Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. FL-568614. John L. Fielder, Judge.
Jess Bravo, in pro. per., for Appellant.
Kilpatrick and White, and Michael R. Kilpatrick for Respondent.
OPINION
Kane, J.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Marina L. Soto, Deputy Attorneys General, for Intervener and Respondent.
Appellant Jess Bravo (Jess) filed a petition for dissolution of his marriage to respondent Carmen Bravo (Carmen) and was thereafter ordered by the trial court to pay monthly amounts to Carmen as spousal support and child support. He fell into arrears concerning these support obligations and Carmen eventually requested the aid of the Kern County Department of Child Support Services (the Department) to enforce the support orders. Jess in turn sought relief and/or clarification regarding the amounts owed, claiming that the trial court had previously discontinued his spousal support obligation. Jess also claimed that he should not owe any child support for the period of time one of the minor children-the parties’ daughter, Melissa- resided with him. By order issued on June 3, 2008, the trial court held that Jess continued to owe monthly spousal support to Carmen based on the original 2003 order, which was never terminated or modified. The trial court also ruled that the amount of spousal support was increased from $500 to $750 per month, that Jess was to receive a credit toward child support arrears for the time period Melissa resided with him, and that monies held in trust from the sale of the family residence were to be released to the Department to distribute in accordance with the trial court’s orders for Jess to pay support arrearages. Jess appealed from the June 3, 2008, order on various grounds. As explained herein, we affirm the order in its entirety.
Because of the parties’ same last name, for convenience we refer to them and their children by their first names. No disrespect is intended.
The Department intervened in the case and is, in addition to Carmen, one of the respondents in this appeal. The Department filed a separate respondent’s brief herein.
FACTS AND PROCEDURAL BACKGROUND
Jess and Carmen began their marriage on October 4, 1989. They had two children: Melissa, born in November 1990, and Jesse, born in July 1996. Jess and Carmen separated in December of 1998, at which time Jess filed a petition for dissolution of their marriage. A status-only judgment of dissolution was entered by the trial court on November 2, 2000, thereby ending the parties’ marital status as of that date, with jurisdiction expressly reserved over all remaining issues. On March 11, 2003, the trial court ordered Jess to pay Carmen spousal support in the amount of $500 per month. The order specified that it was without prejudice to either party arguing at the trial of the matter that the amount of such support should be higher or lower.
In June of 2003, the trial court entered an order directing the placement of the proceeds from the sale of the family residence into a blocked account, pending further order of the court. Later that same month, since Jess was in arrears regarding payment of spousal support, the parties agreed that spousal support would be paid out of the funds received into the blocked account from the sale of the house. After the sale of the family residence, Jess filed bankruptcy under Chapter 13. Thus, the funds from the sale of the family residence were also listed as an asset in the bankruptcy proceedings.
In March of 2004, a trial was held on the reserved issues of custody, visitation, support and attorney fees. The trial court issued its ruling on reserved issues on April 6, 2004. In that ruling, the trial court (Judge Jerold L. Turner) ordered Jess to pay Carmen $685 per month for child support. The ruling did not make reference to spousal support. Attached to the ruling was a one-page printout of a “DissoMaster” child support calculation showing the factors used by the trial court in setting child support. The printout shows a zero was inserted on the line where spousal support could have been entered. On November 10, 2004, a dissolution judgment on reserved issues was filed.
As Jess continued to fail to pay support obligations, Carmen sought the aid of the Department. On February 9, 2005, the Department became an assignee and payee on behalf of Carmen concerning the enforcement of the support orders. In response to the Department’s enforcement efforts, Jess filed a motion asking Judge Turner to clarify the judgment on reserved issues with respect to Jess’s spousal support obligation. Specifically, Jess sought clarification of whether or not Judge Turner had terminated Jess’s obligation to pay spousal support (based on the zero set forth in the DissoMaster printout). In addition, Jess filed a second motion seeking to modify custody and visitation orders on the basis that Melissa had been living with him since January of 2005.
The motion regarding clarification of the judgment on reserved issues was heard on June 6, 2005. Judge Turner held that no clarification was needed because the issue of spousal support was not before him at the time of the trial on reserved issues. Further, Judge Turner indicated from the bench that the original spousal support order remained intact. He specifically advised the parties: “That temporary order, as far as I am aware, is still in effect.”
