Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. F071155
Swager, J.
These five consolidated appeals have been filed in this court by appellant Ester Adut in a dissolution matter initiated in 2002. Appellant appeals from the trial court’s final judgment on custody, and rulings set forth in various minute orders. She also appeals the final judgment on reserved issues, including child and spousal support. She appeals an order denying her oral motions for attorney fees and for a referral to Family Court Services. She appeals orders denying her posttrial motions to modify child and spousal support. Finally, she appeals the order denying her requests for predissolution child and spousal support, as well as compensation for time spent caring for her children when respondent was traveling out of the country. We affirm all the judgments and orders.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In view of the number of issues raised on appeal from separate orders, we find it necessary to describe the history of this case by setting forth the various motions, hearings and orders in chronological order.
Respondent Joshua Sakov and appellant were married in July 1989. Their three children were born on the same day in June 1996. A petition for dissolution was filed on July 18, 2002.
No respondent’s brief has been filed. Rule 8.220(a)(2) of the California Rules of Court provides that in such circumstances, “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.”
On December 23, 2002, appellant filed an amended order to show cause requesting child and spousal support, attorney fees, and other relief. Respondent filed his responsive declaration on January 8, 2003.
On January 15, 2003, the trial court held a hearing on various issues, primarily focusing on custody arrangements for the children. The court declined to order child and spousal support as both parties were then unemployed. The court reserved the issues of child and spousal support to the next scheduled hearing date.
A hearing was held on March 4, 2003; however, support issues were not discussed. The next hearing was scheduled for March 17, 2003, but the parties did not appear and the matter was dropped from the calendar.
On October 22, 2003, appellant filed another order to show cause. A hearing was held on November 25, 2003.
On May 13, 2004, the court filed its order after hearing, requiring respondent to pay appellant child support in the amount of $1,626 per month and spousal support in the amount of $1,359 per month beginning on November 1, 2003. In arriving at this calculation, the court imputed a $3,750 monthly income to appellant. The order also required the parties each to pay one-half of the child care costs. In addition, appellant was ordered to pay one-half of the private school tuition for the parties’ daughter.
On August 24, 2004, the parties entered into a stipulation suspending child and spousal support pending trial. The stipulation provides that the court would have the authority to set support retroactive to February 19, 2004.
Trial commenced in January 2005.
On July 5, 2005, appellant made oral motions requesting attorney fees and an order referring the issue of child custody to Family Court Services. The trial court denied the request for attorney fees, based on a finding that the oral motion was not procedurally proper. The court denied the referral request because a custody evaluation had already been completed by Dr. Alan Leavens, the court appointed custody evaluator. The court announced that the trial would continue on July 19, 2005, at 2 p.m.
On July 19, 2005, the parties were notified by telephone that the matter was continued to August 3, 2005, at 9 a.m. Appellant failed to appear at the August 3d hearing. The matter proceeded in her absence.
On August 9, 2005, appellant filed a motion requesting that each party pay for its own child care costs.
On October 27, 2005, appellant filed a 17-page objection to the family law commissioner pursuant to Code of Civil Procedure section 170.3, subdivision (c).
All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
On October 28, 2005, the court executed its final judgment on custody, awarding the parties joint legal and physical custody.
On October 31, 2005, the court filed an order striking appellant’s objection to the commissioner.
On November 1, 2005, the trial court’s final judgment on custody was filed. At a hearing held on that same day, the court issued various minute orders.
On November 28, 2005, appellant filed a writ petition in this court challenging the orders striking her two disqualification motions. (A112129.) We denied the petition on November 30, 2005.
On July 6, 2006, we denied a second petition filed by appellant regarding other disqualification motions (A114352).
The trial concluded on December 5, 2005. The court orally set forth its statement of decision on the reserved issues of spousal and child support.
On December 28, 2005, appellant filed a notice of appeal from unidentified judgments or orders filed on November 1, 2005, and December 13, 2005 (Appeal A112701). We have construed her notice of appeal to include (1) the final judgment on custody, (2) the minute order issued on November 1, 2005, and (3) the order filed on December 13, 2005, documenting the denial of her two July 5, 2005 oral motions.
On May 4, 2006, appellant filed an at-issue memorandum requesting trial on the remaining property issues and demanding a jury trial on child support, and filed a request for a status conference.
On August 8, 2006, the court filed its statement of decision and final judgment on reserved issues. It also filed an order requiring appellant to pay one-third of respondent’s child care costs.
On August 16, 2006, the court “took the issues of support, property issues and date of separation under submission” and ordered the parties to submit trial briefs.
On August 30, 2006, appellant filed her notice of intent to move for a new trial.
On September 27, 2006, the court struck the at-issue memorandum filed by appellant on May 4, 2006, on the grounds that a judgment had been entered in the case and because she had filed a motion for new trial.
On October 10, 2006, appellant filed a trial brief.
On October 12, 2006, appellant filed her notice of appeal in appeal A115566.
On October 26, 2006, the court found that it had no jurisdiction to rule on appellant’s motion for a new trial because jurisdiction on the contested issue was with the Court of Appeal.
Further procedural matters are set forth below in our discussion of the other appeals filed by appellant.
DISCUSSION
We begin by setting forth the basic principles of appellate review. First, “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.) Because error is never presumed, it is every appellant’s duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.)
Second, “error alone does not warrant reversal. ‘It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.’ [Citation.] ‘ “The burden is on the appellant, not alone to show error, but to show injury from the error.” ’ [Citation.] ‘Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not found ‘unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.’ [Citation.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822–823.)
