Opinion
2d Civil No. B222135 Super. Ct. No. D311915
08-24-2011
ROBERT GODDARD, Petitioner and Appellant, v. LEE ANNE CHRISTENSEN, Respondent. VENTURA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervenor and Respondent.
Kim Scovis and Jenny Scovis, for Petitioner and Appellant. Akin, Gump, Strauss, Hauer & Feld; L. Rachel Helyar and Katharine J. Galston, for LeeAnne Christensen, Respondent. Kamala D. Harris, Attorney General, Douglas M. Press, Senior Assistant Attorney General, Marina Soto, Acting Supervising Attorney General, Mary Dahlberg, Deputy Attorney General, for Intervenor and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Ventura County)
Robert Goddard (Robert) appeals a December 3, 2009 order reducing his child support payments from $1,000 a month to $781 a month from August 1, 2006 through June 30, 2009. (Fam. Code, § 3653. subd. (a).) Commencing July 1, 2009, Robert's child support payments were reduced to $370 a month. Robert contends the trial court erred in not retroactively reducing child support to zero. We affirm.
All statutory references are to the Family Code.
Facts and Procedural History
This appeal arises from a stipulated $1,000 child support order that was assigned to the Ventura County Department of Child Support Services (DCSS) after Robert's children started receiving public assistance. Robert has paid no support for more than six years.
Los Angeles County Paternity Action - Stipulated Child Support
Robert and LeeAnne Christensen (LeeAnne) have a son (dob 1/20/1998) and daughter (dob 5/10/2000) born out of wedlock. In 2002, Robert filed a paternity petition in Los Angeles County requesting joint legal and physical custody of the children. (Goddard v. Christensen, Los Angeles County Sup. Ct., Case No. LF001933.) LeeAnne was unemployed and had primary custody of the children.
Pursuant to a December 10, 2002 stipulated order establishing paternity, Robert agreed to pay $1,000 a month temporary child support. The order provided that Robert would have 30 percent custody of the children.
On December 13, 2004, the Los Angeles Superior Court granted Robert 50 percent custody and denied LeeAnne's motion to move to Utah with the children. Child support remained the same, $1,000 a month, but Robert stopped paying support. June 13, 2005 Motion to Modify Child Support
On June 13, 2005, Robert filed a motion to modify child support based on the 50-50 custody order. LeeAnne, however, had moved to Ventura County where she and the children were receiving public assistance. Before the motion was heard, DCSS registered the 2002 support order in Ventura County Superior Court (Goddard v. Christensen, Ventura County Sup. Ct., Case No. D311915.) and served Robert with notice that LeeAnne had assigned the support obligation to DCSS.
On January 25, 2006, Robert appeared in Los Angeles Superior Court on his motion to modify support. Robert conceded that LeeAnne was receiving public assistance in Ventura County "which effectively deprive[s] this court of jurisdiction to determine [child support]." Robert stated that "it's been a very messy, messy, confusing, complicated case" and "the only thing I really want is to establish a proper order using imputed income and everything else." The court continued the matter to April 14, 2006, to see "if Ventura County takes it over," at which time Robert could submit an ex parte request to transfer the case to Ventura County.
On April 14, 2006, the Los Angeles Superior Court granted Robert's request to transfer the case to Ventura County. Robert paid the transfer fees and transferred the case on June 22, 2006. (Goddard v. Christensen, Ventura County Sup. Ct. Case No. SD034249.)
Motion to Consolidate and Modify Support
On July 25, 2006, Robert filed a motion in Ventura County Superior Court to consolidate the DCSS action (D311915) and paternity action (SD034249) and modify child support. Robert requested that the court reduce child support to zero, retroactive to April 25, 2005, when Robert was granted 50 percent custody. LeeAnne and DCSS and opposed the motion.
After the cases were ordered consolidated, Judge Kevin DeNoce declared a mistrial on November 20, 2008. On November 2, 2009, Judge Ellen Gay Conroy conducted a lengthy hearing on Robert's motion to modify support. LeeAnne testified that she had finished school and, starting June 11, 2009, was working full time at the California Franchise Tax Board earning $3,309 a month. LeeAnne also earned $401 a month as a part-time veterinary technician and paid $415 a month for child care.
Robert's reported income was $600 a week for the past 16 years. He worked as a heavy equipment operator for R&G Grading but claimed there was no work and that he was receiving unemployment insurance benefits. On cross-examination, Robert admitted that he was president of R&G Grading and the company paid his housing and utilities ($1,000 a month), provided a company truck ($500 a month) and paid for his cell phone ($35 a month).
