Opinion
G044154
11-09-2011
In re Marriage of GARY TRAUTLOFF and STACY TRAUTLOFF. STACY ROBERTS, Appellant, v. GARY TRAUTLOFF, Respondent.
Law Offices of Keith E. Dolnick and Keith E. Dolnick for Appellant. Law Offices of Presley & Goodrow, Wilma E. Presley and Shannon R. Thomas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 02D011964)
OPINION
Appeal from a postjudgment order of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI § 21.) Affirmed.
Law Offices of Keith E. Dolnick and Keith E. Dolnick for Appellant.
Law Offices of Presley & Goodrow, Wilma E. Presley and Shannon R. Thomas for Respondent.
INTRODUCTION
After the hearing in this child-support modification case, appellant Stacy Roberts (formerly Trautloff) requested a statement of decision from the trial court. The court duly issued the statement, and Roberts objected to and questioned portions of it. After a hearing on the statement and the objections, the trial court overruled the objections and entered its order modifying the child support.
Roberts is now before us, complaining of the trial court's errors, as embodied in the statement and the order. She did not, however, object to these errors below, or even mention them to the court. The law is clear - if a party does not object, we have to assume the judgment is correct and draw all inferences in its support. We also will not reverse for errors that could have been brought to the trial court's attention, but were not. The postjudgment order is affirmed.
FACTS
Roberts and Gary Trautloff were divorced in 2004. They had two children. In 2005, Trautloff requested certain changes in the divorce orders, relating in part to spousal and child support. A hearing took place in August and September 2006. In September 2006, the court issued a lengthy statement of decision dealing with multiple issues, including child support: The court ordered Trautloff to pay a total of $7,600 per month for both children. It terminated spousal support.
In 2008, Trautloff again asked the court to reduce child support. He asserted the downturn in the economy had crippled his after-market vehicle accessory business, and he could no longer afford to pay the court-ordered amount. Roberts asserted that child support should remain at its current level or, alternatively, be increased.
The court heard testimony between January and July 2009. Roberts was represented by counsel; Trautloff represented himself. Roberts's chief witness was a Certified Public Accountant, James Christensen, who had also testified at the 2006 hearing. Christensen based his testimony on tax returns, accounting records from Trautloff's corporation, and bank and credit card statements. He also prepared two reports regarding Trautloff's income. The court excluded the portion of Christensen's testimony dealing with the fair rental value of certain commercial real estate belonging to Trautloff.
At the request of Roberts's counsel, the court issued a statement of decision on August 25, 2009, and both Roberts and Trautloff filed written objections to it. After a hearing on January 29, 2010, at which both parties' objections were thoroughly discussed, the court denied the objections and adopted the statement of decision, with a few changes not material here, on July 13, 2010.
Trautloff had by this time acquired counsel.
The court found changed circumstances justifying a modification of child support and, relying mainly on a report prepared by Christensen, calculated Trautloff's new support obligation as follows:
$281,854 (Trautloff's total income for six months)Total: $192,032 [sic]
($26,400) (deduction for salary of Trautloff's current wife)
($50,000) (deduction of rental income)
($6,422) (deduction of one-half insurance payment)
$192,032 divided by six (months) = $33,172 [sic] availableApplying the child support guideline, the court ordered a total of $5,780 in monthly child support.
for child support
The deductions backed out some amounts Christensen's report had included in Trautloff's six-month income that later testimony revealed should not have been considered income to Trautloff.
Roberts appeals from the final order filed on July 13, 2010. Trautloff has not appealed.
DISCUSSION
We review an order regarding child support, including a modification of a child support order, for abuse of discretion. We reverse only if examining the record below reveals prejudicial error. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.)
Roberts' appeal raises three issues. First, she asserts the court miscalculated Trautloff's monthly income and, as a result, understated the amount of guideline child support. She asks us to fix the math. Second, she asserts the trial court erred either by failing to use the fair rental value amount for the commercial real estate from the September 2006 hearing or by excluding Christensen's testimony on this subject. Finally, she asserts that the finding of changed circumstances rested on inadequate evidence.
