Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD205958. Fredrick C. Shaller, Judge Presiding.
Benedict S. Liao, in pro per, for Appellant.
Arnold Freeland for Respondent.
WOODS, J.
Benedict Liao appeals from the order denying his motion to terminate or modify monthly spousal support to respondent Chieh-Yuan Liao. Appellant argues the court should have terminated monthly support because he had shown a change in circumstances since the court last modified the support order in June 2007. Specifically, appellant claims that given his age, his health problems and the fact that he sold his medical practice and reduced his work hours, the court should have terminated the order of spousal support. The trial court disagreed, finding appellant had failed to demonstrate his change of circumstances—that appellant’s claims concerning his income, poor health and employment were “untrue” based on the evidence presented. As set forth more fully below, appellant has not shown any reversible error in the trial court’s resolution of these matters and accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
As we shall discuss at greater length elsewhere, the record appellant designated on appeal is insufficient for this court to conduct meaningful review. The vast majority of facts referred to herein were gleaned from documents respondent submitted to this court in connection with her motion to augment the record on appeal.
Appellant and respondent were married in 1967. They separated in the 1990s and were divorced in 1999. For most of their marriage, appellant worked as a doctor and ran his own medical practice, while respondent raised their three children, who are now adults. Respondent also worked in appellant’s office.
When the court granted the divorce, appellant was ordered to pay respondent monthly spousal support of some amount greater than $2,000 a month. On April 25, 2006, appellant who was then represented by counsel, apparently filed a motion seeking to terminate spousal support. This motion/request is not included in the record before this court.
Based on the appellate record provided this court cannot determine the exact amount of monthly support originally ordered by the trial court. Nonetheless, given that in June 2007, the lower court “reduced” support to $2,000 a month we infer that the original support awarded was some amount greater than $2,000 a month.
As reflected in the court’s minute order on the motion, appellant, who thereafter appeared in pro per, apparently claimed he was medically disabled and had a reduced income. On March 29, 2007, the court denied the motion to terminate support without prejudice because appellant had failed to show by competent evidence that there was a material change of circumstances. The court found: “[w]hile [appellant] continues to claim medical disability and does have significant medical problems, [he] continues to work and make substantial income. [Appellant] contends that he is planning to close his practice and contends that he has reduced his hours of working, but the evidence shows that [he] generates significant income from his practice that does not correspond with only 9 hours per week as [he] claims. The court does not find that [appellant] has accurately stated his actual hours of work and actual ability to function as a medical doctor.” The court’s order further advised: “[i]n order to guide the [appellant] in the future, the court must have evidence in the motion submitted that shows: what the level of income and expenses of both parties was when the order that is to be modified was issued; what the level of income and expenses of both parties is at the time of the motion; evidence as to the marital standard of living; evidence that addresses the [Family Code section] 4320 factors that are pertinent to the case.”
During further proceedings in early June 2007, the court found that appellant was in arrears on spousal support in the amount of more than $124,000, including interest. Appellant was ordered to pay $1,500 a month for the arrearage beginning on July 1, 2007. In addition, on its own motion, the court also reconsidered appellant’s motion to terminate support, stating: “[t]he court now believes that [appellant] has shown by competent evidence that there has been a material change of circumstances requiring a step-down of support, but not a termination. A material factor that was not present before is the significant debt that [appellant] has incurred in arrears.” The court further explained: “[t]his step-down of support is based upon reconsideration of the economic information submitted by the [appellant] and his contentions regarding tapering off the number of hours he has worked. It now appears to the court that the [appellant’s] ability to pay support has eroded over the years and there is a substantial likelihood that it will continue to do so into the future due to his advancing age, significant medical problems, additional expenses and reduced working hours.” The court therefore reduced the monthly support payments to $2,000 a month until July 1, 2008. The court also indicated that it would review the “step-down” order at a hearing on July 1, 2008, and at that time determine whether the support should be reduced to zero. The court further ordered the parties to submit updated income and expense declarations and tax returns in advance of the July 2008 hearing.
The parties each submitted expense declarations in June 2008. In his declaration appellant claimed that his income had changed and been reduced in the prior year because of decreased salary and failing health. Respondent asserted that appellant continued to work, had purchased two new residences and that any claim that appellant had sold his medical practice to his sister in 2006 to pay his debts could not be proved. The hearing to review the support order was continued until September 9, 2008.
