Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No.1-00-FL091100
Premo, J.
I. Introduction
In this family law matter, petitioner Larry A. Peterson (father) appeals from an order requiring him to reimburse respondent Jeanette Weiss (mother) two-thirds of the private school tuition she paid on behalf of their sons for the 2004/2005 and 2005/2006 school years. We conclude that the award is improper to the extent it requires reimbursement for expenses incurred prior to the date mother filed her first motion to modify child support. We shall reverse and remand that matter to the trial court to recalculate the reimbursement.
Father also appeals from the trial court’s order modifying the parties’ previous 50-50 child custody arrangement. Father has failed to demonstrate error on that point. Accordingly, we shall affirm that order.
II. Factual and Procedural Background
Like many family law cases, this one has a long and convoluted history. The pertinent history is not clearly illuminated by the record, which is missing many of the moving or responding papers we would expect to see in the normal course. Our recitation of the background facts is a distillation of that which we have been able to ascertain from that which we do have.
Father and mother are the parents of two boys, Nicolas (born May 2, 1993) and Alexander (born September 7, 1994). The boys were attending separate private parochial schools in Santa Clara County where they and their parents lived when this dissolution matter was initiated in 2000.
In September 2000, mother and father stipulated that they would share custody equally, that father would pay child support of $1,213 per month beginning October 1, 2000, and that they would share the cost of the children’s medical insurance. (The stipulation did not refer to private school tuition.) A status only judgment was filed on October 13, 2000.
On July 1, 2003, the trial court entered judgment on the remaining issues. The court ordered father to pay child support based upon the parties’ then-current earnings. The parties were to meet and confer and settle upon the amount. The order did not mention daycare, medical insurance, or private school tuition. Elsewhere in the record the parties admit that they had been sharing the tuition expenses by having father pay for Nicolas and mother pay for Alexander.
In mid 2004, mother accused father of physically abusing one of the children, which resulted in father’s arrest, the issuance of a temporary restraining order, and mother’s obtaining primary custody of the children temporarily. The court ultimately declined to issue further injunctive orders and criminal charges were dropped. Nevertheless, mother’s request for sole physical custody of the boys moved forward. The parties agreed to the appointment of Dr. Leslie Packer to perform a child custody evaluation. While that evaluation was pending, the children were returned to the joint custody of mother and father.
In July 2004, father informed mother that he would no longer be able to afford private school for the boys, stating in an email to her attorney, “I expect I will have to enroll the boys in the public school district where I live for the fall 2004.” Mother’s attorney responded, “Alex [whose tuition father had previously been paying] is registered at St. Clare. [Mother] is making arrangements to take care of the tuition.” Thus, both boys continued in private school for the 2004/2005 school year and mother paid the tuition for both of them.
Also in mid 2004, mother moved for a modification of the child support order. The motion was heard by the child support commissioner, who filed an order on January 3, 2005, setting child support at $966 per month and specifying that the amount “includes $200 mo child care.” The order stated, “The court reserves jurisdiction to set child care for 2003 if the parties are unable to resolve that issue.” Private school tuition is not mentioned.
In early March 2005, mother moved from Santa Clara County to Pleasanton in Alameda County. On March 11, 2005, father requested an order giving him full custody of both boys pending an evaluation of what he characterized as mother’s “move away.” He also sought an order prohibiting mother from taking the children out of the schools they were attending. Mother did not oppose the latter request. The court’s temporary order restrained mother from taking the children out of their private schools and from removing them from Santa Clara or Alameda counties. After a hearing on May 16, 2005, the court ordered that the matter be referred back to Dr. Packer to include mother’s move to Alameda County as part of the overall custody evaluation. Other orders were to remain in effect. A written order filed several weeks later prohibited either party from removing the children from the private schools absent a court order or written agreement.
On May 17, 2005, mother filed the first of two motions seeking reimbursement for private school tuition. In support of this motion mother stated, “Since we have now been ordered to keep the children in their present schools, costs ought to be decided.” Mother also noted that since the matter did not involve the Department of Child Support Services (DCSS), the matter should be filed in the regular family law department, and not in the department where the child support commissioner presided over support cases involving the DCSS. Although the face sheet of the motion indicates that the hearing was set to be held in the regular family law department, the motion was redirected to the child support commissioner who declined to hear it. We do not know the basis for that decision; we have only counsels’ statements explaining that the commissioner believed the request was not one she could rule upon. Meanwhile, the children re-enrolled in their respective private schools for the 2005/2006 school year and mother again paid the tuition for both.
