Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D463480, Robert C. Longstreth, Judge.
HALLER, J.
Paul Friedman appeals from a family court order denying his request to change previous court orders concerning his daughter's name and child support. We find no abuse of discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hayley (age 11 at the time of the court's order) is the biological daughter of Friedman and Megan Pogue. The parties were never married. When Hayley was born in November 1998, Pogue gave her the name Hayley Ann Pogue on her birth certificate. In the ensuing years the issue of Hayley's name, child support, and other matters were litigated by the parties. With respect to Hayley's name, in 2006 the court ordered that Hayley's name be changed to Hayley Friedman Pogue. In 2008, the court clarified that Pogue was Hayley's surname for purposes of modifying her official records. In 2010, Friedman filed a motion requesting that the court order that Hayley's last name is "Friedman Pogue" or "Friedman-Pogue, " and that Friedman is not merely her middle name. The court denied his motion.
With respect to child support, in April 2008 the trial court made findings regarding the parties' income and expenses and ordered that Friedman pay $426 monthly child support to Pogue. Friedman later challenged this order, and the matter was resolved in May 2009 by a stipulated order in which the parties agreed that no party owed the other child support until May 2012, at which time the matter would be reviewed. One month after the stipulated order (in June 2009), Friedman filed a motion to modify the child support order, requesting that the court make an assessment based on California's uniform child support guidelines (guidelines). In 2010, the court denied the request, finding that Friedman had not shown changed circumstances.
In the current appeal Friedman challenges the court's 2010 rulings. We set forth additional facts concerning the name change and child support issues in our discussion which follows.
DISCUSSION
I. General Governing Principles
When evaluating issues that affect children in family law proceedings, including matters concerning a child's surname and child support, the court considers the best interests of the child. (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 646-647; In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 609; In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1238-1239.) As an adjunct to the best-interests test, a party seeking a modification of a final order generally has the burden to show changed circumstances. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 256; In re Marriage of Williams, supra, at p. 1234; In re Marriage of Schopfer (2010) 186 Cal.App.4th 524, 531.)
We review the trial court's orders for abuse of discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753; In re Marriage of De Prieto (2002) 104 Cal.App.4th 748, 754.) We draw all reasonable inferences in support of the court's rulings and defer to the court's express or implied findings when supported by substantial evidence. (In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1055; In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made the order. (In re Marriage of Schlafly, supra, at p. 753.)
With these general principles in mind, we consider the court's 2010 rulings concerning the name change and child support.
II. Name Change
Friedman argues the trial court erred in denying his 2009 motion concerning his daughter's last name.
A. Background
In 2006, Hayley's counsel submitted a written statement opining that it was in Hayley's best interest to give her the last names used by her mother and her biological father, and recommended that her last name be changed to either "Friedman-Pogue" or "Pogue-Friedman." At a hearing held on July 6, 2006, before Judge Randa Trapp, the court concluded that Hayley should be given both names. The court stated that although Hayley's name should be changed to make the Friedman name available to her, the parties should not pressure her to use any name.
Minor's counsel drafted a proposed order concerning the court's July 2006 ruling, which stated: "Hayley's name shall be changed to Hayley Friedman-Pogue; however Hayley shall not be forced to use the name." On September 19, 2006, Pogue's attorney sent a letter to minor's counsel (with a copy to Friedman's counsel) stating: "Hayley's name change: Should be Hayley Friedman Pogue (eliminate hyphen)." The parties apparently accepted Pogue's counsel's proposal to eliminate the hyphen. The court's written order entered on October 6, 2006, provided: "Hayley's name shall be changed to Hayley Friedman Pogue; however Hayley shall not be forced to use the name."