In regard to the second motion, the trial court found that Melissa had in fact been in Jess’s custody since January of 2005, with Carmen’s consent. Jess was awarded primary physical custody of Melissa, while Carmen would continue to have primary physical custody of the parties’ other minor child, Jesse. No changes were indicated concerning Jess’s spousal or child support obligations.
Over two years later, on June 15, 2007, Jess filed an order to show cause for modification of child custody, visitation, child support and spousal support. Among other things, Jess requested that the trial court determine the amount of arrearages for spousal and child support, clarify (again) whether or not spousal support “WAS TERMINATED EFFECTIVE 3/16/04,” and adjust and credit child support based on the fact that Melissa was in Jess’s physical custody.
The matter came to hearing in January and March of 2008 before Judge Fielder. During oral argument on the renewed issue of whether spousal support had been terminated by Judge Turner, Jess’s attorney acknowledged that Judge Turner previously clarified that his 2004 ruling did not terminate spousal support, since the issue was not before him. Jess’s attorney further acknowledged that his client should have immediately sought a modification of the spousal support order once he learned that the order had not been terminated. Since Jess failed to do so, it was conceded that Jess had “no argument” on the issue of spousal support arrearages.
On the issue of child support, Jess asked the trial court to find that zero child support was owed by either party as of January of 2005, because the original child support order was not allocated and it was undisputed that Melissa had been living with him since January of 2005. The Department’s position with respect to the child support issue was that Jess was entitled to a “credit” toward child support for the time period that Melissa lived with him, but recommended that the amount of the credit be based on the percentage of support Jess would have had to pay for Melissa if the order had been allocated. The Department informed the trial court that under this approach, Jess would be entitled to a credit in the amount of $257 per month for the relevant time period. The parties also argued the issue of whether support arrears should be paid out of the escrow account in which the proceeds of the sale of the family home were deposited.
The trial court (Judge John L. Fielder) took the matter under submission and issued a ruling on June 3, 2008. The June 3, 2008, order held, among other things, that (1) Jess continued to owe monthly spousal support to Carmen based on the original 2003 order, which order remained in effect because it had not been terminated or modified; (2) the amount of spousal support was increased from $500 to $750 per month, beginning May 1, 2008; (3) Jess’s monthly child support was modified to $109 per month, effective June 15, 2007; (4) Jess was granted a credit toward child support arrears in the amount of $257 per month, which credit would be applied for the time period from January 2005 (when Melissa began to reside with Jess) until June 15, 2007 (the date the child support was effectively modified); and (5) monies held in trust from Jess’s bankruptcy (i.e., from sale of the family residence) were to be released to the Department to distribute in accordance with the trial court’s orders for Jess to pay support arrearages.
Subsequent clarifying orders were also issued by the trial court, but they are not at issue in this appeal.
Jess filed a timely notice of appeal from the trial court’s June 3, 2008, ruling.
DISCUSSION
I. Spousal Support
Jess’s appeal challenges the trial court’s conclusion that the original spousal support order was not terminated by Judge Turner in 2004. He argues the order must have been terminated, notwithstanding Judge Turner’s subsequent statement that the issue of spousal support was not before him, because a DissoMaster printout attached to the 2004 ruling on reserved issues inserted a zero on the line referring to spousal support, and because Jess’s attorney believed that spousal support was in fact terminated by the trial court and she sent Jess a letter to that effect. Jess also argues that the trial court could not have intended to leave the spousal support order intact while at the same time imposing a new child support order, because the combined monthly support would then be unreasonably high. We find that the record adequately supports the trial court’s conclusion that the spousal support order was not terminated: therefore, we reject Jess’s claims to the contrary.
In addition, Jess’s opening brief recites that domestic violence is a factor in spousal support determinations and he asserts that such violence occurred during his marriage to Carmen, but he fails to show from the record that this was properly raised or that the trial court committed any error in this regard. Jess also makes a cursory reference to the factor of whether the duration of his marriage was short-term versus long-term, but fails to demonstrate factually and legally that the order appealed from was in error or beyond the reasonable bounds of the trial court’s discretion in regard to spousal support. An appellant’s burden is to show reversible error by an adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575), which Jess has not done.
