Opinion
E066572
02-13-2018
COUNTY OF SAN BERNARDINO DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. DERIK RUTHERFORD, Defendant and Appellant; ANNA L. ABUAN, Real Party in Interest and Respondent.
Derik Rutherford, in pro. per. for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, and Linda M. Gonzalez and Marina L. Soto, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VDAVS041330) OPINION APPEAL from the Superior Court of San Bernardino County. Charles Fuertsch, Temporary Judge. Affirmed. Derik Rutherford, in pro. per. for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, and Linda M. Gonzalez and Marina L. Soto, Deputy Attorneys General, for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent.
I. INTRODUCTION
Defendant and appellant Derik Rutherford, representing himself in propria persona, challenges the trial court's denial of his request for an order abating child support arrears. He contends that real party in interest and respondent Anna L. Abuan, the mother and custodial parent of the child at issue, "concealed herself and the child" from him from October 2003 to January 2014, so plaintiff and respondent County of San Bernardino Department of Child Support Services (DCSS) is estopped from collecting any child support arrears Rutherford owes. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In December 2003, DCSS filed a summons and complaint to establish parental obligations against Rutherford with respect to the child A.A., who was born in March 2000. After Rutherford failed to respond to the complaint, a default judgment was entered. The judgment adjudicated Rutherford and Abuan to be the parents of the child, ordered Rutherford to provide and maintain health insurance for the child, and ordered Rutherford to pay $254 in child support, payable to San Bernardino County, commencing January 1, 2004.
In October 2014, DCSS filed a motion to modify the child support order and to obtain an order for unreimbursed medical expenses. Rutherford contested the motion and, after a series of continuances, on June 16, 2015, the trial court heard the matter. It found Rutherford to be disabled, and reduced his child support obligation to zero, effective November 1, 2014. It also set a further hearing to review Rutherford's ability to work and the child support amount.
The minutes of the hearing reflect an order setting child support to zero effective "1/1/2014," but the trial court's signed order indicates the change is effective "11/01/2014." For present purposes, we need not resolve this discrepancy.
After a continuance pursuant to a stipulation by the parties, the trial court held the hearing to review Rutherford's ability to work and the child support amount on January 7, 2016. Rutherford failed to appear as ordered to provide information about his continued disability status. The trial court reinstated the prior child support order of $254 per month, effective February 1, 2016. On April 11, 2016, Rutherford's motion for reconsideration of the January 7, 2016, support order was taken off calendar when he again failed to appear. The court's minutes also indicate that it made findings "in accordance with the DCSS worksheet"; the referenced worksheet does not, however, appear in the record on appeal.
On April 19, 2016, Rutherford filed a request for an order modifying child support and setting aside the court's April 11, 2016, order, and on April 20, 2016, he filed a request for an order for abatement of child support arrears (abatement request). In the abatement request, Rutherford asked that the trial court "stop custodial parent from collecting child support arrearages due to active concealment of child."
Rutherford supported his abatement request with a declaration asserting that Abuan "has been found in contempt of court ordered visitation on 10/18/03 by concealing child from noncustodial parent . . . ." Rutherford's declaration asserts that Abuan "violated child visitation order set on 10/24/02 by not showing up at agreed visitation location and not keeping clear and open communication" with him. The declaration further asserts that Abuan "has continued to evade defendant and conceal child from non custodial parent making it difficult to locate her residence and enforce child visitation rights."
In addition to his declaration, Rutherford also attached to the abatement request a copy of an Order to Show Cause and Affidavit for Contempt (contempt OSC) that he filed in November 2003. The contempt OSC alleges that Abuan violated the October 24, 2002, visitation order by not being home at the time Rutherford was scheduled to pick up the child on October 18, 2003. The contempt OSC references a police report he filed regarding the incident, but the police report was not apparently presented to the trial court; it was not attached to the abatement request, and appears in our record only as an attachment to the notice of appeal. The record on appeal also does not reflect any action the trial court may have taken with respect to the contempt OSC.
On December 1, 2016, Rutherford filed a document styled as a motion to augment the record. On December 21, 2016, this court ordered that the document is deemed to be a request for judicial notice, and reserved ruling for consideration with the appeal. Finding the documents submitted by Rutherford to be irrelevant to the issues on appeal, we now deny the request for judicial notice. --------
The hearing on Rutherford's requests for orders filed April 19, 2016, was held on May 26, 2016. The trial court denied the request to modify child support and his request to set aside the April 11, 2016 order. It continued hearing of the abatement request until July 28, 2016, at the request of DCSS.
