From Casetext: Smarter Legal Research

In re Marriage of Nichols

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119070 (Cal. Ct. App. Sep. 30, 2008)

Opinion


In re the Marriage of MARK E. NICHOLS and WENDY D. NICHOLS. MARK E. NICHOLS, Appellant, v. WENDY D. NICHOLS, Respondent. A119070 California Court of Appeal, First District, Third Division September 30, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Contra Costa County Super. Ct. No. D05-00244.

McGuiness, P.J.

Mark E. Nichols (appellant), former husband of Wendy D. Nichols (respondent), appeals from an order requiring him to pay $1,655 per month in child support and $621 per month in spousal support. He contends the trial court erred in: (1) imputing income to him of $10,000 per month; (2) refusing to allow his doctor to testify telephonically; and (3) using computer calculations in setting the spousal support amount. We reject the contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 20, 2006, appellant filed a motion to modify child and spousal support. The record does not contain a copy of the motion, but it appears appellant requested modification on the ground that he had lost his job. The motion was scheduled to be heard on December 27, 2006, along with several other issues that had been set for trial on that date. On December 27, 2006, the trial court admonished appellant for filing an untimely declaration. It continued the hearing and trial to April 30, 2007, to allow respondent time to review and respond to the declaration, and imposed monetary sanctions on appellant. The court also granted respondent’s request to depose appellant on issues raised in the untimely filed declaration, including “what he’s been doing about trying to find a job,” and “the area of his earnings since September [2006].”

It appears that on April 30, 2007, the parties settled all but one of the other issues that were set for trial, and that thereafter, the matter proceeded only on appellant’s motion for modification and the one issue, not relevant here, that did not settle.

At the April 30, 2007, hearing, respondent’s counsel informed the court that he did not have the information necessary to proceed on the support issue because appellant, citing health reasons, did not appear at his noticed deposition and did not produce any of the documents he was asked to bring to the deposition. Counsel asked the court to either impose issue sanctions precluding appellant from presenting evidence in support of his motion, or continue the hearing and once again order appellant to appear at his deposition. The court continued the hearing to May 17, 2007. It ordered appellant to appear at his deposition and provide the requested documents, or “produce at [the next] hearing the physician” whose opinion it is that appellant should not be deposed. The court noted that a doctor’s letter that appellant had filed to explain why he could not be deposed was inadmissible on hearsay grounds, and was also inadequate because it did not state ““when this condition began, when it will end, and why it is that he isn’t [just] suffering from [the stress or anxiety] most litigants suffer from, why treatments can’t begin, why anti-anxiety medicines wouldn’t deal with this, how long the condition would be for.”

Appellant did not appear at his deposition. He filed a declaration from his doctor in which the doctor opined that appellant should “avoid, if possible, a deposition or other inquiry having similar stressful effect until his medical work-up is complete.” The doctor believed appellant had “suffered from a small stroke or may have a brain tumor or a herniated disc in his neck,” and that an MRI, which appellant could not afford, was necessary to further assess the condition.

Appellant’s doctor did not attend the May 17, 2007, hearing, and the court denied appellant’s request to have the doctor testify telephonically, stating it needed to observe the doctor in order to make credibility determinations. Appellant’s counsel explained that appellant could not pay the $3,500 fee the doctor charges for a half day court appearance, and that counsel did not know whether the doctor would be willing to “break his [court appearance fee] down to something smaller [like] a quarter of a day.” The court asked why counsel did not look into that issue, and why he did not retain an expert who would charge less. The court stated it was troubled by the timing of the “sudden self-precipitous decline in health” that prevented appellant from being deposed, but that it was going to give appellant “one last chance” to submit to his deposition, or to have a doctor present “here in court to tell me exactly what is going on and why [the deposition] hasn’t happened.” The matter was continued to June 12, 2007.

At the hearing on June 12, 2007, appellant submitted a declaration stating he had obtained an MRI and that his doctor was in the process of reviewing the results. The court found appellant had not adequately explained why he could not submit to a deposition, and that he had not acted in good faith. It imposed issue sanctions precluding appellant from testifying, but allowed him to call other witnesses and cross-examine respondent. Appellant did not call any witnesses but cross-examined respondent.

