Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SFL-34724
Richman, J.
Mete Senocak appeals from the “Judgment Regarding Parental Obligations” entered on January 9, 2007, that ordered him to pay $2,309 monthly support for his three children effective October 1, 2006. Mr. Senocak raises a number of contentions going to the soundness and fairness of the judgment. We conclude that all of his contentions are without merit and affirm.
Background
We must comment at the outset about the state of the record. The clerk’s transcript consists of: (1) the judgment, with a DissoMaster printout attached; (2) three additional DissoMaster printouts; (3) a “Statement of Disputed Issues” summarizing the issues submitted to the court for resolution; (4) the notice of appeal; and (5) a docket printout of the action. There is also a reporter’s transcript for the hearing held in the Sonoma Superior Court that led to the judgment.
The docket shows that in August 2006, Judy Timmerman Senocak filed a petition for dissolution of her marriage to Mr. Senocak. The next action shown is a motion “regarding payment of support” filed the following month by the Sonoma County Department of Child Support Services (Department), which is described as “intevenor” to the action.
On the “Statement of Disputed Issues,” Mr. Senocak stated his objectives as follows:
“1. Both father and mother should look for a regular job with minimum $2,000/monthly (gross) income to start on 2/9/07.
“2. Father and Mother share[] health care costs of the children 50/50.
“3. Counseling for [son] regarding his inability to sleep away from his Mother. [¶] This will enable [son] to sleep at his dad’s house and travel with him.”
Ms. Senocak stated that her objectives were:
“1. Father’s earning power is much higher than Mom’s—having earned over $100/hr. in the past. Mom currently earns $10-$40/hr. Teaching profession does not pay equal to senior software engineering.
“2. Father has not contributed to child care/living expenses since beginning Oct. 06. If Father’s employment provides insurance, that should be available to children. Most healthcare costs have been covered by Mom due to use of alternative treatments/supplements.
“3. [Son] will receive counseling as the result of his being witness to his brother’s abuse—perpetrated by Dad. When [son] feels safe and unconditionally loved by his Dad, he will have no sleep problems.”
The reporter’s transcript for the January 9, 2007, hearing shows that the both Ms. Senocak and Mr. Senocak were present, although neither had counsel. Ms. Bussone appeared for the Department. The court opened the hearing by stating “I have three proposed dissomasters [i.e., the three in the clerk’s transcript]. . . . [I]t’s looking like the only differences are the parties’s incomes, right?,” to which Ms. Bussone replied, “Right.”
“THE COURT: Okay. So why don’t you let me know, tell me where we came up with the various numbers that are in here.
“MS. BUSSONE: Which dissomaster do you have first, your Honor?
“THE COURT: The first one is the $2,000.
“MS. BUSSONE: Father’s position at this point in time regarding his income is he would like to impute some earnings to both himself and to mother. He believes that both parties should be equally responsible to share the burden. [¶] . . . [¶] For supporting the children. And he has come up with these numbers on his own; $2,000 for him, $2,000 for mother which would be a child support order of $757 per month total. [¶] He also would like the child support to start a month from now and not to go back to the October 1 date that I would be requesting.”
Mr. Senocak then explained his computations: “Mother has submitted [an] income and expense declaration filed 15 July last year, and on that . . . she indicates that she needs $2,600 per month for herself and the children. And when you run my numbers in the dissomaster, she will receive exactly that amount each month; $1,800 from her own paycheck, and $750 from me as child support which makes $2,600. So that should cover all her expenses.”
The court stated that “the guideline doesn’t look at expenses—either yours or hers—it just figures it based on income. [¶] . . . Expenses are not something that are relevant in calculating child support.”
Mr. Senocak protested “But that was a standard of living when we were together.” The court explained: “But that’s not relevant in terms of your potential income and what you were earning. One of the things the guideline is intended to do is shift money to the lower income parent to try to raise the standard of living in that house if one parent has more income; which you did. I mean, I know you don’t right now, but you did. [¶] Okay. So the $2,000 for you came from—how did you come up with that number for you?”
“MR. SENOCAK: Well, I’ve been unemployed since October 2005. [¶] . . . [¶] I was working at Charles Schwaab [sic]as a civil engineer consultant and my contract was ending end of September, but they ended it two weeks prematurely.
“THE COURT: And they didn’t offer to renew it?