Third, “It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party’s position.” (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) To that end, California Rules of Court, rule 8.204(a)(1)(C), provides that a brief must “Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”
Fourth, every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
We observe that applying these fundamental principals of appellate review has been made difficult in view of the record before us. The record and citations supplied to us by appellant are convoluted, and the arguments on appeal are frequently unsupported by citations to the record and legal authority. It is not this court’s responsibility to wade through this voluminous record in search of support for appellant’s arguments.
I. Motions for Judicial Disqualification (A112701) (A115566)
Appellant filed multiple unsuccessful objections to the family law commissioner during these proceedings. She now claims that the judgments and orders appealed from are void because the commissioner was disqualified under section 170.3, subdivision (c)(4). This claim is not subject to review on appeal and, in any event, lacks merit.
Section 170.3, subdivision (c)(4), provides: “A judge who fails to file a consent or answer [to an objection] within the time allowed [10 days after the filing or service, whichever is later] shall be deemed to have consented to his or her disqualification and the clerk shall notify the presiding judge or person authorized to appoint a replacement of the recusal as provided in subdivision (a).”
A ruling regarding the disqualification of a judge “is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal . . . .” (§ 170.3, subd. (d).) “ ‘The purpose of this rule is twofold. It seeks to eliminate the waste of time and money which would flow from continuing the proceeding subject to its being voided by an appellate ruling that the disqualification decision was erroneous. It also promotes fundamental fairness by denying the party seeking disqualification a second “bite at the apple” if he loses on the merits but succeeds on appeal from the disqualification order.’ [Citation.]” (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 971.)
As appellant admits, she filed writ petitions in this court contesting the family law commissioner’s decision to strike or deny her objections. The petitions were denied. While we are therefore not obliged to address her arguments here, we do so and find them to be without merit.
Appellant’s claim hinges on the application of section 170.4, subdivision (d), which provides: “Except as provided in this section, a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined.” (Italics added.) Her argument is based on the supposition that the commissioner was temporarily disqualified as soon as the objection was filed, and that the commissioner thus lacked the authority to sign the final judgment of custody on October 28, 2005, which was the day after she filed her objection.
Four days after appellant filed this objection, the commissioner ordered that it be stricken from the record pursuant to section 170.4, subdivision (b), which provides, in part: “[I]f a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken.” The commissioner found appellant’s objection was subject to being stricken because it was both untimely and failed to set forth any legal bases for disqualification. Because section 170.4, subdivision (b), constitutes an exception to the rule provided for in subdivision (d), the commissioner was not divested of her judicial authority. Accordingly, the court was not without jurisdiction when it executed the judgment on custody.
Appellant’s reliance on Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678 is misplaced. The appellate court’s opinion in that case was premised on the existence of a “legally sufficient” statement of objection (id. at p. 706), a standard that is not met by statements subject to being stricken under section 170.4, subdivision (b).
Appellant filed an addendum to her statement of objection on November 1, 2005. She argues that this filing disqualified the commissioner from making the minute orders entered on that same date. However, the commissioner properly struck the addendum on the basis that the underlying section 170.3 motion had already been denied. Again, the filing of the addendum had no legal effect on the commissioner’s authority to act.
Appellant filed another objection to the commissioner on November 7, 2005. This 22-page objection was stricken on November 23, 2005. The proof of service cited to by appellant indicates that a process server attempted to serve her objection on November 8, 2005, by leaving documents with an unnamed bailiff. Appellant asserts that the commissioner must be deemed disqualified because the court acted after the 10-day deadline set forth in section 170.3, subdivision (c)(4). However, the court’s order indicates that the court was not served until November 21, 2005. Appellant fails to acknowledge or explain the discrepancy in the two service dates.
On March 17, 2006, appellant filed another objection to the commissioner. On April 5, 2006, the court struck the motion. In its order, the court stated “The copy which was served on me was not filed as required by CCP section 170.3(c)(1). Therefore, said service does not require any action on my part.” While appellant claims again that the court failed to respond within the 10-day period, she does not address the ground relied on by the court in its order. The claims of error fail.
This pattern of filing objections that were then struck by the court continued through the remainder of 2006. In the interest of economy and in light of the fact that appellant is not entitled to appellate review, we will not address these motions any further.
II. Alleged Violation of Due Process (A112701) (A115566)
In an apparent attempt to get around the rule that prevents review of her unsuccessful disqualification motions, appellant claims that the commissioner’s bias against her violated her constitutional right to due process. We are not persuaded.
“[N]otwithstanding the exclusive-remedy provision of Code of Civil Procedure section 170.3, ‘a defendant may assert on appeal a claim of denial of the due process right to an impartial judge.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 445, fn. 16.) “The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.)
Appellant reasserts on appeal many of the grounds raised in the objections that she filed in the trial court. As noted above, appellant previously filed writ petitions contesting the commissioner’s failure to disqualify herself. The petitions were denied. Because appellant’s claim is, at heart, nothing more than a challenge to the trial court’s striking of her motion to disqualify, she is not entitled to any appellate review beyond that which she received already when she unsuccessfully sought writs of mandate following the trial court’s rulings.
In any event, appellant’s contentions are not supported by the evidence in the record. In claiming that the family law commissioner was biased against her, she asserts, among other things, that the commissioner: (1) prohibited her from filing any motions without prior approval; (2) misleadingly expanded the scope of this prohibition to cover the filing documents other than motions; (3) discounted the need for orthodontic treatment for two of the children; (4) unfairly denied her fee waiver applications; (5) suggested that appellant (who is a licensed attorney) should be disbarred; (6) invited opposing counsel to file a motion for sanctions against her; and (7) advised appellant’s friend to disassociate from her. She also claims that the court evidenced favoritism towards respondent and violated the canons of judicial conduct.