On May 30, 2006, over a year after filing the first motion for tuition, mother filed a second motion, seeking an order requiring father to contribute to the cost of the private schools. She attached a copy of the first motion that the child support commissioner had declined to hear. Mother argued that since father had obtained the order to keep the children in private school, he should be required to pay the cost. Father argued that mother had never asked for a contribution to school tuition and that there was no statutory authority for the court to order it retroactively.
The trial court granted the motion. From the bench, the trial court held, “With respect to tuition for up through the end of this past school year tuition, my order is that you [father] are going to be responsible for two-thirds of that tuition. Reimbursing [mother].” Father asked why the court chose the two-thirds/one-third apportionment and the court responded, “I looked at the Income and Expense Declarations.” “Figure out what the numbers are. Put them in an order. If you can’t agree on the numbers, then we can have another hearing.” Mother’s counsel was to draft the form of order.
The court’s written order, dated July 20, 2006, provides: “Commencing 2004/2005 academic year [father] is responsible for two-thirds of the total tuition costs of both children’s parochial school attendance and [mother] is responsible for the other one-third. The parties agree the number owed by [father] to [mother] is $14,258.37 under this order. This order is for tuition only.” By the time this order was filed, the children had completed the 2005/2006 school year, so that the order requires father to reimburse mother two-thirds of the tuition expenses she paid for the 2004/2005 and the 2005/2006 school years.
Since there was still an order in place preventing the parties from removing the boys from their private schools, father filed a motion on June 13, 2006, asking the trial court to rescind that order. The trial court granted the motion and also ordered Dr. Packer to evaluate the question of where the children should go to school in the upcoming 2006/2007 school year. According to the parties, Dr. Packer issued a report on July 31, 2006, stating her opinion that the optimal situation would be for the children to remain in the private schools for their seventh and eighth grade years. The next best alternative would be to enroll them in the public schools in Pleasanton where mother lived and allow them to reside primarily with mother. On August 18, 2006, father filed objections to the report, challenging the alternative recommendation on the grounds that it was in the children’s best interest to continue to go to school in Santa Clara County.
Dr. Packer’s report is not made part of the record. We glean its contents from the parties’ arguments on appeal. (See footnote 1, above.)
Shortly before school was to begin in the fall, mother filed an ex parte request for an order allowing her to enroll the children in public school where she lived and proposing an every-other-weekend visitation schedule for father. Father opposed the request, urging that the children be allowed to stay in the private schools they had been attending. Now he agreed to pay 72 percent of both boys’ tuition through the end of the youngest child’s eighth grade year. He eventually agreed to pay the entire cost, himself. The trial court signed mother’s ex parte request, which was filed on August 29, 2006.
In granting mother’s ex parte request, the family court set a hearing for September 11, 2006. At the hearing, the court expressed some consternation with father’s about-face on the question of where the children were to go to school. Father’s July 31, 2006 motion sought an order allowing the children to be removed from private school, ostensibly because the expense was too great but now, one month later, he insisted they should stay in the private schools and was willing to pay nearly three quarters of the cost. The court refused to take the children out of the Pleasanton public schools they had been attending for the last two weeks or so, but, as the court said, the order was “without prejudice, when this whole process goes forward, that that might be changed.” The written order provides that the children’s primary residence shall be with mother and that this order “is without prejudice to any ultimate decision on the current recommendations of Dr. Packer.”
III. Discussion
A. Tuition Reimbursement
1. Standard of Review
We usually review a judgment for child support under the abuse of discretion standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.) But the trial court’s discretion must be exercised within the limits of the child support statutes. (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044.) Father’s first argument is that the court’s order requiring him to reimburse mother for tuition exceeds the limits of those statutes. Since the facts pertinent to that argument are not in dispute, we independently ascertain the conclusion to be drawn from the facts in the record. (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 611.)
