Opinion
E079082
10-16-2023
COUNTY OF SAN BERNARDINO DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. MATTHEW B. HODGE, Defendant and Appellant; APRIL HODGE, Real Party in Interest and Respondent.
Matthew B. Hodge, in pro. per., for Defendant and Appellant. Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown and Darin L. Wessel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. CSWS2100421 James R. Baxter, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Affirmed.
Matthew B. Hodge, in pro. per., for Defendant and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown and Darin L. Wessel, Deputy Attorneys General, for Plaintiff and Respondent.
No appearance for Real Party in Interest and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
The family court ordered Matthew Hodge to pay $2,215 per month in child support to his ex-wife, April Hodge, based in part on his annual bonus. The court then denied his subsequent motion for reconsideration of that order. Proceeding in pro. per., Matthew appeals both orders, and we affirm.
Because Matthew and April share the same last name, we refer to them by their first name. We mean no disrespect.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Matthew and April had children together in 2014 and 2016. They share joint legal custody of the children, while April has primary (70%) physical custody.
In March 2021, the San Bernardino County Department of Child Support Services (the Department) filed this case to establish Matthew and April's child support obligations and to obtain a guideline child support order. In July 2021, the family court ordered Matthew to pay April $2,522 per month in temporary child support. In August 2021, the family court made the child support order permanent.
In February 2022, the Department moved to modify Matthew's child support obligations due to a change in his base salary. In response to the motion, Matthew asked the family court to reconsider its August 2021 child support order.
The family court construed Matthew's response as a motion for modification of the court's child support order based on his recent reduction in monthly income. In response, the Department submitted a new guideline child support calculation based on updated information for Matthew, which recommended Matthew pay $2,215 per month in child support. The calculation was based in part on Matthew's monthly average income of $9,101, which reflected his $7,589 per month base pay plus the performance bonus he received the year before.
On March 14, 2022, the family court agreed with the Department's recommendation and reduced Matthew's monthly child support payment to $2,215 per month.
Matthew moved for reconsideration of the order on March 30, 2022, five days after it was served. Matthew argued that the Department's calculation incorrectly relied on "income that was made over a year ago, and not what is currently being made." He claimed his child support obligations should be based on his monthly $7,589 base salary without consideration of his "non-guaranteed bonus," noting that he had not received a cash bonus since the year before. In support, Matthew submitted a declaration explaining that his "employer, depending on the company meeting its goals, may or may not give me a bonus check." Matthew thus argued that his bonus should not be used to calculate his income under In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33 (Ostler/Smith) and In re Marriage of Mosley (2008) 165 Cal.App.4th 1375 (Mosley).
In his declaration, Matthew states he attached a document from his employer showing how certain employees are eligible for a bonus "and how it's based off company performance," but the document is not in the record on appeal.
The family court denied Matthew's motion for reconsideration, finding that it remained appropriate to base his child support obligations in part on his annual bonus from the year before. In the court's view, the motion failed to present new facts that would justify changing the child support order. Matthew filed a notice of appeal five days later.
III.
DISCUSSION
Matthew argues the family court erroneously calculated his monthly child support obligations based in part on his "large fluctuating bonuses." We find no error.
We must first confirm our jurisdiction before addressing the merits. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Matthew's notice of appeal, filed on May 27, 2022, states that he appeals a "judgment after court trial" entered on March 14, 2022. In his statement of appealability, Matthew identifies the orders entered on March 14 and 30, 2022, notes that he filed his notice of appeal on May 27, 2022, and states that "[t]he final judgment is appealable." We thus construe Matthew's notice of appeal as appealing the family court's March 14 and 30 orders.
The Department correctly argues that the portion of the March 14 order denying reconsideration of the court's August 2021 order is not appealable because Matthew did not appeal the August order. (See Code Civ. Proc., § 1008, subd. (g); Cal Rules of Court, rule 8.104(a)(1)(B).) But the Department correctly acknowledges that Matthew timely appealed the March 14 order insofar as it modified his child support obligation and timely appealed the March 30 order denying reconsideration of the March 14 order. (See Cal. Rules of Court, rule 8.108(e)(1), (2).)
We review the family court's March 14, 2022 child support order for an abuse of discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) A court abuses its discretion when its ruling exceeds the bounds of reason and results in a miscarriage of justice. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
To calculate monthly child support obligations, the family court must divide the parents' annual net disposable income by 12. (Fam. Code, § 4060.) A parent's gross annual income includes bonuses. (Fam. Code, § 4058, subd. (a)(1).) The family court cannot exclude predictable bonuses as a part of a parent's annual gross income unless it is unlikely that the parent will receive them in the future. (County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, 1396-1397.) This is because "past income is a good measure of the future income from which the parent must pay support." (Id. at p. 1396.)
"'The employee parent has the burden of demonstrating past bonus . . . income is not likely to be continued.'" (M.S. v. O.S. (2009) 176 Cal.App.4th 548, 554 (M.S.).) Before excluding bonus income from the calculation of child support payments, courts generally require evidence from the employer stating that bonus pay will be reduced and explaining why. (Ibid.)
