Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FL108311
McAdams, J.
In this appeal, Igor Fomenko nominally challenges the denial of his request for reconsideration of a child support order while actually attacking the underlying support order itself. Rejecting his challenges on the merits, we affirm the orders.
Procedural History
In August 2002, appellant Igor Fomenko petitioned for dissolution of his marriage to respondent Marina Kolodyazhnaya. There is one child of the marriage, a son born in 1993, for whom child support was ordered. The amount of child support was adjusted from time to time. This appeal involves child support orders made in 2005 and 2006.
Proceedings in 2005
On April 29, 2005, respondent filed a notice of motion for modification of child support. She sought an increase in child support, which was then set at $999 per month. As stated in her notice of motion, respondent requested: “Guideline support; correction of improperly imputed income; Smith/Ostler award.” In making the “Smith/Ostler” request, respondent sought additional child support based on appellant’s income from annual bonuses. (See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 37 [affirming the trial court’s “order for additional support, based on a percentage of [husband’s] future bonuses”]; id. at p. 52 [holding that the then-governing statute allowed the trial court to “consider the future bonuses of a parent in determining income for purposes of fixing child support”].)
Respondent’s application was heard on October 19, 2005. Six days later, on October 25, 2005, the trial court entered a formal order requiring appellant to pay base child support to respondent in the amount of $1,157 per month, retroactive to May 12, 2005. The order also required appellant to pay respondent a “Smith Osler [sic] percentage” of his bonus income “from 2005 forward.”
Proceedings in 2006
On March 28, 2006, respondent filed another motion, which nominally sought to modify the October 2005 child support order. In it, respondent requested: “Guideline support; arrears; Smith/Ostler payments for 2005 and 2006.” In a section devoted to facts in support of the motion, respondent stated: “Contrary to Court Order of October 19, 2005, Petitioner-Father refused to make Smith/Ostler payment on 2005 bonus within 60 days of Order.” Using a standardized table (issued by SupporTax in 2005), respondent calculated that she was owed an additional $1,831 in child support for 2005, based on the amount of the bonus ($21,000) that appellant had received that year. She asked the court to fix that amount for 2005, to determine and award support resulting from appellant’s 2006 bonus, and to “issue a special wage assignment” for both amounts. Respondent also sought child support arrearages “for the period May-October 2005, in the amount of $436.”
Respondent’s motion came on for hearing on May 9, 2006. Appellant sought to continue the hearing to a later date, claiming lack of notice. The court rejected that claim and denied appellant’s request for a continuance, but it did pass the matter to allow him time to review the moving papers. After hearing from both parties, the court ruled from the bench, ordering appellant to pay respondent $436 in child support arrearages, plus $1,831 in child support based on his 2005 bonus income, all with a due date of May 30, 2006. The court further ordered appellant “to provide documentation concerning the bonus paid in April of 2006 within ten days of today’s date. That is, Friday, May 19th. [¶] That will be provided directly to the Respondent, and then the Smith Ostler payment due based on that amount will also be paid by Tuesday, May 30th.” The court gave the parties “a referral to the clinic” for assistance “in writing up the order.” The record on appeal includes no written order, however; nor does it contain notice of entry of any such order.
On May 23, 2006, appellant filed a motion for reconsideration of the court’s ruling. That motion was heard on August 30, 2006, and taken under submission.
On September 14, 2006, the court issued and served a formal order on appellant’s reconsideration motion. In the September 14th order, the court first reviewed its May 9th order, which was the subject of appellant’s reconsideration motion. The court noted appellant’s “concern that calculations are missing from the May 9, 2006 Order.” It responded to that concern as follows: “For the sake of clarity, attached to this Order are the same guideline calculations included with the October 25, 2005 Order, along with the correlative Smith-Ostler percentages. The percentage pertinent to Petitioner’s 2005 bonus of $21,000 is 9.2%.” In arriving at that percentage, the court used a 2006 DissoMaster table, whose use it prescribed for calculating child support on future bonuses. The court modified its May 9th order to reflect: (1) the revised bonus percentage noted above; (2) an increase in child support based on the 2005 bonus as calculated using the DissoMaster table ($1,932 rather than $1,831); (3) a new due date for payment of the child support awards based on the 2005 and 2006 bonuses; and (4) a new date when interest on those awards would accrue. Except as to those modifications, the court denied appellant’s motion for reconsideration.