Based on Robert's income history ($600 a week) and the unreported company benefits, the trial court found that Robert's imputed income was $3,600 a month. Using a DissoMaster calculation based on LeeAnne's income ($3,710 a month) and Robert's income ($3,600 a month), the trial court modified child support because "custody is equally shared" and LeeAnne was working full time. The court modified support retroactive to August 1, 2006, the first day of the month after Robert filed his motion to modify support. Robert was ordered to pay $781 a month support from August 1, 2006 through June 30, 2009, and $370 a month support commencing July 1, 2009, the first day of the month after LeeAnne obtained full time employment.
Discussion
Child support modification orders are reviewed for abuse of discretion and will be reversed only if the record shows prejudicial error. (In re Marriage of Pearlstein (2006) 137 Cal.pp.4th 1361, 1371.) Robert claims the order is not supported by the evidence but waived the issue by not providing citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) "It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings. [Citations.]" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.)
Waiver aside, the order modifying support is clearly supported by the evidence. The trial court found that Robert's present income "is not so clear" but noted that his paycheck stubs through 9/18/09 showed $600 a week income for the past 16 years. Although Robert claimed he was just an employee of R&G Grading, Robert admitted that he is president of the company and that his mother and sister own the company but do not work for the company. Robert makes all the business decisions, sets salary levels, hires and fires employees, and is provided rent free housing ($1,000 a month), a free cell phone ($35 a month), and use of a company truck ($500 a month).
Robert claimed there was no work and that he had health problems but the trial court found Robert "totally lacking in credibility." On review, we do not reweigh the evidence or reconsider credibility determinations. (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.)
The trial court found that Robert has the current ability to earn $600 a week and receives "free rent, utilities, use of a vehicle and paid cell phone, for additional nontaxable income of $1,000.00 per month." It did not err. "By express statutory provision, trial courts have discretion to impute income to a parent based on earning capacity. (§ 4058, subd. (b).)" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301.)
Robert's 16-year income history, his control and management of R&G Grading, and the unreported company benefits clearly supports the finding that he has the earning capacity and financial means to contribute to the children's support. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927-928; Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1753-1754.) The support amounts, as determined by the trial court, are based on guideline support and presumed correct. (§ 4057, subd. (a).)
Other Contentions
Robert's Opening Brief raises other issues which are deemed waived because they lack citation to the record and are being raised for the first time on appeal. (See e.g., Western Aggregates Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290-291.) We summarize these contentions as follows:
"Without Prejudice" Support Order
Robert complains that the trial court did not have a copy of the 2002 temporary support order or know the order was "without prejudice" and could be retroactively reduced to zero. The issue may not be asserted for the first time on appeal. (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 313.)
Robert cites no authority that a stipulated order to pay temporary child support includes the right to retroactively reduce support to zero eight years later. Under Robert's construction of the law, the support arrearage can be "erased" even though the children received public assistance. This violates well established public policy that child support is a parent's first and primary obligation. (Moss v. Superior Court (1998) 17 Cal.4th 396, 424.) " 'Agreements and stipulations compromising the parents' statutory child support obligation or purporting to divest the family court of jurisdiction over child support orders are void as against public policy. [Citations.]' [Citation.]" (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.)
Retroactive Modification to 2002
Robert argues that the trial court erred in not modifying child support retroactive to 2002, i.e., the original date of the temporary support order. Robert's motion, however, was filed July 25, 2006 and requested that child support be modified retroactive to December 1, 2004 or April 25, 2005. A family law court lacks jurisdiction to retroactively modify child support before the filing date of the motion to modify support. (Fam. Code, §§ 3603, 3653, subd. (a); In re Marriage of Goodman & Gruen (2011) 191 Cal.App.4th 627; 638; Hogoboom & King, Cal. Practice Guide, Family Law (The Rutter Group 2010) ¶ 17:77, p. 17-29.)
Robert further claims that child support should be modified retroactive to April 25, 2005, the date he filed a prior motion to modify support in Los Angeles County. Robert, however, transferred the paternity action to Ventura County and filed a new motion to modify support on July 25, 2006. The motion, points and authorities in support of the motion, and Robert's declaration listed different dates for retroactive modification. In ruling on the motion, the trial court had broad discretion to set the date for retroactivity. (§ 3653, subd. (a); In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 300.) Robert makes no showing that the trial court erred in selecting August 1, 2006 as the operative date to modify support.
Robert claims the trial court erred in overruling an earlier ruling by Ventura Superior Court Judge Kevin DeNoce that child support would be retroactively modified to 2005. Robert has not provided a copy of Judge DeNoce's order or any citation to the record.
The reporter's transcript reflects that, on the first day of the hearing, Robert argued that "we are claiming retroactivity based on res judicata and collateral estoppel. [¶] Judge DeNoce, I think I'm pronouncing it right - decided . . . that this whole child support issue is retroactive to June of 2000 - -."