Appellant’s claims of bias are not persuasive. For example, the ruling requiring prior approval before she could file new motions was made after she had filed five motions in one month, each calendared for separate dates. The commissioner noted that the motions should have been consolidated and set them all for a single hearing date. The commissioner then ordered all subsequent motions to be submitted to her for approval prior to filing. It is apparent that the court was acting out of a need to control its calendar, and not out of bias. While there is evidence that some of the court’s clerks misunderstood the scope of the commissioner’s order, we see no evidence of bias.
Other incidents mentioned by appellant also fail to substantiate the claim of bias. The commissioner’s statement regarding orthodontic treatment was an incidental comment made in the context of a tentative “move away” request. The fee waiver requests were denied because appellant’s monthly income was found to exceed the guidelines for granting such waivers. Other objections raised by appellant are not corroborated by the record on appeal and, in any event, do not indicate bias. As the Supreme Court stated in People v. Harris (2005) 37 Cal.4th 310, 347, “The role of a reviewing court ‘is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]’ [Citation.]” We find no violation of appellant’s due process rights.
III. Appellant’s Failure to Appear (A112701)
Appellant claims the judgment on custody is invalid because her failure to appear was the result of the court’s failure to provide proper notice of the time of trial. As noted above, the trial was continued from July 19, 2005, at 2 p.m. to August 3, 2005, at 9 a.m. The minutes of July 19 state: “BOTH PARTIES WERE NOTIFIED BY PHONE OF THE NEW HEARING DATE.” While appellant was evidently aware of the new date, she claims that she thought the trial was set for 2 p.m.
We find no reversible error. Appellant was present in court when the trial was initially continued to July 19th. She concedes that she knew the date was continued to August 3, which is strong evidence that she did, in fact, receive telephone notice from the court clerk regarding the start time. Nor do we agree with appellant’s assertion that telephonic notice was insufficient. The court was not required to provide written notice of the new date. Upon notification of the first continuance, she had a duty to keep herself “ ‘informed by diligent inquiry of all subsequent continuances’ [citation].” (People ex rel. San Francisco Bay Conservation Etc. Com. v. Smith (1994) 26 Cal.App.4th 113, 129 (Smith).) The evidence supports the inferences that appellant received actual notice and that she failed to exercise reasonable diligence.
Appellant’s reliance on Payer v. Mercury Boat Co. (1961) 195 Cal.App.2d 659, 661 and Simon v. Tomasini (1950) 97 Cal.App.2d 115, 123 is misplaced. Those cases concern the requirements under section 594 for notice of an original trial date, not a continued date. Formal notice is not required when a properly noticed trial date is continued. (Parker v. Dingman (1975) 48 Cal.App.3d 1011, 1018; Smith, supra, 26 Cal.App.4th 113, 129.)
On November 23, 2005, appellant filed a motion for new trial, which, among other things, raised the notice issue. It appears the motion was denied on January 23, 2006.
Appellant also contends that the court abused its discretion by conducting the hearing without her and by entering judgment on the custody issue without giving her a chance to respond. She claims that if she had been present she would have made arguments or objections to the proposed judgment, and that the court thus violated public policy by not considering “ ‘all competent, material, and relevant evidence the parties desire[d] to introduce.’ ”
Appellant cites to Shippey v. Shippey (1943) 58 Cal.App.2d 174, 177.
We have reviewed the transcript of the hearing held on August 3, 2005. We note this hearing was preceded by a full day of trial wherein appellant had the opportunity to introduce evidence, call her own witnesses, and cross examine respondent. The August 3d hearing itself was brief. After the court determined that appellant had indeed failed to appear, respondent gave a brief closing statement and the court immediately proceeded to set forth its order regarding custody. The court did not consider any new testimony or evidence in appellant’s absence. While she claims that the resulting judgment is “unfair” to her and is “against the children’s best interests” she does not substantiate this claim with any specifics. We find no abuse of discretion.
IV. Denial of Oral Attorney Fees Motion (A112701)
Appellant claims that the court erred in denying her request for fees to hire an attorney. We review the denial of attorney fees for abuse of discretion. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166–1167.)
On July 5, 2005, appellant made an oral request for fees under Family Code section 2030 so that she could have a retainer to hire an attorney. The court denied the request. On December 13, 2005, the court entered its order stating that the request had been denied because the oral motion for attorney fees was “procedurally improper.”
Appellant asserts various claims of error. She first claims that the court erred in delaying the issue of pendente lite attorney fees to the end of trial. As it does not appear that attorney fees were awarded to appellant at any time, the alleged delay does not appear to be relevant.
Appellant also appears to contest the court’s finding that her oral fee motion made on July 7, 2005, was procedurally improper. Family Code section 2031, subdivision (a)(1), provides in part: “[D]uring the pendency of a proceeding for dissolution of marriage . . . an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.” Subdivision (b) provides in part: “An order described in subdivision (a) may be made without notice by an oral motion in open court . . . [¶] (1) [a]t the time of the hearing of the cause on the merits.” (Italics added.)
Assuming appellant’s oral request was proper, she has failed to show that the error was prejudicial. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th 814, 822–823.) In the judgment filed August 8, 2006, the court denied appellant’s renewed request for attorney fees. Even if we assume the court erred in denying appellant’s July 5, 2005 oral motion on procedural grounds, the court’s subsequent denial of her renewed motion on the merits demonstrates that she was not prejudiced by the earlier denial. Accordingly, we find no prejudicial error.
V. Statement of Decision (A112701)
Appellant claims that the trial court erred in failing to issue a statement of decision regarding the judgment on custody. Family Code section 3022.3 provides: “Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure.”
