Opinion
E061856
03-15-2018
In re the Marriage of LOUIE R. and JACQUELYN A. HERNANDEZ. LOUIE R. HERNANDEZ, Respondent, v. JACQUELYN A. HERNANDEZ, Appellant.
Jacquelyn A. Hernandez, in pro. per., for Appellant. Pitre & Teunisse and Patricia A. Teunisse for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FAMRS701643) OPINION APPEAL from the Superior Court of San Bernardino County. Teresa M. Bennett, Judge. Affirmed. Jacquelyn A. Hernandez, in pro. per., for Appellant. Pitre & Teunisse and Patricia A. Teunisse for Respondent.
In 2011, the family court entered a judgment of dissolution for the marriage of Respondent Louie R. Hernandez (Husband) and appellant Jacquelyn A. Hernandez (Wife). In 2014, the family court modified the amount of spousal support paid by Husband to Wife. The family court modified the amount to zero.
Wife contends the family court (1) violated her right of due process by not permitting Wife to question Husband as her own witness; (2) violated her right of due process by refusing to let Wife's witnesses testify; (3) erred by relying on speculative expert testimony; (4) erred by not issuing a statement of decision; (5) failed to consider the statutory factors when ruling on the request to modify spousal support; and (6) erred by denying her request for attorney fees. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. 2011 DISSOLUTION
Husband and Wife married in November 1988. They separated in July 2007. A judgment of dissolution of their marriage was entered in December 2011. Husband retired from the Pomona Police Department and received pension disbursements. Husband also worked as the director of security at a medical center and earned a salary.
Wife had a bachelor's degree in business administration and a master's degree in marriage and family therapy. Wife worked as a counselor, but stopped working in 2003 and devoted herself to raising her and Husband's children. In 2011, the two children were 21 and 16 years old; Wife was 54 years old; and Husband was 68 years old. Also in 2011, Wife was one test away from obtaining her marriage and family therapist license.
In December 2011, the family court imputed no income to Wife for the period prior to January 1, 2013. The family court imputed an income of $2,500 to Wife commencing on January 1, 2013. The court ordered Husband to pay $2,500 per month in spousal support from November 2011 through December 2012, and $1,500 per month commencing on January 1, 2013.
B. REQUEST TO MODIFY SPOUSAL SUPPORT
In 2014, Husband sought a modification of the spousal support award. Husband asserted circumstances had changed because (1) in June 2013, Wife began receiving her portion of the monthly pension payment from Husband's pension program; and (2) Husband's monthly salary had been reduced by approximately $1,200 due to budget cuts at the medical center. Husband asserted Wife had made no effort to obtain employment, which showed a lack of good faith on Wife's part.
C. OPPOSITION
Wife opposed the requested modification. First, Wife asserted Husband lied about his income, and that his income was nearly double the amount he reported to the court. Second, Wife asserted her portion of the monthly pension distribution was lower than it should be. Third, Wife contended she was unable to obtain employment because Husband and his attorney incorrectly told people Wife had been arrested.
D. HEARING
The family court held a hearing on Husband's request to modify spousal support. The hearing commenced on April 24, 2014, at 2:12 p.m. Husband testified at the hearing. Husband testified that (1) he received less money in pension distributions that he did in 2011; and (2) his salary had been reduced since 2011. Wife cross-examined and recross-examined Husband.
When the recross-examination ended, Wife said, "Thank you." Husband's attorney said she did not have any further questions. The court said, "Thank you, [Husband]. You can step down." Wife testified at the hearing. The last time stamp on the April 24 minute order is 4:19 p.m.
The hearing resumed on May 8 at 9:15 a.m. Kathleen Young, a vocational expert and career counselor, testified. Young testified that Wife obtained her marriage and family therapist license in December 2013. Young opined that Wife had a "reasonable opportunity" to obtain a job within six to 12 months if Wife "put forth a very good job search." Young testified that employers may not ask prospective employees about an arrest that did not lead to a conviction. After Young's testimony, Husband said he had no further witnesses.
