Opinion
A149700
10-19-2018
In re the Marriage of ADONIS and LEAH AVINGTON. ADONIS AVINGTON, Appellant, v. LEAH MCCOY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. AF13673467)
Adonis Avington appeals from a child support order. He contends his former spouse, Leah McCoy, failed to accurately report her income and assets and argues the trial court erred in imputing income to him. We affirm.
The parties have one child, currently six years old.
McCoy has made no appearance in this appeal.
I. BACKGROUND AND PROCEDURAL HISTORY
Our review is hampered by Avington's failure to coherently set forth a complete statement of facts. We therefore rely on the trial court's statement of decision. Avington's brief also contains no separate headings addressing any points of argument. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must "[s]tate each point under a separate heading or subheading summarizing the point"].) "[W]e do not consider . . . loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument." (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)
Following a January 2015 judgment of dissolution, the court conducted hearings on reserved issues: a two-day bench trial in October regarding child support and Avington's request for spousal support; and a February 2016 hearing on custody and visitation. After considering argument, posttrial motions, and objections to a tentative statement of decision, the court entered a judgment on July 20, 2016, incorporating a final statement of decision. The court denied spousal support. Avington was ordered to pay child support arrears of $900 per month for the period from October 18, 2013, through January 31, 2014 (with a credit of $600 per month for child care expenses); support of $452 per month from March 1, 2014 forward, with net arrears of $1,028.18 for the period from October 18, 2013, through February 28, 2014, and arrears of $11,300 from March 1, 2014, through May 31, 2016, payable at $750 per month. In calculating guideline support, the court imputed income to Avington of $4,000 per month commencing March 1, 2014. Avington's motion for new trial was denied. Avington challenges only the child support order.
While Avington's notice of appeal states it is from the July 2016 judgment and references the spousal support order, his brief addresses only the amount of child support. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
II. DISCUSSION
Avington essentially makes two arguments: (1) the court failed to consider all of McCoy's income; and (2) the court improperly imputed income to him. He insists "there is really no discrepancy over the facts," and we are required only to conduct de novo review of questions of law. He is incorrect on both points.
"To decide whether the trial court followed established legal principles and correctly interpreted the child support statutes, we apply the independent standard of review." (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 731.) We do not find that standard of review implicated here.
We start with the presumption that the court's orders are correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "We review factual findings of the family court for substantial evidence, examining the evidence in the light most favorable to the prevailing party. [Citation.] In reviewing evidence on appeal, all conflicts must be resolved in favor of the prevailing party, and all legitimate and reasonable inferences must be indulged in order to uphold the trial court's finding. [Citation.] In that regard, it is well established that the trial court weighs the evidence and determines issues of credibility and these determinations and assessments are binding and conclusive on the appellate court." (In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051-1052.) "[T]he burden is on the appellant 'to demonstrate that there is no substantial evidence to support the challenged findings.' [Citations.] A recitation of only [the appellant's] own evidence or a general unsupported denial that any evidence sustains the findings is not the 'demonstration' contemplated under the rule. An appellant 'is required to set forth in his brief all of the material evidence on the point and not merely his own evidence. If this is not done, the error assigned is deemed [forfeited].' " (Green v. Green (1963) 215 Cal.App.2d 31, 35.) A. Calculation of Support
"California has a strong public policy in favor of adequate child support. [Citations.] . . . In setting guideline support, the courts are required to adhere to certain principles, including these: 'A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.' ([Fam. Code,] § 4053, subd. (a).) 'Each parent should pay for the support of the children according to his or her ability.' (§ 4053, subd. (d).) 'Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.' (§ 4053, subd. (f).)" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)
Undesignated statutory references are to the Family Code.
"To implement these policies, courts are required to calculate child support in accordance with the mathematical formula set forth in [section 4055]. [Citations.] Determining child support under the guidelines has been criticized as a 'complex and unduly costly' process 'which requires the use of a computer and which is not understood by anyone, least of all the affected parties.' [Citation.] Nevertheless, adherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 284, fn. omitted.) "The guideline amount of child support . . . is presumptively correct. (See §§ 4055, 4057, subd. (a).) That presumption may be rebutted by 'admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053 . . . .' (§ 4057, subd. (b).)" (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) "[T]he statutory scheme seeks to mitigate the financial impact of divorce on the children, not the parents." (Id. at pp. 1361-1362, italics added.) B. McCoy's Income
Avington acknowledges the court correctly determined McCoy's earned income from her municipal employment. He complains the court ignored $500,000 in "profits" that McCoy received from separate property real estate investments, and he contends McCoy should be sanctioned for failure to disclose this income on her filed income and expense declarations.