Code of Civil Procedure section 632 provides in part: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision . . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”
On August 3, 2005, the trial court orally set forth the terms of its judgment on the custody issue. Final judgment was filed on November 1, 2005.
On November 14, 2005, appellant filed a “request for statement of reasons and statement of information” under Family Code sections 3082 and 3190 with respect to the custody judgment. That same day she filed a request for a statement of decision under Code of Civil Procedure section 632 with respect to various matters, including the denial of her request for attorney fees, and findings made concerning the retroactivity of child and spousal support. On December 5, 2005, the court denied the later request. We address this request first.
Code of Civil Procedure section 632 “requires the trial court to issue a statement of decision ‘upon the trial of a question of fact’ when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable.” (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) Additionally, “A statement of decision is not required regarding an award of attorney fees pursuant to a motion.” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252.) None of the issues specified in appellant’s request for a statement of decision involve a judgment issued following trial. Accordingly, they do not fall within the scope of section 632. Thus, the court was not required to issue any statement of decision.
With respect to the request for a statement of reasons and of information, Family Code section 3082 provides: “When a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is not, in the best interest of the child is not sufficient to satisfy the requirements of this section.” We observe that the vast majority of the 40 issues cited to by appellant in her request for a statement of reasons do not pertain to the decision to grant joint custody. For example, she asked for the reason why “the Yom Kippur and the first night of Passover shall be shared such that in even years father shall have the children for these events and in odd years, mother shall have them.” She also asks for the reason why “if one or more of the children are attending karate that day, exchanges of all the children shall take place at the child’s karate class at the time it is scheduled to end,” and asks for “the information used in determining each parent’s net monthly disposable income.”
We note appellant does not explain the motion’s reference to Family Code section 3190. This section addresses orders requiring parents, minor children, or any other party involved in a custody or visitation dispute to participate in mental health counseling. (Fam. Code, § 3190, subd. (a).) The judgment of custody does not require anyone to participate in mental health counseling. Thus, it would appear that this section has no application to the judgment.
Appellant claims that the judgment on custody is a nullity because the trial court “failed to make findings on all material issues,” but she appears to be confusing a statement of reasons with a statement of decision. They are not the same. A statement of reasons is “not intended to set forth the legal basis for the decision, but to provide parents with the reasons—in plain, everyday English—why the court granted or denied joint custody.” (In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642.) “The distinction between a statement of decision and a statement of reasons is more than semantic and should be maintained. There are both substantive differences and a difference in purpose between the two. A statement of decision is of greater legal import, for it provides the framework within which a trial court’s decision can be reviewed by the appellate court.” (Id. at p. 643.) Even assuming the court failed to issue a statement of its reasons for granting joint custody, appellant does not cite to any authority for the proposition that this failure renders the custody judgment invalid.
Appellant also appears to argue that a notation made in her response to the dissolution petition filed on October 10, 2002, constitutes an ongoing request for a statement of decision. Under the heading “9. Respondent requests that the court grant the above relief and make injunctive (including restraining) and other orders as follows,” she checked the box marked “other” and wrote in “statement of decision.” A statement of decision is not an “order.” In any event, she cites no authority for the proposition that this entry triggered the application of Code of Civil Procedure section 632.
VI. Bifurcation of Issues (A112701)
Appellant contends that the trial court did not follow proper procedures when it bifurcated the trial and issued the judgment on custody. She claims the error was prejudicial because she had no opportunity to object to the judgment or to request a statement of decision.
California Rules of Court, rule 5.175(a) provides that the parties, or the court on its own motion, may move to bifurcate one or more issues and have them tried separately. If a party notices such a motion, it must be heard before the trial-setting conference. Appellant claims the court erred by not hearing its own motion before the trial-setting conference. But she does not cite to any authority holding that courts are required to set hearings before ruling on their own motions.
We note appellant herself appeared to request bifurcation of the issues at a hearing held on October 18, 2004: “MS. ADUT: ‘Your Honor, I don’t understand why we can’t get bifurcated filing of the kids’ issues heard prior to January.’ ”
She also claims that the clerk did not mail a copy of the custody order within 10 days of its filing. (See Cal. Rules of Court, rule 5.175(b).) As best we can determine, appellant appears to be claiming she was foreclosed from filing a request for a statement of decision because such requests must be made within 10 days after the tentative decision is mailed by the clerk. She did not raise this argument when she orally requested a statement of decision on December 5, 2005. Instead, she claimed that she had requested a statement of decision on all issues when she filed her initial response to the petition for dissolution. The court denied the request, finding that the general request for a statement of decision was not sufficient. Appellant does not challenge that finding.
Appellant also claims that the court violated California Rules of Court, rule 3.1591(a) which provides that the court must announce its tentative decision on the bifurcated issue, must issue a statement of decision when requested, and must not prepare any proposed judgment until other issues are tried unless the judgment may properly be entered. We are not convinced that the court failed to comply with this rule. The court announced its tentative decision on August 3, 2005. The fact that the court did not announce it to appellant (because she failed to appear) is irrelevant. We have already concluded that the court was not required to issue a statement of decision. And the judgment was properly entered as the court had the authority under rule 5.175 to bifurcate the trial on its own motion. We find no error.
VII. Local Rules (A112701)
Appellant claims that the judgment was entered in violation of local court rules. She first claims the court violated San Mateo County Local Rules, rule 5.9(B)(4), which pertains to judgments by default or uncontested hearing. That rule does not apply. The proceeding here was neither a default nor was it uncontested. Appellant appeared at trial and actively pursued her case. Her failure to appear on August 3, 2005, did not render the judgment a default.
