Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. 99FL07781
MORRISON, J.
This case is nominally about child support, but the opening words of Judge Michael Ullman’s detailed statement of decision speak volumes about the real issues:
“The matter at hand is a sad case of a former spouse of a wealthy entrepreneur being unable to accept repeated claims that the ‘sky was falling’ and that wealthy entrepreneur being unwilling to accept his duty to support his children in accordance with his earning ability. Both of the parties appear to live in a world of alternate realities and can only see the world through their narrow prisms. In reality, the sky did fall (the businesses failed) and the entrepreneur made no attempt to seek employment or start a new business, focusing his entire efforts to avoid having provable income available to pay support. . . . The one state of affairs that can be objectively determined is that the case is now on volume 20.”
Steven Keith Zinnel asserts that Judge Ullman improperly required him to pay child support to his former spouse Michelle M. Zinnel for the benefit of their two young children. The parties call each other “father” and “mother” and we use those customary and benign designations in this opinion. Father claims Judge Ullman misapplied the law, misunderstood the facts, displayed bias and made procedural errors, resulting in a miscarriage of justice.
We agree there has been a miscarriage of justice. Father vowed mother would never get a dime, thwarted her legitimate discovery efforts, gave incredible testimony and avoided his child support duty for years. The miscarriage is that the father has failed to pay his child support for so long. We affirm the child support order.
BACKGROUND
We will take most of the following facts from Judge Ullman’s statement of decision.
The parties separated on December 4, 1999, when both of their children were less than three years old. Father ran “several businesses with many employees, the principal business being in high voltage electrical contracting. [Mother] had previously been a dental hygienist but was primarily a homemaker during the marriage.”
On January 7, 2000, mother sought custody and support orders. Father responded that he made $10,000 per month, “the salary paid to him by his solely owned corporation, Corporate Control, Inc.” Mother’s forensic CPA opined father had monthly income of about $25,000. After a hearing, Judge Gail Ohanesian found his monthly income was $20,879, and computed monthly child support at $3,414 and spousal support at $4,653. Father could have, but did not, seek a trial to contest his income.
With significant understatement, the statement of decision explains: “The discovery issues in the case were complex and the cooperation or lack thereof in providing discovery was highly litigated.” Judge James Mize was assigned to impose order.
On April 19, 2001, father moved to modify support based on a change in custody time, mother’s earning ability, his failing businesses, and reduced monthly income. Before father’s motion could be tried, after a hearing on June 27, 2001, Judge Mize made an order stating mother had the “right to enforce child and spousal support totaling $3,845 per month pending further hearing . . . however, the Court is not modifying any prior child support or spousal support orders at this time.” This was based on a recomputation of support, as if father’s income had fallen to the monthly $10,000 figure he claimed. This in effect resulted in a temporary child support order of $2,142.
The hearing on father’s motion was postponed due to discovery issues. On November 30, 2001, Judge Mize issued Gavron warnings, cautioning both parties that they were expected to seek gainful employment. (See In re Marriage of Gavron (1988) 203 Cal.App.3d 705.)
On April 8, 2002, the trial court entered a judgment of dissolution adopting a marital property settlement. In part it recites that the parties “will complete and exchange a current income and expense declaration which will include all material facts and information regarding that party’s earnings, accumulations, and expenses at the time that the parties address the reserved issues of child and spousal support.”
At a case management conference on April 12, 2002, the parties entered into a stipulated settlement on the record, reduced to writing as a judgment and signed by Judge Mize. It provided in part:
(1) Father would pay monthly child support of $500 for April through July 2002, without prejudice to the actual figure to be determined at a hearing set for July 19, 2002, on father’s still-unheard motion.
(2) Mother waived any arrearages and agreed father was current in his child and spousal support.
The exact critical language is as follows:
“2.2 [Father and mother] hereby stipulate and agree that [father] shall pay to [mother] as and for the support of the two minor children . . . the sum of $500 per month commencing April 1, 2002 . . . for the months of April, May, June and July, 2002.
“2.3 The above amount is a compromise figure agreed upon without prejudice to either party in the modification hearing scheduled to take place on July 19, 2002 . . . . Each party shall file and serve updated pleadings including an updated Income and Expense Declaration and supporting documentation on or before July 3, 2002.”
The stipulated judgment states that it “supersedes all court orders with respect to these matters except as set forth in this Judgment.”
