Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 94D00926, Craig E. Arthur, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
James L. Kelly, in pro. per., for Appellant.
Sharon L. Kelly, in pro. per., for Respondent.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Linda M. Gonzalez, Deputy Attorneys General, for Intervenor and Respondent.
OPINION
ARONSON, J.
James L. Kelly challenges the trial court’s order that a previous stipulation requiring him to pay child support in the aggregate amount of $1,300 per month did not allocate support between the parties’ two children. James asserts the trial court should have instead determined the stipulation allocated the $1,300 payment equally between the children so that his obligation was reduced automatically to $650 when the oldest child reached majority. James also contends the trial court erred when it failed to calculate the amount of support arrearages, including credits due to purported overpayments, and improperly delegated the matter to the Orange County Department of Child Support Services (DCSS).
We refer to James and Sharon Kelly by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
We conclude substantial evidence supports the trial court’s determination that the stipulation was unallocated. We also conclude James failed to raise the issue of support arrearages, including credits, during trial, and the trial court appropriately deferred ruling on the issue. Accordingly, we affirm.
I
Factual and Procedural Background
In January 1994, Sharon filed a petition seeking dissolution of her marriage to James. In June 1999, Sharon filed an order to show cause (OSC) to modify the $475 monthly child support then being paid by James. After numerous continuances, the matter was taken off-calendar in July 2005.
In the fall of 1999, Sharon announced her intention of moving to Florida with the children to escape Orange County’s high living costs. In light of James’s objection to the proposed move, the court appointed Dr. Stephen Adam to conduct an evaluation pursuant to Evidence Code section 730. In September 1999, the parties agreed James would increase the monthly child support to $500 per child. After meeting Adam, the parties agreed that effective October 1, 1999, James would pay monthly child support of $1,300, and Sharon would withdraw her petition to relocate to Florida. Adam memorialized the agreement in a November 1, 1999 letter to the parties’ respective attorneys. Commencing October 1999, James began paying a total of $1,300 monthly for the two children.
Evidence Code section 730 provides, in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. [¶] The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.”
In February 2000, James’s attorney sent a proposed stipulation and order purporting to memorialize the parties’ informal agreement to Sharon’s counsel. The proposed stipulation dictated that James would pay “the sum of $650.00 per month, per child for a total of $1,300.00 per month . . ., until further Order of the Court or until the child marries, dies, is emancipated, reaches 19, or reaches 18 and is no longer a full-time high school student residing with a parent, whichever first occurs.” Sharon’s attorney marked up parts of the proposed stipulation, changing some provisions and striking others out entirely. Sharon’s attorney, however, did not make any modification to the provision allocating support between the two children or terminating support upon a child’s adulthood. Although Sharon returned the marked up version of the proposed stipulation to James’s counsel, the parties did not sign the proposed stipulation.
In November 2001, the parties entered into a stipulation and order (2001 stipulation) providing that “[James] shall continue to pay $1,300.00 a month in total child support per the parties[’] informal agreement.” James continued making $1,300 monthly support payments until the couple’s oldest child reached majority in July 2004, when James unilaterally reduced his monthly child support payment to $650. In July 2005, James filed an OSC seeking modification of child support. Following a hearing held in February 2006, the court lowered James’s total child support obligation to $234 total per month, retroactive to August 2005.
Intervenor and respondent DCSS argued James improperly reduced his child support obligation in July 2004 because the 2001 stipulation did not allocate support between the two children. Accordingly, DCSS prepared an accounting of arrears allegedly owed by James dating back to the 2001 stipulation, including those attributable to James’s reduction of child support payments on the eldest’s child’s emancipation.
James filed an OSC challenging DCSS’s determination. After a hearing that included live testimony, the trial court concluded the 2001 stipulation did not allocate child support between the two children. The court ordered DCSS to provide James an updated accounting within 15 days, and instructed that “any issues concerning arrearages thereafter will need to be brought to the attention of the court.” James now appeals the trial court’s order.
II
Discussion
A. James Did Not Waive His Right to Challenge the 2001 Stipulation
DCSS contends James waived any challenge to the 2001 stipulation because he consented to it becoming the court’s order. DCSS cites Papadakis v. Zelis (1991) 230 Cal.App.3d 1385, for the proposition “that a party cannot appeal from a judgment to which he has stipulated, as part of a settlement.” (Id. at p. 1387.) DCSS’s reliance on Papadakis is misplaced. There, a defendant stipulated to a judgment in the event he defaulted on a settlement agreement. After default and entry of the judgment, the defendant appealed, challenging the judgment. The appellate court in Papadakis concluded the defendant waived any challenge to the issue on appeal because he consented to the order in the precise form in which it was entered. (Ibid.)