On October 31, 2006, acting in propia persona, appellant filed a notice of appeal, which mentions two orders: the September 2006 reconsideration order and the May 2006 support order.
The notice of appeal, submitted on the approved Judicial Council form, states the date of the judgment or order being appealed as September 14, 2006; the notice indicates that the appeal is from an “order of judgment” described in a handwritten notation as “Court Order after Motion for reconsideration of order of May 9, 2006.”
PRELIMINARY CONSIDERATIONS
Two interrelated issues must be addressed at the threshold: timeliness of the appeal and appealability of the challenged order. We have raised these issues on our own motion, because they affect our appellate jurisdiction. (See, e.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Timeliness
By letter dated July 30, 2007, we notified the parties of our intent to dismiss the appeal as untimely, with an opportunity to file objections. Appellant availed himself of that opportunity.
The following month, by letter dated August 28, 2007, we advised the parties that we had reviewed the matter in light of appellant’s objections to dismissal, that his arguments were well-taken, and that his notice of appeal was timely. As explained in our second letter, we concluded that the appeal was timely, based on the application of two timing rules.
Under the first and more general rule, a party appealing a final judgment or an appealable order normally must do so within 60 days of being served with notice of entry of the judgment or order, or, if no such notice is given, within 180 days after entry of the judgment or order. (Cal. Rules of Court, rule 8.104(a).) Here, because appellant was not served with notice of entry of the May 2006 order, he had 180 days to bring an appeal from that order.
A second rule applies when the appellant has filed a valid motion for reconsideration, which extends the time for filing an appeal. (Cal. Rules of Court, rule 8.108(d).) That rule provides as follows: “If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order.” (Ibid.)
As recognized in the case law, that second, special rule “cannot shorten an appeal period otherwise applicable under” the general rule. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1456; see also, e.g., Maides v. Ralphs Grocery Co. (2000) 77 Cal.App.4th 1363, 1365; Carpiaux v. Peralta Community College Dist. (1989) 215 Cal.App.3d 1220, 1223.) Because the appeal was brought within 180 days of the challenged support order, it is timely.
Appealability
There is also a second threshold consideration, which is related to the first: appealability of the “post-judgment” September 2006 order, which partially denied reconsideration of the May 2006 child support order.
The general rule concerning post-judgment orders is this: “Where an order after an appealable judgment [or order] simply leaves the judgment [or order] intact and neither adds to nor subtracts from it, the order is not appealable.” (City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 971.) In other words, “the issues raised by the appeal from the [post-judgment] order must be different from those arising from an appeal from the judgment.” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) “ ‘The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.’ ” (Ibid.)
More specifically concerning orders denying reconsideration, there is a split of authority concerning their appealability. (See Annette F. v. Sharon S., supra, 130 Cal.App.4th at p. 1458; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.) “Most of the recent cases consider a motion for reconsideration never appealable.” (In re Marriage of Burgard, at p. 81; accord, Annette F. v. Sharon S., at p. 1458.)
In this case, several factors operate to overcome these appealability concerns.
First, the trial court did not deny reconsideration outright; rather, the court clarified and modified its prior decision. Put another way, the September reconsideration order did not leave the May support order “intact.” (See City of Carmel-by-the-Sea v. Board of Supervisors, supra, 137 Cal.App.3d at p. 971.) And longstanding precedent holds that an order granting a motion for reconsideration is appealable. (Harth v. Ten Eyck (1939) 12 Cal.2d 709, 710.)
Second, appellant’s notice of appeal arguably is ambiguous, as it cites both the May 2006 support order and the September 2006 reconsideration order. As provided in the pertinent appellate rule: “The notice of appeal must be liberally construed.” (Cal. Rules of Court, rule 8.100(a)(2); cf., Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172.)