Thus, it was contemplated that the parties would file financial declarations, their respective circumstances would be determined at the already-scheduled hearing, and the original child support order would be modified to account for any material changes in circumstance.
However, the child support hearing was re-calendared to be heard with a child custody hearing before a court commissioner on July 29, 2002; as Judge Ullman explained:
“[The court commissioner] made orders concerning the child custody issues but did not address the child support matter. [Mother] testified that she was self-represented at that time and asked [the commissioner] to address the child support issue. She testified that [the commissioner] stated that ‘child support’ was not on calendar. [Father] did not dispute this account. [Father] even submitted an Order After Hearing for [the commissioner’s] signature that stated the July 29 hearing concerned child custody and child support even though child support was never addressed. As a result of the lack of hearing on child support on July 29, 2002, [father] has not paid any child support in any amount since July 2002. He has taken the position that the $500/month order expired and that there is no child support [order]. [Mother] has taken the position that the temporary child support order of $500/month expired and that the prior order of $3414/month (staying enforcement to $2142/month) reverted back.” (Italics added.)
Thus, although it does not appear the mistake was caused by father, he took advantage of the mistake by preparing an inaccurate order, purporting to show that the pending child support issue had been heard. It is not clear whether his proposed order was signed. If it was signed, it reflected a clerical error, subject to correction at any time. (See In re Candelario (1970) 3 Cal.3d 702, 705; Young v. Gardner-Denver Co. (1966) 244 Cal.App.2d 915, 919.)
In any event, the statement of decision characterizes the commissioner’s failure to address child support as a “judicial/clerical error.” Mother tried to remedy that error by filing an order to show cause seeking modification of child support and clarification or correction of the following:
(1) Judge Mize’s order of June 2001, that in effect temporarily partly stayed Judge Ohanesian’s original (and still-extant) child support order.
(2) Judge Mize’s judgment on reserved issues of April 2002, that reduced monthly child support to $500 for four months, pending a hearing on father’s motion to modify Judge Ohanesian’s child support order.
(3) The court commissioner’s July 2002 order.
On November 25, 2002, these issues were set for a long cause hearing before Judge Mize, but the hearing was postponed, the case was assigned to another judge, and 2003 was spent on more discovery disputes. Judge Mize returned to the case in 2004 and concluded that child support effective August 1, 2002 (after the four months of $500 payments) was at issue and “stated that both parties were wrong in their assertions (that child support was $0 or the prior order reverted). He stated that a new guideline determination needed to be established.”
However, “another 20 months of discovery battles and other hearings,” passed before Judge Ullman was assigned to hear the matter, beginning on October 28, 2005.
The convoluted procedures left the parties confused about the scope of the hearing, and the statement of decision addressed that issue as follows:
“The genesis of the matter was the request filed by [father] on April 19, 2001 to modify pendente lite support. It was that request that ultimately resulted in the temporary order of $500/month for four months with a new determination to be made July 19, 2002 (which was continued to July 29, 2002). The parties adopted this temporary resolution in their [stipulated judgment] and specifically acknowledged a continuance of the determination until July 2002. A judicial clerical error resulted in the matter not being addressed in July 2002. This court has the power to correct these errors. This court would have had the power to address the issue of child support [from the date of father’s motion] to the present had not the parties stipulated that there were no arrears as part [of] their settlements in April 2002. The parties also stipulated that the amount of $500/month was the child support owing for the months of April through July 2002. This court views the matter at hand as [father’s] request for a modification of child support and not as [mother’s] request for a modification or clarification. It is therefore [father’s] burden to establish a changed circumstance to modify the prior order of Judge Ohanesian.”
The statement of decision then finds the following.
When the marriage ended in 1999 father was a rich man and controlled several businesses. He filed for bankruptcy in 2005, after suffering adverse judgments and losing secured assets to a bank.
In 2002, mother returned to her career as a dental hygienist, working 32-hour weeks, making $40 per hour. Allowing for reasonable absences, the trial court projected her income at $63,053 for 2006.
Father claimed to have had no income since April 2002 and that mother should pay child support.
The trial court found father was not credible:
“He denied recognizing documents concerning his former net worth when obviously he recognized them. He could not remember his prior worth within millions of dollars where he could remember intimate details about this litigation over the past six years. He responded to discovery as if he had much to hide and he testified in the same manner.”