Here, James does not challenge the 2001 stipulation or any of its terms, but appeals the trial court’s subsequent order interpreting the stipulation, to which James did not stipulate. Thus, Papadakis is inapposite and James did not waive the issue he now raises on appeal.
B. Substantial Evidence Supports the Trial Court’s Refusal to Imply an Allocation Provision into the 2001 Stipulation
A court interprets the parties’ stipulation as any other contract. (See City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 24.) It must be “‘“‘interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.’ . . . The intention of the parties must be first determined from the language of the contract itself . . . . However, where the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all the facts, circumstances and conditions surrounding the execution of the contract . . . .”’ [Citation.]” (Ibid.)
A trial court’s determination that a contract is ambiguous presents a legal issue, which we review de novo. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847.) If an ambiguity exists and the interpretation of a contract turns on the credibility of conflicting extrinsic evidence, we defer to the trier of fact in determining the contract’s meaning. (Ibid.) If substantial evidence supports the court’s interpretation, we will not disturb it on appeal. (Ibid.)
The provision of the 2001 stipulation at issue states: “[James] shall continue to pay $1,300.00 a month in total child support per the parties[’] informal agreement.” On its face, nothing in the provision calls for an allocation of the monthly support payment. James, however, asserts the parties understood when they reached their “informal agreement” that James would pay $650 monthly per child.
In support of his assertion, James cites the proposed stipulation his attorney prepared and sent to Sharon’s counsel in 1999. As noted above, the proposed stipulation required James to pay “the sum of $650.00 per month, per child for a total of $1,300.00 per month . . ., until further Order of the Court or until the child marries, dies, is emancipated, reaches 19, or reaches 18 and is no longer a full-time high school student residing with a parent, whichever first occurs.” James notes this language unmistakably describes the child support payments as allocated, and Sharon’s attorney did not suggest any modification to it when she returned the marked-up version of the document. James also notes that the parties’ monthly child support arrangement in September 1999 provided that James pay “$500.00 per child.” James further points out evidence demonstrating that Sharon did not object when James reduced support by $650 per month when the eldest child reached majority.
The foregoing evidence supports a finding that the parties allocated the child support obligation in their 2001 stipulation. But other evidence supports a contrary finding. For example, the trial court could infer the 2001 stipulation to increase child support arose from Sharon’s inability to afford to live in Southern California, and not due to the increased needs of one or both of the children. Moreover, the parties’ informal agreement reached with Adam’s assistance was memorialized in Adam’s November 1, 1999 letter to the parties’ attorneys. Significantly, the letter mentioned neither allocation nor termination, stating simply: “Mr. Kelly agrees to pay $1300.00 per month in child support, effective 10/1/99.”
True, Sharon’s counsel failed to comment on those provisions of the 2000 proposed stipulation providing for allocation and termination. But any inferences drawn from this failure are not conclusive because the parties never executed the document. Further, Sharon testified she did not contest James’s unilateral reduction of the payments when the oldest child reached majority because she did not want to go to court again. She further testified that in reaching an informal agreement preceding the 2001 stipulation, the parties never discussed when the child support payments would end.
After considering this conflicting evidence, the court observed: “The court just is at a loss to determine definitively what the intent of the parties were when they entered into this stipulation, which then became the child support order up until the time that this court modified the order. Thus, I cannot find one way or the other whether it was intended to be allocated or unallocated. [¶] Thus, the written language of the order must stand, which means that respondent shall continue to pay $1300 a month in total child support until it was modified in 2005.” Because substantial evidence supports the trial court’s rejection of James’s interpretation of the agreement as requiring an allocated payment, we do not disturb its ruling.
C. Family Code Section 4055, Subdivision (b)(8) Does Not Create a Presumption of Allocation in Interpreting a Stipulation
All statutory references are to the Family Code.
Because the trial court relied solely on the face of the 2001 stipulation, James contends the trial court should have presumed allocation based on section 4055, subdivision (b)(8), which he asserts creates a presumption of allocation that can be rebutted only by clear and express contrary terms. We disagree.