The court asked Wife if she had any witnesses to call. Wife said she wanted to call Richard Salvaggio, but he was not in court. The court asked for an offer of proof concerning Salvaggio's testimony. Wife said Salvaggio would testify about Husband and Husband's attorney "putting false arrests in [Wife's] background, [and] talking about getting [her] arrested." Wife said she also planned to call her adult daughter, Alexandra Hernandez (Daughter) to have her testify that Husband was not paying Daughter's medical expenses, contrary to his income and expense declaration reflecting he was paying her medical expenses. Husband offered to stipulate that he was not paying for the Daughter's medical insurance. The court explained that Salvaggio's testimony and Daughter's testimony would not be relevant to the issue before the court.
Husband's attorney began presenting her closing argument. At noon, the court interrupted counsel and asked the parties to return at 1:30. Husband's attorney said, "I will be here, but my client needs to be excused since we're through with that phase." Wife said, "If I have a question for him at 1:30—." The court responded, "You didn't call him as a witness. We're done." The court took its noon recess. At 1:40, Husband's attorney resumed her closing argument. Husband was not in court. Wife presented her closing argument.
After Wife completed her closing, Husband's attorney said, "Again, just want to make sure for the record, [Wife] has had ample opportunity to cross-examine my client." Husband's attorney offered to stipulate that Husband had the ability to pay spousal support. Husband's attorney said, "So we're not contesting his inability [sic]. What we're contesting here is her ability to earn and her unwillingness to become employed." At 2:11 p.m., the court took the matter under submission.
E. REQUEST FOR STATEMENT OF DECISION
On June 20, Wife requested a statement of decision. Wife asserted that the family court issued a tentative opinion on June 10, and therefore Wife contended she was within the 10-day window for requesting a statement of decision.
F. RULING
On July 2, 2014, the family court issued its findings and order after hearing. The family court found (1) Wife's need for spousal support had reduced since 2011 because Wife began receiving her share of the pension distributions; (2) Wife failed to provide proof that she was rejected from jobs due to failing background checks; (3) Wife was qualified for jobs that would provide a monthly income of approximately $3,333 to $3,750; and (4) Wife failed to make minimal efforts to obtain employment.
The court imputed an income of $3,000 to Wife. The court noted that Wife received $890 per month in pension distributions. Wife's monthly expenses were $3,450. The court modified the spousal support payments to zero effective June 30, 2014. The court's written findings and orders are two and one-third pages long, single spaced.
G. NOTICE OF APPEAL
On September 4, Wife filed a notice of appeal. The notice reflects Wife is appealing from the July 2 order.
DISCUSSION
A. CALLING HUSBAND AS A WITNESS
Wife contends the trial court violated her right of due process by not permitting Wife to question Husband as her own witness.
Due process requires "that each party be afforded a fair opportunity to present evidence in open court." (Carr v. Kamins (2007) 151 Cal.App.4th 929, 936.) We review constitutional questions under the de novo standard. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.)
Wife did not call Husband as a witness. After closing argument had begun, Wife said, "If I have a question for him at 1:30—." Wife was equivocal as to whether she wanted to call Husband as her own witness, and she waited until evidence was closed to mention the possibility of calling him as a witness.
When Wife had the opportunity to present evidence and was asked about her witnesses, she said she wanted to call Salvaggio and Daughter. Because Wife did not call Husband as a witness, the court never said Wife could not examine Husband. In other words, the family court did not refuse to let Wife examine Husband as her own witness; rather, Wife failed to call him as a witness. Thus, the court did not violate Wife's right of due process. Moreover, we note that Wife does not indicate what questions she needed to ask Husband on direct examination that she was unable to ask him on cross-examination.
B. WIFE'S WITNESSES
Wife contends the family court violated her right of due process by refusing to let Wife's witnesses testify.
We review constitutional questions under the de novo standard. (In re Allison J., supra, 190 Cal.App.4th at p. 1112.) Due process requires "that each party be afforded a fair opportunity to present evidence in open court." (Carr v. Kamins, supra, 151 Cal.App.4th at p. 936.) " 'The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court.' " (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1120.)
The vocational expert testified that employers may not ask prospective employees about an arrest that did not lead to a conviction. Wife offered to have Salvaggio testify about Husband and his attorney "putting false arrests in [Wife's] background, [and] talking about getting [Wife] arrested." Salvaggio's testimony had little probative value unless Wife could also offer evidence reflecting employers can ask prospective employees about arrests that did not result in convictions. Wife needed to demonstrate that she could rightfully be refused a job due to alleged arrests. Without that evidence, Salvaggio's testimony had little value.
