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In re Marriage of Dandy

California Court of Appeals, Fifth District
Apr 24, 2009
No. F052608 (Cal. Ct. App. Apr. 24, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Kern County Superior Court No. 560798, Robert S. Tafoya, Judge.

Sharon Kay Dandy, in pro. per., for Appellant.

No appearance for Respondent.


OPINION

Levy, Acting P.J.

Appellant, Sharon Kay Dandy, challenges the trial court’s order modifying the child support obligation of her former husband, respondent Brian Dandy. Although the payments were increased, Sharon argues the child support does not comply with the statutory guidelines. Sharon makes numerous claims of trial court error and abuse of discretion revolving primarily around the income findings. According to Sharon, the court incorrectly imputed income to her and failed to consider all of Brian’s income in setting the child support amount. Sharon further contends that she was denied a fair trial due to the court’s bias against her.

As is customary in family law cases, the parties will be referred to by their first names for purposes of clarity. No disrespect is intended.

As discussed below, the trial court did not abuse its discretion as alleged and its findings are supported by substantial evidence. Further, Sharon waived any bias claim and even if she had not, there is no support in the record for Sharon’s claim of impermissible bias.

BACKGROUND

During their marriage, Sharon and Brian had three children, twin sons born in June 1988, and a daughter born in November 1990. When the parties dissolved their marriage in 1998, Brian was ordered to pay child support.

In July 2006, Sharon moved for a modification of child support. At that time, Brian’s child support obligation was $934 per month. Although the boys were 18 years old, they had not yet completed high school.

In June 2006, Brian purchased a real estate sales office and formed a corporation, Dandy Millennium Partners, Inc. Pursuant to an employment agreement, Dandy Millennium pays Brian $100,000 per year plus bonuses. On the income and expense declaration Brian filed for the child support modification hearing, he listed his gross income as $8,333.

Sharon is self-employed as a real estate salesperson. On her income and expense declaration, Sharon listed her average monthly income from commissions as $1,800 and claimed total monthly expenses of $8,529.

Before the child support modification motion was heard, the parties agreed to submit their respective financial information to an independent accounting expert, Michael Mariani, for an opinion regarding their incomes for purposes of calculating child support. Each party also requested the other to produce certain documents.

The hearing was continued several times. As of the December 7, 2006, hearing date, Sharon began representing herself.

The hearing was held over two days in January 2007. The primary issue to be determined was the parties’ relative incomes.

As noted by the court in its ruling, the evidence on Sharon’s income was inconsistent. Her 2005 tax return listed gross earnings of approximately $43,000. However, on a loan application submitted in October 2005, Sharon listed her gross monthly earnings at approximately $12,000. Further, Sharon was unable to account for $157,000 that she deposited into her personal checking account during 2005. Sharon also presented testimony from Carl Lange, a man that she was dating, regarding loans he made to her in 2006 in the approximate amount of $68,000. However, Sharon did not list these loans on her income and expense declaration. Moreover, there was neither a promissory note nor collateral for these loans, no interest was charged, and Lange had not asked to be repaid. Based on this conflicting evidence, the court used $11,000 as Sharon’s monthly gross income but factored it down by 45 percent to $6,050 because of the downturn in the real estate market.

With respect to Brian’s income, the court considered his annual base salary of $100,000. Since the company also directly paid up to $1,000 per month for Brian’s car expenses, the court added $334 per month representing Brian’s personal use of the company vehicle. The court also added another $666 per month based on payment Brian receives for managing a family trust.

After attributing income to each party as set forth above, the trial court ordered monthly child support for the youngest child at $1,023 and for the two oldest at $983. However, effective July 2007, support for the two older children was to be discontinued. The court also ordered Brian to notify Sharon of his right to receive a bonus and its amount within 10 days and to pay a certain percentage of that bonus to Sharon as additional child support. The court further ordered Brian to pay one-half of the attorney fees Sharon claimed to have paid according to her income and expense declaration.

Sharon filed a motion for reconsideration. The court denied the motion on the ground that it was untimely. The court further noted that all of Sharon’s arguments either were, or could have been, presented at the hearing and thus the motion would have been denied on the merits in any event. The court did, however, make minor upward modifications to the support amounts.