Father’s animosity towards mother far exceeded the level in ordinary contested family law cases. Credible testimony showed that he told her she would not get any money from him, frustrated lawful discovery, refused to indemnify her in civil suits connected with his business ventures as he had promised in the marital settlement agreement, and brought baseless contempt charges against her, to induce her to drop her request for child support. Thus, he had ample motive to provide false testimony and evidence.
On May 2, 2003, father claimed he would be unemployed until after his bankruptcy, but he did not file for bankruptcy until over two years later. Father made virtually no effort to find employment or start a new business, although he did begin attending an internet law school.
The trial court reasoned as follows: Father “has repeatedly expressed his unwillingness to work[,]” and although his contractor’s license lapsed, he described himself as an electrical contractor and he had an M.B.A. degree. Mother’s expert witness was not competent to testify about father’s earning capacity, and she failed to provide other useful evidence of father’s earning ability. Imputing the minimum wage to father would be absurd because he “is highly skilled, highly educated, and was a C.E.O. for many privately owned companies. He is highly skilled at all aspects of high voltage wire contracting and installation. He is an electrical contractor who let his license lapse. However, the court may not draw an imputed income figure from thin air.” Instead, the court decided to determine father’s actual income.
The trial court in part relied on a series of filed income and expense declarations, in which father had declared monthly financial figures as follows:
April 18, 2001: Income = $10,000 Expenses = $5,034.
July 24, 2002: Income = -0- Expenses = $6,732.
May 2, 2003: Income = -0- Expenses = $6,732.
July 10, 2003: Income = -0- Expenses = $6,732.
Sept. 26, 2003: Income = -0- Expenses = $6,732.
July 14, 2005: Income = -0- Expenses = $1,658.
The trial court made this observation in a footnote:
“It is instructive to note that this last Income and Expense declaration, showing a reduction of more [than] $5,000/month in expenses, is the first Income and Expense declaration filed after the January 8, 2004 hearing where Judge Mize advised [father] that there are cases where the court awards child support from a nonemployed parent [found] to be living off of past earnings. [Judge Mize] stated that child support can be based on ‘how much money is being spent[.]’”
It appears that in the declaration just mentioned father left “Total Expenses” blank but placed the $1,658 figure in the next line, under “Amount of expenses paid by others.” Father points this out in his brief, conceding he failed to total the expenses on his own declaration, and claiming the actual expenses stated on that document add up to $2,948. This does not materially weaken the point made by the judge’s footnote.
The trial court found father’s declarations were false as to income. The trial court noted that father “was depositing on a regular basis, a monthly average of over $7,700 in his personal bank account for an 18 month period in 2004-2005.” The court did not believe father’s testimony that most of these deposits were from tax refunds and loans.
Further, father presented a document showing that his health insurance was paid for by one of his businesses:
“Although redacted, the evidence shows that other employees were covered on health insurance [paid for] by the business. This evidence is contrary to [father’s] assertions that the businesses have totally ceased operation.”
Ultimately, the trial court concluded:
“[Father] has responded [to the Gavron warning] by declaring he is not going to work and cannot work due to changing reasons. He admitted spending $6,732/month and the court has reviewed records of bank deposits reflecting a higher monthly amount.
“Based on the totality of the evidence and assessing the credibility of witnesses, this court is finding [father’s net] income to be $6,732/month.”
The trial court refused to consider new evidence that father tendered with his objections to the tentative decision. The trial court ordered him to pay child support as follows:
August 1, 2002 - December 31, 2002 $937/month
January 1, 2003 - December 31, 2003 $881/month
January 1, 2004 - December 31, 2004 $830/month
January 1, 2005 - December 31, 2005 $828/month
January 1, 2006 - present $817/month
Incorporated into the decision are five Xspouse tables, supporting these orders. (See In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1079 (Riddle) [“apparently Xspouse is a new rival to the Dissomaster”].) Father’s monthly income is stated as $6742, while mother’s begins at $3784 and increases to $4329, thus accounting for the gradual reduction in father’s child support obligation. In a footnote father complains that the trial court mistakenly used $6,742 instead of $6,732. Father forfeited this claim by failing to properly head and argue it. (See Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562 (Roberts).) Further, “The law disregards trifles.” (Civ. Code, § 3533; see Rowe v. Wurster (1920) 50 Cal.App. 196, 197, 199-120.)
Father filed motions for reconsideration and a new trial, and orally moved for a stay pending appeal. The trial court denied father’s motions, and father timely filed a notice of appeal. Father stayed the support order pending appeal by depositing funds with the trial court.