San Mateo County Local Rules, rule 5.9(B)(4) provides: “If the proposed uncontested judgment is not a stipulated judgment and includes provisions for child support, spousal support or a waiver thereof, attorney’s fees or costs, the moving party must also file a current income and expense declaration. Neither child nor spousal support will be granted unless the moving party sets forth an estimate of the other party’s income in the income and expense declaration. If the moving party does not know the other party’s present income, this requirement may be met by evidence of the other party’s ability to earn, work history or other relevant facts.”
Appellant also claims that the court violated San Mateo County Local Rules, rule 5.10(B), which pertains to the preparation of judgments and orders after hearing. That subdivision provides, in part: “The party preparing the order or judgment shall send it to the opposing side for approval as to form and content unless the court authorizes the preparer to submit it directly to the court.” Appellant claims that the court did not authorize respondent’s counsel to submit it directly to the court. Yet, that is what occurred, evidently with the court’s authorization. As the court explained to appellant, there was no need for her to approve the order as to form because she was not present at the August 3, 2005 hearing. We find no prejudicial error.
Rule 5.10(B) provides: “The party preparing the order or judgment shall send it to the opposing side for approval as to form and content unless the court authorizes the preparer to submit it directly to the court. The recipient shall have ten (10) calendar days from the date of mailing to review the order and, either sign it as prepared, or notify the proponent in writing of objections to its content. If the parties cannot agree on the language of the order, then, within 45 days of the hearing or trial either party may submit the proposed order with a copy of the transcript of the recited order and any written objections by the other party to the judicial officer who made the ruling.”
VIII. Substantial Evidence Supports Judgment on Custody (A112701)
Appellant next claims that the judgment on custody is not supported by substantial evidence. We review custody and visitation orders for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We review the trial court’s resolution of disputed factual questions using the substantial evidence test. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Under the substantial evidence test, we view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging in all reasonable inferences from the evidence to support the judgment. (Ibid.) If an appellant does not request a statement of decision, we presume the trial court to have made all findings necessary to support the judgment. (In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1159.)
Appellant’s principal complaint is that the court did not make specific findings concerning the health, safety, and welfare of each child, instead basing its decision on the absence of evidence that a joint custody arrangement would be detrimental the children. However, because she did not request a statement of decision, she cannot challenge the trial court’s ruling by contending the court did not fully explain the reasons for its ruling. In any event, there is evidence in the record to support the court’s finding.
The court stated its findings, in part, as follows: “THE COURT FINDS that based on all the evidence that’s been presented and the testimony of Dr. Leavens that there is no evidence to dispute the recommendations of Dr. Leavens and there is no evidence to show that a continued shared custodial arrangement between these parties is not in the best interest of the parties’ children . . . and it appears that they are doing fine under this arrangement. It appears to the Court that it is in their best interest to have somewhat equal access to both parents.” These findings are supported by Dr. Leavens’s report dated June 23, 2003, and his testimony in court. For example, he testified that he found the children were bonded to both parents and that both parents were similarly situated in terms of their parenting skills. He also testified that the children had expressed satisfaction with the shared arrangement, though they would have preferred more flexibility in terms of being able to visit with the noncustodial parent during the custodial parent’s time.
While appellant claims that the custody judgment “hampers or forecloses [her ability] to provide for the children’s needs,” she does not explain why. And while she suggests that contrary evidence was presented, or was erroneously excluded, under the substantial evidence standard of review, “our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court’s factual determinations.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.) In this case, substantial evidence supports the court’s judgment. We find no abuse of discretion.
IX. Admission of Evaluator’s Recommendations (A112701)
Appellant claims that Dr. Leavens failed to comply with California Rules of Court, rule 5.220 when he prepared his child custody evaluation and that the trial court therefore erred in admitting his report into evidence. This claim is meritless.
On appeal, “Our review is guided by Evidence Code section 353, which provides: ‘A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.’ [¶] In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.)
California Rules of Court, rule 5.220(e)(2) sets forth guidelines for evaluators to consider in collecting information and preparing evaluations: “All evaluations must include . . . [d]ata collection and analysis that . . . allow the evaluator to observe and consider each party in comparable ways and to substantiate . . . interpretations and conclusions regarding each child’s developmental needs; the quality of attachment to each parent and that parent’s social environment; and reactions to the separation, divorce, or parental conflict. This process may include: [¶] (A) Reviewing pertinent documents related to custody . . .; [¶] (B) Observing parent-child interaction . . .; [¶] (C) Interviewing parents . . . to assess: [¶] (i) Capacity for setting age-appropriate limits and for understanding and responding to the child’s needs; [¶] (ii) History of involvement in caring for the child; [¶] (iii) Methods for working toward resolution of the child custody conflict; [¶] (iv) History of child abuse, domestic violence, substance abuse, and psychiatric illness; and [¶] (v) Psychological and social functioning; [¶] (D) Conducting age-appropriate interviews and observation with the children [and] both parents . . . conjointly, separately, or both conjointly and separately . . .; [¶] (E) Collecting relevant corroborating information or documents . . .; and [¶] (F) Consulting with other experts to develop information that is beyond the evaluator’s scope of practice or area of expertise.” (Italics added.)
Appellant faults Dr. Leavens for his alleged failure to fully perform some of the specified assessments listed in the rule. To the extent he did comply with the guidelines, she faults Dr. Leavens for relying mainly on information that he received from respondent. However, the guidelines quoted above are not mandatory and the rule does not bar the evaluator from receiving more information from one parent than the other.
