Opinion
A129994
12-06-2011
In re the Marriage of CHRISTIAN L. and SUSAN M. BENDIXEN. CHRISTIAN L. BENDIXEN HAVEN, Appellant, v. SUSAN M. BENDIXEN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VF05210221)
Appellant Christian Bendixen Haven sought modification of a child and spousal support order in this marital dissolution action, without success. On appeal, he contends that the trial court erred (1) by failing to determine his February 2008 motion for modification; (2) by failing to consider evidence of financial hardship under changed economic circumstances, and (3) by committing various evidentiary errors. We affirm the order.
In July 2011, Christian Bendixen filed an opening brief that failed to include record citations to support all factual statements and that referred to matters outside the record on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(C), (2)(C).) On our order, he supplied a corrected opening brief that complies with the California Rules of Court.
I. FACTS
A. Initial Support Order
After almost 31 years of marriage, appellant Christian Bendixen Haven and respondent Susan Bendixen separated in April 2005. Christian filed for dissolution of marriage. They had nine children, the youngest of which was born in 1994. Three of their children were still living at home at the time of dissolution. Two of those three were teenagers at that time; the other turned 18 in May 2005 and graduated from high school a year later. Christian held a BA degree in economics, an MBA degree in finance, and other professional licenses and certifications. He had had a successful career as a business appraiser. Susan was at home in Pleasanton during most of the marriage, raising their children.
The marriage was dissolved in July 2006. By March 2006, Christian reported that he was earning $24,000 a year and paying a significant sum for health insurance. An issue arose about whether he had failed to take advantage of employment opportunities in an attempt to reduce his support obligations. Christian was ordered to undergo a vocational evaluation. He was warned that the support order could be modified retroactively if the court determined that income should be imputed to him.
Susan was ordered to pay Christian $353 per month in child and spousal support. She made these payments for 10 months from her monthly gross income of $1,800. After that time, Susan and Christian privately agreed that she need not pay this sum any longer.
In January 2007, the vocational evaluator concluded that Christian could be earning between $80,000 and $100,000 per year. However, Christian opted not to pursue any of the employment opportunities suggested by the evaluator. He filed a tax return for 2006 showing an annual income of $48,470—more than twice what he had reported to the trial court.
In mid-2007, a hearing was conducted on support issues. Christian admitted that he did not pursue certain employment possibilities—including one for a job earning $120,000 per year—because he did not want to have a higher salary at the time of trial on his support obligations. By mid-July 2007, Christian had begun working as a manager at an accounting firm, earning $100,000 per year. He did not reveal this information to the trial court during trial, but did report this fact in an August 2007 written closing brief. He argued that the trial court should not impute income to him, because his employment possibilities were diminished by the aftereffects of the March 2000 "dot.com" crash and because of the time needed to care for the minor children during his 40 percent of their custody time. For her part, Susan reported that Christian had not paid any support to her, even after he began his new job.
In December 2007, the trial court entered a child and spousal support order. It found that during the marriage, the parties had a middle-class standard of living. The trial court determined that Christian intentionally opted not to seek work, either for strategic reasons related to the pending dissolution or for personal preference. It concluded that neither reason excused him from his obligation to support his children. It imputed an annual income of $100,000 per year to Christian, retroactive to March 2006.
Susan was studying to be an occupational therapist, anticipating that she might earn $60,000 per year beginning in 2011. The trial court found this plan to be reasonable and a proper reflection of her earning capacity. She was earning $19,000 per year working part time while she completed her studies. The trial court found that Christian had the ability to pay spousal support to Susan. It ordered Christian to pay $1,598 per month in ongoing child support for the two youngest children; $2,000 monthly spousal support beginning September 2007; and $33,078 in child/spousal support arrearages. It also ordered Christian to repay Susan $3,530 she paid him in support on and after March 2006. Finally, the trial court ordered Christian to pay $10,000 in attorney fees to Susan's counsel and to reimburse Susan $3,300 for the cost of the vocational evaluation. B. Failure to Pay Support and Motions for Modification
In January 2008, Christian lost his job. In February 2008, he moved to modify the December 2007 support and attorney fees orders. Noting that he had become unemployed, he argued that the support and attorney fees payments ordered created an unreasonable financial burden. Coming so close on the heels of the initial support order, the trial court later deemed this motion to be a motion for reconsideration. By April 2008, Christian was working again, earning up to $10,000 per month. Two months later, he was again unemployed.