DISCUSSION

1. Standard of review.

An order modifying a child support order will be affirmed on appeal unless the trial court abused its discretion. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233.) The reviewing court determines “‘whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) There is no abuse of discretion if any judge reasonably could have made such an order. In other words, the reviewing court does not substitute its own judgment for that of the trial court. (Ibid.)

Regarding the existence of substantial evidence, the reviewing court examines the evidence in the light most favorable to the prevailing party and gives that party the benefit of every reasonable inference. All evidence favorable to the prevailing party is accepted as true and contrary evidence is discarded. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)

2. Sharon waived her judicial bias claim and, in any event, was not denied a fair trial.

Sharon contends the trial court displayed bias and favoritism in favor of Brian to such a degree that she was denied a fair trial. To support her claim, Sharon points to various instances of alleged bias.

Sharon argues that the first indication of bias occurred before trial when Sharon appeared in pro. per. on December 7, 2006. At that time, Brian’s counsel, Thomas DeNatale, informed the court that Sharon had not yet produced all of the documents requested. Sharon also wanted additional documents from Brian. The court explained the procedure for compelling production of documents. The court then told Sharon:

“The advantage you have is Mr. DeNatale is a very reasonable man. You folks, you folks just exchange letters. This is what I need, he’ll tell you what he needs, you exchange it then come into court and we’ll hammer it out.”

Sharon asserts this “high and positive opinion of the attorney representing her ex-husband” demonstrates the court was biased. Sharon contends bias was further shown when the court: requested that Brian’s counsel give his opening statement first despite Sharon being the moving party; took over Sharon’s opening statement by asking her questions; told Sharon she had to use the subpoena enforcement process for discovery disputes; did not offer Sharon a copy of her income and expense declaration to refer to when questioning her about it; did not give Sharon adequate time to present her case; and almost acted as Brian’s advocate when questioning Mariani, the court appointed accountant.

If a party believes that a judge is biased and therefore should be disqualified, he or she may move to disqualify the judge, either peremptorily under Code of Civil Procedure section 170.6 or for cause under Code of Civil Procedure section 170.3, subdivision (c). The issue must be raised at the earliest opportunity or it will be considered waived. (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337-1338.)

According to Sharon, she became aware of the judge’s alleged bias on December 7, 2006, over a month before the hearing on the merits commenced. Thus, she failed to raise the alleged bias at the earliest opportunity and has waived any statutory claim.

For the same reason, Sharon has also waived her constitutional claim that she was denied her due process right to an unbiased judge. “[I]n civil cases, a constitutional question must be raised at the earliest opportunity or it will be considered to be waived.” (Roth v. Parker (1997) 57 Cal.App.4th 542, 548.)

In any event, there is no support in the record for Sharon’s claim of impermissible bias. A reading of the entire transcript reveals that the trial judge always treated Sharon with courtesy and was very patient with her. He tried to gently guide Sharon to facilitate a thorough presentation of the relevant evidence. The judge took on the appropriate inquisitorial role in this situation, i.e., where there is a self-represented party, as opposed to a judge’s role in a purely adversarial setting “where the parties are presumed to be ‘well counseled’ by skilled and knowledgeable lawyers.” (Cf. Ross v. Figueroa (2006) 139 Cal.App.4th 856, 866-867.)

Specifically, the judge’s innocent remark about Mr. DeNatale being a reasonable man does not indicate bias against Sharon. The opening statement procedure undertaken by the trial judge was merely an attempt to help Sharon logically present her case. Similarly, the judge was trying to assist Sharon when he explained the procedure she needed to follow to resolve the discovery disputes. Further, although emphasizing to both sides that the cause needed to be efficiently presented, the trial judge did not curtail Sharon’s presentation. Finally, in questioning Mariani, the court was not acting as an advocate but, rather, was seeking Mariani’s expert opinion on the structure of the loans Sharon received from Lange.