“MR. SENOCAK: Well, there was a possibility of renewal, but I’m interested in employment to get also health care. And I talked to another manager, he interviewed me, but they didn’t have any employment at this point. [¶] And another reason is I realize working in San Francisco and living in Sonoma County has been [a] very big burden on me and was causing me 14 hours being out, and by the time I come home, I cannot have quality time with anyone, including my children. So I’m looking for [a] job in Sonoma County at this point.”
When the court asked if he had “Any leads?” Mr. Senocak responded “I have three printouts here, and I have two more saved in my computer. And I’m going to contact them. I’m hoping within a month, I will reach some conclusion.”
The court then heard about Mr. Senocak’s situation from the Department:
“MS. BUSSONE: Mother’s position at this point in time is that father used to earn $63.50 per hour. She believes he actually earned a whole lot more than that per hour. His earning capacity is over $100 an hour, but we used the year-to-date, the five and a half months that he did work in San Francisco to come up with the gross amount of $10,216 per month for him. Mom is a part-time teacher right now.”
When the court inquired “Where did you get that number on him?” Ms. Bussone replied “we have the employer verification” in the form of a pay stub for Mr. Senocak, covering the period April 4-September 15, 2006.
Mr. Senocak stated that his “last work date” for that employer “was September 15th.” He then addressed “these hours the mother is raising”:
“Over $100 [per hour] was from the year 2000-2001 when the high tech industry was experiencing a boom. And nobody is receiving that kind of money now even in San Francisco. [¶] The other $63.53 an hour will cause me to go to two county boundaries every day and work in San Francisco.
“We had a discussion with mother that it is much more important that both parents spend time with their children, quality time than earning money. And I’m surprised to hear that she’s supporting me to go out for 14 hours straight out of the house.
“In that case, I will not be able to see my youngest son . . . during the week at all. I’m taking the 6:45 bus in Santa Rosa, arrive at 9:15; two and a half hours one way. And it got worse and worse recently. The 101 corridor was coming to [be] a parking lot. And working there eight or nine hours and coming back. So I was arriving at 8:00 p.m. in Santa Rosa and then I have to go to bed at 9:00 p.m. That’s not a life.”
The court reassured Mr. Senocak that “I’m not going to impute income at a San Francisco rate. I’ve already decided that. I’m going to find an income that makes sense.” The court then inquired how Ms. Bussone arrived at the monthly income of $6,933 she was recommending be imputed to Mr. Senocak. Ms. Bussone responded:
“What father had talked about with myself and in his income and expense statement is that he believes he will earn about $40 per hour. Using that expectation, I imputed full time to him. He has no disability that he has not told me about. That’s the $6,933 at $40 an hour, 40 hours a week. [¶] To finish up on mom, she’s a part-time teacher, $40 per hour, but only works approximately 12 to 30 hours per month.” “It’s really [a] wide range. It was hard to come up with something for mom.”
Ms. Senocak explained that she has a credential to teach art, but she was not a regular teacher in the public school system. She teaches an art class in the public school system if there are a sufficient number of students who sign up for it. She also teaches private classes composed of students who pay by the hour, typically $10 per hour. Her income “varies . . . depending on the number of students who have signed up.” Ms. Senocak estimated her monthly income at $1,083. She is “trying to get some more private instruction to form some groups. And probably starting in February, I have an extra group in a private home, and that’s something I’ve done in the past . . . .”
The court then stated “I have a problem with both parties’ situation right now. They both have an obligation to work and support their children. So whatever I do today is going to be very short-lived in terms of looking at it later. Your children aren’t that young that you shouldn’t be working at least 20 hours a week instead of 30 hours a month.” Addressing Mr. Senocak, the court observed “you’re making $40.00 an hour. I don’t think you can make $40.00 an hour 20 hours a week. I don’t think that’s realistic, but I think it’s realistic to earn more than what you’re earning.” “I need to find an income that works for her and you . . . . [¶] So when I look at your pay, basically you earned $55,000 between April and the middle of September.” Mr. Senocak admitted this was true, but went on, “I don’t know whether I made it clear, but I would like to work part time also to spend more time with the children,” particularly his son, whom he is helping with home schooling two days a week.
