Opinion
D070951
09-12-2017
In re the Marriage of JANET and MICHAEL HUCUL. JANET KREN, Respondent, v. MICHAEL HUCUL, Appellant.
Michael Hucul, in pro. per., for Appellant. Stephen Temko for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN175191) APPEAL from orders of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Michael Hucul, in pro. per., for Appellant. Stephen Temko for Respondent.
I.
INTRODUCTION
Appellant Michael Hucul, acting in propia persona, appeals from multiple orders of the trial court.
Hucul and his ex-wife Janet Kren divorced in Michigan. After the judgment of dissolution was entered, Kren sought and obtained a move-away order from a Michigan court that allowed her to move to California with the parties' son, J. As part of that move-away order, Kren was ordered to enroll J. at Faith Lutheran School in Vista, California. The order provided that J. was to attend that school for the remainder of his education. Although the order did not require that Kren pay 100 percent of the tuition for this school, Kren had apparently orally agreed to do so in the proceedings before the Michigan court, and she did so for two or three years. The Faith Lutheran School recently decided to close its middle school program, thereby eliminating the possibility that J. could continue to be educated there. Kren and Hucul disagreed as to where J. should attend middle school. After Hucul offered to pay 100 percent of J.'s tuition to attend a different private religious school, Kren agreed to allow J. to enroll at that school.
Hucul subsequently moved the court to require that Kren pay for J.'s tuition at the new private school. The trial court declined to do so. At the hearing, Hucul also attempted to raise the issue of Kren's purported failure to pay the debt related to a GMC Envoy that had been assigned to her pursuant to the parties' property division in the dissolution proceeding in Michigan. The trial court declined to consider that issue because Hucul had not sought affirmative relief regarding that debt pursuant to a noticed motion.
Hucul's briefing on appeal is somewhat unclear. However, from it we glean that Hucul believes that the trial court erred in denying his request to require that Kren pay for some or all of their son J.'s tuition at a private Christian school, and that the court also erred in failing to order Kren to reimburse him for, or to order reduced child support as a result of, Kren's failure to pay the debt that the parties had incurred for a GMC Envoy.
To the extent that we can ascertain Hucul's challenges to the trial court's orders, we conclude that they are without merit. We therefore affirm the orders of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Kren and Hucul divorced in Michigan in 2007. Kren was awarded primary physical care, custody, and control of the couple's son, J., who was approximately four years old at the time of the couple's divorce. With respect to the parties' GMC Envoy, the judgment of dissolution stated: "The 2003 . . . Envoy and associated debt. [Hucul] shall provide [Kren] with the coupon book and sign the Title, and [Kren] shall arrange to take possession after entry of this Judgment."
The record includes correspondence from Kren to Hucul suggesting that she never obtained possession of the vehicle: "I explained [to the bank that] it was not in my possession and my name was not on the vehicle in any way. I was suppose[d] to get it after the divorce judgment in 2007 (over a year and a half ago) and because I was unable to secure a loan in my name for it you wouldn't sign it over to me and so it has remained in your possession."
The Envoy was apparently repossessed from Hucul in 2009.
In 2011, Kren sought a move-away order from a Michigan court to allow her to move with J. to California. J. was seven years old at the time. The court granted Kren's request to allow her to move to California. The Michigan move-away order stated that J. was to complete his 2011-2012 school year in Michigan, and "[a]t that time or anytime thereafter, [Kren] may move to California with her fiancé and shall enroll J[.] at Faith Lutheran School in Oceanside, California for the remainder of his education." The court order further stated, "Any proposed school change, for reasons such as grade-limit restriction or unsatisfactory performance, must be agreed upon by the parties or relitigated at the moving party's expense." The move-away order did not address the question of who was to pay for J.'s tuition at Faith Lutheran. However, during a hearing on Kren's request, she apparently informed the court that she was willing to bear the cost of J.'s tuition at Faith Lutheran.
According to the parties, Faith Lutheran is located in Vista, California, not Oceanside, as mentioned in the Michigan order.
After receiving the move-away order, Kren moved to California with J. Kren registered the Michigan custody order with the California court on July 10, 2013. Hucul also moved to California.
J. began attending school at Faith Lutheran, and Kren paid his tuition. As J. was preparing to enter middle school, Faith Lutheran decided to close its middle school program. The parties initially could not agree on what school J. should attend, given Faith Lutheran's closure. Kren wanted J. to attend a local public school, while Hucul wanted J. to attend another private Christian school. Hucul began discussing enrolling J. at Tri-City Christian. In June 2015, in e-mail correspondence, Kren and Hucul reached an agreement pursuant to which Kren would agree to allow J. to attend Tri-City Christian if Hucul would pay J.'s full tuition at the school. J. apparently began attending Tri-City Christian a few months later, at the beginning of the new school year.
On October 20, 2015, Hucul filed a request for order in the trial court in which he requested: (1) a court order that J. continue attending Tri-City Christian School; (2) that the court order that Hucul receive a credit for the amount he pays for J.s' tuition at Tri-City Christian against any child support arrears he owes to Kren; and (3) that his child support be modified. Hucul's request for order did not include any request related to the debt on the Envoy.
