Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Lon F. Hurwitz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 96D001582.
John L. Dodd for Appellant.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent.
BEDSWORTH, J.
Craig S. Wasserman appeals from a postdissolution order that awarded child support to Terryl L Mairs. Wasserman argues there were errors that require reversal. We disagree and affirm.
This is the second time we consider this matter. In a prior opinion, we reversed the child support order because of calculation errors. (In re Marriage of Wasserman and Mairs (May 17, 2004, G031912) [nonpub. opn.].) The full facts of the parties’ dispute are set out in our prior opinion and will not be repeated here.
The motion for child support dates to March 2001. On remand, the trial court heard evidence on the parties’ income and expenses for the year 2001.
Mairs called Wasserman as a witness and elicited testimony regarding his gross income. At one point, Wasserman testified that $35,800 deposited in his business checking account during 2001 represented a series of loans from his grandmother, not income from his law practice. Wasserman said he had no idea of when he received the loans, since “I did not keep track of everything when I got a loan from my grandmother.” He testified he was making payments on the loans, but he had “no recollection” of when the repayments began, and when asked how much he repaid, he replied “I don’t know.”
Wasserman attempted to introduce a document (exhibit 14) to show payments on the loan. The document consists of seven pages of photocopies of the front of checks drawn on an account bearing Wasserman’s name. At the top right corner of the each page a legend appears. The first page, for example, recites the following: “Image Page 1 of 2. Statement number: xxxxxxxxx [number deleted]. 4/11/01 – 5/10/01.” The statement number is the same as the account number shown on the copies of checks, which we have omitted to protect Wasserman’s privacy. No bank statement accompanies the check copies. Wasserman testified the document represented “copies of checks related to various payees” that included his grandmother, and the checks “reflect payments to [my] grandmother” that were “interest-only payment on the loan.”
Mairs objected for lack of a foundation. She said without copies of the back of the checks, there was no way to tell if they had been paid by the bank. The trial judge refused to admit the exhibit.
In a statement of decision filed on September 18, 2006, the trial court said “[n]o credible evidence was presented that there were loans from [Wasserman’s] grandmother totaling $35,800. It is just as likely, if not more likely, that if these funds were truly from [the grandmother], they were gifts. For purposes of this analysis, therefore, the Court will add back $35,800 [to Wasserman’s income].” Mairs objected to some of the numbers found by the trial court [none of which affect this appeal], and an amended statement of decision was issued on September 25, 2006. Child support was set at $540 per month.
In a motion to vacate the decision, Wasserman challenged inclusion of the $35,800. He asserted the trial court treated it as a gift, but gifts are not income for child support purposes. At argument, the trial court said “that is not what the court’s ruling was, nor was it intended to be what the court’s ruling was.” Referring to the September 18, 2006 statement of decision, the court said “I will confess to you . . . that there needed to be an additional sentence saying, ‘For purposes of this analysis the court determines that the $35,800 is income.’ . . .” The motion to vacate was denied.
I
Wasserman agues the $35,800 was not income for several reasons. We consider each in turn, and find none persuasive.
The first point is there was no substantial evidence the $35,800 was other than a loan, because Mairs did not offer any contrary evidence. But she did.
Mairs established, through Wasserman’s testimony, that he received the money, deposited it into his business checking account, and had no recollection of anything to support the claim of a loan, such as when he received the money, when he began to pay it off, or how much was repaid. Wasserman testified it was a loan, but the trial court did not believe him – it found there was “no credible evidence” the sum was a loan from his grandmother. Credibility was for the trial court to decide. Once it found no credible evidence of a loan, it was a permissible inference that money Wasserman received was income. The record supports the finding.
Wasserman next asserts he did not include the $35,800 as income on his 2001 federal tax return, which presumptively is correct for purposes of calculating child support, and there was insufficient evidence to rebut that presumption. He is mistaken.