The court then ruled as follows:
“Well, neither one of you should be working part time. So, for the time being, I’m going to make some orders. [¶] Both of you have the skills and the education to work. You do have to balance somewhat, you know, the needs of the children to see both parents. Right now, . . . [t]hey’re mostly with mom. Looks like about 85 percent of the time they’re with mom . . . .”
“Well, the way I’m figuring your [i.e., Mr. Senocak’s] income, I’m figuring it on three quarter time for the last year, so I’m going to make some orders based on what I think is a reasonable amount to use.
“Like I said, both parties are capable of earning a decent amount of money to support their kids. It is what it is, and hopefully you have a job. I mean, I’m not going to say you need to go work in San Francisco and earn that kind of money because I think you do need to be here and be around the kids now that the family dynamics have changed. So that’s something I’m giving you.
“But I’m not at this point going to find that you can work part time. I am going to find that I’m going to use your income from April through the middle of September for the nine months that we use, so I’ll spread it out over nine months, so that comes [out] with a[] [monthly] income of $6,195 . . . .”
Ms. Senocak interjected, “Does it make any difference . . . that he doesn’t see two of the children at all?” The court responded “It does,” as reflected in the 85 percent figure for Ms. Senocak as the person primarily responsible for the children. However, when Mr. Senocak inquired about “my personal time” with his son, the court responded, “I’m not going there, because we’re not talking about custody and visitation other than the percentage” for purposes of the guideline.
“Okay. So then mom’s income . . . I came up with a mixture of things that you can do to earn $1,500 a month. So it’s $1,000 preschool, $390 doing a class, the monthly weekly class, and then $125 average over the year for the events. And that comes out to $1,500 self-employment. So what that does is yield a child support amount of $2,309 per month,” effectively October 1, 2006.
Mr. Senocak protested “I cannot pay this money. I don’t have it.” The court told him, “You may not be able to pay it right now. That order is based on what the [c]ourt finds is a reasonable income for you at this point in time.” The court then set a review date for two months hence.
The court then entered a judgment based on imputed monthly incomes of $6,195 for Mr. Senocak and $1,515 for Ms. Senocak. Mr. Senocak filed a timely notice of appeal from the judgment. Ms. Senocak has not filed a brief as respondent. The Department has.
Discussion
The state of the record has been stated, perhaps overstated, with a purpose. As previously mentioned, Mr. Senocak appeared in propria persona at the hearing. He has not engaged counsel for this appeal, and has again chosen to represent himself. That is his right. But with that right comes responsibilities. Because Mr. Senocak, as the appellant, was responsible for designating the state of the record before us, he must accept the limitations it imposes upon him.
The most fundamental principle of appellate review is that “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’ ” by the appellant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) To overcome that presumption, the appellant is limited to the record made at the time of the challenged ruling in the trial court. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325; 9 Witkin, supra, at pp. 369-370.) Thus, if Mr. Senocak makes a factual statement in his brief which cannot be verified from the record, that statement will be ignored. (Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, 206-207; 9 Witkin, supra, at pp. 369-370.)
No less fundamental is the rule that “an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.” (People v. Vera (1997) 15 Cal.4th 269, 275.) The reason for this rule is that “it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) The fact that Mr. Senocak is proceeding in propria persona will not cause us to relax these principles for him. (See Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 129-130 [“ ‘[a] lay person, . . . who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.’ [Citations.]”].)
With these principles in mind, we now examine the claims of error asserted by Mr. Senocak.
I
What the trial court referred to as “the guideline” is a statutory formula known as the “statewide uniform guideline for determining child support orders.” (Fam. Code, § 4055, subd. (a).) A guideline support figure is presumed to be correct, and a court may deviate from figure only in exceptional cases. (Fam. Code, § 4057, subds. (a)-(b).) The guideline is based upon a number of principles, and “takes into account each parent’s actual income and level of responsibility for the children.” (Fam. Code, § 4053, subd. (c).) “In summary, the Legislature has established a strong presumption that parental income levels, coupled with custodial time, . . . shall determine the level of family support.” (In re Marriage of C. (1997) 57 Cal.App.4th 1100, 1106.)
Clearly, the starting point for that formula is the parents’ income. In calculating what is a parent’s income, the court is given the statutory discretion to “consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.” (Fam. Code,§ 4058, subd. (b).) The court is also to presume “that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.” (Fam. Code, § 4053, subd. (i).)