3. The trial court’s factual findings are supported by the record.

The primary focus of the hearing was to determine each party’s income for purposes of the child support calculation. Sharon challenges the trial court’s income findings from several angles. Sharon argues the trial court erred in: impugning her credibility; crediting Brian’s testimony; calculating Brian’s income; and ignoring the court appointed accountant’s findings. The upshot of Sharon’s argument is that substantial evidence does not support the trial court’s findings and therefore, child support was set below the uniform guidelines.

As discussed above, Sharon testified that her 2005 federal income tax return reflected gross annual earnings of approximately $43,000. However, a copy of the return was not admitted into evidence. In contrast, in October 2005, Sharon claimed gross earnings of approximately $12,000 per month on a home equity loan application. Moreover, during her testimony, Sharon could not account for $157,000 that was deposited into her personal account in 2005. Based on this conflicting income evidence, along with a claimed monthly deficit of over $6,000, the trial court concluded that Sharon’s claim on her income and expense declaration of $1,800 in monthly income was not credible. Instead, taking the real estate market downturn into account, the court found Sharon’s income was $6,050 per month for purposes of the child support calculation.

A parent’s gross income, as stated on recent tax returns is presumptively correct. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) However, this presumption can be rebutted by a statement of income on a loan application, where, as here, the parent is self-employed. When there is a large discrepancy between the tax return and the loan application, the trial court is not required to accept the statement of income on the tax return. (Id. at pp. 34-35.) Here, considering the loan application/tax return discrepancy, Sharon’s inability to account for $157,000 in deposits, and Sharon’s claimed monthly deficit of over $6,000, the trial court’s finding is supported by substantial evidence.

Sharon attempts to explain to this court why the trial court erred in determining her income. According to Sharon, the stated income on both the 2005 loan application and her 2005 tax return is correct in that the loan application reflects her gross receipts and the tax return reflects her net profit. However, in making this argument, Sharon relies on evidence that, although available, was not presented below. Thus, this evidence is outside the scope of review. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Since Sharon’s explanation for the discrepancies in her income statements is not supported by evidence that is properly in the appellate record, this court may not overturn the trial court’s finding on that basis. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563.)

Sharon also finds fault with the trial court’s calculation of Brian’s income. Sharon argues Brian’s income should include the entire $1,000 per month available for his car expenses rather than the $334 per month allocated to personal use, $744 per month rather than $666 per month for managing the family trust, and bonus income. However, Sharon has not demonstrated the court abused its discretion. It was reasonable for the court to only add the benefit of Brian’s personal use of a company vehicle to his salary. Brian does not realize a personal benefit that contributes to the income available for child support from the company’s business expense. Further, there was evidence that the fees for trust management varied from year to year and the trial court’s figure was an attempt to arrive at an average amount. Finally, the trial court accounted for bonus income separately by ordering that Sharon would receive a certain percentage of any bonus paid to Brian. This is an appropriate solution for potential bonus income that may vary from year to year. (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1387.)

Based on the trial court’s alleged income miscalculations, Sharon argues the court deviated from the uniform guideline amount and therefore was required to state in writing the reasons it deviated and why the deviation is in the best interests of the children pursuant to Family Code section 4056. As discussed above, substantial evidence supports the trial court’s findings. Nevertheless, even if the trial court had erred, income findings are a component of the guideline calculation, not a deviation from the final guideline amount. (In re Marriage of Schlafly, supra, 149 Cal.App.4th at pp. 756-757.)

Additionally, Sharon questions the trial court’s credibility determinations. Sharon argues the court erred in not believing her and believing Brian. Sharon further contends the trial court improperly ignored the conclusions of Mariani, the designated expert accountant.

The power to judge the credibility of witnesses and to weigh their testimony is within the sole province of the trier of fact. (In re Carpenter (1995) 9 Cal.4th 634, 646; As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 454.) The trier of fact may accept such witnesses as it wishes and reject others. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 787.) Where there is conflicting testimony, the trier of fact has the better opportunity to judge the credibility of witnesses. Accordingly, findings of fact that rest upon credibility evaluations should be regarded as conclusive on appeal. (Estate of Fries (1965) 238 Cal.App.2d 558, 561.) Even if a witness’s testimony is uncontradicted, the trier of fact may reject that testimony so long as the rejection is neither arbitrary nor irrational. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)

Thus, here, the trial court had the power to reject Sharon’s income claim and to accept Brian’s testimony. Moreover, the court was not required to accept Mariani’s conclusions in a report based on unaudited financial information. The evidence before the trial court regarding Sharon’s true monthly income was in conflict and Sharon did not present adequate evidence to demonstrate what she now claims was the true state of her financial affairs. Based on the record before it, the trial court’s income findings are supported by substantial evidence.