On September 2, 2008, appellant filed a declaration “Ref. Calculation of Spousal Support Arrears” in which appellant requested that the court modify or terminate support. The declaration described appellant’s various ailments and supporting evidence of his declining health from the 2006-2007 time period. Appellant also stated that on April 20, 2006, he sold his medical practice to his sister (a dentist, living in Iowa), and that thereafter he worked for her in the practice for 8-9 hours a week for a monthly salary of $1500. He further claimed that on April 20, 2006, he separated from his current wife, that she purchased a new home with money that she borrowed from a relative, and that appellant borrowed $160,000 from his brother in May of 2006 to pay respondent spousal support.
The evidence appellant presented to support this contention consisted of a “Statement of Information” filed with the California Secretary of State’s Office which showed that the medical practice was a limited liability company and that his sister “Susan Tung” was the Chief Executive Officer and agent for service of process in 2007 and that appellant was one of the managers; and copies of his tax returns and W-2 forms from 2006 and 2007.
At the subsequent hearing on September 9, 2008, appellant claimed that he had sold his practice and all of the equipment to pay back the money he had borrowed to pay respondent spousal support. After the parties argued, the court stated that it was inclined to terminate support if appellant could provide proof that he actually sold his practice to his sister, that the proceeds were dispersed as appellant claimed and that appellant was being compensated only $1,500 a month for his work in the practice. The court directed appellant to obtain a declaration from his sister to substantiate his claims—regarding the purchase of the medical practice and compensation agreement with appellant—and to file and serve the declaration by September 16, 2008. The court further stated that respondent would have until September 30, 2008, to file an opposition to the evidence.
Thereafter on September 12, 2008, appellant filed the declaration of his sister, Dr. Susana H. Tung. In the declaration, Dr. Tung stated that she was a dentist residing in Iowa. She stated that she purchased appellant’s medical practice on April 20, 2006, so that appellant would have funds to pay his spousal support. She further declared that because of appellant’s poor health he worked in the practice on a limited basis of 2-3 mornings a week for 2 hours at a time. Dr. Tung stated she purchased the practice and all of its equipment for $50,000 and that the purchase funds were paid to appellant’s brother to pay down on the $160,000 debt incurred by appellant in May 2006. She further stated that appellant was being compensated for his work in the practice at a rate of $1,500 a month for 2007 and 2008. Dr. Tung concluded the declaration with the following: “I declare under penalty of perjury that the foregoing is true and correct. Executed on this 11th day of September 2008 in Iowa City, Iowa.”
On September 26, 2008, respondent filed a motion to strike the declaration of Dr. Tung, asserting among other arguments that the declaration was inadmissible because it failed to comply with Code of Civil Procedure section 2015.5, in that it failed to declare that it was true and correct under the laws of the State of California.
Thereafter the court denied appellant’s request to terminate or modify the spousal support. The minute order stated: “[The] declaration of Dr. Tung is stricken since it was not served upon [respondent] and on the grounds stated in [respondent’s] motion to strike. [¶] [Appellant’s] income claims, poor health, disability, and employment claims are found to be untrue based upon the supplemental declarations stated.”
This appeal followed.
DISCUSSION
Appellant contends that the trial court erred in denying his motion/request to modify or terminate spousal support. Before we reach the merits of this contention, however, we first address the condition of the appellate record.
Despite the contentious history and numerous court proceedings between the parties over support issues, appellant designated only a handful of documents in the clerk’s transcript. Appellant’s clerk’s transcript consists of the case summary printed from the superior court’s website, the October 3, 2008, minute order denying appellant’s request for a termination of the support order, his notice of appeal, appellant’s appellate brief and a notice designating the record on appeal. The appellant also designated the reporter’s transcript from the September 9, 2008, hearing during which the court considered appellant’s request to terminate support.
Appellant attached nearly a hundred pages of documents consisting largely of medical records, tax documents and materials which appellant believes support his request to terminate support. It is not clear, however, which of these documents was before the lower court when it considered appellant’s request.
The duty to provide an adequate record lies with an appellant who must affirmatively show error by providing an adequate record. (See Aguilar v. Avis Rent A Car System (1999) 21 Cal.4th 121,148-149 [appellant has the burden of furnishing an appellate record sufficient to consider the issues on appeal]; Erikson v. Sullivan (1947) 81 Cal.2d 790, 791.) A reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. (Rule 8.163, Cal. Rules of Court.) On an appeal on the clerk’s transcript alone, findings are presumptively correct. (Seay v. Allen (1955) 134 Cal.App.2d 440, 444.) An appellate court must assume that there was substantial evidence adduced at the trial to support the findings. (Crowell v. Braly (1959) 169 Cal.App.2d 352, 354.)
