Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. FL051169 of San Luis Obispo E. Jeffrey Burke, Judge.
Daren Michael Howard, in pro. per., for Appellant.
Robert H. Mott for Respondent.
COFFEE, J.
Husband appeals, in propria persona, from a post-judgment order in a marital dissolution action. He challenges the court's calculation of guideline child support and claims his attorney was negligent in the management of his case. We reverse for calculation of child support based upon husband's self-employment income and affirm the child custody, visitation and property division determinations.
FACTS
Daren Michael Howard (husband) and respondent Keri Ann Peterson-Howard (wife) were married in March 1994 and separated in August 2005. They have two minor children, John Robert Howard and James Michael Howard. The parties executed a marital settlement agreement concerning property division. Among other assets, husband received the family home. The parties waived their right to spousal support. The issues remaining for adjudication were custody, visitation and child support.
Bench Trial and Tentative Statement of Decision
Both husband and wife were represented by counsel below. Husband owns and operates a business known as "A-1 Carpet Cleaning." Following a bench trial, the court issued a tentative statement of decision on August 25, 2006.
The court made factual findings that husband was sober for a three-year period during the marriage, but he relapsed, and "[wife] presented convincing evidence of drug and alcohol use during the summer of 2005." She testified that she saw husband use cocaine and that he told her he had used methamphetamine. When husband went on a "bender," he would check into a hotel or flophouse instead of returning home. He made serial ATM cash withdrawals daily of $40 or $60 during this time. The court rejected husband's testimony that he was using the cash to buy supplies for his carpet cleaning business, finding that it was "far more reasonable to infer that the money was used to purchase drugs from dealers who would rob him if he carried larger amounts."
The court noted that husband had considered participation in an in-patient drug rehabilitation program, but decided against it because he believed the cost too high and the success rate too low. In December 2005, the parties agreed that wife could demand a drug test if she suspected husband was using drugs or alcohol. Husband agreed to use a patch that registers the use of illegal drugs. The court rejected his claim that the patch later fell off and was lost. Husband has refused other requests to test and his last test was in December 2005. He has missed many of his scheduled visits with the children since December 2005 because he cannot tolerate being in the presence of wife's father, which occurs when the children are exchanged.
At trial, husband testified that he had rented his house to a tenant for $1,000 per month. The house burned down and he has received insurance proceeds to purchase a trailer to live on the property, compensation for certain living expenses, personal property and lost rent. Husband's carrier has also paid a portion of his mortgage. He expects to receive an additional settlement, but does not know the amount. Husband also receives disability payments of approximately $587 per month. Sometime after husband's house burned down, he lost his car, which was burned in a different fire.
Husband testified that he began using drugs at age 12. He acknowledged cocaine use, but denied methamphetamine use. The court concluded that husband's visitation with the children should be limited until he demonstrates that he no longer uses illegal drugs or abuses alcohol. He was given visitation of two Saturdays per month and on Tuesdays and Thursdays from 3:30 p.m. to 7:30 p.m. The court ordered husband to submit to drug testing at wife's request.
Husband was ordered to pay guideline child support of $1,333 per month, representing $522 for the support of John and $811 for James. The court based its order on a DissoMaster calculation in which husband's monthly income was reported as $2,000 in wages and salary; $1,000 in other taxable income; and $602 in non-taxable income.
Husband's Objections to Statement of Decision
On September 15, 2006, husband, still represented by counsel, filed a "request for different statement of decision." He asked the court to specify how soon a drug test must be administered after wife's request. Husband claimed he was entitled to additional visitation and challenged the award of child support.
Husband argued that there was no evidence to support the court's finding that he earned $2,000 per month in wages and salary. He contended that he is self-employed, and the trial court's finding to the contrary effectively inflated his income because no deduction was made for his payment of self-employment tax. Husband also alleged that he expects to receive reimbursement from his home owner's insurance carrier for lost rent, but the reimbursement is only temporary, thus cannot be considered income.
Attached to husband's objections was a print-out of his DissoMaster calculation in which he based child support on his self-employment income. This resulted in guideline support of $1,299, rather than the court's award of $1,333, a difference of $34. Wife acknowledges that the trial court did not classify husband as being self-employed, but argues a recalculation would result in an award of $1,319--a reduction of only $14.
Five days after husband filed his objections, the trial court issued a judgment in which its findings and orders concerning custody, visitation and child support remained unchanged. A judgment of dissolution was entered on September 20, 2006.
DISCUSSION
Husband raises only two arguments on appeal. He claims the trial court miscalculated guideline support and that his attorney was negligent in his management of the case. Husband does not challenge the trial court's orders concerning custody or visitation.
Guideline Child Support
Husband argues that he is self-employed and guideline support should have been calculated on that basis. He contends that the trial court's findings "had no evidentiary basis" because they were based on a "non-self-employed chart rather than a self-employed chart." Husband claims that the court failed to make this correction, although he brought this matter to the court's attention in his request for a different statement of decision.
Appellate review of child support orders centers on whether the trial court adhered to the uniform statewide child support guideline. (Fam. Code, §§ 4052, 4055.) An award pursuant to this guideline is presumptively correct. (Id., § 4057.) If the trial court makes an award that differs from the guideline amount, it must make findings required by section 4056.
Here, husband claims that the trial court miscalculated support by failing to classify him as self-employed. A claimed error in the trial court's calculation of a party's net monthly disposable income must be brought to the trial court's attention while the error can still be expeditiously corrected or the error is waived. (In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 37.) Here, husband adequately preserved his claim of the erroneous calculation of income by raising it in his objection to the tentative statement of decision. (See In re Marriage of Graham (2003) 109 Cal.App.4th 1321, 1328 [claim preserved where counsel challenged erroneous imputation of income at trial].) Husband properly brought the alleged error to the trial court's attention before entry of judgment. (Code Civ. Proc., § 634.)
Although husband makes passing reference to error in the calculation of spousal support, we believe this to be a typographical error. That issue was not before the court because the parties expressly waived their right to spousal support, and stipulated that the court would not retain jurisdiction over this issue.
Husband's Claim of Attorney's Negligence
Appellant was represented at trial by counsel by Edward L. Somogyi. He contends that Somogyi was negligent by failing to timely file certain documents and erroneously sending him correspondence regarding another client's case. Husband also alleges that he "specifically requested a different judge at the time of his court appearance, and his attorney dismissed his request." Neither the clerk's nor the reporter's transcript indicates that such a request was made to the court. Attached to husband's opening brief are two documents which allegedly show that his counsel was negligent. These were not made a part of the record on appeal and we do not consider them.
Husband's Reply Brief
In his reply brief, husband offers "rebuttal" to wife's factual summary, which consists of factual allegations that are unsupported by record citations. Husband neither raises an argument nor cites legal authority. He objects to the trial court's finding concerning his drug use and claims it erred by relying on the missing patch as evidence that "[husband] was not in control of [his] drugs and drinking problem." Lastly, husband challenges the basis for the trial court's designation of $1,000 in "other income."
Husband has waived the arguments raised in his reply brief. "'Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' [Citation.]" (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
DISPOSITION
We reverse the child support order and remand the matter to the trial court for calculation of child support based on husband's self-employment income. The judgment is otherwise affirmed. Each party to bear their own costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.