Opinion
B302206
03-01-2021
In re the Marriage of JAIME and SHAUN DAVIS JAIME DAVIS, Appellant, v. SHAUN DAVIS, Respondent; LOS ANGELES COUNTY CHILD SUPPORT SERVICES DEPARTMENT, Respondent.
Michael Dale Williamson Lawyers and Michael D. Williamson; Robert Brownlee for Appellant Jaime Davis. James Alex Karagianides for Respondent Shaun Davis. Xavier Becerra, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown, Marina L. Soto, and Kevin L. Quade, Deputy Attorneys General, for Respondent Los Angeles County Child Support Services Department.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PD059490) APPEAL from an order of the Superior Court of Los Angeles County, Frank W. Chen, Judge Pro Tempore. Affirmed in part, reversed in part, and remanded. Michael Dale Williamson Lawyers and Michael D. Williamson; Robert Brownlee for Appellant Jaime Davis. James Alex Karagianides for Respondent Shaun Davis. Xavier Becerra, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney General, Gregory D. Brown, Marina L. Soto, and Kevin L. Quade, Deputy Attorneys General, for Respondent Los Angeles County Child Support Services Department.
____________________
INTRODUCTION
The parties to this appeal are appellant Jaime Davis, her ex-husband respondent Shaun Davis, and respondent Los Angeles County Child Support Services Department (CSSD). In April 2017, Jaime filed a request for order (RFO) to increase the amount of child support Shaun was paying. The April 2017 RFO had not been fully adjudicated before Jaime filed another RFO in November 2018 before a child support commissioner, also asking for an increase in child support. At the hearing on the November 2018 RFO, the child support commissioner denied Jaime's RFO, finding that she had failed to demonstrate changed circumstances as required to modify a child support order. The commissioner did not rule on the April 2017 RFO.
Because Jaime and Shaun share a surname, we refer to them by their first names.
Pursuant to Family Code section 4251, the Los Angeles County Superior Court has designated commissioners who hear only child support issues.
On appeal, Jaime asks us to find the commissioner erred by: (a) finding she was required to demonstrate changed circumstances to modify a child support order; (b) finding she had not demonstrated changed circumstances; and (c) failing to rule on the April 2017 RFO. We conclude: (a) Jaime was required to demonstrate changed circumstances; (b) the commissioner erred in finding she failed to do so; and (c) the record is inadequate to show whether any portion of the April 2017 RFO was before the commissioner, and thus Jaime has failed to show the commissioner erred in declining to rule on it. We therefore reverse the commissioner's denial of Jaime's November 2018 RFO, and remand for further proceedings.
STATEMENT OF RELEVANT FACTS
A. Background
In December 2015, a divorce judgment awarded Jaime and Shaun equal joint legal and physical custody of their three children, and provided neither would pay child support. In March 2017, after Jaime had filed an RFO requesting child support, Jaime and Shaun stipulated that he would pay a total of $558 per month, along with a percentage of his overtime income should that income exceed $15,000 per month. Attached to the stipulation was a DissoMaster report reflecting assumptions that Shaun had custody of the children for 49.99% of the time, and that Shaun's and Jaime's monthly incomes were $15,000 and $8,078, respectively. Given these assumptions, the DissoMaster listed $558 per month as the amount of "guideline" support (i.e., support as specified by the statewide uniform guideline) payable by Shaun.
"The DissoMaster is a privately developed computer program used to calculate guideline child support under the algebraic formula required by section 4055." (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1227, fn. 5.)
In April 2017, Jaime filed two RFOs to set aside the March 2017 stipulation, and to change previous provisions regarding visitation, child custody, and child support. Specifically, Jaime requested that she be given primary physical custody of all the children, and alleged that Shaun had custody of the children only from Friday at 3:00 p.m. until Sunday at 7:00 p.m., or 30.95%. She also requested that any new child support order be retroactive to the date the RFO was filed. Included with her RFOs was a declaration claiming that the DissoMaster used for the March 2017 stipulation incorrectly assumed Shaun made payments for Social Security and State Disability, resulting in an under-allocation of child support.
At the first hearing on this RFO, which occurred after a dependency case was opened, Jaime's counsel stated she was requesting sole legal and physical custody of the eldest child, and primary physical (but joint legal) custody of the other two children.