Finally, appellant’s arguments on appeal make clear that he is attacking the earlier support order of May 2006, not the later reconsideration order of September 2006. As just explained, had appellant unambiguously appealed the earlier support order alone, the appeal would be timely. It would also be cognizable. (See Fam. Code § 3554; In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287.) For that reason, appellate jurisdiction is not lacking.
Further unspecified statutory references are to the Family Code.
Under these circumstances, we conclude, we may treat this appeal as having been taken from the May 2006 order. (Cf., Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69 [recognizing the court’s “discretion to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice”].) Exercising that discretion here serves the “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
Having resolved these preliminary issues in favor of review on the merits, we turn to a consideration of appellant’s substantive challenges to the underlying May 2006 child support order, which itself relates back to the October 2005 support order.
APPELLANT’S CONTENTIONS
As we understand appellant’s contentions, they may be summarized as follows. First, he challenges the child support order entered in October 2005 (and again in May 2006) to the extent that it is retroactive to May 2005. Next, appellant asserts that the court had no basis for modifying child support in May 2006, since there was no evidence of changed circumstances. In addition, appellant argues that the court failed to satisfy an asserted statutory requirement that the child support awards resulting from his bonuses be made on the record or in writing. Finally, with respect to the May 2006 hearing, appellant contends that the court “ignored constitutional due process” and engaged in other misconduct.
ANALYSIS
In addressing appellant’s contentions, we first summarize the relevant legal principles, starting with the applicable review standard. We then apply those principles to the case at hand.
I. Legal Principles
A. Review Standard
Our review is guided by this well-established rule: “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) The appellant thus has the burden of showing error. (See, e.g., State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
The presumption of correctness carries particular weight in this case, given the deferential abuse of discretion standard that governs our review here. (See, e.g., In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283 [child support orders are reviewed for an abuse of discretion].)
B. Child Support
“California has a strong public policy in favor of adequate child support.” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 283.) “That policy is expressed in statutes embodying the statewide uniform child support guideline.” (Ibid., citing §§ 4050-4076.) By legislative mandate, when “implementing the statewide uniform guideline, the courts shall adhere to [enumerated] principles.” (§ 4053.) One such principle describes “the interests of children as the state’s top priority.” (Id., subd. (e).) Another states: “A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” (Id., subd. (a).)
Given the legislative policies underlying the guideline, “income is broadly defined for purposes of child support.” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 285.) By statute, that definition explicitly includes bonuses. (§ 4058, subd. (a)(1); County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, 1395-1396.)
As reflected in the guidelines, the support amount is based on conditions existing at the time the order is made. (See Primm v. Primm (1956) 46 Cal.2d 690, 694; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 298.) Support may be modified where changed circumstances affect a party’s financial status. (In re Marriage of Cheriton, at p. 298.)
Child support orders may be made retroactive, but the statutes do not “permit courts to make a support order retroactive to a date prior to the filing of the notice of motion or order to show cause.” (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446.) “The filing date, in other words, establishes the outermost limit of retroactivity.” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595; see § 4009 [the “original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading”]; § 3651, subd. (c)(1) [generally speaking, “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”].) In at least one case, however, the court extended retroactivity beyond that limit, where the initial stipulated support orders “were a fraud on both wife and the court.” (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1477.)
II. Application
As noted above, appellant’s substantive challenges are directed to the May 2006 child support order that clarifies the October 2005 order, which required appellant to pay respondent the following amounts: $436 in child support arrearages; $1,831 as child support based on his 2005 bonus; and a percentage of his 2006 bonus dependent on its amount. In attacking the orders, appellant claims impermissible retroactivity, unwarranted modification, unexplained deviation from the guidelines, and procedural errors. Governed by the foregoing legal principles, we reject all of appellant’s contentions.
A. The retroactive award was proper.
Appellant argues that the court erred in retroactively modifying child support. We disagree.
The trial court acted properly when it first set base child support at $1,157 per month in October 2005, retroactive to May 12, 2005. As the record reflects, respondent filed her motion to modify child support on April 29, 2005. Appellant’s briefs indicate that he was served with that motion on May 12, 2005. The April 2005 filing date of respondent’s motion “establishes the outermost limit of retroactivity.” (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 595.) The court’s order was within that limit.