Appellant also claims Dr. Leavens acted contrary to rule 5.220(h)(11), which requires evaluators to “Be sensitive to the . . . cultural values, religion, family structures, and developmental characteristics of the parties.” She faults Dr. Leavens because he did not know how many Seders there are in the Jewish tradition of Passover, and because he recommended that the children alternate holidays between the parents even though respondent allegedly does not observe them. This claim fails. The rule simply requires evaluators to exercise sensitivity. In sum, the court did not err in admitting the report into evidence.
Appellant also claims that the court erred in admitting Dr. Leavens’s January 2005 update to his evaluation. She claims the update was not ordered by the court, yet directs our attention to an entry in the register of actions stating that both parties were ordered to cooperate with Dr. Leavens. At the hearing that corresponds to this entry, the court stated: “As far as updating the report, I think that given the request that I’m hearing now, I think it’s a good idea that Dr. Leavens sees the parties and does an update.” The court further ordered both parties to cooperate with the evaluator and to split the cost. Thus, the update was authorized by the court.
Appellant’s other claims of error regarding the admission of Dr. Leavens’s report lack merit. For example, she claims that the report should not have been admitted because she did not stipulate to having the report received into evidence. Family Code section 3111, subdivision (c), states that the report of a court-appointed child custody evaluator “may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report.” A respected practice guide states, “The report may be ‘considered’ by the court. But it is admissible evidence only on stipulation of ‘all interested parties’ (in which event, it is ‘competent’ evidence on all matters contained therein).” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 7:255, p. 7–85.) We have some question as to how a court can properly “consider” evidence that is inadmissible. In any event, when respondent’s counsel requested to move the report into evidence, there was no objection from appellant, who, admittedly, was not present at the hearing. In light of our finding that the court did not err in proceeding with the August 3, 2005 hearing in appellant’s absence, it would be inconsistent and unreasonable for us to conclude that the court erred in admitting the report merely because appellant did not have the opportunity to object to its admission.
Nor do we agree with appellant’s contention that the court’s evident reliance on the report constitutes an improper delegation of judicial authority. A trial court may not delegate to others—such as a therapist, child protective services agency, or referee—the authority to make custody decisions. (See In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476–1478; see also In re Edgar M. (1975) 14 Cal.3d 727, 735–736.) That authority is vested in the trial court by the state Constitution. (Cal. Const., art. VI, § 22; In re Donnovan J., at p. 1477.) But the court did not consider the report in a vacuum. Dr. Leavens testified in court and appellant had the opportunity to cross-examine him. There is no basis in the record to conclude that the court adopted the report unquestioningly and improperly delegated this decision.
Citing to Fewel v. Fewel (1943) 23 Cal.2d 431, 436, appellant also claims that the court erred in considering the report because it was not a declaration under oath. Appellant does not point to any code section that requires custody evaluation reports to be prepared under oath. Regardless, Dr. Leavens testified under oath regarding the contents of his report. It was within the court’s power to consider the report and Dr. Leavens’s testimony, and accord to both the evidentiary weight it deemed appropriate. We find no error, let alone any miscarriage of justice.
X. Exclusion of Evidence from Children’s Health Council (A112701 )
On April 19, 2005, respondent filed a motion in limine to exclude witnesses from the Children’s Health Council (CHC). Respondent’s motion was based on allegations that appellant had named the witnesses as experts but had failed to comply with Code of Civil Procedure section 2034, subdivision (f)(2)(C); that the witnesses had not agreed to testify at trial; that he had signed a confidentiality agreement with the CHC that prevented the witnesses from testifying; and that the witnesses had not been subpoenaed. The court granted the motion and excluded the witnesses based on the confidentiality agreement.
This section was repealed effective July 7, 2005, to facilitate nonsubstantive reorganization of the rules governing civil discovery. The new provisions are now found in section 2034.010 et seq.
On appeal, appellant asserts many claims of error, only two of which are supported by citation to any legal authority. She first claims that the motion in limine was introduced in violation of San Mateo County Local Rules, Appendix 5 B3 and D1, citing to the form entitled “Long Cause Trial Rules Checklist.” While it is true that the form indicates that motions in limine are filed and served four days before trial and may be considered by the court two days before trial, this checklist appears to be more of a guideline for the parties as opposed to a mandate that must be followed by the courts without any variation. We decline to hold that the court erred in considering respondent’s motion in limine regarding the disputed witnesses.
We reiterate some of the basic rules governing appellate review: As a general rule, “an appealed judgment or order is presumed to be correct. ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:15, p. 8–5, citing, among others, Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “Appellant’s burden also includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness.” (Eisenberg, supra, ¶ 8:17.1, p. 8-5.) “When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration.” (Id. at p. 8-6.) Finally, “appellant’s burden to affirmatively demonstrate error remains the same whether or not respondent files a brief.” (Id. at ¶ 8:17.3, p. 8-6.)
Appellant also cites to Evidence Code section 354 in arguing that the exclusion of this evidence resulted in a miscarriage of justice. This section provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination.” (Italics added.) This section presupposes that evidence was excluded erroneously. The evidence here was properly excluded under the confidentiality agreement. Thus, the section does not apply.
Appellant further asserts that the agreement “does not prohibit the CHC from disclosing information about the children to a court, only that ‘[I]nformation that is not necessary to the assessment or treatment of the child will remain confidential in regard to the other (custodial) parent.’ ” She misreads the agreement. The relevant portion provides: “The information provided during assessment and treatment services is confidential. Specific information is released to outside agencies or persons only after written consent of a parent(s) or legal guardian(s) is obtained.” (Italics added.) The only exceptions to confidentiality are as follows: “When a joint custodial parent requests information about their child. Information that is not necessary to the assessment or treatment of the child will remain confidential in regard to the other (custodial) parent.” (Italics added.) Thus, the confidentiality agreement is more comprehensive than appellant suggests. The ruling excluding the proffered evidence was not erroneous.