Wife also sought to have Daughter testify about medical bills. Wife explained that Husband included Daughter's health expenses on his income and expense declaration. Wife asserted Daughter would testify that Husband was not paying Daughter's medical expenses. Husband offered to stipulate that he was not paying Daughter's medical expenses. Because Husband offered to stipulate, there was no need for Daughter to testify—Wife did not need to prove the medical expense issue.
Further, Salvaggio and Daughter were not in court when it was time for Wife to call her witnesses. The court gave Wife a five-minute recess. Wife spoke to Salvaggio and/or Daughter but was unable to tell the court if or when the witnesses would arrive. Given that (1) Wife did not have witnesses present in court; (2) Salvaggio's testimony had little probative value; and (3) Daughter's testimony had no probative value after Husband's stipulation, we conclude the trial court did not violate Wife's right of due process.
In Wife's appellant's reply brief, she asserts Salvaggio and Daughter were at the family court, in the corridor. The reporter's transcript from the hearing reflects the following: The family court asked if Wife had witnesses to call. Wife responded, "I do, but my witness is with the other witness, one is not feeling well. I just asked if they could get here. My one witness has a history of back problems and he might have another surgery soon." Wife's comment, "I just asked if they could get here," indicates Salvaggio and Daughter were not in the corridor.
C. EXPERT TESTIMONY
Wife contends the family court erred by relying on Young's expert testimony because Young never met with Wife and thus Young's testimony was speculative.
" 'Irrelevant or speculative matters are not a proper basis for an expert's opinion.' . . . [U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As [our high court] recently explained, '[T]he expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors.' " (Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 770.)
It is the trial court's role as "gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Sargon Enterprises, Inc. v. University of Southern Cal., supra, 55 Cal.4th at pp. 771-772.) "In short, the gatekeeper's role 'is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' " (Id. at p. 772.) We apply the abuse of discretion standard of review. (Id. at p. 773.)
Young is a vocational expert and career counselor. Young has a master's degree in vocational rehabilitation counseling and is a diplomat with the American Board of Vocational Experts. In order to become a diplomat one must have references from family law attorneys, have performed a particular amount of vocational evaluations, and pass a lengthy examination.
In regard to Wife, Young explained that (1) Wife was a California licensed marriage and family therapist, and she obtained that license in December 2013; (2) Wife had a current pupil personnel services license; and (3) Wife had a certificate or license in "Eye Movement Desensitization Reprocessing." Young had reviewed copies of Wife's various licenses. Young had evaluated the employability of other marriage and family therapists as part of her job as a vocational evaluator.
Young did not know if Wife was currently working, but explained that people who are out of the workforce can volunteer, in order to gain work experience, and then apply for jobs. Young had researched job openings based upon Wife's education and licenses. Young found 11 job openings. Young explained the qualifications and salary ranges for the different jobs. Young concluded that "if [Wife] or anyone with her qualifications put forth a very good job search . . . they would have or she would have a reasonable opportunity of obtaining employment in a reasonable period of time in this field." A reasonable time was defined as six to 12 months.
Young's testimony was based upon her experience and research. Young researched Wife's credentials and researched job openings. Young drew upon her experience in evaluating the employability of other marriage and family therapists. Young did not say she had met with Wife. Young explained, in general, what a person with Wife's qualifications could expect to find in terms of employment. Given that Young's testimony was based upon her research and experience, we conclude her testimony was not speculative. Therefore, the trial court did not abuse its discretion.
D. STATEMENT OF DECISION
Wife contends the family court erred by not issuing a statement of decision.
We apply the de novo standard because the relevant facts are undisputed. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.) A trial court shall issue a statement of decision upon the request of any party if the request is made within 10 days after the court's announcement of a tentative decision. However, if the trial is concluded within one calendar day, or within less than eight hours over more than one day, then the request for statement of decision must be made prior to the matter being submitted. (Code Civ. Proc., § 632.) The eight-hour rule includes ordinary recesses wherein the parties remain in the courthouse, but does not include extended recess, such as lunch recesses. (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980.)
On April 24, the hearing commenced at 2:12 p.m. The last time stamp for the day is 4:19 p.m. Assuming the hearing ended at 5:00 p.m., that amounts to a three-hour hearing on April 24. On May 8, the hearing began at 9:15 a.m., and court recessed at noon for lunch. That amounts to another three-hour session for a subtotal of six hours. The May 8 hearing resumed at 1:40 p.m., and the matter was submitted at 2:11 p.m. Thus, the afternoon session lasted 31 minutes. The total length of the hearing was six hours, 31 minutes.