After Jaime filed her RFO but before it was heard, proceedings concerning the children occurred in dependency court, including referrals made in July 2017 that were substantiated. In October 2017, the family law court temporarily awarded Jaime sole legal and physical custody of the eldest child due to the substantiated dependency referrals; both parents retained joint legal and physical custody of the two younger children. The court also re-calculated child support with the corrected assumption that Shaun did not make Social Security or State Disability payments (arriving at a new guideline of $728 per month), and replaced the March 2017 order nunc pro tunc. The court reserved all other issues for a trial set for April 2018. This trial date was eventually vacated, and trial readiness conferences were set and continued until December 2018.
B. Jaime Files an RFO Before a Child Support Commissioner
In November 2018, Jaime filed an RFO with a child support commissioner, seeking to modify the October 2017 child support order. She alleged that though she had had sole custody of the children (with Shaun having "limited, albeit supervised visits" with the younger two children) for approximately one year, the family court refused to issue child support orders reflecting this reality. Jaime also claimed she was "no longer able to work," although she did not explain why or when her unemployment began or was expected to end.
Shaun answered the RFO in December 2018, asking the commissioner to deny it because the issue of child support was already set for trial in family court, with a trial readiness conference later that month. Shaun also submitted a screenshot of a June 2018 text message from Jaime to Shaun, stating that she had "resigned" due to her "medical conditions and the conditions of the children," and an e-mail from Jaime's current husband to his ex-wife, stating "my wife [i.e., Jaime] didn't lose her job[,] she quit. I want her to be a stay at home wife and she doesn't need the money." Shaun additionally submitted screenshots of Jaime's social media posts, discussing vacations to Las Vegas (posted in November 2017), Cancun (posted in April 2018), and Hawaii (posted in July 2018). Shaun objected to Jaime's declaration as containing inadmissible statements, and asked the commissioner to dismiss the RFO as unsupported by evidence. He filed his own declaration stating that Jaime's statement regarding custody was "inaccurate," but claimed he could not explain why, without breaching the confidentiality of juvenile court records. CSSD also filed a response to Jaime's RFO, consenting to guideline support, asking the current support order to remain in effect unless a material change in circumstances was shown, and asking the commissioner to take the RFO off-calendar, unless there was full compliance with Local Rule 5.9.
Shaun's objections are not included in the record.
At the December 18, 2018 hearing on this RFO, Shaun's counsel objected to Jaime's characterization that she had 100% custody by asserting Shaun had been provided with a minimum of four hours of visitation per week.
Los Angeles Superior Court Local Rule 5.9 requires parties to "completely fill in all blanks on financial declarations (including the Income and Expense Declaration)" and to bring certain financial documents to the hearing.
Jaime filed a reply declaration, stating that the dependency case had terminated on December 5, 2018, and that she had been awarded sole physical custody of all the children. She also responded to Shaun's objections.
On December 18, 2018, Commissioner Laura A. Streimer continued the hearing on Jaime's RFO to March 2019 to permit Shaun time to conduct discovery, but ordered Shaun to pay monthly support in a non-guideline amount of $3,600 in the meantime. The March 2019 hearing was eventually continued to June 28, 2019.
The commissioner emphasized this was a temporary order, and that she had made no findings relevant to the guideline.
On June 14, 2019, as part of her income and expense declaration, Jaime once again declared that she had custody of the children 100% of the time due to the dependency proceedings. She also claimed that Shaun had gross monthly income in excess of $20,000, and that her own average monthly income was $5,257. There are no objections to the income and expense declaration in the record.
Shaun's income and expense declaration, filed June 21, 2019, claimed his average monthly income was $14,720, and estimated Jaime's monthly income at $8,480.
On June 28, 2019, Commissioner Frank W. Chen heard Jaime's November 2018 RFO. Initially, the commissioner considered Shaun's request to continue the RFO hearing because, on the next court day, the parties were due in family law court, and the outcome of the family law hearing could significantly impact the amount of custody each parent had, which in turn would affect the amount of child support awarded. Shaun's counsel explained: "And that's the reason that [the hearing] . . . Monday is an important date because that may hugely change the amount that we're dealing with. I mean, just to go up to 20 percent [custody] will take this support order down by at least 35, 40 percent. If it goes to 28 percent, the support order will go in half. So that's the practical impact." Jaime did not oppose the request for continuance, but CSSD expressed a general concern that the matter had already been previously continued, and the more continuances were granted, the further the "start date" for any modified support amount would be from the present (meaning the amount of arrearages would continue to grow). The commissioner denied Shaun's request for a continuance.