Respondent testified that she makes an average of $2,000 per month as the owner of a beauty salon, and that appellant charged $350 per hour as a consultant or expert witness in the telecommunications industry. Respondent testified that appellant started several businesses during their marriage and most recently started a business after they separated. She and appellant filed joint tax returns in the years 2002 to 2004, during which appellant earned approximately $120,000 to $440,000 as a consultant for telecommunication companies. Respondent testified that when appellant was still working, she obtained a wage assignment because she had trouble collecting support from appellant. Shortly after she obtained the wage assignment, appellant became unemployed. She believed appellant was still working because he had the ability to pay $2,700 per month for housing, had a truck and car insurance, and had hired a babysitter to take care of their children and pick them up from school every day the children were in his care. She testified that her attorney had recently obtained information that appellant had received a $12,000 severance check after September 2006 that he had not disclosed to her. She testified she did not know how much money appellant made because he had not provided any documents to her.

She explained that the $440,000 figure included income she earned from part-time work.

The court ordered appellant to pay a total of $1,655 per month in base child support for the parties’ three minor children and an additional $621 per month in spousal support. A guideline calculation printout that is attached to the judgment shows that in calculating support, the court used an income figure of $2,200 per month for respondent and $10,000 per month for appellant.

DISCUSSION

1. The trial court did not err in imputing income to appellant of $10,000 per month.

In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent’s “earning capacity.” (Fam. Code, § 4058, subd. (b).) The Family Code also permits the court to consider a party’s present or future “earning capacity” as a factor in determining spousal support. (Fam. Code, § 4320, subds. (a), (c); see In re Marriage of Simpson (1992) 4 Cal.4th 225, 230-231.) “ ‘ “Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work . . . .” ’ [Citation.]” (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338.)

We review the trial court’s decision to impute income based on earning capacity under an abuse of discretion standard. (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1381, 1383.) “Under this standard, ‘[t]he appellate court should not substitute its own judgment for that of the trial court; it should determine only if any judge reasonably could have made such an order. [Citation.]’ ” (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 994.)

Appellant does not dispute that he had the “ability to work” and does not claim that he made “good faith efforts . . . to secure employment,” but contends the trial court abused its discretion in imputing income to him of $10,000 because there was no evidence of an “opportunity to work.” “Opportunity to work” has been defined as “an employer who is willing to hire,” (In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th at p. 1338), or “the substantial likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income” (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 930).

Here, the evidence showed that appellant “could, with reasonable effort, apply his . . . education, skills and training to produce income.” (See In re Marriage of Cohn, supra, 65 Cal.App.4th at p. 930.) He earned approximately $120,000 per year, and sometimes substantially more, between 2002 and 2004. He was a consultant and expert witness in the telecommunications industry and charged $350 per hour as a consultant. In documents he filed pursuant to the court’s “seek-work order,” appellant described himself as a “[r]ecognized telecom expert.” He was employed until September 2006, and there was no evidence of any incident occurring after that date that would have decreased his opportunity to work. In fact, the record suggests that employers did not hire appellant between September 2006 and May 2007 because he was not applying for jobs, not because employers were unwilling to hire him.

The court issued a seek-work order on April 30, 2007, requiring appellant to file documents showing he was seeking full time employment. Appellant filed documents pursuant to that order on June 8, 2007.

Appellant’s counsel stated at the hearing that appellant has less opportunity to work because of a downturn in the telecommunications industry. Appellant did not present any evidence in support of this statement.

The documents appellant filed on June 8, 2007, pursuant to the seek-work order show he applied for various jobs, but many of the documents are not dated, and none of them shows he was applying for jobs between September 2006 and May 2007.

Other than asserting there was no evidence of “opportunity to work,” appellant does not explain why he believes the $10,000 figure was improper. In light of evidence of appellant’s high earnings between 2002 and 2004, and his failure to produce documents showing he earned less than $10,000 per month from 2005 to September 2006, the court acted well within its discretion in imputing income to him of $10,000 per month.