DISCUSSION
Father’s briefing presents the issues in a confusing manner and we will not discuss them in the order presented. Although the facts and procedures are convoluted, we find that many of father’s claims, if not all, border on the frivolous when they are evaluated in light of the record.
In his briefs father sometimes cites to his trial papers, to letters he wrote or to his declarations, to establish the truth of facts stated in the documents, for example, to show what happened at a court hearing. We disregard such references, because they merely show that he wrote such a letter or made such a claim, they do not show that the facts he claimed in the cited documents were accurate. (See Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379 [“an assertion of fact on appeal carries no weight where the cited source is the same unsupported assertion made in the trial court, be it in the memorandum of points and authorities or stated by counsel at the hearing on the motion. An unsupported assertion below does not become a ‘fact’ on appeal simply by repetition”]; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.)
I. Father had the Burden to Prove his Income
Father claims that mother bore the burden of proof, and the trial court was wrong to conclude the hearing pertained to his hoary motion to modify child support. We disagree for two reasons. We also reject his claim of prejudice.
A. Father’s Motion was Still Pending
We agree with the trial court that father’s motion to modify Judge Ohanesian’s original order was still at issue.
Judge Ohanesian’s order of April 10, 2000, was based on a finding after a hearing that father’s monthly income was $20,879. In April 2001, father moved to modify that order, claiming his monthly income was $10,000. In June 2001, Judge Mize made an interim order, pending a hearing, assuming father’s income had dropped to $10,000 and in effect recomputing—temporarily—the monthly child support as $2142. In April 2002, the parties agreed to a four-month reduction in child support until July 2002, with the understanding that child support would be determined at an already-scheduled hearing on father’s motion, which would take place after the parties filed new financial declarations.
Due to an apparent calendaring mishap, father’s motion was not heard as contemplated, and he took the position that as of August 1, 2002, there was no child support order in place and he has made no payments since then. Mother properly moved to clarify the various court orders that father claimed combined to relieve him of any child support obligation. When Judge Ullman reviewed the convoluted proceedings, he correctly determined that father’s motion to modify child support had never been heard. Because father sought to modify an extant child support order, Judge Ullman properly cast the burden on him to prove changed circumstances. (See In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556 (Leonard).)
We note that by finding his income had dropped to $6,732, from the earlier judicial finding that it was $20,879, Judge Ullman partly granted father’s motion.
B. Father had the Burden of Proof Anyway
Even if father’s motion had been abandoned or, as he claims, would have been abandoned had he known he would bear the burden of proof as to his income, he still would have had the burden of proof as to his income.
A movant bears the burden to show entitlement to the relief sought. (See People v. Lopez (1997) 52 Cal.App.4th 233, 251.) We agree that the burden of proof is “a built-in bias in favor of the status quo. . . . That is, if you want the court to do something, you have to present evidence sufficient to overcome the state of affairs that would exist if the court did nothing.” (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388.)But the “status quo” was Judge Ohanesian’s finding that father’s monthly income was $20,879, a finding that Judge Mize temporarily suspended, but never modified after a hearing.
Further, Evidence Code section 500 provides that generally “a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim or defense that he is asserting.” In the context of a contested request for child support, where the income of both parents must be determined to make an appropriate award, in effect each party may be asserting (or defending against) facts about his or her income.
Further, the burden of proof may be shifted:
“Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.” (Morris v. Williams (1967) 67 Cal.2d 733, 760; see Chevron Stations, Inc. v. Alcoholic Beverage Control Appeals Bd. (2007) 149 Cal.App.4th 116, 131.)
“In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.” (Cal. Law Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 500, p. 554; see Hellman v. Anderson (1991) 233 Cal.App.3d 840, 853.)
All of these factors just mentioned support shifting the burden of proof to father. Father’s income is a knowable fact, and he best knows what that number is. The trial court found he frustrated discovery and gave incredible testimony, depriving mother of available evidence about his income. This breached father’s fiduciaryduty to provide “immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party,” a duty that lasts until “resolution of all issues relating to child or spousal support[.]” (Fam. Code, §§ 721, subd. (b), 2102, subd. (c); see 11 Witkin, Summary of Cal. Law (10th ed. 2005) Community Property, § 235(3); accord In re Marriage of Brewer % Federici (2001) 93 Cal.App.4th 1334, 1348 [“a spouse who is in a superior position to obtain records or information from which an asset can be valued and can reasonably do so must acquire and disclose such information”].)