XI. Alleged Failure to Comply With Family Code section 3048, subdivision (a)(1), (2) and (4) (A112701)
Appellant claims that the court erred in entering a custody order that did not comply with Family Code section 3048, subdivision (a)(1), (2) & (4). These provisions provide: “Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following: [¶] (1) The basis for the court’s exercise of jurisdiction. [¶] (2) The manner in which notice and opportunity to be heard were given. [¶] . . . [¶] (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both.”
Appellant does not cite us to any legal authority holding that a court’s failure to include the listed items in its custody order thereby renders the order invalid. Assuming the court did err, we find the error harmless.
XII. Order that Appellant Pay Half of the Private School Tuition (A112701)
The judgment on custody provides that “The parties shall share equally the tuition for Sarah’s school for academic year 2005–2006.” Appellant claims this order was an abuse of discretion because she could not afford to pay 50 percent of the tuition and because of the income disparity between the parties.
Family Code section 4062, subdivision (b) “ ‘makes discretionary (“the court may order”) additional child support for educational or special needs of a child or for travel expenses for visitation. Among the family law bench and bar, these are usually referred to as . . . discretionary add-ons.’ [Citation.] ‘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.’ (§ 4061.)” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 760.)
In appeal A112701, appellant does not claim that she requested a different apportionment or that she presented documentation demonstrating that a different apportionment would be more appropriate. Instead, she claims that a child support add-on “is unauthorized without notice and a hearing.” Appellant notes that a previous order, filed on May 13, 2004, required her to pay one-half of Sarah’s private school tuition. She also notes that she filed a motion to modify the allocation of tuition and that the court made a decision on this motion on April 11, 2005. She claims that the August 3, 2005 decision is different from the April 11, 2005 decision, but our reading of the transcript confirms that the court intended to continue ordering her to pay one half of the tuition. She does not allege that the order had been vacated or otherwise had become inoperative. While appellant claims that the judgment does not explain why she was ordered to pay half of the tuition, the court was not required to supply her with an explanation as it was simply maintaining the status quo. Appellant claims that the add-on was a “deviation from the uniform guidelines” within the meaning of Family Code section 4056, subdivision (a), and that therefore the court was required to provide an explanation. However, the uniform guidelines pertain to base child support, not to add-ons. (Fam. Code, § 4061, subds. (a), (b).)
XIII. Order Regarding Appellant’s Home Telephone Number (A112701)
The judgment on custody required appellant to supply respondent with a home telephone number for use in emergencies or issues that require an immediate response. Appellant claims that this order is erroneous because respondent’s prior request for her telephone number was denied and because he did not comply with Code of Civil Procedure section 1008, subdivision (b). This claim is specious.
We have reviewed the transcript of the prior hearing (held Aug. 19, 2004) in which appellant claims respondent’s request for her home telephone number was denied. Neither a request for her home telephone number nor a denial of such a request was discussed at this hearing. Instead, the court ordered the parties to continue to communicate by e-mail. Moreover, in his moving papers respondent requested an order that she “supply me with a phone message number, an email or fax number that work so that we can communicate about the needs of our children.” The minute order entered after the hearing also does not indicate the denial of any request for her home telephone number. As the record does not demonstrate that the court had ruled on this issue before, Code of Civil Procedure section 1008 has no application.
Appellant also claims the court lacked jurisdiction to issue this order because she did not receive notice or a hearing regarding the telephone number issue. She cites to no legal authority for this proposition. Accordingly, we deem the argument waived.
XIV. The November 1, 2005 Minute Order (A112701)
Appellant raises various claims of error with respect to a minute order issued on November 1, 2005. She first argues that the court erred in refusing to consider awarding child support for the time prior to March 1, 2004. In support of this claim, she refers us to a brief that she has filed in another appeal that has been consolidated with this appeal, and asks us to incorporate her arguments by reference. In the interests of judicial economy, we decline this request and elect to address the issue below in our discussion of the other appeal. Appellant also claims that the court erred disallowing the discovery of employment records for the time period when the court believed it had no jurisdiction to award child support. This argument is unsupported by any citation to legal authority and is deemed waived. Her related protest regarding the court’s denial of her request to reopen discovery is also unsupported, except by general reference to a brief that she has filed in another appeal. For these reasons, we decline to consider these issues here.
In appeal A118262, appellant appeals the order denying her request for child and spousal support for the period from December 2002 through October 2003.
Finally, she appeals from the order that denied, without prejudice, her request for attorney fees and costs to pay experts. For the reasons stated above in section IV of this opinion, we find the trial court did not abuse its discretion in denying the request.
XV. Motion For New Trial (A112701)
Appellant claims the trial court erred in denying her motion for new trial. She does not cite to any legal authority or provide any explanation as to how the court erred, stating merely: “Because there were good reasons to grant a new trial, it was error for the court not to have granted a new trial.” Again, because this claim is unsupported by any legal authority or a reasoned argument, we deem it waived.
XVI. Failure to Adjudicate Some Issues (A115566)
Appellant claims the court erred in refusing to adjudicate certain issues. These claims lack merit.
In its statement of decision and final judgment on the reserved issues, the court found that “There are no outstanding community obligations and the assets have been divided between the parties.” Appellant contests this finding, claiming that the court failed to adjudicated some property interests. However, there are several problems with appellant’s briefing. In the first place, she does not specifically identify the allegedly unadjudicated assets. While these assets may have been identified in her October 10, 2006 trial brief, she does not provide a citation to the record for this document. Instead, she merely refers us to an entry in the register of actions. Secondly, she does not address the impact of the court’s finding that it had lost jurisdiction over this issue due to her having filed a notice of appeal on October 12, 2006.