2. The Order is Invalid as It Applies to Tuition Accrued Prior to May 17, 2005
As father correctly maintains, in the family law context, the only statutory authority for an order requiring the payment of a minor child’s tuition expenses is that contained in subdivision (b) of Family Code section 4062, under which private school tuition may be allowed as “additional child support.” (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1367-1368.) There are two categories of additional child support allowed by section 4062. Subdivision (a) of section 4062 mandates additional child support for employment-related child care costs and reasonable uninsured health care costs. Subdivision (b) permits additional support to be awarded for educational expenses and other special needs or for the cost of transportation to facilitate visitation. “Among the family law bench and bar, these are usually referred to as mandatory or discretionary add-ons.” (In re Marriage of Fini, supra, 26 Cal.App.4th at p. 1039.) A trial court’s order pertaining to private school tuition would be a discretionary add-on.
Further unspecified statutory references are to the Family Code.
As father also correctly argues, a child support order may not be terminated or modified retroactively except as allowed by statute. Section 3651, subdivision (c)(1), provides that, with exceptions not pertinent here, “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 to modify or terminate.” (See also County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327; In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80-81.) Section 3653, subdivision (a) allows a support order to be modified or terminated “retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date.”
Applying these statutory requirements to the facts at hand it would seem that the trial court’s order is in excess of the court’s discretion to the extent it requires father to pay for tuition expenses that accrued prior to May 17, 2005, the date mother filed her first motion. Mother argues, however, that the order is appropriate under In re Marriage of Lusby (1998) 64 Cal.App.4th 459 (Lusby). In Lusby,a judgment ordered the father to pay baseline child support. (Id. at p. 465.) The judgment did not include additional child support under section 4062. Within weeks after the judgment was entered, the mother requested an order requiring the father to reimburse her for half the child care and medical expenses she had incurred over the previous two years. (Lusby, supra,64 Cal.App.4th at p. 465.) The commissioner who had presided over the trial presided over the show-cause hearing and found that he “clearly” had jurisdiction over the issue. The commissioner ordered the father to reimburse mother for the mandatory add-ons. (Id. at p. 466.) On appeal, the father maintained that the trial court had lacked jurisdiction to enter the order since the prior judgment had completely disposed of the child support issues so that the order was an improper retroactive modification of the existing child support judgment. (Id. at p. 468.) Although there was no express reservation of jurisdiction in the judgment, the appellate court concluded, based upon the mother’s declaration, the commissioner’s comment that he “clearly” had jurisdiction, and the father’s inability to demonstrate the contrary, that the court had retained jurisdiction to rule on the issue of add-ons. (Id. at p. 470.) The court rejected the father’s argument that the order ran afoul of section 3653, concluding that the order “was not a modification of the earlier support orders but an amplification of them, in a different statutory category than was previously considered by the court.” (Lusby, supra,64 Cal.App.4th at p. 473.)
The case before us is different because, unlike Lusby,it contains no evidence that the trial court had reserved the issue of add-ons. Rather, the January 2005 order awarded the mandatory add-on of $200 per month in child care expenses, expressly reserved jurisdiction over the child care issue, and was silent on the question of tuition. Indeed, during the hearing, mother’s counsel mentioned that mother was paying all the tuition but never suggested that she wanted to be reimbursed for the expense. Even more telling is the fact that when mother filed her first motion for father to pay private school tuition, the commissioner who had presided over the prior motion to modify child support declined to rule. In light of all of that, we cannot say, as Lusby did, that the issue of tuition was an amplification of the prior order. It is more properly characterized as a modification of the January 2005 child support order in that it increased the amount of additional child support under section 4062. Accordingly, section 3653 applies to limit the retroaction modification of that order.
Mother’s counsel represented that mother was “having to pay the full cost of the private school. Prior to this semester they had--the parties had split the cost. However, [father] decided he could not afford that any longer. My client has been picking up the whole thing. As part of what I did is split up the part that is related to child care and so she is paying that, $500 a month, $400.” The court clarified that the $400 that appeared on the income and expense declaration was for child care. Later the court remarked, “I remember that you indicated that--you stated that the children are in private school and that mother at this time is paying the full cost.” Counsel confirmed that to be true. The court then asked, “When would the request for any reimbursement for child care actually begin because it sounded like you were paying half and half up until recently.” The court clarified that it wanted to know the date upon which any claim for reimbursement of child care expenses should begin.