In June 2008, the parties appeared in court. Susan asked that Christian be ordered to pay the existing court-ordered support. Christian stated that he had not seen this order, but the trial court reminded him that he had. The court stated that Christian's motion to reconsider the December 2007 support order was still pending determination, but that until a ruling was made on that matter he was required to comply with that order—to make payments of the amounts stated in it at the times set out in it. In August 2008, the trial court awarded custody of the youngest child to Christian. The child went to live with the father in San Diego for the 2008-2009 school year. In September 2008, Christian stopped paying any support.
In September 2008, Christian again moved to modify the trial court's child support order for the two teenagers—then 16 and 14 years old—and the attorney fees order. He noted that the existing child support order anticipated that both children were living 60 percent of the time with Susan, although the youngest lived with Christian full time. As he was unemployed, he sought temporary relief from support obligations. Christian also argued that the order requiring him to pay $10,000 in attorney fees, $33,000 in support arrearages and $3,300 for the vocational evaluation caused him undue financial hardship.
In February 2009, Christian filed an argument in support of his motion for reconsideration. He reasoned that economic changes that were beyond his control affected his ability to obtain employment. He denied having undisclosed income. He asked the trial court to reassess his child and spousal support, arrearages and attorney fees based on his actual ability to pay, not his imputed income. He also asked the trial court to suspend his support obligations during periods of unemployment. On February 20, 2009, the trial court—which deemed Christian's February 2008 motion for modification to be a motion for reconsideration of its December 2007 support order—denied the motion. (Code Civ. Proc., § 1008.) The trial court expressed its frustration that despite two support orders, Christian was not complying with them. He was not present, so the trial court continued hearing on the September 2008 motion for modification.
In May 2009, Susan attempted to obtain funds from Christian's investment accounts. Susan also served him with an order to show cause why he should not be found in criminal contempt for failing to make court-ordered support payments. Christian's September 2008 motion for modification was continued pending the determination of the criminal contempt proceedings. In June 2009, Susan attempted to garnish his wages in San Diego County.
In a June 2009 declaration, Christian stated that his circumstances had changed again. He had been forced to go on welfare to avoid bankruptcy. He stated that he paid the vocational evaluation fee, but lacked the income to pay the additional $43,078 that he still owed Susan. Christian asked to be relieved of the sanction of $10,000 attorney fees. He opined that he had lost two jobs because of the harassment of Susan's counsel.
Christian told the court that from July 2008 through May 2009, he earned about $44,000 in gross income from self-employment. He conceded at trial that he had not made full support payments to Susan from June 2008 through March 2009 and had made no payment since September 2008. He was employed in June 2008 and had sufficient self-employment income from July 2008 through March 2009 to pay support. In March 2010, Christian urged the court to conclude that he had no knowledge of the support order and had not willfully failed to pay support.
In May 2010, the trial court found Christian guilty of 10 counts of criminal contempt. The trial court found that Christian had actual knowledge of a May 2008 order obligating him to pay child and spousal support. He was found guilty beyond a reasonable doubt of contempt for each month from June 2008 through March 2009 when he failed to pay support. In June 2010, Christian was sentenced to serve the maximum sentence—50 days in county jail. Execution of sentence was suspended for three years, during which time Christian was placed on probation. Five days of his sentence were suspended if he paid $26,000 to Susan from an investment account within 10 days. The remaining 45 days of jail time was suspended if Christian adhered to the conditions of probation. He was also ordered to pay Susan $50 per week while he was unemployed and still in arrears. Later that month, Christian paid Susan $26,000 from his investment account.
In July 2010, the trial court conducted a hearing on Christian's September 2008 motion for modification. He testified that by May 2009, he contemplated filing for bankruptcy and filed for unemployment insurance. He told the court that his income was reduced as a result of the recession. He argued that the amount of the arrearages that he was ordered to pay and the $10,000 in attorney fees constituted an unreasonable financial burden. He also challenged the assessment that the family had enjoyed a middle-class standard of living during marriage. Christian—joined by Susan—also asked to have a different child custody order, since the elder of the two youngest children had graduated from high school and the younger was living with Christian during the school year. During cross-examination, Susan brought out evidence that still, Christian was not actively seeking work. He told the court that he expected that by mid-July 2010, he would be earning $8,000 each month in self-employment income.