We cannot find any testimony by Wasserman that he did not list the $35,800 as income on his tax return. The record citations offered for this assertion do not bear it out. But even if true, Mairs made a sufficient showing to rebut the tax return when she offered the evidence set out above. She established that Wasserman received that sum, had no proof it was a loan, and could not remember when or how much he repaid. The trial court was entitled to disbelieve him and infer the $35,800 was income. The presumption vanished in the face of those facts.
Wasserman’s reliance on In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28 is misplaced. There, the correctness of tax returns was successfully challenged with a husband’s loan application that claimed a greater income than shown on the returns. But that does not preclude other evidence to dispute a low-ball tax return. Here, it is undisputed Wasserman received the $35,800. He claimed it was a loan, but had no documentation to back that up, and no recollection of when he made payments or how much he had repaid. We cannot say it was unreasonable for the trial court to reject Wasserman’s tax return as evidence of his income, and include the $35,800 in income for child support purposes.
Wasserman also argues Mairs failed to rebut the presumption that his tax return was correct because she had the burden of proving changed circumstances and did not do so. The changed circumstances point is a red herring.
Finally, Wassermann argues that if the $35,800 was a gift, it cannot be considered as income. It is true that gifts are not income for child support purposes (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 529), but the trial court clarified that it did not find the sum was a gift. So the gift rule does not help Wasserman’s case. There has been no showing the trial court erred in finding the $35,800 was income.
II
Wasserman argues what he characterizes as his “bank statement” should have been admitted in evidence. We cannot agree.
To begin with, the proffered exhibit 14 is not a bank statement. Rather, it consists of several pages of copies of the fronts of checks that bear Wasserman’s name and address on photocopies that carry a Union Bank of California logo. There is no account information, no record of deposits, ATM withdrawals, balances, charges, or anything else one would expect to find on a bank statement. Nor is there any record the checks were ever cashed.
In his brief, Wasserman asserts the exhibit “was not ‘just copies of the checks. In fact . . . it was clearly labeled as a statement issued by Union Bank.” That simply misstates the record. Exhibit 14 is not a bank statement issued by Union Bank, and it is not labeled as such. In fact, it “says” nothing. It is just a series of reproductions of check faces. Other than those and the Union Bank logo, all that appears on the pages is a legend in the top right corner, such as the following on the first page: “Image Page 1of 2. Statement number: xxxxxxxxx [number deleted]. 4/11/01 – 5/10/01.”
True, each page carries what appears to be a Union Bank logo. But Callaway Golf and Oakley sunglasses and Fender guitars and many other name brand products spend a great deal of money every year establishing that such logos are easy to affix to counterfeit products. Without more in the way of authentication, a logo is not determinative, and characterizing that as “clear labeling” that a document was a “statement” of Union Bank is quite a stretch.
None of U.S. would be satisfied if our bank sent U.S. such a “statement,” and nothing in the law suggests it is adequate. “Bank statement” is a term of art, like “commercial vehicle” or “newspaper of general circulation.” Just as a vehicle once used in a television commercial or a newspaper circulated amongst senior military officers would not fit those terms of art, a “statement” by a bank that it will soon be opening a new branch does not constitute a “bank statement.” Similarly, a photocopy of checks does not constitute a “bank statement,” even if – as was significantly lacking here – there is an indication the “statement,” i. e., the photocopy of the checks, was made by the bank.
Appellant insists in his brief the photos were “made by the bank, not by Craig,” but we cannot find that in the record, either.
This defeats Wasserman’s argument that Evidence Code section 670 required the court to admit the checks. That section provides for introduction of “a copy of the check produced in accordance with Section 1550 of the Evidence Code, together with the original bank statement that reflects payment of the check by the bank on which it was drawn . . . .” (Evid. Code, § 670, subd. (a).) Here, there is a complete absence of a bank statement, or anything else “that reflects payment of the check by the bank on which it was drawn.” At best – at the very best – we have copies of checks which may or may not have been cashed.