2. The trial court did not abuse its discretion in refusing to allow appellant’s doctor to testify telephonically.

Appellant contends the trial court abused its discretion in refusing to allow his doctor to testify telephonically. We disagree.

Evidence Code section 711 provides: “At the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action . . . .” (Italics added.) Code of Civil Procedure section 2005 provides: “An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.” (Italics added.) In conformity with these statutes that require the witness to be in the “presence of” the trier of fact, Evidence Code section 780 directs the trier of fact to evaluate witness credibility by, among other methods, observing the witness’s demeanor as he testifies, as well as his “attitude toward the action in which he testifies or toward the giving of testimony.” (Cal. Evid. § 780, subds. (a), (c).)

“It is . . . well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) “ ‘That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . . . in order to insure the orderly administration of justice. [Citation.]’ ” (Ibid.; see also Code Civ. Proc, §§ 128, 177, 575.1.) We review the trial court’s decision whether to allow telephonic testimony for abuse of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.)

In In re Nada R., 89 Cal.App.4th at p. 1176, the juvenile court expressed concerns about the reliability of telephonic testimony and refused to permit the dependent child’s father’s witnesses, who resided in Saudi Arabia, to testify by telephone. The court of appeal upheld the juvenile court’s decision to disallow telephonic testimony, stating the court did not abuse its discretion because the father “was not prevented from offering the testimony, but only restricted in the manner of its presentation.” (Ibid.) Similarly, here, the trial court did not prevent appellant’s doctor from testifying.

Appellant’s reliance on Family Code section 3411, subdivision (b), is misplaced. It provides that a trial court “may permit” testimony by “telephone, audiovisual means, or other electronic means before a designated court or at another location in that state” if the witness resides in another state. Appellant acknowledges that his doctor resided in California but states the doctor “may as well have been out-of-state because [appellant] could not afford his physician’s fee to appear in court.” Preliminarily, we note that appellant’s counsel argued only that appellant could not afford to pay $3,500. When asked by the court why he did not look into whether the doctor would be willing to “break his [court appearance] fees down to something smaller for a quarter of a day,” counsel did not address the court’s question, and did not assert that appellant would not have been able to pay a smaller fee.

Appellant also relies on rule 43(a) of the Federal Rules of Civil Procedure, which provides that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The rule applies in federal court proceedings.

In any event, even assuming Family Code section 3411 did allow telephonic testimony in situations other than when the witness resides in another state, we conclude the court did not abuse its discretion in requiring the doctor to appear in court on the ground that it could not make credibility determinations “on speaker phone.” “Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. [Citation.]” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1358.) “A witness’s demeanor is ‘ “part of the evidence” ’ and is ‘of considerable legal consequence.’ [Citations.]” (Ibid.)

Here, appellant does not dispute that the doctor’s credibility was at issue. The court was concerned about the timing of appellant’s “sudden self-precipitous decline in health,” and was therefore concerned about the validity of the doctor’s opinion that appellant could not submit to a deposition. The doctor’s inadequate letter and declaration also called into question the doctor’s credibility, as they did not explain “when this condition began, when it will end, and why it is that he isn’t [just] suffering from [the stress or anxiety] most litigants suffer from, why treatments can’t begin, why anti-anxiety medicines wouldn’t deal with this, how long the condition would be for.” In addition, “observation of a witness on direct is important to the planning and execution of effective cross-examination.’ [Citation.]” (Elkins v. Superior Court, supra, 41 Cal.4th at p. 1358.) Respondent was entitled to have the doctor appear in court so that she could cross-examine him after observing him testify on direct examination.

We also fail to see how the court’s decision prejudiced appellant. If believed, the doctor’s testimony that appellant should “avoid, if possible, a deposition or other inquiry having similar stressful effect,” would have presumably precluded appellant from testifying in court. Appellant also does not explain what, if any evidence, he would have presented that would have changed the outcome of the case, had the court not imposed issue sanctions.

