Opinion
A150151
07-12-2018
COUNTY OF ALAMEDA DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent, v. FRANK KNECHT ALIOTO, III, Appellant, LAURA ELIZABETH BULLOCK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. AF 15759310)
Frank K. Alioto, III (Father) raises two issues in this appeal from a post-judgment child support order. First, he claims the superior court erred in finding that for 10 months in 2015, he had custody of his and Laura Bullock's (Mother's) two minor children 26 percent of the time rather than 50 percent of the time. Second, he claims the court erred in treating certain child care expenses as "add-ons" under Family Code section 4062. We shall affirm.
Statutory references are to the Family Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, the Alameda County Department of Child Support Services (Department) filed a complaint seeking an order that Father pay child support for his and Mother's two children, then aged 2 and 4. In November 2015, a judgment was entered ordering Father to pay child support in a certain amount per month, effective November 1, 2015. The court reserved jurisdiction to modify child support back to March 1, 2015, and a hearing was held on that issue over two days in 2016. Both parents were represented by counsel at the hearing, presented witnesses and exhibits, and testified. The record on appeal includes the Reporter's Transcript of just one of the two hearing days. At the hearing, the parties stipulated that certain exhibits would be admitted into evidence, but the record on appeal includes only Father's exhibits, not Mother's.
The Department did not appear at the hearing, which was held in connection with a motion filed by Mother.
At issue in this appeal are the superior court's findings and conclusions with respect to custodial timeshare from March through December of 2015, and the allocation of child care costs between the parents from July 2015 forward.
The superior court issued a statement of decision, explaining that its findings were "[b]ased upon the declarations filed, the exhibits admitted as evidence, and the testimony of the witnesses, and the court taking judicial notice of all court orders" in the case and a related case.
With respect to timeshare, the court found that from March 1, 2015 through December 31, 2015, Father's custodial timeshare was 26 percent. The court explained that it would use a 50 percent timeshare to calculate child support effective January 1, 2016, which Father does not challenge.
With respect to the allocation of child care costs, the record includes the following testimony from Mother. From February 2015 until the end of that school year, she worked at Woolsey Children's School (Woolsey), which the children attended full-time for a discounted rate of $1,165 per month. In July 2015, she opened her own preschool, called Magnolia Children's School (Magnolia), which she operated from her house. Magnolia was licensed for eight students, six full-time preschoolers and two part-time students who attended elementary school for the first part of the day and attended Magnolia for after school care. One of her children was a full-time student at Magnolia; the other was a part-time student. The other slots were filled.
Mother testified she had recently filed an income and expense declaration showing her gross income as $7,140 per month, which included "phantom income" of $1,740 per month, representing potential income she could make from Magnolia if not for the fact that one of her children attended full time (for which tuition would be $1,200) and the other attended part time (for which tuition would be $540). She testified that, leaving aside her "phantom income," her gross income was $5,292 per month, that Father had not contributed in any way to fees for the children to attend Magnolia, and that she wanted him to pay for part of those child care expenses.
Based on Mother's expenses and testimony that Mother received money from her parents that was income, as opposed to loans, the court imputed to Mother income of $6,448 per month for 2015 and 2016, a figure that did not include any "phantom income." The court made the following findings with respect to child care: "Mother testified that . . . Magnolia [is a] licensed facilit[y] with a maximum number of students of various ages. As there is a cap on the number of students enrolled, the enrollment of the two children . . . limited the ability of the school to produce income. Thus, the law restricts Mother's ability to produce income at Magnolia if her own children are enrolled at the school. [¶] Because of the loss of income, the court finds that Father is liable for the child care expense because the Mother does not have the ability to create an income for that space in the school. In addition, Mother is working at the school. If she were to use another day care that would allow her to generate income, there would be a cost incurred. . . . [¶] . . . Effective July 1, 2015 forward, the court finds the child care costs to be . . . a total of $1740.00 a month. The court also notes that although the name of the child care provider is . . . Magnolia 'school,' the court finds that the school is a day care."
Based on its findings as to custodial time, Mother's and Father's income, and child care costs, the court calculated child support for Father to pay Mother, and ordered the payments be made. The court treated the Magnolia child care costs as "child support add-ons" and allocated them half to Father and half to Mother, with the result that one-half of the $1,740 monthly cost, or $870, was allocated to Father.
Father timely appealed the support order, representing himself. The Department informed us through counsel that it would not file a respondent's brief in this matter.
DISCUSSION
Before we address Father's arguments, we summarize pertinent principles of appellate practice, which apply to appeals where parties represent themselves, as Father does here, as well as to appeals where parties are represented by counsel. (See Stokes v. Henson (1990) 217 Cal.App.3d 187, 198 [self-represented party is entitled to the same consideration as other litigants and attorneys, but not more], citing Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.) An order challenged on appeal is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'All intendments and presumptions are indulged to support it on matters as to which the record is silent,' " and it is the appellant's burden to affirmatively demonstrate error. (Ibid.) Even if an appellant can show error, we will not reverse a trial court order unless the appellant shows prejudice from the error, which requires appellant to show that it is " 'reasonably probable that, absent the error, the appellant would have obtained a more favorable result.' " (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 (Falcone).) Furthermore, we generally will not consider claims of error that an appellant has not raised below, and which the trial court had no opportunity to consider. (Id. at p. 826.)