Before and after the court's October 2006 written order, the hyphen between the two parents' names was sometimes included and sometimes omitted in various documents generated by court personnel or the parties. For example, the reporter's transcript for the July 6, 2006 hearing omits the hyphen, whereas the transcript for a May 7, 2007 hearing includes the hyphen. In an August 26, 2006 letter written by Pogue to Hayley's school, at one point Pogue used the hyphen and at another point did not. In two written communications from Family Court Services (dated November 1, 2006, and July 30, 2007), the hyphen was used, whereas in an August 14, 2009 written communication from Family Court Services the hyphen was not used.
The court's October 2006 written order did not expressly address the issue of changing Hayley's name on her official records, and this issue was resolved at a hearing before Judge Jeffrey Bostwick on May 7, 2007. The court interpreted the October 2006 order to mean that all of Haley's official records (birth certificate, Social Security records, school records, etc.) needed to be changed to include both names, but that Hayley was not personally required to use any particular name. Pogue objected that changing her school records to include both names could result in the school dropping the Pogue name and enrolling her as "Haley Friedman." The court responded that this was a matter for the school and parents to resolve, and that the court's October 2006 order was res judicata on the issue of the name change to include both names. The court's written order for this hearing (entered May 15, 2007) states: "The Court clarifies... the Findings and Order After Hearing of October 6, 2006. Specifically, the minor's child's name is to be changed to " 'Hayley Friedman Pogue' " on all official records. Each party is to cooperate in facilitating the name change. The court considers this issue as res judicata."
Two months later, after a hearing on July 3, 2007, the court entered a written order dated July 6, 2007, in which Judge Bostwick ruled: "All official records referring to the child shall list the child's name as HAYLEY FRIEDMAN POGUE. Mother shall take all reasonable steps to have such records changed to conform to this order within 10 days of today's date...."
In January and February 2008, Friedman filed motions heard by Judge Bostwick on April 1, 2008. In the written order for this hearing (entered on April 15, 2008) the court ruled: "The court clarifies its previous name change order. The court finds that the child's name is 'Hayley Friedman Pogue.' The Court finds that Pogue is the child's surname for purposes of modifying official records." (Italics added.) Friedman was represented by counsel at the April 1, 2008 hearing, but he did not personally attend it. The record on appeal does not include the pleadings underlying this order or a reporter's transcript of the hearing.
At some point it appears that Pogue may have changed the name on Hayley's birth certificate to identify Hayley as her first name, Friedman as her middle name, and Pogue as her last name.
An amended birth certificate is not included in the record on appeal. However, during the 2009-2010 proceedings (discussed below) Friedman made statements to the court indicating this is what had occurred.
On June 18, 2009, Friedman filed the motion which gave rise to the order currently before us on appeal. The motion requested that the court "[r]eturn [Hayley's] name to Hayley (First name) Ann (middle name) Friedman Pogue (last name) as was ordered in 2006, [ ]2007, and changed through deceit in 2008...." Friedman argued that at the original July 6, 2006 hearing where the court ordered the name change, the court changed Hayley's last name to "Friedman-Pogue, " including the hyphen, and that there was no discussion or intention that Friedman was to be her middle name or that her last name would remain Pogue. He pointed out that minor's counsel included the hyphen in the proposed written order, and stated that he and his counsel did not object to the removal of the hyphen from the final written order because there was no suggestion that mere removal of the hyphen converted Friedman to a middle name.
A hearing on the motion was held on February 22, 2010, before Judge Robert Longstreth. At the hearing, the court stated, "[I]t seems to me it's established that the child's name is Hayley Friedman Pogue with no hyphen. That's well-established for years. I see no reason to change that." Friedman argued this was not what the court had intended when it ordered the name change. The court responded that the intent may have been different in 2006, but the order had been subsequently clarified in 2007 and 2008. Friedman then argued, "I ask for your honor... to change the name on the [amended] birth certificate to what it was meant to be, which is Hayley Ann, my daughter's middle name. No court has ever suggested or ruled to remove her middle name and to change it to Friedman. Her last name is to be Friedman Pogue without the hyphen. [¶]... Friedman Pogue is the last name which is what was actually ordered." With respect to the court's ruling at the April 1, 2008 hearing (where the court ruled Pogue was Hayley's surname), Friedman explained that he did not attend this hearing due to his emotional devastation arising from the tragic death of his son on January 14, 2008. He claimed that the attorney who appeared on his behalf at the 2008 hearing was a "young associate" who was "ill prepared to respond to [Pogue's] determined misleading and diversionary testimony."