California “has a strong public policy that favors adequate child support.” (Leonard, supra, 119 Cal.App.4th at p. 555.) The most desirable result in terms of public policy in a case like this is that a parent who maintains a comfortable lifestyle, yet breaches his fiduciary duty to disclose financial information, should be treated as if his income supports his lifestyle. Any other result would allow a parent to evade the law. (See Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1051-1052 [trustee had burden to allocate receipts, particularly “where the fiduciary’s failure is deliberate and for the purpose of frustrating recovery by the beneficiary”].)
Thus, even if we accepted father’s view that only mother’s motion was at issue, as to the question of his income, he still bore the burden of proof.
C. Father was not Prejudiced
Father claims the allocation of the burden of proof deprived him of due process, because it came as a surprise and he was not treated as the moving party at the hearing. However, for the reasons we explain more fully below, he had ample time and reason to produce any evidence he wished, as the hearing dates were spread out for over one month. Although father repeatedly states that mother’s case took much longer than anticipated and implies that he was not given equal time, he fails to head this as a discrete claim and thus forfeits that point. (Roberts, supra, 112 Cal.App.4th at p. 1562.)
Father’s only properly articulated claim for prejudice is that had he known at the outset of the hearing that he would have the burden of proof on the issue of his income, he would have dropped his original motion; “Consequently, there would have been no trial, no resulting order without evidentiary support, and no subject appeal.” This is doubly wrong: First, the trial would still have gone forward on mother’s extant motion for clarification of the various court orders; second, had father dropped his motion, Judge Ohanesian’s original order would have been revived, retroactive to August 1, 2002, when Judge Mize’s four-month $500 order expired. Because Judge Ullman’s order in effect partly granted father’s motion, by reducing his income from the level Judge Ohanesian set in the original order, by withdrawing his motion father would have been subject to a far higher child support obligation. Thus, he was not prejudiced, he received a benefit.
In the reply brief father quotes at length from the California Supreme Court’s recent decision in Elkins v. Superior Court (2007) 41 Cal.4th 1337 (Elkins). Elkins invalidated a local rule requiring family law hearings to be conducted by means of written declarations, finding the rule conflicted with hearsay rules. (Id. at pp. 1356-1357.) Elkins supports the proposition that general legal principles apply in family law hearings. (Id. at p. 1354 [“Although some informality and flexibility have been accepted in marital dissolution proceedings,” they are generally governed by normal evidentiary and procedural rules].) It also states that family law litigants “should not be subjected to second-class status or deprived of access to justice” and are entitled to “fair proceedings.” (Id. at p. 1368.) Neither those general observations nor anything else in Elkins aids father.
II. Substantial Evidence of Father’s Income
Father claims no substantial evidence supports the finding that his monthly income is $6,732.
Father acknowledges the trial court’s finding that he lacked credibility, but correctly observes that disbelief in his testimony does not equate to evidence of its opposite. “In other words, the fact that the trier of fact does not credit a witness’s testimony does not entitle it to adopt an opposite version of the facts which otherwise lacks evidentiary support.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205.) He asserts that because the trial court discounted mother’s expert witness and mother herself had no direct knowledge of his income, “if [father’s] testimony is removed from the evidentiary mix, the court is admitting it had no evidence.”
We disagree. As we explained above, the trial court had evidence in the form of father’s income and expense declarations, from July 24, 2002, through September 26, 2003, showing monthly expenses of $6,732. It was not until July 14, 2005, that the figure dropped—without credible explanation—to $1,658 (or $2,948, under father’s view). There was also evidence of large monthly deposits into father’s bank account over many months. Although father claimed these deposits were mostly loans and gifts, his testimony was not credible. By finding regular deposits were made, and disbelieving father’s explanation, the trial court properly inferred father had substantial income.
Sometimes, “‘lifestyle’ belies [a person’s] reported income,” and, as here, shows that a person is hiding income. (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 336 (Loh); see id. at pp. 337-338.) On the evidence, the trial court properly concluded that was the case here.
Father states that Judge Ullman “found that Father had no wages or salary” from August 1, 2002 to the date of trial. This is not accurate. The record citations he supplies for this supposed finding merely show that in using the Xspouse program, Judge Ullman placed father’s income in the “Other nontax[a]ble income” column, rather than in the “Wages + Salary” column.
Father points out that the statement of decision states father’s bank deposits averaged $7,700, but he claims the average was only $6,249.
