Opinion
2d Civil No. B211486
11-24-2009
In re Marriage of LAUREEN ESPINOZA and JESSE ESPINOZA. LAUREEN ESPINOZA RENAR, Respondent, v. JESSE ESPINOZA, Appellant.
Jesse Espinoza, in pro. per.; Michael J. Smith for Appellant. Marsha K. Niedens for Respondent.
Not to be Published in the Official Reports
Jesse Espinoza appeals from an order modifying child support. Jesses failure to provide us with an adequate record requires that the factual issues he raises be resolved against him. We affirm.
Facts and Procedural History
Jesse Espinoza and Laureen Espinoza Renar were divorced in 1996. They have one child, Tyler, who is 15 years old. Custody, visitation and support issues have been disputed since entry of the judgment of dissolution. Currently, the parties have joint legal custody of Tyler, and Jesse has 15 percent visitation.
We refer to the parties by their first names for clarity; no disrespect is intended.
On January 9, 2006, Jesse filed a declaration from his physician stating that he had back surgery to repair a ruptured disk in November 2003. Dr. Davis placed him on disability at that time. Despite the surgery, Jesse continued to experience loss of feeling, numbness, tingling and pain radiating from his lower back into his feet. Jesse was directed not to perform any lifting, bending, twisting, sitting or standing for prolonged periods of time. As a result, Dr. Davis placed Jesse on permanent total disability status.
Subsequently, Jesse and Laureen filed numerous motions concerning child support issues. On January 8, 2008, Jesse filed an order to show cause for reimbursement of overpayment of arrears, child support and social security benefits. In a declaration submitted with the motion, Jesse stated that he has not worked since being placed on disability in October 2003. He received state disability income until May 2004. He has received no income from any source since his state disability benefits were exhausted. In 2007, he was awarded a net Social Security disability benefit in the amount of $1,376 per month. In addition, his new wife, youngest son, and Tyler were awarded benefits retroactive to August 2006. They received a joint check for $ 6,616 ($2,205 each) as reimbursement for housing, clothing maintenance, etc. Thereafter, they received $732 per month ($244 each).
On May 29, 2007, Jesse became aware that the Social Security Administration was deducting $222 per month from his disability benefits. A Social Security representative told Jesse that the deduction was made pursuant to a court order dated May 8, 2007, ordering a monthly deduction of $172 for child support and $50 for child support arrears. On June 15, 2007, Laureen asked the Social Security Administration to send her Tylers benefit as she had custody of him more than 50 percent of the time.
As of October 1, 2007, Social Security considered Jesses two step-children as additional beneficiaries retroactive to August 2006. Jesse calculates that adding the two step-children entitled each of the five beneficiaries to one-fifth of the $ 6,616 he previously received or $1,323.20. In addition, Social Security said his new wife was entitled to receive a benefit during the application and appeal process. Tylers benefit was reduced accordingly to $146 per month. Jesse calculates that Laureen received on behalf of Tyler an overpayment of $ 490 for which he is entitled to reimbursement. Jesse states that he was informed by Social Security that Laureen will be required to reimburse him that amount. Nonetheless, Social Security has continued to deduct $244 per month from Jesses disability check for Tylers child support. Jesse calculates Laureen has been overpaid the sum of $2,950 and he is entitled to reimbursement of the amount. Jesse also requested attorney fees in the amount of $1,750.
The hearing on the motion was initially scheduled for February 5, 2008. For reasons not disclosed in the record, the hearing was continued to July 10, 2008. On the day of the hearing, Jesse filed a document entitled "Notice of Unavailability of Respondent and Counsel for Respondent" stating counsel was not available from March 26, 2008, through September 30, 2008; and Jesse was not available from April 8, 2008, through August 30, 2008. Jesse requested that the motion be held in abeyance until his return.
The court apparently denied the request and the hearing was held on July 10 as scheduled. Laureen was present with counsel, as well as an attorney representing the Department of Child Support Services. Neither Jesse nor his counsel was present. After hearing, the court issued an order requiring Jesse to pay the following amounts as support for Tyler during the indicated time periods: From January 1, 2006, through December 31, 2006: $272 per month; from January 1, 2007, through December 31, 2007: $299 per month; from January 1, 2008, until Tyler attains the age of 19: $313 per month.