Mother argues that father is, in effect, estopped from opposing her tuition request since father was the one who had sought the order preventing the parties from removing the children from their private schools. Father maintains that estoppel should not apply to him, arguing that Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, the case upon which mother relies, does not apply here. We agree that Kristine H.,which held that a party is not permitted to attack the validity of the judgment to which the party had stipulated (id. at p. 166), is not applicable. Father did not attack the validity of the order he obtained, he objected to the court’s reliance upon that order as a basis for ordering him to reimburse mother. To the extent mother’s argument suggests that father is somehow equitably obligated to reimburse her for the 2004/2005 tuition expenses, we reject the argument. Mother cannot claim reimbursement for her voluntary support of the children. Such a claim would run afoul of the rule that a parent cannot claim reimbursement for money paid to support a child prior to an order of the court directing the other parent to pay. (Bierl v. McMahon (1969) 270 Cal.App.2d 97.) As section 3951, subdivision (a) specifically provides: “A parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.” There was no such agreement here. We conclude, therefore, that to the extent the trial court’s order of July 20, 2006, requires father to reimburse mother for tuition expenses accrued prior to May, 17, 2005, the date mother filed her initial motion to modify child support, the order is invalid.
Father also argues that the estoppel doctrine should apply to mother, but he supplies no authority or analysis of the issue so that we consider the argument to be waived. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
3. The Order is Valid as It Applies to Tuition Accrued from May 17, 2005 Forward
Father claims that the reimbursement order cannot be retroactive to May 17, 2005, the date mother filed the first motion, because, he says, mother dismissed that motion. But there is nothing in the record to show that mother actually dismissed the motion. Rather, the motion mother filed in 2006 was, in effect, the same motion she filed in 2005; she even attached a copy of the first motion to the second one. We have no idea what happened to the first motion other than that the child support commissioner had declined to hear it. The trial court’s order was, in effect, a ruling on the original motion. If there are facts that would show this conclusion to be in error, they do not appear in the record. We are bound to conclude that mother’s motion was filed on May 17, 2005, so that under section 3653, subdivision (a), the court’s order for tuition may be retroactive to that date.
Father argues that, notwithstanding section 3653, the order is completely invalid. The argument in his opening brief is difficult to follow and cites no legal authority. It is not until his reply brief that father cites section 4250 et seq. Father claims that sections 4250, 4251, and the related rules of court, provide that a hearing before the child support commissioner is “the only mechanism by which the court had authority” to order him to pay private school tuition. It is true that section 4251, subdivision (a) provides that all actions to modify child support orders established or enforced by the local child support agency must be referred to a child support commissioner. (§ 4251, subd. (a).) We may infer from the record, and from statements in father’s reply brief, that the parties’ child support orders were being enforced by the DCSS--although neither party has expressly pointed that out in the briefs. But beyond that, the record provides no clue as to what actually happened here. Other than counsels’ statements, there is nothing to explain why the commissioner declined to hear the first motion, which might help us to decide whether the trial court exceeded its jurisdiction in ruling when the commissioner had declined. In order to overcome the presumption that an appealed judgment or order is correct, the appellant must provide an adequate record demonstrating error. “[F]ailure to do so ‘precludes adequate review and results in affirmance of the trial court’s determination.’ ” (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003-1004, fn. 1, quoting Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Furthermore, father includes no analysis or discussion of the law on this point. Given the incompleteness of the record and father’s failure to make a cognizable legal argument, we deem the issue waived. (Berger v. California Ins. Guarantee Assn., supra,128 Cal.App.4th at p. 1007; Interinsurance Exchange v. Collins, supra,30 Cal.App.4th at p. 1448.)
Father also argues that the trial court improperly apportioned the private school tuition in that the court ignored the amount of child support father was already paying and failed to calculate the net disposable income of the parties as required by section 4061. Because the matter must be remanded to allow the trial court to recalculate the tuition for which father is lawfully obligated, the court will have an opportunity to make the findings and computation required by section 4061.
Section 4061 provides, in pertinent part:
B. The Temporary Custody Order
Father next argues that the trial court erred in granting mother’s ex parte request to change the children’s school and the custody timeshare allotted to the parents. He maintains that mother did not make the requisite showing of immediate harm or extraordinary circumstances required to warrant an order changing custody by way of an ex parte proceeding. Mother first argues that the order is not appealable.
Father did not include the required statement of appealability in his brief. (Cal. Rules of Court, rule 8.204(a)(2)(B).) The requirement is especially important where the appeal is taken from something other than a final judgment because it insures that the appellant has assessed the appealability of the ruling for which review is sought and it demonstrates to other parties and to the court of appeal, before work on the case begins, why the order is appealable. (Lester v. Lennane, supra,84 Cal.App.4th at p. 556.) Although father’s briefs offer no explanation, in a statement contained in the court’s file father stated that the order is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2) as an order after judgment.