Appellant stresses that his 2005 bonus was payment for services that he performed in 2004, prior to respondent’s motion for modification. His focus is misplaced. For purposes of analyzing retroactivity in this context, the pertinent date is when the support obligation accrued – which can be no earlier than the motion – not when the right to income was earned.
B. There was no need to prove changed circumstances.
Appellant argues that respondent failed to “show any new circumstances or changing in income of parties.” As explained above, permanent child support may be modified where changed financial conditions are shown. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 298 [“admissible evidence of changed circumstances” is “a necessary predicate for modification”].)
Here, however, the May 2006 order did not modify child support. It is true that the Judicial Council form filed by respondent in March 2006 was titled notice of motion for modification of child support. But the content of the motion makes clear that respondent was merely seeking enforcement of the child support awards arising out of appellant’s 2005 and 2006 bonuses, plus arrearages in base child support, all of which had already been ordered. As the court observed in its September 2006 ruling, the May 2006 order “did not modify basic child support, which had been determined (along with the related Smith-Ostler percentage) by an order filed October 25, 2005.” Because there was no modification, there was no need to show changed circumstances.
C. The court adequately explained its support determination, which did not represent a deviation from the guidelines.
According to appellant: “The Court never made a final decision on the amount of the Smith Ostler percentage as additional child support and never considered and stated on the record or in … writing the reasons on the amount of support different from the uniform guidelines as required by Federal law and California Family Code 4056.”
That assertion has no basis in fact or law.
First, as the evidentiary record reflects, in response to appellant’s request to the court at the May 2006 hearing for a “statement how it calculated Smith Ostler percentages,” the judge replied: “I’m adopting the calculation provided in the moving papers.” That calculation adequately articulates the basis for the award of child support based on appellant’s bonuses. (See § 4056, subd. (a); In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1014.)
Second, as the trial judge explained at that same hearing, an award of child support based on bonus income is “not a deviation from state guidelines. It’s a way of taking into account, in accordance with the guidelines, income that varies.” That observation is a correct statement of the law. (See County of Placer v. Andrade, supra, 55 Cal.App.4th at pp. 1395-1396.) “Family Code section 4055 provides a formula for determining the amount of child support based on the net disposable incomes of the parents. The court must calculate the ‘annual gross income’ of the parent, defined in section 4058 as ‘income from whatever source derived,’ except as specified, including ‘but not limited to’ wages and bonuses. From this is derived the parent’s monthly net disposable income.” (Ibid., fns. omitted.) “Bonuses are specifically included in the definition of ‘annual gross income.’ ” (Id. at p. 1396; see In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 984 [when applying the guideline formula, the trial court is “not required to state any reasons for the award of support that was made”].)
D. Appellant’s claims of procedural error lack merit.
Appellant complains that the court violated his due process rights and that it engaged in other misconduct during the May 2006 hearing. Those complaints deserve scant comment.
First, we find no basis in the record for appellant’s claim of a due process violation, which rests on his assertion that he was not served with formal notice of the May 2006 hearing. The trial court rejected that assertion as unworthy of belief. As stated in its September 2006 order: “The Court fully considered Petitioner’s facts and argument on that issue at the hearing, weighed the credibility of Petitioner’s assertion against the verified proof of service, and found that Petitioner had been served but nevertheless allowed him additional time to prepare his presentation.”
Moreover, as the transcript of the May 2006 hearing makes clear, appellant’s other suggestions of misconduct are likewise unfounded. The judge listened patiently to the parties’ positions, asking relevant questions, engaging in a dialogue on the issues, and refreshing her own recollection of prior hearings. After entertaining argument and a number of objections, the judge made her decision, which she adequately explained. In short, appellant received a full and fair hearing.
CONCLUSION
The trial court acted properly in setting child support based on the statutory guidelines, with appropriate consideration given to appellant’s bonus income.
Disposition
We affirm the trial court’s order of May 9, 2006, as modified by its order of September 14, 2006. Respondent shall have costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.