The order states: "Any amount that Petitioner receives from Social Security directly shall be credited against the amount due and owing each month by the Department of Child Support Services. Attached hereto as Exhibit `2 are the payments received by Petitioner through July 3, 2008, in the amount of $1,878 which shall be credited toward the arrearage. The current amount being received is $150 per month. Petitioner shall advise the Department of Child Support Services in the event the amount she receives directly each month is modified." Jesse also was ordered to pay Laureens attorney fees and to disgorge $ 9,035 he received from Social Security for Tyler. A Dissomaster guideline calculation was attached to the order. The trial court ordered Laureens counsel to prepare a proposed order and submit it to counsel for the Department of Child Support Services for approval. Jesse filed a timely notice of appeal.
The court also ordered sanctions pursuant to Family Code section 271, but Jesse did not argue these sanctions were improper in his appellate brief. The first time the issue was raised was at oral argument and the issue is deemed waived.
Discussion
Standard of Review
The court reviews an order modifying child support for abuse of discretion. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.)
Appellant Has Not Met His Burden of Showing Trial Court Error
Jesse contends the trial court abused its discretion in signing an improperly submitted order which was based on incorrect information, after conducting a hearing that should have been continued. He requests an order remanding the matter to the trial court to prepare its own order "based on complete financial information, including tax returns, previously non-reported income, and self-employment income from the date of filing of the initial motion."
Jesse failed to file a reporters transcript with this court. He also designated only a partial clerks transcript, containing documents he filed with the court, but omitting any documents filed by Laureen. These omissions are fatal to his claims.
An appellant "must affirmatively demonstrate error by an adequate record. In the absence of a contrary showing in the record, all presumptions in favor of the trial courts action will be made by the appellate court. `[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)
Jesses contention that the trial court was required to grant a continuance of the hearing based on the notice of unavailability filed on the date of the hearing is supported by no authority and is without merit. The granting of a continuance is a matter of discretion with the court. (People v. Doolin (2009) 45 Cal.4th 390, 450.) As we have been provided no reporters transcript, we must assume that the court made appropriate findings supported by the evidence in denying the continuance. (See, e.g., Arruda v. Arruda (1963) 218 Cal.App.2d 410, 415 ["where, as here, the appeal is taken upon a clerks transcript, with no record whatever of the oral proceedings below, the appellate court must conclusively presume that the evidence is ample to support the findings made by the trial court"].)
Jesses assertion that the court improperly signed an order prepared by Laureens counsel also is without merit. As Jesse points out in his brief, that procedure is contemplated by the California Rules of Court. (Cal. Rules of Court, rule 3.1312.) Jesse complains that neither he nor his attorney was provided with a copy of the order for review before it was signed. Again, we have no reporters transcript to permit us to ascertain the trial courts reasons for ordering that the proposed order be reviewed for approval by the attorney for the Department of Child Support Services.
California Rules of Court, rule 3.1312(a) states in part: "Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must . . . mail or deliver a proposed order to the other party for approval as conforming to the courts order."
Jesses contention that the Dissomaster and the order are based on false information fails for the reason stated above—in the absence of a reporters transcript,
"`. . . the question of sufficiency of evidence in support of the findings is not open. In such a case, the reviewing court must presume that there was substantial evidence in the oral proceedings to support the findings or the decision of the court below . . . ." (In re Marriage of Stachon (1978) 77 Cal.App.3d 506, 509; see also In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 145 [when a party chooses to prosecute an appeal solely on the clerks transcript, "`every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it . . ."].)
The Dissomaster printouts in the record are insufficient to show the court abused its discretion in making its order. (See Bennett v. McCall, supra, 19 Cal.App.4th at p. 127 ["[g]iven the status of the record, we will not second guess the trial courts determination"]; see also In re Marriage of Utigard, supra, 126 Cal.App.3d at p. 145 ["Without benefit of a reporters transcript . . . this court is in no position to assert that the trial court, in balancing the equities presented before it, abused its discretion in making its order"].)
The order is affirmed. Respondent shall recover costs.
We concur:
YEGAN, Acting P.J.
COFFEE, J.