In August 2010, the trial court ruled on the September 2008 motion for modification. The parties agreed that a modification of the December 2007 order was proper, because of the two youngest children, one had reached age 19 and had finished high school, and the other lived in Christian's custody more than originally expected. The trial court granted the motion to modify by suspending Christian's obligation to pay child support for the older of the two younger children. It ruled that if Christian sought child support from Susan based on recent changes in circumstances, he had to file a new motion to do so. The trial court did not retroactively modify any previous orders for payment of child support, nor did it approve any setoff. It also did not modify payment of spousal support, which—based on recent circumstances—also required a new motion from Christian.
II. FEBRUARY 2008 MOTION
First, Christian contends that the trial court erred by failing to rule on the February 2008 motion for modification in its August 2010 order. Christian challenges as "demonstrably not true" the trial court's August 2010 finding that it denied the February 2008 motion for modification in February 2009. He contends that these failures require us to remand this matter to the trial court to resolve the motion.
Christian appears to have filed a series of motions in the first few months of 2008, including a motion to reconsider the December 2007 support order and a motion to modify it. In February 2009, the trial court conducted a review of unresolved motions. Most were based on the same premise—that Christian was unable to pay the amounts of support, attorney fees and arrearages ordered. Thus, they challenged the trial court's December 2007 decision to impute income to Christian.
The trial court register of actions references several motions, some of which may be repetitive entries referring to different actions taken on the same motion. The February 2008 motion for modification is part of the record on appeal. It was signed by Christian on February 8, set for hearing on February 15 by the court, and filed by the county clerk on February 21.
In February 2009, the trial court formally denied the February 2008 motion, having deemed it to be a motion for reconsideration. Despite this denial, the trial court indicated that it would consider the underlying concerns expressed in that motion when it determined the still-pending September 2008 motion for modification of support. In June 2010, Christian's counsel agreed that only the September 2008 motion for modification was then unresolved. Christian—who was present at that hearing—did not object to this characterization. Nevertheless, a month later, Christian—who was then representing himself—argued that the February 2008 motion had not been resolved. In its August 2010 order, the trial court found that Christian was mistaken because it had denied this motion in February 2009.
These rulings were all issued by the same trial judge.
The record on appeal satisfies us that in fact, the trial court exercised its discretion in February 2009 by ruling on the February 2008 motion. We are also satisfied that in February 2009, the trial court actually denied the February 2008 motion, whether it is best characterized as a motion for reconsideration or for modification. Thus, Christian's claims that the trial court failed to exercise its discretion or erred by finding that it had denied the motion in February 2009 is meritless.
To the extent that Christian's contention on appeal is that the trial court erred by treating his motion for modification as a motion for reconsideration, he suffered no prejudice. In February 2009, the trial court agreed to consider the arguments raised in the February 2008 motion when it determined the September 2008 motion for modification, which was then still pending determination. These issues were essentially the same—that he did not have sufficient actual income to pay support and that the trial court's orders to pay arrearages and attorney fees were burdensome. Under these circumstances, as he cannot show any prejudice resulting from the trial court's treatment of the February 2008 motion as one for reconsideration, Christian's attack on this trial court action cannot prevail. (See Cal. Const., art. VI, § 13.)
III. ECONOMIC CIRCUMSTANCES
Next, Christian contends that the trial court erred by failing to consider financial hardship under changed economic circumstances when it denied his September 2008 motion for modification of his support obligations, the arrearages he had been assessed and the attorney fees sanctions imposed against him. He contends that his inability to pay support in 2008 through 2010 results from the economic recession. His argument is flawed in two significant ways. First, he assumes that the trial court failed to consider his actual income when denying his request to modify its December 2007 order ordering him to pay support arrearages. Our reading of the record satisfies us that the trial court did consider his income fluctuations over the course of the modification period, but was not persuaded that they warranted a reduction of his past obligations, based on all the circumstances.