The continued hearing on Rutherford's abatement request was held on July 28, 2016. Both Rutherford and Abuan gave sworn testimony, and the trial court heard oral argument from both of them, as well as DCSS. No record of these oral proceedings, however, appears in the record on appeal. The trial court found that Rutherford "is to have no visitation as ordered in court in 2004," and denied his abatement request.
III. DISCUSSION
Rutherford contends that we should reverse the trial court's order denying his abatement request, and order child support abated because Abuan "actively concealed herself and the child" from him, thereby interfering with his visitation rights, and "alienating the father from his son." We reject this contention on three bases, each of which is independently sufficient to require affirmance of the trial court's ruling: (1) the inadequacy of the record on appeal; (2) the California Supreme Court's holding in In re Marriage of Comer (1996) 14 Cal.4th 504, 517 (Comer), rejecting concealment as a defense to an action for child support arrearages where the concealment ends when the child is still a minor; and (3) Rutherford's failure to demonstrate any abuse of discretion with respect to the trial court's implied finding that the child has not been improperly concealed since at least 2004.
A. Adequacy of the Record.
"The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286 (City of Santa Maria).) "The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal. [Citation.] An appellate court's review is limited to consideration of the matters contained in the appellate record." (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) In the absence of an adequate record to support an appellant's claim of error, "we presume the judgment is correct." (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)
California Rules of Court, rule 8.120(b), provides that "[i]f an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of those oral proceedings . . . ." Most commonly—particularly where, as here, a court reporter was present for the proceedings—a reporter's transcript serves as such a record. But the rule also provides for other options, such as an agreed statement under rule 8.134, or a settled statement under rule 8.137. (Cal. Rules of Court, rule 8.120(b).) To the extent the record we have does not reveal adequate support for the trial court's ruling, we generally must presume such support would be found in a transcript or other record of the oral proceedings. (See City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 ["'"[If] any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."'"
As noted, the trial court heard testimony from both Rutherford and Abuan with respect to Rutherford's abatement request, and heard argument from both parents, as well as DCSS. A court reporter was present for the hearing. Nevertheless, Rutherford has elected to proceed in this appeal without a record of those oral proceedings. The presumptions, discussed above, that apply in such circumstances are fatal to Rutherford's claim of error.
B. Comer.
In Comer, the California Supreme Court held "that a custodial parent's concealment of himself or herself and the child, which concealment ends when the child is still a minor, does not establish a defense to an action, brought on behalf of the child, for child support arrearages." (Comer, supra, 14 Cal.4th at p. 517.) In so doing, the Supreme Court distinguished In re Marriage of Damico (1994) 7 Cal.4th 673, 676 (Damico), in which it had "held that a custodial parent's concealment of his or her own whereabouts and that of the parent's child until the child reached the age of majority may estop that parent from seeking payment of child support arrearages that accumulated during the period of concealment." (Comer, supra, at p. 509, italics added.)
Rutherford contends that Abuan concealed herself and the child from him from October 18, 2003, until January 1, 2014. The alleged concealment therefore ended, by Rutherford's own admission, when the child (born March 2000) was still a minor. The holding of Comer therefore applies, and concealment "does not establish a defense" for Rutherford. (Comer, supra, 14 Cal.4th at p. 517.)
C. The Trial Court's Implied Finding of No Concealment Since at Least 2004.
One of the fundamental premises of Rutherford's abatement request is that Abuan has interfered with his right to visit with the child since at least October 2003. He argues on appeal that "[t]he unfairness to enforce a judgement of child support arrearage to a parent that has purposely interfered with court ordered visitation is clearly evident."
The trial court's minutes reflect, however, that Rutherford was ordered to have no visitation with the child in 2004, and the no visitation order continues to be in effect. And on appeal Rutherford has not challenged the trial court's finding regarding his visitation rights. Since at least 2004, therefore, Abuan has had no obligation to make the child available to Rutherford for visitation, so there could not have been any concealment, at least of the sort that might justify abatement of child support arrearages under Damico and Comer. The question of whether there was any inappropriate concealment of the child between October 2003 and the entry of the 2004 no visitation order was likely addressed by the trial court in response in relation to Rutherford's contempt OSC, if not elsewhere, though evidence of such a ruling is not included in the present record. But in any case, concealment of the child for that period of time could not serve as a defense to the present action for child support arrearages, for the reasons discussed ante in section III.B.
IV. DISPOSITION
The order appealed from is affirmed. DCSS is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.