First, the trial court did not use the average deposit figure as father’s income, the trial court inferred from the repeated sizeable deposits that father had income sufficient to maintain his lifestyle as reflected by his expenses. Mother’s testimony showed father deposited a total of $130,000 over the relevant period of time, which would average just over $7,200, not $7,700. Thus, the statement of decision may contain a typographical error. Such error would not change the fact that father is receiving large sums of money and maintaining a comfortable lifestyle, while not paying a penny towards child support.
Second, father’s claim that the deposits averaged still less ($6,249) is based on his exclusion of specific deposits he claims were not-countable tax refunds. Father states that in his objections to the tentative statement of decision he tendered “a schedule detailing Father’s average deposits [from March 15, 2004 to August 31, 2005] were $6,249 not over $7,700” as the court found. Father repeatedly concedes that documents that allegedly corroborate his testimony about the deposits were not tendered at the hearing. The trial court refused to consider those documents because they had not been tendered at the hearing. This ruling was correct, as we explain more fully below.
Father claimed he did not have the documents at the hearing, but had requested them from his bank. Father had no good cause for the belated tender of evidence, as the issue of his income had long been in dispute and he had ample time to get the documents, as we explain more fully below. In any event, the trial court was not required to believe that virtually every deposit was a “loan” and that other deposits were from noncountable tax returns. As stated, the rational inference to be drawn on such facts is that father had sufficient income to cover his monthly expenses, regardless of the precise average of his monthly deposits.
We find support for our conclusion in a recent similar case, properly relied on by Judge Ullman in this case:
“Cases like this one are far too common. Income and expense declarations are executed under penalty of perjury. Some, like father’s 2004 declaration just don’t ‘add up.’ We are confident that family law courts can determine which declarations have the “ring of truth” and which do not. [¶] . . . [¶]
“A judgment based upon factual truth is a legitimate goal of any judicial proceeding. Neither the trial court, nor this court, know the true state of father’s financial affairs. That is his fault. Family law court is a court of equity. [Citation.] Those who seek equity, must do equity and have ‘clean hands.’ [Citation.] Father is in no position to complain that the trial court drew adverse inferences in modifying child support. The trial court’s order is supported by substantial evidence and the reasonable inferences which flow therefrom.” (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 38.)
III. Mother’s Evidence
Father claims “surprise” that mother was allowed to introduce certain documents, purportedly not produced during discovery. We reject the claim.
Father asserts that Judge Mize ruled no documents not produced in discovery would be admitted at trial. This claim is not supported by the record.
Judge Ullman trailed the hearing to allow the parties to seek clarification from Judge Mize. Judge Mize explicitly stated that he had not made any discovery orders, but merely described the general principle that a party cannot ordinarily introduce evidence that had not been disclosed when properly sought during discovery. Judge Mize explicitly left all evidentiary issues to the trial judge, that is, Judge Ullman. After the parties conducted further depositions, they returned to Judge Ullman’s court and he stated that evidentiary objections would be ruled on as evidence was tendered. Thus, we reject father’s assertion that Judge Ullman violated evidentiary rulings by Judge Mize.
During the hearing father did object to many documents mother tendered as evidence, and although he string-cites many exhibits to which he lodged objections, the only one he discusses on appeal is exhibit KK, a summary mother had prepared from the bank deposit information father had provided during discovery; the deposits themselves were reflected by exhibit KK-1. Father’s new trial motion claimed he was surprised by Judge Ullman’s refusal to exclude this evidence. His reconsideration motion tendered additional evidence, such as his summary of the origin of his bank deposits, and on appeal he claims Judge Ullman’s “surprise” ruling justified his effort to introduce evidence after the hearing.
Exhibit KK was merely the mother’s tabular summary of bank statements (exh. KK-1) father had provided during discovery. Father could not have been surprised by the information reflected on exhibit KK, because he had provided it, and he makes no claim that it was inaccurate.
Further, exhibits KK and KK-1 were admitted into evidence on the second day of the hearing, November 9, 2005. On cross-examination mother testified she did not know about the origin of any of the deposits.
When she called father as an adverse witness on the third day, November 28, 2005, he claimed, for example, that he had borrowed $20 to 25,000 from his attorney-girlfriend in 2005, a similar amount in 2004, and had signed an “open note” in 2002 that covered amounts borrowed later; he also claimed that his girlfriend had given him gifts of perhaps $10,000 in 2005.