Roberts has asked us to recalculate the monthly income amount under Code of Civil Procedure section 909, which permits appellate courts to make factual determinations contrary to or in addition to those of the trial court. Invoking this procedure, however, requires a motion and proposed new findings, neither of which Roberts has provided. (See Cal. Rules of Court, rule 8.252(b).)
Before addressing Roberts' individual issues, we must comment on her dogged insistence on the binding effect of the 2006 order and statement of decision. As the present trial court repeatedly pointed out, the 2006 findings were not binding on it. Under Family Code section 3651, subdivision (a), a court may modify a support order whenever it is necessary. A modification of child support through a court order requires a showing of changed circumstances (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298), but if the parent can make that showing, he or she has established the necessary predicate for modification. (See, e.g., In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1383-1387.) A request for modification is thus grounded on a purported change in the factual basis underlying the original order; the purpose of the hearing on the request is to establish through admissible evidence whether this is so. A court hearing the request necessarily examines the evidence of the new circumstances; if it were bound by the factual findings of the prior order, there would be little point in even holding a hearing and no possibility of establishing changed circumstances.
Trautloff contended that changed circumstances, in particular a steep drop in his income, supported his request for a modification of child support. The findings in the 2006 decision were therefore a starting point from which to measure whether circumstances had indeed changed. Roberts, however, would have them treated as both the starting and the ending points. The trial court properly refused to consider the 2006 statement of decision in that light.
Few would argue that economic conditions have remained unvaried since 2006, and real estate in particular has suffered a serious setback. The court was entirely justified in taking new evidence about Trautloff's economic situation and was not required to adhere to the 2006 findings. Had Trautloff and Roberts still been married in 2008 and had Trautloff's income declined as he claimed, the necessary belt-tightening would also have affected the children. Divorce does not insulate them from the general economic climate.
I. Calculation of Income and Child Support
Although neither Roberts nor the trial court is going to win any prizes for mathematics, Roberts' problem with respect to her first issue - miscalculation of Trautloff's income - is more fundamental. The court "showed its work" in the statement of decision, but Roberts failed to point out any computation errors or object in any way to the court's numbers. She failed to object either in writing or orally at the hearing in January 2010.
She raised questions as to some of the entries on the guideline summary, but she did not assert these entries as errors on appeal.
The court issued the statement of decision in August 2009, and Roberts filed her objections in September 2009. The court held a hearing on the statement and the objections in January 2010. Roberts had plenty of time to haul out her calculator and to check the court's figures against those in Christensen's report, which the court identified as its source.
"'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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
There is a way to avoid these presumptions and intendments: Code of Civil Procedure sections 632 and 634. If a party meets the statutory conditions, the court must issue a statement of decision, explaining the factual and legal basis of its determination "as to each of the principal controverted issues at trial." (Code Civ. Proc., § 632.) If a party believes that the statement of decision does not resolve the controverted issue, or if the statement is ambiguous, the party must bring any such deficiency to the trial court's attention, "either prior to entry of judgment . . . or upon a motion under Section 657 [motion for new trial] or 663 [motion to vacate judgment]." (Code Civ. Proc., § 634.) If the party does so, "it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue." (Ibid)
"The clear implication of this provision, of course, is that if a party does not bring such deficiencies to the trial court's attention, that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) The California Supreme Court supported its reading of the statute by reference to "sound [public] policy": "[I]t would be unfair to allow counsel to lull the trial court and opposing counsel into believing the statement of decision was acceptable, and thereafter to take advantage of an error on appeal although it could have been corrected at trial. . . . It is clearly unproductive to deprive a trial court of the opportunity to correct . . . a purported defect by allowing a litigant to raise the claimed error for the first time on appeal." (Id. at p. 1138; see also Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 528; In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 525; Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 291.)