At the February 2010 hearing, the court rejected Friedman's request to order a change in Hayley's name, stating "For reasons I previously stated, the child's name is going to remain as it has been in the current orders, which is Hayley Friedman Pogue." The court's March 8, 2010 written order on this ruling states, "Petitioner's motion regarding changing the name of the minor child is denied."
B. Analysis
Preliminarily, we note that it appears Friedman's dissatisfaction with Hayley's name does not per se concern the use or nonuse of a hyphen between the two names, but rather turns on his desire that his last name be "at least on equal footing" with the Pogue last name. Thus, it is the use of Friedman as a middle, rather than last, name that is at the crux of the controversy before us.
Recapping the facts, Hayley's counsel's written statement to the court in 2006 recommended that Hayley's last name be Friedman-Pogue rather than Pogue. However, the court's oral and written order in 2006 adding Friedman as a name was silent on the issue of whether it was to be added as her last or middle name. Likewise, the 2007 rulings ordering that Hayley's official records be changed to reflect the added Friedman name did not mention whether it was a last or middle name. The court did not squarely address the issue of whether "Pogue" could be a stand-alone last name until April 2008. In its April 15, 2008 written order, the court ruled that Pogue is Hayley's surname for purposes of modifying her official records. This ruling implicitly permits (although it does not necessarily require) Friedman to be designated as Hayley's middle name on her records. In 2010 (the most recent order) the court ruled there was no reason to diverge from the previous orders and declined Friedman's request for a name change.
Because we do not have the benefit of the pleadings or reporter's transcript concerning the 2008 order, we do not know the matters considered by the court when making the 2008 ruling. In any event, the 2008 order is not before us for review; rather we are reviewing the 2010 order in which the court effectively declined to change the 2008 order.
Although Friedman was not present at the April 1, 2008 hearing giving rise to the 2008 order, he was represented by counsel at the hearing. In civil cases, due process is satisfied when the party is given notice and an opportunity to appear and present his or her case, and the party's personal appearance is not required if counsel appears on the party's behalf. (See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472; In re Jesusa V. (2004) 32 Cal.4th 588, 602.) Hence, absent unusual circumstances showing attorney corruption (not present here), a party represented by counsel at a hearing cannot seek to overturn the court's final order based on the fact the party did not personally appear at the hearing. (See Kulchar v. Kulchar, supra, 1 Cal.3d at pp. 471-472; In re Jesusa V., supra, 32 Cal.4th at p. 602; 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 241, pp. 857-858 [to set aside final order, party must show extrinsic fraud or mistake that deprived party of day in court].) Friedman's mere claim that the attorney who appeared on his behalf at the 2008 hearing was not adequately prepared does not suffice to show attorney corruption for purposes of establishing extrinsic fraud. (See Kulchar v. Kulchar, supra, 1 Cal.3d at p. 471 [extrinsic fraud may exist when attorney "corruptly sells out his client's interest to the other side"].) Because Friedman did not present grounds to the trial court requiring that the 2008 order be set aside, the trial court properly considered the 2008 order when reviewing Friedman's 2010 motion to change Hayley's name.
Drawing all inferences in favor of the court's ruling, Friedman has not shown the court's 2010 order was an abuse of discretion. When Friedman filed his motion concerning Hayley's name in June 2009, the April 2008 order designating Pogue as Haley's surname had been in effect for about one year. Friedman made no showing that circumstances had changed since April 2008 so as to make it in Hayley's best interests to compel the use of Friedman as a second surname on her records. Given that counsel appeared on Friedman's behalf at the 2008 hearing and there was no showing of changed circumstances after the 2008 order, the court's 2010 order declining the request for a name change was not an abuse of discretion.