Father called himself as a witness, and mother as an adverse witness, on the fourth day of the hearing, December 12, 2005. Thus, he had over one month after exhibit KK was introduced to tender whatever evidence he had about the origin of the deposits reflected by his own bank statements. His effort to introduce evidence on the subject after the tentative statement of decision was issued on January 25, 2006, came too late.
Father does not challenge the accuracy of mother’s summary of his deposits, that is, he does not claim deposits in the amounts and on the dates indicated were not actually made to his account. His implicit claim of prejudice is that had he known those documents would be admitted at the hearing, he would have prepared documents to explain the origin of those deposits and bolster his testimony that they were not countable income.
A party may not introduce evidence after a hearing except in very limited circumstances, such as where he produces “Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” (Code Civ. Proc., § 657, subd. 4.) The deposit slips were not “newly discovered” within the meaning of this statute, because father had access to his own bank records, and he could “with reasonable diligence,” have produced the evidence, therefore the trial court had no basis to consider that belated evidence. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 31-34.) For the same reasons, the reconsideration motion did not tender “new or different facts[.]” (Code Civ. Proc., § 1008, subd. (a); see McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.)
Moreover, although father tendered purported copies of checks with the deposit slips, and his declaration about the purpose of those checks, he failed to present any declarations from anyone else to corroborate his claims. For example, he testified he owns all the stock of Corporate Control, Inc., and claimed at the hearing that he is allowed to borrow from its pension plan. He claimed that other deposits were loans or gifts from his mother or girlfriend or were from tax refunds.
The supporting documentation about the loans from father’s business were promissory notes he alone signed and a check to himself from the business that he alone signed. Far from showing that these payments were legitimate loans from a pension plan, they support the inference that father had a large pot of money from which he could withdraw funds at will. Notably absent were declarations from any independent source.
Father also claims that much of the money was from tax refunds, and therefore not countable as income. One exhibit tendered with father’s post-hearing motions was a deposit record that, if authentic, showed that on May 24, 2004, father deposited three checks into his account, a state tax refund of $7,080.10 for tax year 2001, a federal tax refund of $19,629, apparently also for 2001, and a check from a Modesto law firm for$382.15, with an ambiguous notation beginning “full pmt. re: [illegible] case # [illegible].”
We accept for purposes of this appeal father’s view that tax refunds are not income. (See, e.g., Vaessen v. Woods (1984) 35 Cal.3d 749, 756-760 [for public aid purposes, tax refund not income]; Wightman v. Franchise Tax Board (1988) 202 Cal.App.3d 966, 980 [tax refund is debt, “not wages [citation] or regular income during which the taxpayer relies for his daily necessities”]; see also Loh, supra, 93 Cal.App.4th at p. 333 [California family law treatment of income “has followed, or been consistent with, basic income tax law principles”].) However, his claim still fails for at least two reasons.
First, whether the deposit in question was largely due to tax refunds is based on evidence father failed to introduce at the hearing and which the trial court was not required to consider. There was no verification of the fact that the deposit in question was from the tax refund checks and the trial court was not required to credit father’s belated declaration.
Second, as stated earlier, the trial court did not find father’s income was the amount of his average monthly deposits, the trial court merely used that figure to bolster the conclusion that father had significant income and consistently high monthly expenses; it was the monthly expense figure that the trial court found was father’s income. Therefore, even if father had produced the tax refund evidence at the hearing and even if the trial court had credited his explanation about the deposit in question, the result would not have changed. Because father has concealed his finances, he cannot, consistent with equity, demand minute precision as to his income.
As the trial court implied and as the record suggests, it is quite possible that accurate financial information would reveal a much higher income figure for father. It is also possible it would reveal a lower income. But given that father has violated his continuing and fiduciary duty to provide accurate financial information until all child support issues are resolved (Fam. Code, §§ 721, subd. (b), 2102, subd. (c)), we find no error. At bottom, the trial court correctly rejected Father’s unstated but apparent view that if he can conceal his finances long enough he will not have to support his children.
IV. No Bias of Trial Judge Shown
Father claims Judge Ullman “allowed his annoyance with Father to color his analysis of the evidence.” Father points to rulings with which father disagrees, and infers Judge Ullman was biased.