We also note there was a failure here to comply with Evidence Code section 1550, since there was no showing the “statements” were “made and preserved as a part of the records of a business. Again, the photocopied logo is not enough.
Wasserman also argues he himself authenticated the checks. He says he “testif[ied] that the exhibit showed copies of checks he had personally written and signed in his own hand to ‘Raye Slutske’ [his grandmother] and that these were payments on the loan he had received.” But that is not true, either. There is simply no such testimony.
Wasserman was asked whether he had brought to court some checks relating to the loan from his grandmother. He said he had. He was then shown exhibit 14, which was nowhere shown to be the “checks he had brought to court,” and asked, “Those that relate to Mrs. Slutske, all of those checks are related to Mrs. Slutske, payments that you were making on the monies that she had loaned to you?” To that question, wholly inadequate to establish anything, he answered, “Yes.” Nowhere did he say he had personally written and signed the checks. He merely offered his opinion the checks were somehow “related” to the transaction with his grandmother. This is wholly inadequate to support his argument of compliance with Evidence Code section 1413.
We realize these are technical requirements. But there may be nothing in the law more dependent upon compliance with technical requirements than the introduction of business records, be they from banks or other businesses. We have codified technical requirements for such records because we have learned that such requirements are necessary to assure the trustworthiness of the documents. Anyone seeking to introduce such documents has to be careful to comply with the technical requirements. Failure to do so can leave one in the Court of Appeal without a paddle.
In short, despite Wasserman’s insistence the exhibit was authenticated because it was identified as a bank statement, and by the testimony he now erroneously claims was taken below, there is nothing to support introduction of these rather cryptic pictures of checks. All the record reflects by way of authentication is Wasserman’s statement that he brought some relevant checks to court, and that exhibit 14 “related” to checks to his grandmother. Without evidence the checks were written by Wasserman, the signature was his, or the checks were paid by the bank, without a proper bank statement, without something to authenticate the photocopied check faces, the trial court acted well within its discretion in refusing to admit exhibit 14 in evidence.
III
Wasserman asserts the evidence does not support a finding disallowing two deductions he claimed, one for rent and another for meals and entertainment. We do not see it that way.
Wasserman contends the September 18, 2006 statement of decision mistakenly denied him an office expense deduction claimed on his 2001 federal tax return, finding it duplicated a deduction for rent on the same return. But that is not spelled out in the statement of decision. Here is what the court said: “[T]he Court would allow business deductions of $67,171 [‘Office Expense’ is included in Federal Statement 2 Expenses . . .].” Wasserman does not explain how this reference to office expenses shows it duplicated a rent deduction, nor cite to any portion of the record that would illuminate the point, and we are unable to discern his point.
We deem the point waived. It is not our function to speculate about the reasoning behind an argument, nor to search the record to support an appellant’s contentions. Without reasoned argument, or record references, we may consider an argument waived, and we do so here. (See, e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [“It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular point, the court may treat it as waived.’ [Citation.]”]; MST Farms v. C. G. 1464 (1988) 204 Cal.App.3d 304, 306 [point waived when not discussed or supported by citations to the record].)
On the meals and entertainment deduction, Wasserman’s entire argument consists of a single sentence asserting the finding was not supported by the evidence. This point, too, is waived.
Since Wasserman fails to show error in the finding that $35,800 he received was income, excluding a proffered exhibit, or disallowing claimed deductions from income, the order appealed from is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.
The issue is whether Mairs offered evidence the $35,800 was income. The broader question of changed circumstances has no bearing on that point. Moreover, Mairs did not have to show changed circumstances in order to be awarded child support in this case. There was no prior support order to modify, since the parties initially stipulated to no child support. Nor is there any claim they memorialized and put before the court their respective financial circumstances when they agreed to no child support. In the absence of evidence or prior circumstances, the moving party may be awarded child support without having to show changed circumstances. (In re Marriage of Thomas (1981) 120 Cal.App.3d 33, 34-35.)