Finally, Friedman's suggestion that the court applied res judicata principles without considering the merits of his motion is unavailing. The record shows the court reviewed the previous orders, reviewed Friedman's current motion, and concluded there were no grounds to deviate from the previous rulings. The court properly considered and ruled upon Friedman's motion.
III. Child Support
Friedman argues the trial court erred in denying his 2009 motion to change the child support order.
A. Background
After a hearing on April 1, 2008, before Judge Bostwick, the trial court entered an order (dated April 15, 2008) requiring that Friedman pay $426 monthly child support to Pogue. The order set forth the parties' income and expenses (including $11,000 imputed monthly income for Friedman) and their time share percentages based on the current child sharing order.
The order states: "Respondent/Mother has gross taxable income of $8,843 per month, with a health insurance deduction of $260 and 401k contribution of $422, is head of household and two. The court imputes income to Petitioner/Father based on his disclosed expenses of $6,856. Husband's imputed gross taxable income is $11,000 per month, is single and one. The time share is based on the current child sharing order and is as follows: Father - 40%, Mother - 60%. [¶]... Effective March 1, 2008, Father shall pay to Mother child support in the amount of $426 per month for the minor child payable on the 1st of every month. Child support shall be obtained by wage assignment...."
Several months later, Friedman filed an ex parte motion challenging the April 2008 child support order. At a January 8, 2009 hearing on the motion before Judge Bostwick, Friedman explained to the court that although his counsel appeared on his behalf he was not present at the April 1, 2008 hearing because of the death of his son. He told the court that his home remodeling business had collapsed, he was slowly regaining his ability to function after his son's death, and he had finally started a business. However, he stated he did not have the income imputed to him, and requested relief from the $426 monthly child support order. The trial court denied the motion, stating the matter could not be resolved on an ex parte basis but that the denial was without prejudice to Friedman's right to file a motion concerning the April 2008 order.
On May 15, 2009, the child support issue was resolved by entry of a stipulated order stating: "Based upon the existing incomes and financial circumstances of both parties and the existing child sharing arrangement neither party shall be obligated to pay child support to the other at this time. The parties agree that this matter shall be reviewed in May of 2012." The order included provisions stating that the parties agreed no arrearages were owed, all outstanding discovery was stayed, and issues related to uncovered health expenses were deferred for one year. The order stated the parties were informed of their child support rights under the guidelines, the provisions of the agreement were in the child's best interests, the agreement was made without threat or duress, and the child's needs would be adequately met under the agreement.
Approximately one month later, on June 18, 2009, Friedman filed a motion for modification of the May 15, 2009 order. This is the motion underlying the order currently before us for review. In the June 2009 motion, Friedman requested that the court order child support based on a guideline assessment. He argued that at the time of the May 2009 stipulation he was not in a state of mind to evaluate it, he had been taken advantage of, and he had agreed to the stipulation under duress. Friedman submitted income and expense declarations in support of his motion, listing his monthly income as $1,000 in June 2009; $400 in October 2009; and averaging $833 in February 2010 plus $1,900 unemployment compensation. At the February 22, 2010 hearing before Judge Longstreth, he also argued there had been changed circumstances warranting modification based on his son's death and his bankruptcy. The court rejected his request to change the child support order, noting that his son's death was long before the stipulated child support agreement and he had not alleged or provided any information about bankruptcy. The ruling set forth in the court's March 10, 2010 order states: "Petitioner's motion to modify child support is denied on the basis there has been no change of circumstances demonstrated since the Stipulation and Order filed herein on May 15, 2009."