Later in the proceedings, Jaime's counsel stated that Jaime had had sole custody of the children for two years; Shaun's counsel did not deny this claim, but argued that the relevant issue was when the RFO was filed.
The parties also discussed whether the commissioner was empowered to find that any support owing would be retroactive to the date of filing of Jaime's April 2017 RFO, or only to the date of filing of the November 2018 RFO. Jaime's counsel explained that there was "a minute order from January 2019 from the branch court ceding jurisdiction for retroactivity on the pending RFO in that court to this court. I interpret that to mean that they've sent that case here or that issue here." Shaun's counsel argued the family law court had already lost jurisdiction over the issue of retroactivity. The commissioner interpreted the January 2019 minute order as authorizing him to "resolve the issue of retroactivity on the pending RFO which is filed November 2nd of 2018."
The minute order is not in the record.
After dealing with these preliminary issues, the commissioner stated that he was "ready to make a ruling on the RFO as a matter of law" and that his tentative ruling was to "deny the RFO on the grounds that it fails to comply with California Rules of Court, rule 5.92(b)(1) and 5.260(c)." Specifically, the commissioner found Jaime had "failed to plead and meet her burden of proof regarding [a] material change in circumstances as required under those California Rules of Court." The commissioner found that Jaime's basis for seeking modification was the incorrect contention that the family law court would not make child support orders. The commissioner also found that Jaime's declaration that she could not work lacked detail regarding why she could not work, or when she was expected to return to work. After sustaining all of Shaun's objections to Jaime's declaration, the commissioner vacated the December 2018 temporary support order (under which Shaun paid $3,600 a month), and reinstated the October 2017 support order (under which he paid $728 a month). Though CSSD argued that the commissioner had no basis to strike paragraph 4 of Jaime's declaration (stating that she had 100% custody of the children), and that Jaime had shown a material change in circumstances, the commissioner disagreed. The commissioner acknowledged reviewing Jaime's income and expense declaration, but stated only that the declaration convinced him Jaime would not be prejudiced by his order. In September 2019, the commissioner entered a written order reflecting his decision. Jaime timely appealed.
(Cal. Rules of Court, rule 5.92(b)(1) ["The Request for Order (form FL-300) must set forth facts sufficient to notify the other party of the moving party's contentions in support of the relief requested"]; id., rule 5.260(c) ["The supporting declaration submitted in a request to change a prior child, spousal, or domestic partner support order must include specific facts demonstrating a change of circumstances. No change of circumstances must be shown to change a previously agreed upon child support order that was below the child support guidelines"].)
CSSD limits its appeal "to asserting the Department's position that the trial court correctly required that Jaime show a material change of circumstances as a prerequisite to modification of the October 19, 2017 child support order." Unlike at the RFO hearing, CSSD expresses no view on appeal as to whether Jaime made this showing.
On July 1, 2019, Jaime filed another RFO with the child support commissioner to modify the October 2017 child support order, again submitting a declaration stating that she had sole physical custody of the children. In October 2019, CSSD submitted a guideline providing that Shaun pay $4,686 per month in child support based on a 100% timeshare for Jaime. On October 15, 2019, Commissioner Chen granted Jaime's RFO and adopted this guideline. That order was not appealed.
DISCUSSION
A. Jaime Was Required to Demonstrate Changed Circumstances
Citing Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro), Jaime argues that "changed circumstances are not required [to be demonstrated] when one seeks to change an order that is not final or permanent." She contends that she therefore did not need to demonstrate changed circumstances for the commissioner to modify the October 2017 support order, which she claims was a temporary support order. Somewhat contradictorily, citing In re Marriage of Bodo (2011) 198 Cal.App.4th 373 (Bodo), Jaime also argues that changed circumstances need be shown only by a party requesting a downward modification of child support, and because she was asking to increase support, changed circumstances were not required. We disagree.
Preliminarily, it is unclear why Jaime contends the October 2017 order was temporary. To the extent she argues the October 2017 order was different from other child support orders in its impermanence, she is incorrect. The October 2017 order was a nunc pro tunc order, correcting the March 2017 order, because the March 2017 order was based on incorrect tax withholding assumptions. It differed in no other respect.
