Opinion
NOT TO BE PUBLISHED
Super. Ct. No. D276601, Bruce A. Young, Judge
Susan H. Ratzkin for Appellant.
G. T. May Law Offices, Gregory T. May for Respondent.
OPINION
PERREN, J.
When ordering child support, the family court must determine the spouses' annual net disposable incomes. (Fam. Code, § 4059.) This figure includes annual gross income "from whatever source derived" (§§ 4058, subd. (a), 4059), minus certain specified deductions. One such deduction is for "mandatory union dues and retirement benefits, provided that they are required as a condition of employment." (§ 4059, subd. (c).)
All statutory references are to the Family Code unless otherwise stated.
The dissolution judgment in this case includes a finding that retirement plan contributions made by appellant Michael Gialketsis (Michael) were not mandatory or required as a condition of employment and therefore were to be included in calculating his child support obligation.
This appeal is from an order modifying child support and denying Michael's request to reclassify his contributions to his retirement plan as "mandatory" and a "condition of employment." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Michael and Kari Gialketsis (Kari) have three children. Their marriage was dissolved May 30, 2002. The judgment of dissolution provides that employer contributions to Michael's retirement account were to be included as income in calculating child support. The trial court concluded that, because Michael's employer, Rincon Consultants, was a Subchapter S corporation and Michael was a director, officer, and employee of the corporation, contributions by the corporation into Michael's retirement account were "selected by the principals of the corporation for their personal benefit, are not a 'condition of employment,' and do not constitute 'mandatory retirement.' (Fam. Code, § 4059, subd. (c).)" The court ordered Michael to pay $1,078 per month in child support plus 15 percent of any bonus income he received. Michael filed an appeal from the judgment of dissolution but voluntarily abandoned it.
On March 8, 2004, the parties stipulated to a downward modification of Michael's child support obligation to $886 per month due to Kari's increases in salary.
On January 28, 2005, Michael filed an order to show cause seeking to modify child and spousal support. He sought a downward adjustment in his support obligation on the ground that Kari had received further increases in salary. Kari filed a responsive declaration stating she did not "object to an adjustment to reflect the minor increase in my pay."
Michael filed a second declaration in response to Kari's declaration. For the first time in the modification proceeding, the issue of employer contributions to Michael's retirement plan was raised. Michael's declaration states in part: "Apparently Petitioner's position is that not only should the employee contributions to my retirement be included in my income and also as an adjustment, but so should all of the employer contributions to my retirement be included." (Emphasis in original.)
On April 20, 2005, a chambers conference was held during which the parties discussed the proper characterization of contributions to Michael's retirement plan. There is no transcript of this conference in the record. Michael filed a declaration in which he recounted the argument he made at the conference:
"Circumstances have dramatically changed since the Judgment issued by Judge Smiley. At that point in time, there was only a 'SEP-IRA.' Judge Smiley indicated that those contribution should be included in the calculation since it was 'in lieu' of an employee funded 401(k).
"Now, my employment offers both of the following:
"Employee funded 401(k); and
"Employer funded 401(k).
"[T]he funds that end up in the employee funded 401(k) ($14,000 for 2005) are paid to me through regular payroll . . . . This is the maximum that employees can contribute. . . .
"In addition, my employer contributes to retirement. Last year it was in the amount of $20,000. I cannot guarantee that I will receive that amount, less, or more for 2005. There are 25 participants in Rincon's 401(k) plan. Whatever is voted on for the other 24 participants also applies to me. . . . 'It is not in my control how much is contributed or if any is contributed.'"
The court issued findings/orders on July 1, 2005, stating in part: "Retroactive to January 28, 2005, Respondent's child support obligation shall be modified to the sum of $969 per month . . . . The court adopts as the basis for and as its findings, the Dissomaster Data Screen attached to this Minute Order. The court finds Petitioner's arguments on the appropriate deductions to be applied to Respondent's monthly income (and the taxable adjustments thereto) to be the most persuasive and adopts them as its findings based on a preponderance of the evidence."