The record reflects Avington submitted evidence in support of his claims, including the documents cited in his brief (McCoy's credit union deposit records), in his written closing argument at trial, and in a posttrial filing. He made the argument again in his objections to the court's tentative statement of decision. In the July 2016 judgment, the court directly addressed this claim: "At trial, Mr. Avington presented evidence concerning large deposits into and out of Ms. McCoy's separate bank accounts. He repeats his allegations of fraud in his objections to the tentative statement of decision. But, the Court found Ms. McCoy's testimony that these funds were from the sale of two separate property homes to be credible (the testimony was corroborated by other evidence discussed at trial). Mr. Avington's post-trial filings . . . attached various bank statements . . . bearing [McCoy's] name, but the documents were not the subject of testimony at trial and do not constitute admissible evidence. Deposits identified in Mr. Avington's filing may well relate to Ms. McCoy's sale of separate property assets as she explained at trial."
"Support payments usually are paid from present earnings, not liquidation of preexisting assets. The amount of payments owed is computed on the basis of monthly disposable income. ( . . . § 4055, subd. (a).) This figure is generally based on actual earnings, although the trial court has discretion to consider earning capacity instead of actual income ( . . . § 4058, subd. (b)), and child support payments may be changed, in some cases retroactively, if there is a change in actual earnings or earning capacity. [Citations.] [¶] Assets at the time of dissolution play little part in the computation of child support. They may enter indirectly into the calculation in two ways: (1) In assessing earning capacity, a trial court may take into account the earnings from invested assets [citation]; and (2) a court may deem assets a 'special circumstance' [citation] that may justify a departure from the guideline figure for support payments [citation]. But these are exceptional situations; the child support obligation is based primarily on actual earnings and earning capacity." (Mejia v. Reed (2003) 31 Cal.4th 657, 670-671, fn. omitted.)
As a reviewing court, "[w]e resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 403.) The trial court determinations and assessments of credibility are "binding and conclusive on the appellate court." (In re Marriage of Hill & Dittmer, supra, 202 Cal.App.4th at p. 1052.)
Avington fails to show the court's finding was erroneous. He cites to none of the trial testimony regarding these deposits, and points to no evidence that the proceeds of any property sale represented "profits" subject to calculation as income. A party who challenges sufficiency of the evidence to support a finding must set forth, discuss, and analyze all evidence on that point, both favorable and unfavorable. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.) " ' "Unless this is done the error is deemed waived." ' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) C. Imputation of Income to Avington
"In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent's 'earning capacity.' [Citations.] The Family Code also permits the court to consider a party's present or future 'earning capacity' as a factor in determining spousal support." (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927; § 4320, subds. (a), (c).) "[F]or purposes of determining support, 'earning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities." (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) " ' " 'Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire.' " ' " (Cohn, at pp. 927-928; In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372.) "[E]arning capacity may only be considered when a parent unreasonably fails to avail himself or herself of employment possibilities." (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1217.)
We review an order modifying support based upon earning capacity for an abuse of discretion. (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.) "[W]e consider only 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] . . . '[W]e do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order.' " (Ibid.)
Avington argued at trial, and argues here, that he suffers debilitating effects of a stroke suffered in January 2014, and that he is medically unable to work. He says his income consists of general assistance payments and food stamps.
Avington again cites to none of the trial testimony or exhibits presented on this issue. Although completely ignored by Avington in his brief, the trial court found Avington's disability claim, based largely on Avington's own testimony, not credible. "The Court finds that while Mr. Avington may have suffered an illness in January 2014, which may have included a minor vascular event of some kind, Mr. Avington's health was no bar to returning to work by the end of February 2014. Mr. Avington did not call any medical professional as a witness; a medical report (Exh. E) and a letter written on his behalf had to be excluded from evidence as hearsay. Even had they been admitted into evidence, the documents do not appear to support Mr. Avington's conclusions. [¶] . . . [¶] Mr. Avington made statements in testimony at trial, and in papers filed during 2014 and 2015, indicating that he was prepared to return to work (see, for example, Exh. 8 at ¶ 5; Petitioner's June 5, 2014 Declaration (Item 10); Petitioner's Response filed Jan. 8, 2005 at 6-8). His testimony and filings do not support a conclusion that Mr. Avington's health was any bar at all to his ability to earn income to support his child, and his testimony concerning his health—particularly from March 2014 onward—was not credible." When the trial court sits as a trier of fact, it is called upon to determine if a witness is to be believed or not—that is the nature of factfinding. (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.)
The court further found the trial evidence, including Avington's own testimony provided substantial support for the conclusion that Avington had the ability and opportunity to work. It imputed income to Avington of $4,000 per month based on the amount shown on his March 29, 2013 income and expense declaration, and his income and expense declaration showing $6,000 per month income in November 2013. Avington again fails to meet his burden to demonstrate error, and he has forfeited his claim by failure to set forth in his brief all of the material evidence on the point and not merely his own evidence. (Green v. Green, supra, 215 Cal.App.2d at p. 35.)
Avington's appeal is ultimately only an attempt to reargue the weight of his evidence without addressing any of McCoy's evidence. An appeal is not a "do over" of the trial, and we are not trial judges. "[S]uch 'factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to [him] at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.' " (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)
III. DISPOSITION
The July 2016 judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.