Preliminarily, we note the 2003 award of spousal support was in the nature of a temporary support order. It required that Jess pay Carmen the sum of $500 per month as spousal support, and it stated that the order was “without prejudice for either party to argue that the amount of support should actually be higher and/or lower based upon whatever evidence they intend to offer at the time that this matter proceeds to trial.” The order further provided that the monthly sum would be payable “until [f]urther order of the court.”
Temporary spousal support is authorized by Family Code section 3600, which provides as follows: “During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties …, the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325, or (b) either or both parents to pay any amount necessary for the support of the child, as the case may be.” Once an order for temporary spousal support is in place, “it may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” (§ 3603; see also § 3653 [an order modifying or terminating support may only be retroactive to the date of the filing of the notice of motion or order to show cause, or to any subsequent date].)
Unless otherwise indicated, all further statutory references are to the Family Code.
The purpose of temporary spousal support is “‘to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ [Citation.]” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) “Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in ‘any amount’ (§ 3600) subject only to the moving party’s needs and the other party’s ability to pay.” (Ibid.)
On the other hand, the purpose of permanent spousal support is “‘not to preserve the preseparation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.’ [Citations.]” (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) Permanent spousal support orders are governed by section 4320.
We review an order determining spousal support under the deferential abuse of discretion standard. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) We uphold the trial court’s determination absent a clear abuse of discretion. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165.) “Wide discretion is vested in the trial court in determining the amount and duration of spousal support. ‘In order not to be arbitrary, discretion must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities and the financial ability of the [supporting spouse]. Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all circumstances before it being considered. [Citation.]’ [Citations.]” (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 916-917.)
Jess does not challenge the amount of support that was set forth in the 2003 order, (i.e., $500 per month). Rather, he contends that the order was subsequently terminated. We disagree. The 2003 order clearly stated that the spousal support was payable “until [f]urther order of the court.” (Italics added.) Jess has failed to demonstrate, whether by hearing transcripts, court minutes or otherwise, that the trial court issued an order terminating this spousal support obligation. Although Jess and his attorney were apparently under the impression that spousal support had been terminated at the 2004 trial of reserved issues, when explicit clarification of that fact was sought from Judge Turner, the parties were duly informed by him that spousal support was not terminated in 2004 because that issue was not before him at that time.
Indeed, when the issue was raised yet again in connection with the 2008 order to show cause hearing (resulting in the June 3, 2008, order from which Jess now appeals), Jess’s attorney conceded that Judge Turner previously clarified that his 2004 ruling did not terminate spousal support. Jess’s attorney further conceded that Jess should have immediately sought a modification of the spousal support order once he learned that the order had not been terminated, and that since Jess failed to do so he had “no … argument” on the issue of spousal support arrearages. We agree with these concessions by Jess’s attorney. Upon being informed that the spousal support order was still in effect, it was incumbent on Jess to make a motion seeking a modification of that order if he believed the amount of that support was unreasonably high. (§ 3603.) He never did so. Moreover, because Jess (through his counsel’s concessions) invited and acquiesced in the trial court’s ruling on the continuing spousal support obligation under the prior order, Jess has forfeited that issue on appeal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501-502.)
Of course, this was Jess’s prior attorney. Jess is representing himself in this appeal.
As far as the zero entered on the spousal support line of the DissoMaster printout, Judge Turner explained in connection with the clarification motion that a zero was placed there as a matter of course because “child support was the only issue that I was deciding.” He also noted that if the issue of spousal support had been before him at the time of the 2004 trial of other reserved issues, the question would have been one of permanent spousal support, concerning which the DissoMaster guidelines would clearly be inapplicable. That analysis was correct. A judge may not rely on a DissoMaster guideline when determining permanent spousal support, since section 4320 requires a court to consider all of the circumstances enumerated in that statute when determining permanent spousal support. (In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081-1082.) Consequently, it would be patently unreasonable to view a DissoMaster printout as tantamount to an order addressing and/or resolving the matter of permanent spousal support. Rather, on the record before us, it is apparent the zero was entered on the spousal support line of the DissoMaster printout simply because, as Judge Turner stated, child support was the sole issue he was then deciding.