So long as it does not stray from the guideline, a trial court’s child support determinations are reviewed for abuse of discretion. In reviewing that determination, “[w]e do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order.” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) We must defer to the reality that “the court in child support proceedings, to the extent permitted by the child support statutes, must be permitted to exercise the broadest discretion . . . in these most sensitive and emotional cases.” (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044.)
Mr. Senocak first contends that “[t]he trial court completely ignored in its income calculation” the fact that he was unemployed. He states that the trial court “failed to acknowledge that Father’s age (55) makes the job search difficult and in Father’s job market (Software Engineer) it can take sometimes 6 (six) months to find a new job.” The only information shown by the record is Mr. Senocak’s line of work; that he enjoyed a measure of success at that profession the previous year in San Francisco; that he wishes to work exclusively in Sonoma County on a less than full-time basis; and that he was having difficulty landing such a position. This is all we accept. (Brosterhous v. State Bar, supra, 12 Cal.4th 315, 325; Matuz v. Garardin, supra, 207 Cal.App.3d 203, 206-207; 9 Witkin, supra, § 328, pp. 369-370.)
The mere fact that Mr. Senocak had not achieved his ideal employment is no bar to imputing income to him. Indeed, that is the whole point of the statutory authorization to impute income “in lieu of . . . income” from actual employment. (See In re Marriage of Simpson (1992) 4 Cal.4th 225, 233; Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1752-1754.) “So long as a parent has an earning capacity, that is, the ability and the opportunity to earn income, the trial court may attribute income.” (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1392.)
“A trial court’s decision to impute income to a parent for child support purposes based on the parent’s earning capacity is reviewed under the abuse of discretion standard.” (In re Marriage of Destein, supra, 91 Cal.App.4th 1385, 1393.) It was Mr. Senocak’s burden to prove to the trial court’s satisfaction that he was unable to find employment. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1339.) The only proof from Mr. Senocak was that he in effect was just starting a serious search for employment: he had identified five possibilities, but he had not interviewed with any of them, much less been rejected by all of them. At no point did Mr. Senocak tell the trial court that he could not be employed in Sonoma County. With less than four months gone from the end of his last job, the trial court had a substantial basis for concluding that Mr. Senocak had not established that there was no local employment opportunities open to him. Even then, the court did not impute full-time income, and not at the higher San Francisco levels. In light of these circumstances, we cannot conclude that the trial court abused its discretion by imputing income. (E.g., In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 929-931; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 998-999.)
II
Mr. Senocak next contends that “[t]he trial court order violates [his] constitutional right to make decisions concerning his child’s education by imputing 40 . . . hours a week work.” He states that his son “is being in part home-schooled and in part attend[s] Pathways Charter School in Santa Rosa. Father is actively involved in [son’s] homeschooling by helping him primarily with Math, Science, but also with Ecology, Geography, and History on Tuesdays and Thursdays. This help is established on request of Mother and the schedule is established with Mother’s agreement, and documented in the stipulation that is submitted at the Superior Court hearing on 8/14/2006.”
There is nothing in the record before substantiating either the existence of the stipulation. Mr. Senocak told the court at the hearing about his efforts to assist in the education of his son, so it can hardly be said that the court was unaware of this matter. But insofar as the constitutional argument Mr. Senocak now advances was not raised before the trial court, it will not be considered for the first time on appeal. (In re Seaton (2004) 34 Cal.4th 193, 198; People v. Vera, supra, 15 Cal.4th at 269, 275.)
III
Under the heading “There is no need for father or mother to work 40 hours a week,” Mr. Senocak argues that he and Ms. Senocak “both have [a] Masters degree and each can earn approximately $40 an hour. By working 3 days (=24 hours) a week, both parents can make about $3,400 a month (gross) each. This is above the necessary amount to provide adequate living standard for all three children of these parents. Also, since both parents prefer to devote adequate amount of time to their children instead of making more money it is not in the best interest of the children to impute any amount of work hours that is not necessary to any of the parents.”
This is simply an attempt to reargue that both parents should work part time. The trial court rejected this contention, in light of the dual facts of Mr. Senocak’s vastly superior potential earning power and Ms. Senocak’s role as provider of approximately 85 percent of the children’s direct care and supervision. We cannot condemn that decision as an abuse of the trial court’s discretion.