Section 4055 provides a uniform formula for trial courts to follow in determining child support. Subdivision (b)(8) provides: “Unless the court orders otherwise, the order for child support shall allocate the support amount so that the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest child is the difference between that amount and the amount for two children, with similar allocations for additional children. However, this paragraph does not apply to cases in which there are different time-sharing arrangements for different children or where the court determines that the allocation would be inappropriate in the particular case.”
The statute’s allocation formula is not mandatory; it applies “[u]nless the court orders otherwise.” Here, the parties did not reach the 2001 stipulation by applying the child support formula in section 4055. Thus, by entering the parties’ stipulation as the court’s order, the court “order[ed] otherwise.” Indeed, when the eldest child reached majority, James did not purport to follow the allocation calculation in section 4055, subdivision (b)(8), but simply cut the monthly child support payment in half.
Moreover, case law does not view section 4055 as a creating a rule of construction for child support stipulations. For example, James relies upon Spivey v. Furtado (1966) 242 Cal.App.2d 259 (Spivey), and Comstock v. Comstock (1981) 116 Cal.App.3d 481 (Comstock), for the proposition that “[a]llocation should be assumed unless specifically stated as being unallocated.” Neither case, however, stands for this proposition.
In Spivey, the parent required to pay support under an unallocated order unilaterally reduced payments as the children affected by the order reached majority. The Court of Appeal in Spivey recognized that once a child reaches majority, the parents’ support obligation to that child ceases. (Spivey, supra, 242 Cal.App.2d at pp. 262-263.) Nonetheless, the court held that a parent may not unilaterally reduce the proportionate amount paid to the remaining children simply because one child reaches adulthood. (Id. at p. 262.) The court explained that “the ratio of the amount needed to maintain the children remaining under 21 to the total amount provided in the decree may be greater than the ratio of the number of children remaining under 21 to the total number of children to which the decree originally applied. Besides, the amount properly allowable for child or children who were still minors may have increased between the date of the decree of divorce and the respective dates on which the eldest child . . . became an adult or the elder children became adults, because of additional needs, because of inflationary developments, because of enhanced financial condition of the father, or because of a combination of these circumstances.” (Id. at p. 263.) Thus, the Spivey court held that the parent paying support must first apply to the court for a determination of the proper amount of support owed to the remaining children, rather than unilaterally reducing payments based on one child reaching majority. (Ibid.) Similarly, in Comstock, the court followed Spivey to hold that under an unallocated support order, the lower court could not apply a mathematical reduction for each child who attains majority, but must consider any change in family circumstances as each child reaches majority. (Comstock, supra, 116 Cal.App.3d at p. 489.)
Accordingly, neither of the two cases relied upon support James’s proposition that a court must presume a stipulated support order allocates payments between children in the absence of express terms to the contrary. By its terms, the 2001 stipulation calls for a lump sum unallocated payment of $1,300 per month, and nothing in the agreement suggests the amount is automatically reduced when one of the children reaches majority. We therefore conclude the trial court did not err in its interpretation of the 2001 stipulation.
D. James Failed to Timely Request the Trial Court to Recalculate Arrearages
James contends he is due a credit for alleged overpayments made from September 1999 to November 2001, and that the trial court erred by refusing to recalculate child support arrearages to reflect that credit. Specifically, James contends he was not required to increase payments from the monthly $500 per child support agreed to in September 1999, until the $1,300 monthly amount called for in the parties’ informal agreement was entered as an order under the 2001 stipulation. James further argues the trial court found he was entitled to the credit, but improperly delegated calculation of arrearages to DCSS.
The record does not reflect James’s request for the credit either before or during the trial. Instead, James raised the issue shortly after the trial court ruled that the 2001 stipulation was unallocated. Although James argued that all of the facts needed to calculate the arrearages, including the credit, were in evidence, DCSS objected that it had not received notice of the issue and therefore was unprepared to address the issue. Accordingly, the trial court ordered DCSS to prepare an updated accounting of arrearages to James within 15 days, and then James could raise objection to the updated accounting.
Moreover, the trial court did not, as James suggests, find he was entitled to the requested credits. Taken in context, the trial court’s statements cited by James simply note that if credits are due, they should be taken into account; but the court recognized James had not raised the issue. “Well, the over-payment should be credited to you. If it is not credited to you, for one legal reason or another, then perhaps that would have to come before the court, and I would have to make an interpretation as to whether or not there was an agreement or not to modify the order.”
Accordingly, we conclude the trial court did not err in failing to recalculate child support arrearages with credits from 1999 to 2001.
III
Disposition
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.