We note further that the trial court was not required to include Jess’s spousal support obligations to Carmen on the DissoMaster guideline when determining child support. Child support amounts are governed by the uniform guidelines set forth by statute at section 4050, et seq. Under section 4059, subdivision (e), when computing annual net disposable income of each parent in connection with a proceeding to determine child support, a deduction is made for spousal support “actually being paid by [a] parent … [to] any person who is not a subject of the order to be established by the court.” (Italics added.) No similar deduction is provided for spousal support that is being paid by a parent to a person who is a subject of the court’s order. Here, since Jess and Carmen were parties to the proceeding and subject to the order being established, the spousal support owed by Jess to Carmen would not be included in the deduction. (See In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1500 [concluding, as to similar language in § 4058 defining a parent’s gross income, that “the Legislature chose to omit spousal support between parties to the proceeding from the definition of gross income for purposes of calculating guideline child support”].) In conclusion, we discern no error, and none has been demonstrated to us, based on the insertion of a zero on the spousal support line of the DissoMaster guideline that was used by the trial court for setting child support.
Further, the deduction would also not apply to Jess to the extent spousal support was not “actually being paid” to Carmen. (§ 4059, subd. (e).)
Finally, Jess argues that Judge Turner could not possibly have intended to leave the original spousal support order intact at the time of his 2004 ruling on reserved issues because, if he had done so, the combined amount of spousal and child support would have been unreasonably high as a percentage of Jess’s income. He asserts that neither Judge Turner, nor any other reasonable judge, would likely have imposed such an onerous support burden. We reject this line of argument for several reasons, most of which we have already alluded to above. First, the record below clearly supported the trial court’s conclusion (embodied in its June 3, 2008, order) that the original spousal support order remained in effect because (a) said spousal support order was by its own terms effective until otherwise ordered by the court, (b) there was no written order, minute order or court transcript demonstrating that a court order was issued that modified or terminated the original support obligation, and (c) Judge Turner explicitly clarified that he did not do so. Second, when Judge Turner clarified in 2005 that the original spousal support order was not terminated, Jess took no action to challenge or modify his support obligation. Third, at the hearing on the order to show cause prior to the trial court’s June 3, 2008 order, Jess’s attorney conceded these basic procedural facts and clearly acquiesced in the trial court’s order based thereon. Fourth, and encompassing all we have said above, Jess has failed to demonstrate a clear abuse of discretion. That is, he has not demonstrated that under all the relevant facts and circumstances before the trial court, the decision that the original spousal support order remained in effect was beyond the bounds of reason or otherwise contrary to law. For all of these reasons, we affirm the order of the trial court upholding Jess’s spousal support obligation.
According to Jess, the combined support obligations were the equivalent of approximately 60 percent or more of his then income level.
II. Child Support
On April 6, 2004, the trial court filed its original order requiring Jess to pay $685 per month in child support for the two minor children, with that child support obligation commencing on March 16, 2004. That child support obligation was incorporated in the November 10, 2004, judgment on reserved issues. It was undisputed that one of the children, Melissa, began residing with Jess in January of 2005. However, Jess did not ask the trial court to change his child support obligation until he filed an order to show cause seeking a modification of child support on June 15, 2007. At that time, Jess requested that the trial court find that he owed zero in child support beginning on January 1, 2005, when Melissa started residing with him. In its June 3, 2008 order, the trial court did not eliminate Jess’s past-accrued arrearages for child support, but gave him a credit of $257 per month against such arrearages based on the fact that Melissa was in Jess’s physical custody. The order stated the credit was effective from January of 2005 to the date that child support was effectively modified (i.e., June 15, 2007).
Jess challenges the trial court’s ruling on child support. We review a child support determination under the abuse of discretion standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282). “We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order. [Citation.]” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) However, the deferential standard is limited by the statutory parameters of California’s uniform child support guideline and the purposes of the law regarding child support. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555; In re Marriage of Cheriton, supra, at p. 283.) Within these parameters, we extend to the trial court “the broadest possible discretion” in its effort to equitably determine child support issues. (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044.)
