing that reflects its ruling. The court directed Curutchague's attorney to prepare an order after hearing memorializing the court's ruling, which order was filed on August 14, 2018. The order after hearing states, on the issue child support, that child support was set to zero retroactive to July 1, 2018, and continuing until further order of the court or until the child reaches an age precluding further support. The order further provides that "Jurisdiction over the issue of modification of child support shall be limited to July 1, 2018"; "Respondent's request for costs of visitation is denied with prejudice"; and "All prior claims for child support modification are denied with prejudice." Clarke thereafter filed a request to take the next hearing off calendar and filed the instant appeal.
DISCUSSION
I. Clarke's 2008 and 2018 Motions for Modification of Child Support/Allocation of Travel Costs for Visitation
Clarke's primary argument on appeal concerns the motion for modification of child support that he filed on May 16, 2008, and that came on for hearing on June 10, 2008. He contends: "The child support amount that the parties are still currently using is from January of 2007. Appellant made several attempts to correct this oversight, with hearings being continued and or postponed until falling off calendar. This is the first opportunity that Appellant has had to appeal the Judge's decision on June 10, 2008." Clarke further argues: "I am asking for a dissomaster guideline support order for the time period from May of 2008, until July 1, of 2018." Finally, he argues he is entitled to recover travel costs incurred from 2008 to 2013 in the context of visitation, as documented in papers filed in support of his June 28, 2018 RFO for modification of child support and allocation of travel costs. We reject Clarke's contentions and affirm the trial court's order after hearing filed on August 14, 2018, from which this appeal arose. (See In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1497-1498 [" ' " '[T]he trial court's determination to grant or deny a modification of a support order will ordinarily be upheld on appeal unless an abuse of discretion is demonstrated.' " ' "].)
As mentioned, Clarke filed a motion for modification of child support, among other things, on May 16, 2008. A hearing was held on this motion on June 10, 2008. The trial court did not make a ruling on Clark's request for modification of child support at that hearing; rather, as reflected in the court's minute order relating to that hearing, the court ordered that it "will continue this issue." (Italics added.) Thereafter, Clarke filed, on July 6, 2010, an order to show cause regarding modification of child support; a hearing on the July 6, 2010 order to show cause was held on July 22, 2010. At the July 22, 2010 hearing, Clarke referred to his 2008 motion on the same issue, explaining that he and Curutchague mutually "decided" to take the 2008 child support modification motion "off calendar at the time because [they] had reached an agreement in the property settlement." To the extent Clarke's 2008 motion to modify child support was vacated or taken off calendar by agreement of the parties, the court lost jurisdiction to modify child support based on it.
In any event, Clarke's claim that, by virtue of filing a new RFO on June 28, 2018, he is entitled to modification of child support and reimbursement for visitation and travel costs retroactive to 2008, has no merit. A child support order may not be terminated or modified retroactively except as allowed by statute. Family Code section 3651, subdivision (c)(1), provides that, with exceptions not pertinent here, "a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (See County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327; In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80-81.) Family Code section 3653, subdivision (a) allows a support order to be modified or terminated "retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date." (Italics added.) These provisions are consistent with the general rule that such orders operate prospectively. (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 844; In re Marriage of Perez, supra, 35 Cal.App.4th at p. 80 [limiting retroactive application of modifications to the OSC filing date protects parties relying on the judgment].)
Travel costs incurred for visitation are a discretionary add-on to a basic child support order. (See Fam. Code, § 4062, subd. (b).) Family Code section 4062 provides for two additional categories of child support, beyond the basic guideline amount. (See In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, 527-529 [discussing basic versus add-on support amounts, and indicating that the Legislature has created two main categories of support, the basic guideline amount and "additional" support].) Family Code section 4062, subdivision (a) mandates additional child support for employment-related childcare costs and reasonable uninsured health care costs. Family Code section 4062, subdivision (b) permits additional support to be awarded for educational expenses and other special needs, or for the cost of transportation to facilitate visitation. "Among the family law bench and bar, these are usually referred to as mandatory or discretionary add-ons." (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039.) Thus, an award of travel costs related to visitation would be a discretionary add-on to guideline support.
In re Marriage of Gigliotti, supra, 33 Cal.App.4th 518, held the trial court lacked authority to reduce the guideline amount of child support owed by the father, by the amount of the father's expenses to travel to another state to visit with the parties' son (who lived with the mother). (Id. at p. 529.) However, Wilson v. Shea (2001) 87 Cal.App.4th 887, rejected Gigliotti's "hard and fast rule" (id. at p. 893) and stated, "we cannot agree with any suggestion that ... visitation cannot be a sufficient reason to vary the guideline amount in moveaway cases." (Id. at p. 895.)
Clarke's RFO filed on June 28, 2018, was a separate post-judgment motion, not a continuation of any prior matter or proceeding, such as Clarke's 2008 motion proceeding. Clarke's June 28, 2018 RFO triggered a new filing fee, was accompanied by new financial schedules, and was served with a court-ordered notice of hearing. The motion was docketed as a separate post-judgment application. In the 2018 RFO, Clarke sought modification of an existing child support order retroactive to 2008, including reimbursement of travel costs for visitation, for the period 2007 to 2013. The trial court ruled that any modification of child support or allocation of travel costs would not be retroactive beyond July 1, 2018, because the RFO seeking such modification/allocation was only filed on June 28, 2018. The trial court's order set the child support obligation amount to zero, retroactive to July 1, 2018 (Curutchague's counsel had no objection to this determination). The court denied Clarke's request for retroactive allocation or reimbursement of travel costs incurred from 2007 to 2013. The trial court's order to this effect did not constitute an abuse of discretion; rather it comported with the statutory mandate set forth in Family Code section 3653, subdivision (a).
Furthermore, in his reply brief, Clarke appears to have withdrawn his claim challenging the trial court's denial of his request for retroactive modification of child support and allocation of travel costs for visitation. Specifically, Clarke states, in his reply brief: "Appellant was not asking the [trial court] to make a retroactive order beyond the filing date of June 2018. Appellant was asking the [trial court] to correct a more clerical type of mistake, no signed order after June 2008 hearing on child support incomes." Clarke's contention fails, as it presumes the court made a merits determination at the June 10, 2008 hearing. The trial court's minute order from the June 2008 hearing states, to the contrary, that the court "will continue" the request for child support modification. Accordingly, it is clear the court did not make any determinations regarding the pending request for child support modification.
To the extent Clarke suggests the 2008 support modification motion should be revisited because he did not have a prior opportunity to appeal its outcome, the contention is also without merit. The parties' marriage was dissolved in 2007. The 2008 support modification motion initiated a separate post-judgment proceeding, from which Clarke could have obtained an appealable order. (See Code Civ. Proc., § 904.1, subd. (a)(2) [any post-judgment order is separately appealable]; Fam. Code, § 3554 ["An appeal may be taken from an order or judgment under this division as in other civil actions."]; County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246 [child support modification orders are appealable under Code Civ. Proc., § 904.1, "as an order after final judgment"]; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 [court's order denying father's child support modification request was immediately appealable].) Clarke's failure to pursue his 2008 motion proceeding to final resolution foreclosed the possibility of an appeal. Accordingly, this court lacks jurisdiction over the merits of that motion. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 966-967.)
DISPOSITION
The trial court's order after hearing, dated August 14, 2018, is affirmed. Curutchague shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
Clarke filed a motion requesting us to take judicial notice of the State Bar of California records of the attorney who represented Curutchague in the proceedings below. The motion is denied. --------
SMITH, J. WE CONCUR: POOCHIGIAN, Acting P.J. DETJEN, J.