Second, Christian's argument centers on his actual earnings, which were not the sole subject of the initial support order. Instead, the trial court's December 2007 order was based in significant part on his imputed income. A court may impute income to a supporting spouse and parent based on an ability to earn income, as distinct from actual income. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1299.) In December 2007, the trial court found, based on evidence obtained from a vocational evaluation, that Christian "intentionally depressed his earnings to keep from paying temporary . . . support and to make the most persuasive case for avoiding or minimizing the amount of a permanent spousal support order." It imputed income of $100,000 per year to Christian from March 2006 through December 2007, based on his failure to seek work, although capable of employment. The imputed income formed the basis of the trial court's December 2007 calculation of past support and sanctions due.
The record shows an ongoing effort by Christian to avoid paying support for his former spouse and minor children. Even when he had actual income, Christian refused to pay court-ordered support. He denied ever receiving a copy of the order, which the trial court later found to be untrue. His refusal to pay support from June 2008 through March 2009 led to his conviction of 10 counts of criminal contempt, a suspended jail sentence, and the only significant payment of his support arrearages. In July 2010, the trial court heard Christian's testimony from which it could have properly concluded that he continued not to actively pursue employment and should have continued to have income imputed to him.
To the extent that Christian's claim of error is an attempt to undermine the December 2007 finding that $100,000 of annual income should be imputed to him, we reject it. Christian did not appeal from the December 2007 order, which is now final. Even if this finding were properly before us on appeal, we would find substantial evidence supporting the continued imputation of income to him, regardless of the fluctuations of Christian's actual income. If there is no material change of circumstances since the initial order, a motion for modification is "nothing more than an impermissible collateral attack on a prior final order." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) As there has been no material change of circumstances to justify a change of the initial order, the trial court properly denied the motion for modification of that order. (See ibid. [spousal support].)
To the extent that Christian challenges the trial court's denial of his request to modify past due support, that claim of error also fails. A trial court has broad discretion whether or not to modify a support order. (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.) The circumstances that the trial court was entitled to consider included everything having a legitimate bearing on the lives of both Christian and Susan. (See In re Marriage of Morrison (1978) 20 Cal.3d 437, 454-455.) Given the ongoing evidence of Christian's deliberate failure to seek significant employment, the trial court did not abuse its discretion when it denied Christian's motion for modification of its order for past and ongoing support.
In addition to $100,000 of imputed income, the trial court was also entitled to rely on Christian's assertions that he had current employment as of July 2010 entitling him to $8,000 per month, or a projected annual income of $96,000.
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IV. EVIDENTIARY ISSUE
A. Standard of Living
Christian contends that the trial court also made erroneous evidentiary rulings. First, he complains that the trial court excluded photographic evidence that he reasons would have established that he and Susan did not enjoy a middle-class standard of living. In December 2007, the trial court found that this was the standard of living of the Bendixen family during marriage. In July 2010, Christian tried to introduce photographs of the cramped and messy marital home taken during November and December 1996 to show that this finding was incorrect. The trial court ruled that the evidence was not probative on the issue of support, because even a home in disarray could be the home of a wealthy family.
The standard of living during marriage was determined in the December 2007 order, which Christian did not challenge on appeal. He cannot attack that determination now. (See In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.) The request for modification of support had to be based on changed circumstances since the time of the marriage. The evidence he offered was intended to undermine the determination of the standard of living during marriage. It had no tendency to prove issues relating to changed circumstances since the time of the December 2007 order. The trial court properly excluded this irrelevant evidence. (Evid. Code, §§ 210, 350.) B. Contempt Rulings
Finally, Christian contends that the trial court erred in considering evidence of his criminal contempt. He reasons that the contempt only covered 10 months of the more than two-year period for which he sought modification of the December 2007 order. This argument also fails. In December 2007, the trial court found that Christian had intentionally suppressed his income. Later, it found him in contempt of a court order requiring him to pay support for 10 months of the proposed modification period. The evidence underlying the criminal contempt finding had a tendency to prove that Christian was willing to take extreme measures to avoid his support obligations. It also had a tendency to undermine his credibility as a witness. (Evid. Code, § 210.) As the evidence of criminal contempt was thus relevant to a determination of whether circumstances had changed during the proposed modification period, the trial court acted within its authority when it considered this evidence. (Id., §§ 210, 350.)
The order is affirmed.
Reardon, J. We concur: Ruvolo, P.J. Sepulveda, J.