"THE COURT [Judge Conroy]: Let me stop you for a moment because . . . I read Judge DeNoce's ruling. And it said that the court rules that the pending request to modify child support may relate back to the filing of the OSC. I don't think that that is a finding that it is retroactive, but it is something to be determined today. So what I'm going to ask you is to be sure you address evidence as to that."
After the hearing, the trial court found: "Judge DeNoce's ruling states that the request to modify child support may relate back to the filing of the OSC in Los Angeles County. This court disagrees and finds no legal authority for such a ruling. [¶] . . . [¶] In considering the issue of retroactivity Judge DeNoce suggests that the transfer may have cause[d] delay. The court finds the delay was not caused by the transfer but by [Robert] in filing in the wrong venue. [¶] Even if the court could find some justification to make any orders retroactive to the filing of the first motion in Los Angeles County, the request would fail because [Robert] did not provide support for his claimed income. [¶] For all the reasons set forth above, the court finds that the earliest jurisdiction for a modification is August 1, 2006."
District Attorney Involvement
Robert claims the Ventura County District Attorney had no authority to intervene in the child support matter. The issue was not raised in the trial court and has been waived. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) Waiver aside, the argument fails because the district attorney was not involved the case. DCSS is a county department independent of the district attorney and charged with the responsibility of establishing, modifying, and enforcing child support obligations. (§ 17304, 17406, subd. (a); Hogoboom & King, Cal. Practice Guide, Family Law, supra, ¶ 6:101.1, p. 6-45; County of Lake v. Palla (2001) 94 Cal.App.4th 418, 422, fn. 5.)
DCSS Opposition to Motion to Modify Child Support
Robert's assertion that DCSS had no authority to oppose the motion to modify support is equally without merit. After DCSS registered the support order, Robert filed his motion to reduce support and consolidate the DCSS action and the paternity action. It was uncontroverted that the children were receiving public assistance, that LeeAnne assigned the support obligation to Ventura County, and that Robert had not paid support for many years.
DCSS was authorized to register the child support order, enforce the order, and intervene in any hearing to modify child support. (§§ 5600, subd. (a); 17400, subds. (a) & (k); Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806.) That is what happened here.
After Robert transferred the paternity action to Ventura County, he served DCSS with a motion to consolidate and modify support. It is disingenuous for Robert to now argue that venue does not lie in Ventura County or that the 2002 stipulated order for temporary support divested DCSS of authority to intervene.
Computation of Child Support
Robert claims there are errors in the child support computation but waived the issue by not addressing it to the trial court. (In re Marriage of Calcaterra & Badakhsh, supra, 132 Cal.App.4th at p. 37.) He is foreclosed from challenging the computation on appeal. (In re Marriage of Hinman, supra, 55 Cal.App.4th at p. 1002.) "[A] party preserves the right to challenge the computation of formula support only if the alleged calculation errors (e.g., erroneous time-share percentage, erroneous gross income figures) are brought to the trial court's attention; otherwise the errors are waived. [Citations.]" (Hogoboom & King, Cal Practice Guide: Family Law, supra, ¶ 6:499:13, p. 6-201.)
Support Arrearage Calculation
Robert complains that the support arrearage calculations are "uncertain" but waived the issue. The motion was to modify child support, not calculate support arrearages. During the hearing, DCSS reminded the trial court that the parties were there to modify support and "to fix a start date on it." Robert did not object or submit a copy of the 2002 support order to facilitate calculation of accrued support.
The trial court, in modifying child support, stated: "The court does not have before it the commencement date of the first support order for $1,000.00. However, from the inception of that order through July 31, 2006, arrearages would accrue at the rate of $1,000.00 per month with credit for any sums paid. For the period commencing August 1, 2006 through the date of this ruling the arrearages calculate at $31,240.00. Any arrearages are subject to interest according to law."
Conclusion
Robert's remaining arguments have been considered and merit no further discussion. The appeal lacks any citation to the record and flies in the face of adverse factual findings upon which to predicate legal error. (See e.g., In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1097.) Robert makes no showing that the order modifying support was arbitrary, capricious, or resulted in a miscarriage of justice. Like most appeals from discretionary orders, this appeal was " 'dead on arrival' at the appellate courthouse." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)
The judgment (order modifying child support) is affirmed. LeeAnne and DCSS are awarded costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
COFFEE, J.
Ellen Gay Conroy, Judge
Superior Court County of Ventura
Kim Scovis and Jenny Scovis, for Petitioner and Appellant.
Akin, Gump, Strauss, Hauer & Feld; L. Rachel Helyar and Katharine J. Galston, for LeeAnne Christensen, Respondent.
Kamala D. Harris, Attorney General, Douglas M. Press, Senior Assistant Attorney General, Marina Soto, Acting Supervising Attorney General, Mary Dahlberg, Deputy Attorney General, for Intervenor and Respondent.