IV
Mr. Senocak next contends that the trial court “failed to determine the best interests of the child[ren.]” Under this heading he reiterates the argument about the nature and extent of his special relationship with his son, and the son’s need for his father’s guidance and companionship. Again, this general argument was raised at the hearing, and rearguing it here will not establish abuse on the part of the trial court. And when Mr. Senocak ventures to speak of “separating” him from his son, “destroying the father-son relationship,” and the trial court failing to consider “the relative fitness of the respective parents,” he veers towards the issue of custody, something the court expressly told him would not be considered at the hearing. We also note that Mr. Senocak only speaks of his son, without taking account that there were two other children—whom he does not visit—to be considered and provided for. Finally, we are convinced that, although it may not have been made the subject of an express finding, the best interests of all the children were indeed considered by the court: one of the reasons the hearing transcript was quoted at such length was to show that those interests were an abiding concern for the court.
V
Based on the fact that “[t]he trial court imputed 40 hours a week work for Father but only 12 hours a week for Mother,” Mr. Senocak contends the trial court did not treat the parents equally. Absolute equality of treatment is not a legal requirement, but it is a motivating principle of the guideline that “Each parent should pay for the support of the children according to his or her ability.” (Fam. Code, § 4053, subd. (d), italics added.) It is obvious from the excerpts of the hearing quoted above that the trial court concluded that Mr. Senocak had a greater ability to pay. It is also worth mentioning that the guideline presumes that the parent “having primary physical responsibility for the children,” which in this case would be Ms. Senocak, “contributes a significant portion of available resources for the support of the children.” (Fam. Code, § 4053, subd. (i).) Moreover, as previously mentioned, her role as the primary caregiver may be particularly significant in understanding why her financial contribution was set at a lower level. (E.g., City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243, 246; In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 129; In re Marriage of C., supra, 57 Cal.App.4th 1100, 1106.)
VI
Arguing that “Mother is intentionally remaining underemployed,” Mr. Senocak contends the trial court erred by not ordering her “to find a regular job.” We construe this contention to be a claim that the trial court ought to have imputed more income than it did to Ms. Senocak.
Ms. Senocak told the trial court that “there aren’t many” opportunities for full-time employment “because of per school there’s usually one art teacher.” The school work she gets is unpredictable because “[I]t varies every semester depending on the number of students who have signed up for classes.” This unpredictability obviously impacts her income, as she told the court: “the semester before, I was making $1,800 a month, and this current semester . . . averages about $1,000. It varies from month to month . . . .” Ms. Senocak explained to the court her current efforts to generate income from private classes. And Ms. Bussone, who had no reason to be partial towards her, told the court, “It was hard to come up with something for mom.” Based on what it had heard, the court fixed Ms. Senocak’s monthly income obligation at positions at $1,500 per month. Upon the record before us, we cannot condemn that determination as an abuse of discretion. (In re Marriage of Schlafly, supra, 149 Cal.App.4th 747, 753; In re Marriage of Hinman, supra, 55 Cal.App.4th 988, 999 [“the question whether earnings should be imputed to an underemployed . . . parent is addressed to the sound discretion of the trial court”].)
VII
Mr. Senocak’s final contention is that it was “unfair” for the trial court to “burden” him with three months’ arrearages totaling $6,927. He argues “Destroying father’s relationship with his children (in order to create more income for the mother) is not ‘in the best interest of children.’ As a result of this overwhelming stress, Father was experiencing anger and depression, had to receive psychiatric treatment for major depression . . . starting on 1/25/2007, and later psychological counseling . . . .”
As to Mr. Senocak’s misfortunes after the judgment was entered, they can play no part in our review of the judgment. (Brosterhous v. State Bar, supra, 12 Cal.4th 315, 325; Matuz v. Gerardin, supra, 207 Cal.App.3d at 203, 206-207; 9 Witkin, supra, § 328, pp. 369-370.) And Mr. Senocak is just plain wrong as seeing the issue as simply one of the judgment creating more income for Ms. Senocak—the issue is money for support of the children, his children. As for the arrearages requested by the Department, we see no error in the court acceding to the request. (See Fam. Code, § 4009; City and County of San Francisco v. Funches, supra, 75 Cal.App.4th 243, 245.)
Disposition
The judgment is affirmed.
We concur: Kline, P. J.,Lambden, J.