As appellant, Father must provide this court with an adequate record for review, and failure to do so requires us to resolve issues against him. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 (Oliveira).) In addition, Father must "cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party's position." (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) A. Standard of Review
We review a child support order under the abuse of discretion standard, and we review the findings of fact relating to such an order under the substantial evidence standard. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906.) To the extent that a child support decision reflects an interpretation of a statute, we review it de novo. (Id. at pp 906-907.) B. Custody Timeshare Percentage
Father argues the trial court erred in finding that he had custody of the children 26 percent of the time in 2015, rather than 50 percent, and that if the trial court had correctly found that his timeshare was 50 percent, it would have ordered Mother to pay Father child support for 2015, rather than ordering Father to pay Mother. This argument fails because Father has not shown any error by the trial court.
Father claims that a 50 percent timeshare had been in place since 2014, but provides no citation to the record that supports his claim. He further claims that the court ignored evidence of his "prior sole legal and physical custody, subsequent stipulation and order, that the children were under [his] continued daily care," but he does not point to any such evidence in the record. Because we presume the trial court is correct, and because Father has provided an incomplete record and an appellate brief largely devoid of citations to the very limited record he provided, he cannot meet his burden to show that the court's finding as to timeshare from March through December 2015 is not supported by substantial evidence. (Oliveira, supra, 206 Cal.App.4th at p. 1362.) C. Child Care Costs at Magnolia
In Father's brief, the discussion of custody includes a citation to just two items in the record that address custodial time: a statement in a December 2015 stipulation between the parties that they "shall continue to share joint legal and joint physical custody" of the children, and the challenged finding that the timeshare from March through December 2015 was 26 percent, which is incorporated in the trial court's statement of decision.
The second issue Father raises on appeal is his claim that the trial court improperly treated the cost of the children's care at Magnolia, which the trial court found to be $1,740 per month, as an "add-on" expense under section 4062.
1. Applicable Law
Section 4062, subdivision (a)(1) provides that "[c]hild care costs related to employment" are to be ordered as additional child support, often called "add-ons." (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 723.) Under section 4061, subdivision (a), the expenses associated with add-ons are to "be divided one-half to each parent," absent circumstances not present here. The trial court "has no discretion to fashion its own add-ons in the absence of statutory authorization." (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1367.)
Child care costs related to employment are not the only "add-ons" authorized by section 4062; the others are not at issue here.
Section 4061, subdivisions (c) and (d) establish rules for computing the parents' gross income and net disposable income when one parent is ordered to pay add-on support to the other under section 4062
Section 4058 provides that a parent's gross income includes "[i]ncome from the proprietorship of a business such as gross receipts from the business reduced by expenditures required for the operation of the business." (§ 4058, subd. (a)(2).) The court has discretion to include in gross income "employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts." (§ 4058, subd. (a)(3).)
2. Analysis
Father advances three arguments about the allocation of child care costs at Magnolia, which we consider in turn.
First, he argues that by treating the cost of enrolling the children at Magnolia as an add-on, the court erred by impermissibly creating a new category of add-on, namely, "phantom income." This argument mischaracterizes the trial court's statement of decision and order. Nowhere does the court use the term "phantom income," a term apparently introduced by Mother in her testimony as a way of describing the cost to her of providing daycare to the children. The court found that the cost to provide care for the children at Magnolia is $1,740 per month, and that if Mother used a different daycare provider to allow her to generate income from her children's places at Magnolia, "there would be a cost incurred." Therefore, the court treated those costs as add-on "child care costs related to employment," as authorized by section 4062, subdivision (a)(1).
In his second argument, Father concedes that child care expenses are authorized add-ons, but contends that Mother did not demonstrate that enrolling the children at Magnolia cost $1,740 per month. This argument is essentially a claim that substantial evidence does not support the trial court's finding that child care expenses at Magnolia amounted to $1,740 per month. But the inadequate record that Father has provided prevents him from prevailing on this substantial evidence claim. (Oliveira, supra, 206 Cal.App.4th at p. 1362.)
The trial court found that the cost of the children's care at Woolsey in 2015 was $1,165 per month, and treated that cost, like the cost of the care at Magnolia, as an add-on expense. This finding is supported by Mother's testimony that when she worked there she paid that amount per month for her children to attend. Thus, Father is incorrect in stating that Mother "provided no evidence at all of any payment or charge by anyone" for the cost of care at Woolsey, and that therefore the cost should not be treated as an add-on. In any event, Father has forfeited this issue by not clearly identifying it in a heading or subheading. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; citing Cal. Rules of Court, rule 8.204(a)(1)(B).) Even if he had not forfeited it, he could not prevail on it because his failure to provide an adequate record prevents us from undertaking the substantial evidence review that applies to a trial court's finding of fact. (Oliveira, supra, 206 Cal.App.4th at p. 1362.) --------
Father's third argument is that any loss of business income to Mother from the children's enrollment in Magnolia should have been adjusted and computed under the provisions of section 4058, which governs the computation of gross income, and should not have been treated as an add-on child care expense under section 4062. This is a question of statutory interpretation, which we would review de novo, but we need not and do not reach it because there is no indication that Father raised this issue below and because Father has not shown any prejudice from the court treating the cost of providing care for the children at Magnolia as an add-on expense. (Falcone, supra, 164 Cal.App.4th at pp. 823, 826.)
DISPOSITION
The order appealed from is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.