3. The trial court did not err in using computer calculations in ordering spousal support.

Appellant contends the trial court erred in using computer calculations to determine the spousal support amount. We reject the contention.

There are two types of spousal support: temporary and permanent. “Awards of temporary spousal support do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support.” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166.) Temporary spousal support is used to maintain the living standards of the parties in as close to the status quo position as possible pending the division of their assets and obligations, and to provide adequate litigation funds for the supported spouse. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3 (Olson); Fam. Code, § 3600.) Permanent spousal support, by contrast, is not awarded to preserve the status quo and provide litigation funds, but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties upon their dissolution and the division of their community property. (Olson, supra, 14 Cal.App.4th at p. 6, fn. 3; Fam. Code, § 4330.)

Several computer programs have been developed to calculate temporary spousal support. (Olson, supra, 14 Cal.App.4th at p. 5, fn. 3.) Use of these programs is proper in calculating temporary spousal support, but a court abuses its discretion if it uses them exclusively to determine permanent spousal support. (Id. at pp. 6, fn. 3, 9.) Olson reasoned: “[F]ixing permanent support simply by use of a computer program would be an abdication of judicial responsibility because permanent spousal support must be fixed only after consideration of the applicable factors set forth in [Family Code section 4320]. No computer program can do this; it must be done by the judge.” (Id. at p. 6, fn. 3; see also In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 522, 526-527 [trial court erred in setting a permanent spousal support order by relying on a computer program].)

Family Code section 4320 sets forth the factors to be considered in ordering permanent spousal support: earning capacity; ability to pay; the needs of the parties based on the marital standard of living; the “obligations and assets, including the separate property, of each party”; the duration of the marriage; the “ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party”; the health of the parties; documented history of domestic violence; the “immediate and specific tax consequences to each party”; the “balance of the hardships to each party”; the goal of becoming self-supporting within a reasonable period of time; the criminal conviction of an abusive spouse; and “[a]ny other factors the court determines are just and equitable.”

Appellant waived his argument by failing to raise it below. “ ‘As a general rule, issues not properly raised at trial will not be considered on appeal.’ ” (Olson, supra, 14 Cal.App.4th at p. 15.) This is because “ ‘[i]t is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.]’ ” (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 693.) Appellant did not object to the trial court’s use of a computer program to calculate spousal support, and in fact, told the court: “Your Honor, what I’m asking is that [appellant’s] record of earnings be used to determine what guideline support calculations [i.e., calculated by a computer program] ought to be.” (Italics added.) He did not ask the court to consider the factors set forth in Family Code section 4320, and did not present argument or evidence regarding many of the factors, including the duration of the marriage, tax consequences, and the marital standard of living. Thus, he has waived the issue.

The contention also fails on the merits because the trial court’s order, though rendered as a “judgment on reserved issues,” was a temporary spousal support order. Appellant does not dispute that his motion, filed September 20, 2006, sought modification of a prior temporary spousal support order. Although there were several continuances and the conclusion of the support hearing was delayed until June 12, 2007, appellant’s motion for modification did not, by the passage of time or by the parties’ April 30, 2007, stipulation, which appears to have settled most of their financial issues, turn into a request for adjudication of permanent spousal support. Because the factors in Family Code section 4320 are not controlling in calculating temporary spousal support, (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312), the trial court was permitted to rely on computer calculations to determine the spousal support amount.

DISPOSITION

The judgment is affirmed. Respondent shall recover her costs on appeal.

We concur: Pollak, J., Siggins, J.


Summaries of

In re Marriage of Nichols

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119070 (Cal. Ct. App. Sep. 30, 2008)
Case details for

In re Marriage of Nichols

Case Details

Full title:MARK E. NICHOLS, Appellant, v. WENDY D. NICHOLS, Respondent.

Court:California Court of Appeals, First District, Third Division

Date published: Sep 30, 2008

Citations

No. A119070 (Cal. Ct. App. Sep. 30, 2008)