4. Sharon’s additional allegations of trial court error and abuse of discretion have no merit.

Sharon contends the trial court erred and abused its discretion through various acts and omissions. As discussed below, these claims have no merit.

a. Custody and health care stipulation.

Sharon argues the trial court erred in accepting a stipulation relating to custody and health care issues. However, under Code of Civil Procedure section 664.6, the court may enter judgment pursuant to either a written stipulated settlement or an oral stipulation made on the record before the court. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.) Moreover, the court’s order did not modify either custody or health care responsibilities. Rather, the court continued the existing orders.

b. Evidence Code section 730 evaluation.

In his report, Mariani, the designated expert accountant, noted that he could not verify Sharon’s claim that Brian was receiving income as the owner of Dandy Millennium Partners, Inc., without receiving audited financial statements. Mariani noted that Brian could be actually losing money. Based on this statement, Sharon argues the trial court abused its discretion when it did not order an evaluation of Brian’s business pursuant to Evidence Code section 730.

Evidence Code section 730 provides that, if it appears that expert evidence is or may be required, the court may appoint an expert to render a report. However, the trial court is never obliged to appoint an expert to assist it in making a factual determination. (In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn 4.) It is within the trial court’s discretion to determine whether an expert is needed. (Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52.)

Here, Brian presented documentary evidence substantiating the income received from his business. Brian also testified, and was cross-examined, regarding his business income, employee benefits, potential bonuses, and the family trust management fees. Under these circumstances, the court could reasonably conclude that expert evidence was not required. Accordingly, no abuse of discretion occurred.

c. Sharon’s testimony statement.

According to Sharon, on the second day of the child support modification hearing, she came prepared with a “testimony statement” and supporting documentation. However, the court would not permit her to submit this written statement. Sharon argues the trial court’s exclusion of this proffered evidence was an abuse of discretion.

From Sharon’s argument, it is apparent that this “testimony statement” was hearsay and therefore was not admissible. Moreover, Sharon was not precluded from testifying as to this information and offering her documentary support into evidence. Nevertheless she did not do so. Near the conclusion of the evidentiary portion of the hearing, the court asked whether both sides had presented all their evidence. In response, Sharon requested that she be able to submit a letter showing her 2006 commissions from her employer. However, after agreeing with Brian’s counsel that her 2006 income tax return, which was admitted into evidence, reflected this information, Sharon told the court she had nothing else. Accordingly, no abuse of discretion occurred.

d. Attorney fees.

Sharon listed attorney fees in the amount of $3,000 on her income and expense declaration that was admitted into evidence. The trial court ordered Brian to pay one-half of those fees.

During her closing argument, Sharon requested that she be awarded attorney fees in the amount of $11,724. However, Sharon had not presented any evidence of fees in excess of $3,000. The trial court refused to hear argument on evidence that had not been presented.

Sharon argues that this refusal was an abuse of discretion and that the court should have inquired into the issue. However, since Sharon did not present evidence on the alleged additional attorney fees before the case was submitted, the trial court properly refused to award such fees. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th at p. 563.)

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondent.

WE CONCUR: Hill, J., Kane, J.


Summaries of

In re Marriage of Dandy

California Court of Appeals, Fifth District
Apr 24, 2009
No. F052608 (Cal. Ct. App. Apr. 24, 2009)
Case details for

In re Marriage of Dandy

Case Details

Full title:In re the Marriage of BRIAN CARL and SHARON KAY DANDY. BRIAN CARL DANDY…

Court:California Court of Appeals, Fifth District

Date published: Apr 24, 2009

Citations

No. F052608 (Cal. Ct. App. Apr. 24, 2009)