Legal errors appearing on the face of the statement of decision are not waived by failing to raise them in the trial court. (Van Klompenburg v. Berghold (2005) 126 Cal.App.4th 345, 348, fn. 3.)
The policy embodied in Code of Civil Procedure section 634 arises from the general principle of invited error or forfeiture. "'The forfeiture doctrine is a "well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been - but were not - raised in the trial court. [Citation.]" [Citations.] Strong policy reasons support this rule: "It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]" [Citation] "'"'The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.'"'" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 285-286; see also In re Marriage of Falcone & Fyke (2008)164 Cal App.4th 814, 826.)
In this case, Roberts requested a statement of decision, and she filed objections to it. She did not, however, object to the aspects of the statement to which she is objecting now. (See In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 346.) She did not tell the trial court it had made a subtraction mistake, or that it had inconsistent monthly income amounts, or that it deducted too much for fair rental value. The court held a lengthy hearing on the statement of decision and the objections; once again, Roberts maintained her silence about subtraction errors and incorrect income amounts. She has therefore forfeited any claim of error as to the calculation of the child support amount. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1001-1002 [claim of improper child support calculation foreclosed on appeal where errors not raised in trial court].)
At one point in the statement of decision, the court specified $34,242 as Trautloff's monthly income. The amount it used for the guideline calculation, however, was $33,172. As Roberts admits, "Th[e] figure, $34,242.00, cannot be arrived at by any calculation set forth by the court," and it may well be a mistake. But we will never know, because nobody asked the trial court to explain the ambiguity.
Even if we were to consider objections raised for the first time on appeal, Roberts suffered no prejudice. (See In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 575 [burden on appellant to show injury from error].) Although the trial court may have made an error in the amount of imputed rental income it deducted from Christensen's six-month total income figure, by using his annual figure ($50,000) instead of his semi-annual figure ($24,400), it also seems that the court made another, more than offsetting, error by imputing $56,340 in income to Trautloff from a business he had sold in 2006 and no longer owned. If so, Trautloff's six-month income was overstated by $30,740, and the guideline amount is therefore proportionally inflated.
Furthermore, court's error in the statement of decision in toting up Trautloff's monthly income is typographical rather than mathematical. The correct total for Trautloff's six-month income, using the court's figures, is $199,032, not $192,032. $199,032 divided by 6 is $33,172, the monthly amount on which the court based its guideline calculation. The court's incorrect entry of the six-month total did not affect the amount Trautloff has to pay each month, so there is really nothing significant to be corrected.
$192,032 divided by 6 is $32,005.
II. Amount of Fair Rental Value
Roberts asserts that the trial court was required to fix the fair rental value of Trautloff's commercial property at one of three figures: (1) the value ascribed to it at the 2006 order, (2) Christensen's value, or (3) Trautloff's testimony about its value in 2006. The court was under no such obligation.
In 2006, the court never ascertained a fair rental value for Trautloff's commercial property. It observed that no evidence of fair rental value had been presented and speculated that it might be $4,000 per month. The court then stated that Trautloff might receive $160,000 per year in the future. (This would work out to over $13,000 per month.) The court declined to make that finding, however, and never did settle on a fair rental value for the property. The 2006 award was based solely on the needs of the children, and not at all on Trautloff's income.
Again, Roberts failed to object to the statement of decision on the grounds that the court had to use the 2006 numbers - either the court's or Trautloff's - for fair rental value. She has therefore forfeited any claim of error based on the court's failure to use these amounts. (See Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.) Moreover, as discussed above, the court was not bound to follow either the testimony or the outcome of the 2006 hearing. It was entitled to take fresh evidence and draw fresh conclusions.
Trautloff testified that, because of the economic downturn, the tenant paid him "a couple hundred dollars a month. Sometimes nothing." Trautloff also testified that because of the building's construction, it could not be rented on the open market.