Such an omission could be cause to strike the brief (Lester v. Lennane (2000) 84 Cal.App.4th 536, 556), although we have chosen not to do so in this case.
Citing Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651, mother points out that not all postjudgment orders are appealable. Nonappealable postjudgment orders include those that “although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal.” (Id. at p. 652.) Thus, an essential element of an appealable postjudgment order is that the order be one which is not preliminary to later proceedings and will not become subject to an appeal after some future judgment. (In re Marriage of Levine (1994) 28 Cal.App.4th 585, 588-589.)
Although the instant order was labeled “temporary,” the substance of the order was not preliminary to something else. The order completely changed the custody status of the children effective upon entry of that order. The only thing “temporary” about the order is that it was subject to change following receipt of Dr. Packer’s further evaluation. If the possibility of modification could preclude appeal, no postjudgment custody orders would ever be appealable. Notwithstanding the fact that this order was titled a temporary order, it is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6), (10); but see Lester v. Lennane, supra, 84 Cal.App.4th 536, holding that temporary custody orders during the pendency of a dissolution proceeding where custody was the only disputed issue were not appealable.) We now turn to the merits of the argument.
“The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
Father maintains that section 3064, which pertains the issuance of ex parte custody orders, prohibits the ex parte modification of a custody order absent a showing of immediate harm to the child or immediate risk that the child will be removed from the state. The ex parte order father challenges is the August 29, 2006 order on mother’s ex parte request for modification of the existing child support orders. Even if father is correct that the facts were not sufficient to support an ex parte change of custody under section 3064, father had adequate opportunity to be heard on the issue when the court held a full hearing on September 11, 2006. (See In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 657 [finding no prejudice to issuance of ex parte order removing children from the mother’s custody when it denied mother’s request to regain custody at a hearing three months later].)
Section 3064 provides: “The court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California. ‘Immediate harm to the child’ includes having a parent who has committed acts of domestic violence, where the court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence.”
Although father’s notice of appeal mentions the September 11, 2006 order, father does not direct his challenge on appeal to that order. He would not prevail on such a challenge in any event as the factual basis for the court’s refusal to vacate the temporary order (Dr. Packer’s written evaluation) is not part of the record. “In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s 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.) Furthermore, it may be inferred from the timing of his various motions that father’s recent about-face with respect to his willingness to pay for private school tuition occurred when he received Dr. Packer’s report recommending an alternative that father opposed. The trial court was entitled to question the sincerity or reliability of father’s offer to pay all the tuition and to find that Dr. Packer’s alternative recommendation, that the boys live primarily with mother and attend the Pleasanton public schools, would provide a more stable situation and was in the best interests of the children.
IV. Disposition
The order of the trial court dated July 20, 2006, is reversed. The matter is remanded to the trial court with directions to strike that part of the order requiring petitioner Larry Peterson to reimburse respondent Jeanette Weiss for private school tuition expenses incurred on behalf of their minor children prior to May 17, 2005. The trial court shall recalculate the amount that, in the court’s discretion, petitioner shall pay for such expenses incurred from May 17, 2005 through the end of the 2005/2006 school year, keeping in mind the requirements of Family Code section 4061.
The orders of the trial court dated August 29, 2006, and September 11, 2006, are affirmed.
The parties shall bear their own costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.
“The amounts in Section 4062, if ordered to be paid, shall be considered additional support for the children and shall be computed in accordance with the following:
“(a) If there needs to be an apportionment of expenses pursuant to Section 4062, the expenses shall be divided one-half to each parent, unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation which demonstrates that a different apportionment would be more appropriate.
“(b) If requested by either parent, and the court determines it is appropriate to apportion expenses under Section 4062 other than one-half to each parent, the apportionment shall be as follows:
“(1) The basic child support obligation shall first be computed using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057.
“(2) Any additional child support required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d). [¶] . . . [¶]
“(d) For purposes of computing the adjusted net disposable income of the parent paying child support for allocating any additional expenses pursuant to Section 4062, the net disposable income of the parent paying child support shall be reduced by the amount of any basic child support ordered to be paid under subdivision (a) of Section 4055. However, the net disposable income of the parent receiving child support shall not be increased by any amount of child support received.”