B. Analysis
Generally, modification of a child support order requires a showing of changed circumstances. (In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1234.) However, the changed circumstances rule does not apply when the child support order is derived from a stipulated agreement for support that is below the amount established by the guidelines and the party is requesting modification to the guideline level or above. (Ibid.; Fam. Code, § 4065, subd. (d).) In contrast, when the stipulated order is above or at the guideline level, changed circumstances are required. (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015; In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1235.)
Subsequent unspecified statutory references are to the Family Code.
Section 4065, subdivision (d) states: "If the parties to a stipulated agreement stipulate to a child support order below the amount established by the statewide uniform guideline, no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above."
The record before us does not show that the May 15, 2009 stipulated child support order was below guideline level so as to trigger the exception to the changed circumstances rule. The order states that the order of no child support was based on the incomes and financial circumstances of the parties and their child sharing arrangement. These are the factors used in the guidelines. (§ 4055.) There is nothing in the appellate record suggesting that a guideline calculation at the time of the May 2009 stipulation would show a monetary payment owed by one of the parties, as opposed to the zero payment owed pursuant to the stipulation. It is Friedman's burden to provide an adequate record on appeal, and absent a contrary showing we draw all presumptions in favor of the correctness of the court's ruling. (In re Marriage of Lusby (1998)64 Cal.App.4th 459, 470.) On this record, we presume the stipulated child support order was based on an assessment that conformed with the guideline formula. Hence, the trial court properly applied the changed circumstances standard to Friedman's 2009 motion to change the order.
We note that the stipulated order includes a provision stating the parties are informed of their rights under the guidelines, there was no duress, and the child's best interests and needs are met. A similar provision is statutorily required when a stipulated order is below guideline level. (§ 4065, subd. (a).) However, we do not construe the inclusion of the provision as showing a below-guideline level stipulation given the other statements in the stipulation indicating that the order is based on the parties' financial circumstances and time share. Further, Friedman has not presented any information indicating that at the time of the stipulation the trial court made a finding that the order was below the guidelines. (See § 4056, subd. (a) [when child support order differs from guidelines, trial court is required to state in writing or on the record the amount that would have been ordered under the guidelines and the reasons the amount actually ordered is different].)
Turning to the merits of the court's ruling, first, the trial court was not required to credit Friedman's claim that he did not voluntarily agree to the stipulated order because of duress or mental incapacity. Friedman's June 18, 2009 modification motion, which was filed in propria persona about six weeks after he signed the stipulated order and about 17 months after his son's death, reflects he was capable of filing a detailed pleading setting forth his views. The trial court could reasonably conclude Friedman knowingly and voluntarily agreed to the stipulated order.
Friedman signed the stipulation on May 4, 2009.
Second, the record supports the trial court's finding that Friedman did not show changed circumstances after the May 2009 stipulation. At the January 2009 hearing when Friedman requested relief from the $426 monthly child support, he told the court his business had collapsed and he was trying to start another business. Thus, at the time of the May 2009 stipulation Friedman had already incurred a reduction in income. The May 2009 stipulation, which by its express terms was based on an assessment of his financial circumstances, implicitly incorporates his reduced income arising from the collapse of his business. Further, as noted by the trial court, Friedman did not raise his bankruptcy claim in his June 2009 written motion; rather, he mentioned it for the first time at the hearing on the motion and he provided no information concerning this claim. Given Friedman's failure to provide any evidence concerning bankruptcy, the trial court did not abuse its discretion in declining to consider the reference to bankruptcy as a showing of changed circumstances.
On appeal, Friedman asserts the trial court's order should be reversed because the court made no findings concerning the financial circumstances upon which the stipulation was based or concerning his bankruptcy. The contention fails because it was Friedman's burden to present the trial court with evidence about his financial circumstances at the time of the stipulation and/or his bankruptcy to support a claim of changed circumstances. (In re Marriage of Schopfer, supra, 186 Cal.App.4th at p. 531.) Absent such evidence, the trial court did not err in rejecting his modification request.
We decline Pogue's request that we sua sponte impose sanctions on Friedman for filing this appeal.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.