This mode of argument is inappropriate. Nowhere in father’s briefs does he point to anything in the record showing that Judge Ullman was biased against him. (Cf. Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249 [judge denigrated workplace sexual harassment cases in general, and disbelieved female plaintiff based on stereotypes]; In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, [trial court made repeated demeaning and sexist comments about female family law party].) All father points to are legal rulings with which he disagrees. That does not demonstrate improper bias. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 568 [“it is not surprising that Judge Kobayashi displayed some skepticism toward Lennane’s claims. As we shall show, this does not tend to prove that the judge ruled based on gender bias”].)
Father also claims that Judge Ullman became an advocate because he “independently investigated” and found an income and expense declaration filed by father “by combing the Court file.” It is not error for a trial court to review the court file; indeed in some cases it may be error not to. In a case like this, with a lengthy and confusing record, we think it appropriate that Judge Ullman took the time to review the court record to try to untangle the arguments of the parties. The fact Judge Ullman took notice of an income and expense declaration—filed by father—does not show that Judge Ullman became an advocate for mother.
V. No Income was Imputed to Father
Father claims the court “departed from the guideline child support statutes when he imputed Father with Other Nontaxable Income of $6,732 per month.”
Father’s point is that the trial court improperly treated loans, gifts and tax refunds as income. We have already rejected this claim. Father also asserts that without more, the fact a bank deposit is made does not show it reflects income. We have also addressed that point.
In a related claim, he asserts the “uncontroverted” evidence shows he had no income, apart from a minor $2,500 salary from a short teaching job, between August 1, 2002 and December 19, 2005, the last date of trial. The trial court explained in detail why it found father lacked credibility. “Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted.” (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660; see Handley v. Handley (1960) 179 Cal.App.2d 742, 749.)
VI. Mother’s Income
Father asserts that the trial court should have found mother had greater income than she claimed, and that this error infected the child support calculations.
First, father asserts mother’s disability payments should be treated as income, but he fails to make a coherent claim, based on the record, that the disability payments were not treated as income. Pursuant to court order mother’s former lawyer submitted post-hearing documents showing that in 2005 mother earned $38,800 in regular wages, a $2,680 bonus, and $15,320 in disability payments, for a total of $56,800. For 2006, the court extrapolated her income at $63,053, based on her hourly wage. Father does not explain in what manner the trial court erred.
Second, he asserts the trial court treated father’s “loans and tax refunds” as income, but not mother’s loans and tax refunds. We have previously rejected father’s characterization of the trial court’s finding regarding his income: The trial court did not treat “loans and tax refunds” as income, the trial court disbelieved husband’s testimony about the origin of the deposits. Therefore, the claim of unfair treatment of mother’s loans and tax refunds lacks merit. Mother presented internally coherent testimony, corroborated by documentary evidence (pay stubs, W-2’s and tax returns), showing that she was an hourly employee of one or more dentists at different times. That evidence was presumptively reliable. (See Riddle, supra, 125 Cal.App.4th at p. 1080.) The trial court did not apply different income rules to each party.
VII. Arbitrary Treatment of Evidence
Father claims the trial court “arbitrarily used a single September 26, 2003 income and expense declaration detailing no income and $6,732 in expenses to determine that Father had [income] of $6,732 in the past, present, and future.”
This claim is inaccurate. As stated above, the court relied on a series of declarations filed by father, four of which—from July 2002 through September 2003—repeated the monthly expense figure of $6,732.
We reject father’s assertion that the September 26, 2003 declaration was not in the record: Although it may not have been introduced as an exhibit, it was filed with the court, as we explained above, and father fails to point to any objection he made to the trial court’s consideration of that document, thus forfeiting the claim. (Evid. Code, § 353; People v. Morris (1991) 53 Cal.3d 152, 187-188.)
Father correctly asserts that expenses do not equate to income. He also correctly asserts that a child support order must be made based on current or reasonably prospective income. These are no more than reiterations of his no substantial evidence claim.
Father repeats his claim of unfair treatment, pointing out that the trial court did not use mother’s claimed expenses to determine her income. As stated above, the trial court did not need to infer mother’s income, as she presented solid and direct evidence of her income. In contrast, the trial court found father did not testify credibly, frustrated discovery, and yet continued to live in comfort, having failed to pay a dime of child support for over three years. Therefore because of father’s refusal to provide credible direct evidence, the trial court was compelled to infer his actual income.
DISPOSITION
Father’s motions to strike mother’s brief and her appendix are denied, as we have disregarded any inappropriate portions of those materials. The child support order is affirmed. Steven K. Zinnel shall pay Michelle M. Zinnel’s costs of this appeal.
We concur: RAYE, Acting P.J., BUTZ, J.