“California has a strong public policy in favor of adequate child support. [Citations.] That policy is expressed in statutes embodying the statewide uniform child support guideline. (See … §§ 4050-4076.)” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 283.) “To implement these policies, courts are required to calculate child support in accordance with the mathematical formula set forth in the statute. (See § 4055.…)” (Id. at p. 284.)
Jess argues the trial court should have found his child support obligation was zero once Melissa began residing with him. We reject this argument. A trial court has no authority to retroactively modify the amount of child support that has already accrued. “[A] support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.” (§ 3651, subd. (c)(1).) By virtue of this statute, “[t]he Legislature has established a bright-line rule that accrued child support vests and may not be [retroactively] adjusted up or down. [Citations.] If a parent feels the amount ordered is too high-or too low-he or she must seek prospective modification. [Citations.] Accordingly, a trial court has no discretion to absolve an obligor of support arrearages, or interest thereon. [Citations.]” (In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 625-626; see also In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80.) Thus, to the extent that Jess is arguing the trial court should have retroactively modified the amount of accrued child support, his argument is without merit.
The statutory mandate applies equally to spousal support orders. (§§ 3650, 3651, subd. (c)(1).) This obviously precludes any claim by Jess that the trial court should have retroactively modified accrued spousal support.
However, a trial court may determine that a parent has satisfied his or her support obligation “in a manner other than direct financial payments, as where the parent assumes increased physical custody of the child.” (In re Marriage of Tavares, supra, 151 Cal.App.4th at p. 626.) Thus, a trial court may find that a child support obligation has been satisfied, in whole or in part, by means of furnishing physical custody to the child. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075-1076; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366-368 (Jackson).) That is exactly what the trial court did in this case, finding that Jess was entitled to a credit toward child support arrears in the amount of $257 per month based on his physical custody of Melissa. The credit amount was referred to by the trial court and parties as “‘Jackson’ credits.” (Italics added.)
Jess takes issue with the trial court’s method of determining the Jackson credits. After consideration of all the arguments, pleadings and information provided to it, the trial court decided to give Jess a credit in the amount of $257 per month based on the percentage that would have been owed for Melissa’s support under a support allocation between the two minor children under statutory child support guidelines. (See § 4055, subd. (b)(4), (b)(8).) Thus, in exercising its equitable power to award Jess a credit for the direct support he provided to Melissa, the trial court took into consideration Jess’s concurrent obligation to provide for the support of the parties’ other child, Jesse. Although the original support order was not allocated concerning the two children, it was not unreasonable for the trial court to use the statutory guidelines with respect to allocation when deciding on a fair and equitable credit amount. Jess disagrees with the result, but fails to demonstrate factually or legally that the trial court’s use of the statutory guideline for this purpose, or its determination of the specific amount of the credit, constituted an abuse its discretion in this case. “We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order. [Citation.]” (In re Marriage of Schlafly, supra, 149 Cal.App.4th at p. 753.) Since it is apparent that the trial court used its discretion reasonably, and Jess has failed to show otherwise, the order will not be disturbed on appeal.
III. Trial Court’s Order Regarding Funds Held in Trust
The trial court’s order of June 3, 2008, stated: “The court orders the monies being held in trust from [Jess’s] bankruptcy shall be released to the Department … for distribution to the parties in accordance with this court’s findings.” In his appeal, Jess claims that the trial court should have placed these funds with a “trust agency” or other third party professional to be distributed “only for [his] children’s educational needs,” rather than for payment of support arrearages Jess fails to present any legal argument or citation to authority in support of this proposition; therefore, we disregard it. (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43; People v. Crittenden (1994) 9 Cal.4th 83, 153.)
This failure by Jess is a conspicuous example of what is true of the entire appeal: namely, a failure to establish any prejudicial error or abuse of discretion. It is fitting to conclude with a reiteration of the essential burden on appeal that was unmet in this case. “‘The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.’ [Citation.]” (State Farm Fire & Casaulty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The judgment or order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (Ibid.) The appellant has the burden of overcoming the presumption that a judgment is correct by providing an adequate record demonstrating error (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132), and by presenting argument and legal authority, along with specific citations to the record, to support the particular claim of error (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523). Jess clearly failed to meet this burden.
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to Carmen and the Department.
WE CONCUR: Dawson, Acting P.J. Poochigian, J.