Roberts objected to, or at least questioned, the court's exclusion of Christensen's opinion evidence regarding fair rental value, so that issue is before us. When Christensen attempted to testify as to the fair rental value of the property, the court took him on voir dire, Trautloff being at that time without counsel. After the court inquired as to his qualifications, it declined to accept opinion evidence from Christensen regarding the fair rental value of the property. Roberts's counsel argued that experts could rely on hearsay, but the court stood by its ruling.
Christensen based his opinion of fair rental value on "talking to brokers."
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We review the exclusion of expert testimony for abuse of discretion. (People v. Davenport (1995) 11 Cal.4th 1171, 1206-1207 [court must look at specific question addressed by purported expert]; Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 860; Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1311; Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1051.) Evidence Code section 803 permits a court to exclude expert testimony "based in whole or in significant part on matter that is not a proper basis for such an opinion."
Roberts contends that the trial court had to accept Christensen's testimony on the real estate issue because he had testified without objection at the previous hearing in 2006. The trial court was, of course, under no such obligation. It could make its own assessment of Christensen's qualifications to testify on fair rental value.
Although experts may rely on hearsay, such as reports or opinions of other experts (see, e.g., People v. Schindler (1969) 273 Cal.App.2d 624, 643), they must still satisfy the court that they have sufficient knowledge and background to render a useful opinion. Expertise in one field does not confer expertise in another. (See, e.g., People v. Watson (2008) 43 Cal.4th 652, 692 [criminologist not qualified to give opinion on effect of prison on defendant]; Maatuk v. Guttman (2009) 173 Cal.App.4th 1191, 1196-1197 [valuation expert not qualified to evaluate automotive market projections]; Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1080-1081 [expert on fabrication not qualified to testify about tube's chemical composition or tensile strength]; see also Evid. Code, § 803.)
An expert's job is to "assist the trier of fact." (Evid. Code, § 801, subd. (a).) If the witness is no better equipped than anyone else to render an opinion, he or she does not "assist" the trier of fact by giving it. (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1118-1119; disapproved on other grounds in People v. Brown (1994) 8 Cal.4th 746.) The trial court did not abuse its discretion by excluding an accountant's opinion as to the fair rental value of Trautloff's commercial property.
III. Change of Circumstances
Finally, Roberts argues that the evidence was insufficient to demonstrate a change in Trautloff's circumstances, which would be required before his child support obligations could be modified. She maintains the only evidence of the change in Trautloff's financial status was his own testimony, based on unreliable tax returns.
Once again, Roberts failed to object on this ground to the statement of decision. The only objection she made to the court's finding of changed circumstances was to question why, if the court found no change in the children's needs from 2006 to the present, it did not deny Trautloff's request for a modification of his child support obligations. Now, however, she objects to the evidentiary basis for the lower court's determination that circumstances had indeed changed. That issue was not preserved.
Even if Roberts had not forfeited her objection by not making it in the trial court, her contention would still be without merit. The trial court did not base its finding of changed circumstances solely - or even mainly - on Trautloff's tax returns. It relied most heavily on the report of Roberts' expert, Christensen, who in turn relied on bank statements, credit card statements, invoices, and corporate accounting records, in addition to tax returns. The court made several adjustments, again based on Christensen's testimony, to arrive at its final monthly income figure, which reflected a significant reduction in Trautloff's earning capacity since 2006, i.e., a change in circumstances. The evidence was more than sufficient to support this determination.
IV. Trautloff's Contentions
In his respondent's brief, Trautloff objects to several of the trial court's findings in the statement of decision. But because Trautloff did not file a notice of a cross-appeal from the order fixing the amount of child support, we do not have jurisdiction to address these objections. (See In re Marriage of Shupe (1983) 139 Cal.App.3d 1026, 1036; Cal. Rules of Court, rule 8.100(a)(2), (f), 8.108(g)(1).)
DISPOSITION
The postjudgment order is affirmed. Appellant is to bear costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.