In response to Hucul's request for order, Kren sought an order for child support based on Hucul's ability to earn, as well as an order that he provide proof to the court of making 10 employment contacts per week.
At the hearing on Hucul's October 20, 2015 request for order, which was held on August 1, 2016, Hucul attempted to raise the issue of receiving a credit for payments he had made on the Envoy. Kren's attorney objected to Hucul raising a request for affirmative relief without having identified that issue in a noticed motion. The trial court sustained Kren's objection, noting that although Hucul had apparently made a request in 2013 that the question of payments for the Envoy be addressed in Michigan, and had raised the issue in response to a separate request for order that Kren had filed in California, Hucul had not requested affirmative relief in the trial court regarding the Envoy. The court did not rule on the question of Hucul's apparent desire to be reimbursed for money he had spent on the Envoy after the Michigan judgment.
In addition, Hucul requested that the court order Kren to pay for J.'s tuition at Tri-City Christian. The court denied Hucul's request, noting that the court could not order either party to pay for private school tuition, and further noting that Hucul had agreed to pay for J.'s tuition at Tri-City Christian and Kren had agreed to allow J. to attend Tri-City Christian as long as Hucul paid the full cost of tuition for the school.
Hucul did not file a new request for order after obtaining the court's August 1, 2016 ruling. Instead, on August 4, 2016, he filed ex parte papers in which he identified the "[t]ype of relief requested" as the following: "To uphold the integrity of our son's school environment and prevent irreparable harm. And to enforce the Michigan orders as per The Uniform Interstate Family Support Act. (UISFA) and U.S.C. 28 § 1738B." Hucul provided the following "[r]eason[s] ex parte relief is necessary": "To keep our son enrolled in a school he is accustomed to, thrives in and before the beginning of this school year. That U.S.C. 28 § 1738B (b) defines child support to include school tuition, which also coincides with Family Code 4026(b)(1). That the Michigan Court orders, registered with the State of California, orders Mrs. Kren to pay for the 2003 Envoy, it's associated debt and orders Mrs. Kren to pay our son's tuition. (See attached memorandum of points and authorities)." The ex parte hearing was held the following day, August 5. The trial court denied Hucul's requested relief.
The record does not include a transcript of the August 5, 2016 ex parte hearing.
The record contains a reporter's transcript of a hearing held on August 16, 2016. The record is unclear as to why the trial court held another hearing in this matter.
In the transcript of the August 16, 2016 hearing, Hucul refers to his having filed another request for hearing: "And there was some procedural issues where you [the court] requested that I put together an RFO and meet today on the 16th." However, the record does not contain a copy of a request for order that corresponds with the August 16th hearing. The record is therefore silent as to what relief Hucul may or may not have requested from the court with respect to the August 16, 2016 hearing.
The transcript of this hearing demonstrates that the trial court viewed the issue to be addressed at the August 16, 2016 hearing as "to decide the school choice, with the understanding that Mrs. Kren's position is that if it's a private school, that the cost for private school be borne by you, Mr. Hucul. [¶] And then the question then becomes[,] of the private schools, it's my understanding one is Tri-City where your son is, has previously attended; and the other is Santa Fe Christian, where you're thinking about having him attend this fall." The parties and the court then discussed the issue of where J. should attend school during the upcoming school year.
At the conclusion of the August 16, 2016 hearing, the court ordered the following:
"The minor child shall continue to attend Tri-City Christian School through the end of Junior High. If father agrees to pay the tuition at Tri-City, mother is directed to pay the costs for books and uniforms.
"If father is unwilling to pay the tuition for Tri-City and the parties are unable to reach an agreement regarding which school the child shall attend, the child shall attend Lincoln Middle School."
Hucul originally filed a timely notice of appeal in which he identified the "judgment or order" from which he is appealing as "8-8-16, 8-16-16." He subsequently filed an amended noticed of appeal in which he identified the "judgment or order" from which he is appealing as "*08/01/2016*, *08/05/2016*, 08/08/2016, 08/16/2016."
The record on appeal contains reporter's transcripts for hearings held on August 1, 2016, and August 16, 2016. In addition, the record contains minute orders issued with respect to the August 1, 2016 and August 16, 2016 hearings, as well as an order denying Hucul's ex parte request for relief filed on August 5, 2016. The record does not contain either a transcript or a minute order related to an August 8, 2016 hearing.
The record also contains a minute order issued with respect to a November 8, 2016 hearing. Michael's notice of appeal does not identify this order as one from which he is appealing.
III.
DISCUSSION
Although Hucul identified the court's August 16, 2016 order as one from which he is appealing, he has raised no identifiable challenge to that order.
A. The trial court did not err in denying Hucul's request to require that Kren pay the full amount of the tuition
Hucul challenges the trial court's ruling denying his request to require that Kren pay the full amount of tuition at Tri-City Christian. Hucul contends that by failing to order Kren to pay for tuition at a private religious school, either directly or through decreased child support, the trial court "denied . . . enforcement under [28 U.S.C.] 1738B" and modified the Michigan order, rather than give it effect. We disagree with Hucul's contentions.