Here, appellant has similarly failed to provide this court with the material evidence upon which the lower court decision was based. Notably missing from the clerk’s transcript appellant designated are: (1) copies of appellant’s June 2008 expense and income declaration; (2) any of his requests to terminate support and the documentary evidence appellant claims to have submitted in the lower court in support of those requests; and (3) Dr. Tung’s declaration or any other proof that he sold his practice. These documents are critical to this court’s review of the lower court’s order. Appellant has not provided them to this court and thus cannot affirmatively show error on appeal because he has not fulfilled his obligation to provide a sufficient appellate record. Based on the inadequate record appellant provided us, this court would be fully justified in dismissing this appeal. However, respondent filed a supplement appellate record, and with these additional documents this court can conduct a meaningful review. As we shall explain, based on our review, we cannot say the court abused its discretion in denying appellant’s request to terminate or modify the support order.
Among the pages of material submitted with appellant’s “Brief of Appeal,” (dated October 30, 2008) which is included in the Clerk’s Transcript is a purported agreement for the sale of his medical practice to his sister. It is not clear when, or even if, this document was presented to the lower court.
A court decides whether to order spousal support based on a number of factors under Family Code section 4320, including an examination of the needs of the parties, their respective abilities to meet those needs, the length of the marriage, and the age and health of the parties. (Fam. Code, § 4320.) In deciding whether to order support, the trial court has broad discretion; an abuse occurs only where it can be said no judge reasonably could have made the same order. (In re Marriage of Meegan (1992) 11Cal.App.4th 156, 161.)
Similarly, the decision on whether to modify a spousal support order also rests within the sound discretion of the trial court. (Ibid.) The proponent of modification of has the burden of showing a material change of circumstances since the last spousal support order. (Ibid.) A modification order must be based on current facts and circumstances. (In re Marriage of Tydlaska (2003) 114Cal.App.4th 572, 575.) To determine whether a change of circumstances has occurred, the trial court is required to reconsider the same standard and criteria set forth in Family Code section 4320. (In re Marriage of Stephenson (1995) 39Cal.App.4th 71, 77-78.)
On appeal, this court accepts as true the trial court’s factual findings with respect to Family Code section 4320, resolving all conflicts in the evidence in favor of the prevailing party and giving all legitimate inferences to uphold the court’s decision. (In re Marriage of Meegan, supra, 11Cal.App.4th at p. 161.) “An appealing party must demonstrate the existence of a material change in facts or circumstances and that as a matter of law, an abuse of discretion has occurred.” (In re Marriage of Reynolds (1998) 63Cal.App.4th 1373, 1377.)
Here appellant has failed to demonstrate the court abused its discretion. In requesting modification or termination of spousal support, appellant was required to present the trial court with admissible evidence of how his circumstances had materially changed since the prior support order was made in June 2007. The court specifically instructed appellant to provide proof by way of a declaration from Dr. Tung to prove the sale of his practice and his reduced income. As the respondent pointed out, the declaration of Dr. Tung failed to comply with the certification requirements under Code of Civil Procedure section 2015.5 and thus was struck by the trial court. Appellant makes no effort to defend the admissibility of the declaration or assail the court’s order granting respondent’s motion to strike based on non-compliance with Code of Civil Procedure section 2015.5. While it is clear that Dr. Tung’s declaration does not strictly comply with section 2015.5, even were we to overlook the defect in the declaration we are not convinced that the lower court abused its discretion in denying appellant’s request. The evidence appellant submitted to the trial court did not show a material change of circumstances after entry of the previous support order. For the most part, the medical information appellant submitted concerned his health ailments in 2006 through mid-2007 that predated the modification in June 2007. Even the purported sale of his practice in April 2006 occurred well prior to the court’s last modification, and thus did not accurately reflect appellant’s current circumstances. “For a change in circumstances to exist there must have been a material change since the entry of the previous order. In other words if the circumstances in question existed at the time of the previous order those circumstances presumably were considered when the previous order was made and bringing them to the court's attention years later does not constitute a ‘change’ in the circumstances.” (In re Marriage of Schmir (2005) 134Cal.App.4th 43, 47.) Because appellant failed to present an “evidentiary yardstick” with which the court could determine the appropriateness of a modification order (In re Marriage of Laube (1988) 204 Cal.App.3d 1222, 1226), his request to modify or terminate support was properly denied.
DISPOSITION
The order of the court is affirmed. Respondent is entitled to costs on appeal.
We concur: PERLUSS, P. J. ZELON, J.