To the extent Jaime contends all child support orders are "temporary" because they can be changed at any time, she is correct regarding their nature, but incorrect that this obviated her need to demonstrate changed circumstances. Montenegro, on which Jaime relies, is a custody case, and it confirms that a court may modify a non-final custody order based solely on the best interests of the child, without changed circumstances. (Montenegro, supra, 26 Cal.4th at 252, 256.) It says nothing about support orders. As several cases decided after Montenegro have held, "[s]tatutory procedures for modification of child support 'require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.'" (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556; see also In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 553 ["'As a general rule, courts will not revise a child support order unless there has been a "material change of circumstances." This rule applies to any form of child support order—i.e., whether pendente lite or "permanent"'" (italics omitted)]; id. at 554 ["'"Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order."' [Citation.] This is true of temporary support orders, which are directly appealable as an exception to the one final judgment rule"]; In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1288 ["A court may modify or terminate a support order as the court determines to be necessary (§ 3651, subd. (a)) following the procedures described in sections 3650 to 3693. A party must show changed circumstances to justify a modification"]; see also Cal. Rules of Court, rule 5.260(c) ["The supporting declaration submitted in a request to change a prior child, spousal, or domestic partner support order must include specific facts demonstrating a change of circumstances"].) By electing not to file a reply brief, Jaime opted not to address any of the above authorities, which were cited in respondents' briefs. Following these authorities, Jaime needed to demonstrate changed circumstances to obtain the relief she sought.
(Fam. Code, § 3651, subd. (a) ["a support order may be modified or terminated at any time as the court determines to be necessary"].)
In her opening brief, Jaime cited Bodo as support for her proposition that a party need demonstrate changed circumstances only if asking to lower the child support amount, rather than increase it. That is a misinterpretation of Bodo. Bodo held that when the parties had stipulated to above-guideline support, and the payor subsequently requested to lower the amount of support, changed circumstances must be demonstrated. (Bodo, supra, 198 Cal.App.4th at 388.) Bodo also noted that if the parties had stipulated to below-guideline support, no changed circumstances were required for the court to raise the amount of support to the guideline. (Ibid.) Here, however, the October 2017 order was at guideline. Therefore, the principle articulated in Bodo regarding raising the amount of child support is inapplicable.
B. Jaime Pled and Proved Changed Circumstances
The commissioner denied Jaime's November 2018 RFO, finding that she had "failed to plead and meet her burden of proof regarding [a] material change in circumstances." Jaime argues that the commissioner erred in doing so, because she had demonstrated materially changed circumstances through both the declaration accompanying her RFO and her June 2019 income and expense declaration. We agree.
In the declaration accompanying her November 2018 RFO, Jaime declared that she had "100% custody of the children." Given that the previous support order was based on Shaun's having 49.99% custody, this is self-evidently a material change in circumstance. (See In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1048 [no abuse of discretion where trial court impliedly found "material change in circumstances due to the dependency proceedings" that caused mother's timeshare to drop from 65% to 4%].)
Additionally, the previous support order assumed Shaun's monthly income was $15,000, and Jaime's monthly income was $8,078. In her income and expense declaration, in addition to reiterating that she had 100% custody of the children, Jaime also claimed that her monthly income was now $5,257 (a 35% decrease), whereas Shaun's exceeded $20,000 (a 33% increase). Such drastic changes in income would also amount to changed circumstances.
Shaun argues on appeal that Jaime's RFO was correctly denied because it was supported by nothing more than "conclusory statements and objectional references to developments in the dependency court." To Jaime's argument that the commissioner erred in sustaining Shaun's objections to her declaration, Shaun counters that the commissioner was correct in his ruling and, additionally, that by failing to include the objections in the record, Jaime has forfeited any argument that the commissioner erred in sustaining them. Shaun is correct that it was Jaime's burden to ensure an adequate record for review. (See, e.g., Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) However, Shaun contends that the commissioner sustained his objections on the bases of the confidentiality of juvenile proceedings, hearsay, lack of foundation, and improper argument. None of these objections would be well-taken as to Jaime's statement that she had "100% custody of the children." The statement is not an argument, much less an improper one. Jaime's status as the children's mother and caretaker is adequate foundation for her to testify to how much time the children were in her custody. The statement is not hearsay. As to the objection that the statement would violate the presumption of confidentiality in juvenile proceedings, a factual statement based on the declarant's personal knowledge does not become confidential just because that statement may also be contained in juvenile records. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1314 [court erred by excluding as confidential testimony of victim's foster mother when such testimony was "based on [foster mother]'s personal observations acquired from her one-on-one interaction with" victim].)