Hucul alternatively sought to have the court credit the amount that he pays for J. to attend Tri-City Christian against the child support that he owes Kren. Whether through an offset to child support or a requirement for direct payment, Hucul sought to have Kren absorb the cost of J.'s tuition at Tri-City Christian. We will refer to Hucul's position as seeking to have Kren pay for J.'s private school tuition without further specifying the various mechanisms by which he sought to have her bear the cost. --------
1. The Michigan order did not order Kren to pay for private school
Although Hucul appears to believe that the Michigan move-away order requires that Kren pay for J. to attend a Christian private school, an examination of the language of the Michigan order establishes only that the court ordered Kren to enroll J. in a particular private school. The order did not address how the cost of that school was to be borne by the parties. The Michigan order states: "At that time [i.e., upon J.'s completion of the 2011-2012 school year] or anytime thereafter, [Kren] may move to California with her fiancé and shall enroll J[.] at Faith Lutheran School in Oceanside, California for the remainder of his education."
Again, this order does not state that Kren, alone, was to pay for J.'s education at Faith Lutheran. Nor does it require that Kren pay for J.'s education at any other private school. Rather, the order is silent as to payment.
Hucul points out that in attempting to obtain the move-away order, Kren stated on the record that she would be willing to "assume the cost of the private school." However, even if Kren stated that she was amenable to paying for the cost of Faith Lutheran, or even private school in general, the Michigan move-away order does not incorporate Kren's statement and ultimately does not obligate her to bear the cost. There is thus no basis for a California court enforcing the Michigan order to order Kren to pay for J.'s private school education.
2. The Michigan order contemplated the possibility that J. would not be able to continue to attend Faith Lutheran and provided that in such a situation, the parties would have to reach an agreement about J.'s schooling; the record demonstrates that the parties reached an agreement that did not contemplate Kren paying for private school
Even if the Michigan order had ordered Kren to pay for J.'s schooling at Faith Lutheran, it is undisputed that J. can no longer attend Faith Lutheran because that school closed the middle school program that J. was going to attend. The Michigan move-away order contemplated the possibility that J. would not be able to attend Faith Lutheran, and addressed what was to occur in that event: "Any proposed school change, for reasons such as grade-limit restriction or unsatisfactory performance, must be agreed upon by the parties or relitigated at the moving party's expense."
Once the parties became aware that Faith Lutheran would no longer be an option for J.'s schooling, they exchanged a series of e-mails. In those e-mails, Hucul expressed his desire for J. to continue to attend a faith-based private school, while Kren expressed her desire for him to attend public school. Kren stated that she would no longer pay for J. to attend private school. In response, Hucul offered to pay for J.s tuition at Tri-City Christian in lieu of paying child support. Kren did not agree to this offer. Hucul then agreed to pay the full tuition cost for J. to attend Tri-City Christian without any offset.
As the trial court determined, the parties' agreement, as documented in their e-mail exchange, is precisely what the Michigan court order contemplated in the event that a change of school for J. would be required. The trial court noted, "But you [Hucul], through a series of e-mails, decided to reassure her [Kren] that in order to make sure your child could go to Tri-City Christian school that you would pay a hundred percent of the cost," and "you wrote . . . back in June of last year [that] you'll agree to pay a hundred percent of the cost for Tri-City." The court's finding that the parties had reached an agreement whereby Kren would agree to allow J. to attend Tri-City Christian if Hucul paid the full cost of tuition at that school is supported by substantial evidence. The e-mails between the parties establish that this is the agreement they reached, and are more than sufficient to support the trial court's finding in this respect.
Given the state of this record, Hucul has not demonstrated that the trial court erred in denying his request for an order requiring Kren to pay for J.'s tuition at a private school. B. Hucul failed to raise the issue of the parties' Envoy vehicle in a noticed motion seeking relief regarding that issue; as a result, the trial court was unable to grant relief on that issue
Although it is not entirely clear, Hucul also appears to be challenging the trial court's decision not to grant him any relief with respect to the Envoy vehicle that was addressed in the Michigan judgment. At the hearing on Hucul's request for order in which he requested that the court order Kren to pay for J.'s tuition at a private Christian school, Hucul also orally raised the issue of the 2003 Envoy, which was addressed in the parties' Michigan judgment. The trial court informed Hucul that the issue of the Envoy was not pending before the court because Hucul had not raised the issue of the Envoy in his request for order, or in the supporting documentation for that request for order.
Hucul has not identified for this court the motion in which he sought affirmative relief regarding the Envoy. Nor has he pointed to a document in the record in which such relief was requested.
A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice of motion and cannot grant different relief, or relief based on different grounds, from those specified in the notice of motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) For this reason, a notice of motion should state in the first paragraph the nature of the order being sought and the grounds for issuance of such order.
Because the record does not demonstrate that there was a valid request for order pending before the trial court in which Hucul sought relief related to the Envoy, Hucul cannot demonstrate that the trial court erred in declining to address the issue of the Envoy.
IV.
DISPOSITION
The orders of the trial court are affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.