After several additional hearings, the trial court issued its final order on April 20, 2006. With respect to child support, the court ordered Michael to pay $929 per month commencing January 28, 2005, and a percentage of his bonus income as set forth in the March 8, 2004, stipulation.
In this appeal, Michael asserts the trial court's order violates his right to equal protection because his employer's contributions to his 401(k) plan are included as income available for child support, while Kari's employer's contributions to her retirement plan are not included. He also asserts the court erred in failing to specifically enumerate the basis for the findings of the Dissomaster printout attached to the order.
Kari contends Michael waived any error regarding the trial court's alleged failure to provide a basis for its findings, the record is inadequate to demonstrate error under the abuse of discretion standard, Michael did not meet his burden of proving changed circumstances, Michael was improperly seeking to relitigate the 2002 judgment, and the equal protection argument is without merit.
DISCUSSION
Standard of Review
Child support orders are reviewed for an abuse of discretion. (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) We presume the judgment or order of the lower court is correct, and we draw all inferences in favor of the trial court's decision. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Appellant has the burden of affirmatively showing error by an adequate record. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Michael Submitted No Admissible Evidence that Contributions to His Retirement
Plan are Mandatory or Required as a Condition of His Employment
A court may modify a child support order as the court determines to be necessary (§ 3651, subd. (a)) following the procedures in sections 3650 to 3693.
Our review of the merits of this appeal is limited by the sparse record provided by appellant. The only evidence in the record concerning Michael's current retirement plan is his declaration reiterating the argument he made during the April 20, 2005, chambers conference (of which there is no reporter's transcript) and his attorney's argument.
The only citations to the record Michael's attorney makes to support her argument are to Michael's income and expense declaration dated February 13, 2006, and copies of three of Michael's payroll stubs from January 6 and 20, and February 3, 2006. None of these documents contain any information concerning contributions to Michael's retirement plan other than an interlineation on the income and expense declaration that his stated monthly income does not include bonus income or retirement contributions.
Michael's declaration also is insufficient to support his argument. While declarations are often used in family law proceedings, the trial court did not err in impliedly rejecting Michael's declaration describing the purported changes to his retirement plan.
Although family law proceedings are often less formal than other civil proceedings, the rules of evidence nonetheless apply. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354.) Under Evidence Code section 1523, subdivision (a), "oral testimony is not admissible to prove the content of a writing." Section 1523 contains exceptions to the general rule of exclusion. Subdivision (b) declares, "[o]ral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence." Subdivision (c)(1) allows "[o]ral testimony of the content of a writing . . . if the proponent does not have possession or control of the original or a copy of the writing and . . . [n]either the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means."
The issue of whether a party has presented a satisfactory foundation to introduce oral testimony of the contents of a writing is "addressed to the discretion of the trial court, and will not be disturbed on appeal absent abuse of discretion." (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1069.)
Michael did not provide a copy of his retirement plan. He did not contend it was unavailable or that he did not have possession or control of the writing. Therefore, his declaration is inadmissible to show either that his retirement changed since the 2002 dissolution judgment or that contributions to the plan should not be included in calculating child support.
Michael's Challenge to the Court's Findings Was Waived
Michael's contention that the court did not make sufficient findings to support its order is without merit. Section 3654 states: "At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision." "However, where a party remains silent at the hearing and fails to bring the issue to the trial court's attention, he or she waives the right to a statement." (In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109.) The failure to request a statement of decision has two undesirable consequences. First, such failure results in a waiver of findings. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.) Second, in the absence of such findings, we must presume the trial court's judgment is correct. (Ibid.)
As Michael has not provided admissible evidence to support his contention that his retirement plan has changed since the judgment of dissolution was entered, it is unnecessary for us to discuss his equal protection argument or Kari's argument that Michael is seeking to relitigate the 2002 judgment of dissolution.
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.