In re Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115, on which Shaun relies, does not hold to the contrary. In Anka, our colleagues in Division Six found that an attorney disclosed information contained in a confidential custody evaluation when she deposed one of the participants in that evaluation and asked him numerous questions about what he told the evaluator, what his child told the evaluator, and what the evaluator found and concluded. (Id. at 1118.) Here, by contrast, Jaime did not testify as to what she had told a custody evaluator or social worker as part of a dependency investigation. Instead, she testified as to her own observation that her children were living with her 100% of the time.
The other authorities on which Shaun relies do not assist him. In re Keisha T. (1995) 38 Cal.App.4th 220, a case dealing with newspapers' requesting to inspect and copy juvenile court records for 10 minors, simply discusses the general principle that juvenile proceedings are confidential. (Id. at 226, 231-232.) Similarly, T.N.G. v. Superior Court (1971) 4 Cal.3d 767, a case addressing whether juveniles subject to brief detentions were entitled to have related records sealed, generally discussed how courts and law enforcement agencies would respond to inquiries regarding a juvenile, and how such actions related to "the legislative policy of confidentiality encompassing juvenile proceedings." (Id. at 774, 780-781.) Welfare and Institutions Code section 827 sets forth who may inspect a juvenile case file. (Welf. & Inst. Code, § 827.) None of these authorities prevents a mother from testifying to how often she cares for her children.
Apart from the declaration Jaime filed with her November 2018 RFO, her June 2019 income and expense declaration alleged a material change in both income and custody. Moreover, during the hearing, Shaun's counsel acknowledged numerous times that custody had materially changed from the 49.99%/50.01% previously assumed. When Jaime's counsel stated that Jaime had had sole custody of the children for two years, Shaun's counsel did not deny this, but argued it was irrelevant. Additionally, it was Shaun's counsel who represented to the commissioner that the hearing on Jaime's RFO should be continued because of the impending family law court hearing, at which Shaun's share of custody could "go up to 20 percent." That Shaun's share of custody could be raised "to 20 percent" necessarily implies that it was, at the time, below 20 percent. In a previous hearing, in alleging that Jaime's claim of 100% custody was incorrect, Shaun's counsel alleged only that Shaun had been given visitation of a minimum of four hours per week, or 2.4%. And it is undisputed that in October 2017, the family law court temporarily granted Jaime sole legal and physical custody of the eldest child. Given the alleged change in the parties' income, and the undisputed material change in each parent's timeshare, it was an abuse of discretion to deny the November 2018 RFO on the ground that Jaime had failed to plead and prove changed circumstances.
While Shaun alleges the commissioner was not required to consider Jaime's income and expense declaration because it was not filed until June 2019, he does not contend the commissioner erred in doing so.
As discussed, we recognize Shaun disputed the figures Jaime alleged for both parties' income. We make no attempt to resolve that dispute on appeal, and thus express no opinion on what, if any, modification of the amount of child support might be warranted due to the material change in custody.
C. The Record Is Inadequate to Determine Whether the Commissioner Erred in Not Ruling on the April 2017 RFO
Jaime also alleges the commissioner erred by not adjudicating the April 2017 RFO and asks us to remand and direct the commissioner to do so. The record indicates the existence of a minute order that may have transferred some portion of the April 2017 RFO to the commissioner. Jaime's counsel referred to the order, arguing that it transferred the issue of retroactivity from the April 2017 RFO to the commissioner; Shaun's counsel argued the family law court had already lost jurisdiction over the issue of retroactivity. The commissioner stated that as he interpreted the minute order, he was to "resolve the issue of retroactivity on the pending RFO which is filed November 2nd of 2018."
It is well settled that, as the appellant, Jaime has the burden of providing an adequate record for us to consider her argument of error. (Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at 502 [appellant "has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against" her]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 ["'if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed'"].) As noted, the record does not contain the January 2019 minute order. Without it, we cannot determine whose interpretation of the minute order is correct, or whether any portion of the April 2017 RFO was before the commissioner. With no basis to find the commissioner erred in his interpretation, we must resolve this issue against Jaime.
DISPOSITION
We reverse the commissioner's order to the extent it denies Jaime's November 2018 RFO for failing to plead and prove changed circumstances, and remand for further proceedings consistent with the views expressed herein. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J. We concur: COLLINS, J. CURREY, J.