For instance, in M.S., the family court refused to exclude the father's likely future bonus to calculate his gross income because he had received bonuses in the two years prior and he did not submit anything from his employer indicating that he would not get future bonuses. (M.S., supra, 176 Cal.App.4th at p. 545.) Instead, the father submitted only a declaration that stated in relevant part, "'I may or may not receive a bonus every year.'" (Id. at p. 555.) The Court of Appeal found "no abuse of discretion as [the father] did not meet his burden of proof, and to the contrary his evidence indicates it is likely the bonuses will continue on schedule." (Ibid.)
We likewise conclude Matthew has failed to meet his burden here. Although Matthew purportedly submitted evidence of his employer's bonus policies, it is not in our record. Without that evidence, we cannot adequately review Matthew's arguments on appeal. As the appellant, it is Matthew's burden to provide an adequate record on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) When the appellant fails to provide an adequate record, we must presume that the appealed judgment or order is correct and affirm on that basis. (Ibid.)
As it stands, the only pertinent evidence in the record is Matthew's declaration, which states that he "may or may not" receive a bonus, depending on his employer's performance. That was insufficient in M.S., and it is insufficient here. (M.S., supra, 176 Cal.App.4th at pp. 554-555.) As we discussed extensively at oral argument, Matthew had the burden of proving, with competent evidence, that he was unlikely to receive a bonus in the future to exclude his past bonus income when calculating his child support obligations. Because he did not do so, the trial court did not err.
Ostler/Smith and Mosley do not compel us to hold otherwise. Ostler/Smith held that a family court may use only a percentage of the parent's discretionary annual bonus income to calculate an additional spousal support payment on top of a fixed amount. (Ostler/Smith, supra, 223 Cal.App.3d at p. 54.) The rule's "purpose is to capture fluctuations in the supporting spouse's income that are not included in a flat rate amount of support." (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 949.) Courts justified the rule "on the ground that future bonuses are not guaranteed, and it would be unfair to require the obligor to file motions for modification every time a bonus is reduced." (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 27.)
In Mosley, for instance, the husband's income dropped dramatically when he went from being a law firm partner to in-house counsel for a housing builder. (Mosley, supra, 176 Cal.App.4th at pp. 1381-1382, 1385, 1387.) His base salary was less than half of his law firm salary, and his entirely discretionary bonus could be up to 150 percent of his base salary or nothing. (Id. at pp. 1381-1382, 1385.) Although the husband had received a six-figure bonus in the first year as in-house counsel in 2005, the housing industry had gone "in the dumps, due to the subprime mortgage crisis and the sluggish economy." (Id. at p. 1385.) Yet, the family court ordered the husband to continue making support payments based on his law firm salary, which required him to pay "nearly 100 percent of his take-home pay in support payments, on the assumption, based on only a one-year history with the homebuilder, that he would continue to receive a six-figure bonus each subsequent year." (Id. at p. 1386.) The Mosley court held it was an abuse of discretion to "leave [the husband] near penniless while he awaits the potential of a bonus each year, especially in light of the current plight of homebuilders." (Id. at p. 1387.)
This case is far closer to M.S. than Mosley. Although Matthew claimed he may not get a bonus, he presented no evidence from his employer (or elsewhere) suggesting that he is unlikely to get a bonus. Nor did he present any evidence that his bonus may be less than the one he already received. Again, it was his burden to do so, and he did not meet that burden. We therefore conclude the family court did not abuse its discretion by calculating Matthew's child support obligations based in part on his past annual bonus income.
Matthew next argues that the family court "did not make a finding as to the amount of [his] income used for calculating the support order," so "there is no way to determine a change of circumstances." Matthew thus claims he will not be able to modify the child support orders in the future. We disagree.
The family court's March 14 order attached a detailed guideline calculation chart. The chart states that Matthew's monthly non-taxable gross income is $9,101 and identifies his financial obligations that reduce his monthly net income to $6,085, resulting in a $2,215 per month child support payment. The Department told the trial court how it reached these figures during a hearing, and Matthew stated in his declaration that his monthly base salary is $7,589. Because the figures used to reach Matthew's monthly child support obligations are clearly laid out in the family court's orders, Matthew will be able to move to modify the order in the future based on a change in his financial circumstances if he chooses to do so.
In short, the family court's March 14 order directing Matthew to pay $2,215 per month in child support payments was not an abuse of discretion. And because Matthew's motion for reconsideration presented no new facts, circumstances, or law that compelled reconsideration of the March 14 order, the family court properly denied the motion. (See Code Civ. Proc., § 1008; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
Finally, Matthew asserted at oral argument that this court or the trial court should order April to try harder to become employed and self-sufficient. Matthew only raised the issue in a brief, one-line argument at the end of his opening brief, and he did not file a reply brief. Matthew forfeited the argument by failing to support it with reasoned argument and appropriate authority. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822, fn. 6.) He also forfeited the argument to the extent he raised it for the first time at oral argument. (Palp, Inc. v. Williamsburg National Insurance Co. (2011) 200 Cal.App.4th 282, 291, fn. 2.) Matthew may raise the issue in the trial court if he wishes.
IV.
DISPOSITION
The family court's March 14 and 30, 2022 orders are affirmed. The Department may recover its costs on appeal.
We concur: RAMIREZ P. J. McKINSTER J.