Because the hearing lasted less than eight hours over more than one day, Wife was required to request a statement of decision "prior to the submission of the matter for decision." (Code Civ. Proc., § 632.) The family court took the matter under submission on May 8. Wife requested a statement of decision on June 20. Wife's request was untimely. Accordingly, the family court did not err by denying Wife's request.
E. FACTORS
Wife contends the family court failed to consider the statutory factors when ruling on the request to modify spousal support. In particular, Wife contends the family court failed to consider Wife's need for support and Husband's ability to pay support.
After a change of circumstances has been shown, when the family court determines in what manner to modify spousal support, it considers the same criteria it considered in initially ordering support. (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1475.) There is a statutory list of factors. (Fam. Code, § 4320.) Included on that list are the supporting party's ability to pay and the needs of each party based upon the marital standard of living. (Fam. Code, § 4320, subds. (c) & (d).) Additional factors include the ability of the supported spouse to gain employment and the goal that both spouses become self-supporting. (Fam. Code, § 4320, subds. (g) & (l).) We apply the abuse of discretion standard of review. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
In the family court's findings and order after hearing, it wrote, "The Court finds that [Husband's] Request to modify downward spousal support is not based on his inability to pay spousal support, but on [Wife's] unwillingness to seek gainful employment." Also in the court's findings and order after hearing, the court wrote, "[T]he Court finds that although [Husband] has [the] ability to pay spousal support and [Wife] has a current need for spousal support, the Court finds that [Wife] has not made other than minimal efforts to obtain employment. The Court hold[s] [Wife] to at least $3,000 per month. Coupled with her portion of the retirement income at $890 per month, this would provide [Wife] with $3,890 per month. [Wife] listed her estimated expenses, actual expenses and proposed expenses were [sic] $3,450.00 on her Income [and] Expense Declaration."
The court's finding reflects Husband had the ability to pay spousal support. The court explicitly wrote, "[Husband] has [the] ability to pay spousal support." Thus, the family court addressed the statutory factor of Husband's ability to pay support. Additionally, the court explicitly wrote, "[Wife] has a current need for spousal support." Thus, the court addressed the factor of Wife's need for spousal support. In sum, we are not persuaded that the family court failed to consider the factors of Husband's ability to pay support and Wife's need for support.
F. ATTORNEY FEES
1. PROCEDURAL HISTORY
On July 9, 2014, the family court considered four motions brought by Wife. Two of the motions were: (1) an April 3rd motion to strike, which the trial court said included a request for attorney fees; and (2) an April 4th motion to strike the pleadings, which included a request for attorney fees. The court denied the motions to strike and the requests for attorney fees.
2. ANALYSIS
Wife contends the family court erred by denying her requests for attorney fees.
Wife's notice of appeal reflects she is appealing the family court's July 2 order, which concerns the modification of spousal support. The denial of attorney fees occurred on July 9. Thus, Wife's notice of appeal did not include the order denying attorney fees because she did not indicate she was appealing from the July 9 order. (Cal. Rules of Court, rule 8.100(a)(2).)
Nevertheless, we will address Wife's contention. The record includes Wife's April 3 motion to strike. In the motion, Wife sought to have Husband's trial brief stricken. The trial brief concerned the modification of spousal support. Wife asserted she was not properly served with the brief, Husband violated rules of discovery, Wife's request to settle was ignored, and Husband filed a false declaration.
The April 3 motion to strike that is included in the record does not include a request for attorney fees. The motion reflects Wife was self-represented. When the family court described the April 3 motion at the July 9 hearing, it described the motion as including a request for attorney fees, but the version of the motion we have in the record does not include such a request. Wife's April 4 motion, which the family court also described as including a request for attorney fees, is not included in the record. In Wife's appellant's opening brief, she does not provide record citations to support her contention concerning attorney fees. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
Because the record does not include Wife's request for attorney fees, the record is inadequate. We cannot determine whether the trial court erred when the record does not include Wife's request and the basis for her request. Accordingly, because the record is inadequate, we must resolve the issue in favor of Husband. (See In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452 [appellant's burden to provide adequate record and affirmatively demonstrate error].)
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.