Appellant claims that the court erred in failing to require respondent to completely disclose certain assets and income. While appellant provides a narrative regarding her efforts to cause the court to compel discovery of respondent’s assets, she does not specifically challenge any of the court’s rulings. She also refers to “stock options” and “non-base-salary income” that she claims the court did not account for, yet she does not identify the stock by name nor does she identify the alleged source of the non-base-salary income. Because she has not presented a coherent argument, the issue is waived.
Appellant asserts the court erred in failing to determine the date of separation. She claims the error is prejudicial because when she “brings [an] action to divide unadjudicated property, the date of separation would be relevant and would have to be tried long after the fact.” It appears that she is contemplating a future action regarding this allegedly unadjudicated property. As appellant does not contend that the alleged error has any relevance to the judgment presently under appeal, we decline to consider it.
We note the trial court found there was a 38-day difference between the parties’ calculation of the date of separation. The trial court indicated date of separation was not relevant absent evidence that income earned during this 38-day period was treated as other than community property.
Appellant next argues that the court “erred in ordering support without determining assets.” This claim is an outgrowth of her claim regarding unadjudicated property interests. For the reasons discussed above, this argument fails.
XVII. Retroactivity of Child Support (A115566)
Appellant claims that the court erred in failing to award support for the period of December 23, 2002, to November 25, 2003. The judgment on reserved issues states: “As to the issue of child support and spousal support and the parties’ agreement to suspend payment of child and spousal support as of March 29, 2004, the court has jurisdiction to order support retroactive to March 2004. [Respondent] will owe full support to [appellant] for the month of March 2004. Any payment by [respondent] to [appellant] for support for the month of March 2004 shall be credited to him.” (Italics added.) While appellant alleges that the court gave no grounds for its failure to award support, the decision clearly states that the parties had agreed to suspend payment of support as of March 29, 2004. Accordingly, her claim that the court committed reversible error by failing to explain its decision is not well taken.
At a hearing on November 1, 2005, respondent’s counsel reminded the court that the parties entered into a stipulation and order to suspend support after respondent lost his job. We have reviewed the reporter’s transcript of the March 29, 2004 hearing in which the stipulation was discussed. Appellant’s counsel stated the parties stipulated that: “The support in this matter will be suspended and the court will have the opportunity at the time of trial to set support retroactive to the date of filing of this motion.” Counsel clarified that this stipulation applied to both child and spousal support. The stipulation is set forth in an order filed on August 24, 2004, and signed by appellant. While she claims that the court did have jurisdiction to award support for the period from December 2002 to November 2003, she does not address the effect of the stipulation. As the judgment is supported by evidence in the record, appellant has not demonstrated error.
With respect to support, the stipulation provides that “child support and spousal support are suspended pending trial in this matter and the Court will have the opportunity at the time of trial to set support retroactive to the date of [respondent’s] motion on February 19, 2004.”
Appellant’s failure to mention the existence of this stipulation in this portion of her appeal is troubling. While she is representing herself in pro per, she is a licensed attorney and an officer of the court.
XVIII. Reversal of Tax Status (A115566)
Appellant claims that the court erred in reversing the parties’ tax status. In calculating income and support for 2004, the court classified both parties as head of household. It is unclear if the court also put both parties as head of household when calculating support for 2005. As part of the judgment, the court ordered that respondent would be entitled to continue to take the children as deductions on his individual tax returns. Appellant claims that assigning her head of household status was error because both parties did not actually have that status and that this calculation caused a decrease in the amount of support payable to her. She does not refer us to any portion of the record indicating that she raised this issue during trial.
Issues that are not raised in the trial court may be deemed waived on appeal. “ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . .” ’ [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .” ’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589–590.) We deem the issue waived.
XIX. Alleged Exclusion of Stock Options, Bonuses, and Assets (A115566)
“[C]hild support awards are reviewed for abuse of discretion.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) Appellant claims the court erred in determining child support in the August 8, 2006 judgment because it did not consider certain stock options, bonuses, or assets. Because of these alleged omissions, she claims the court lacked jurisdiction to calculate support for May 2005 forward using only respondent’s base pay of $12,750. This claim is not well taken.
We note that the judgment sets out two support calculations, one for the period from April 1, 2004, through April 30, 2005 (“the 13-month period”), and one for the period from May 1, 2005, through November 30, 2005. With respect to the bonus, appellant refers us to a point in the November 29, 2005 trial transcript where respondent states that he received a $5,000 bonus from Cosine Communications. He testified that he was laid off from this employer in January 2004. As respondent’s bonus appears to have been received prior to January 2004, its relevance to support owed after May 2005 is unclear.
Similarly, appellant’s attack on the court’s failure to account for certain stock options is puzzling. She states that certain unidentified stock options have vested, yet the document that she cites to as evidence of this fact was generated in January 2007, which is more than a year after the court issued its statement of decision from the bench, which is some five months after the written statement of decision and final judgment was filed and some three months after appellant filed her notice of appeal. We fail to see how a court can be faulted for failing to consider evidence that did not exist until after it rendered its decision. In any event, the document shows that some of respondent’s stock options were vested in January 2007, however, it does not show the date on which they vested. Thus, the document does not support a finding that the stock options had vested prior to November 30, 2005. Moreover, respondent testified in November 2005 that the stock options at his current employer were not vested. Appellant does not cite us to any authority holding that the court was required to take unvested stock options into account when it determined child support.
Appellant also complains that the court failed to account for testimony and written documents that would have been provided by witnesses who were allegedly subpoenaed but failed to appear. A court is not required to consider facts that are not in evidence.
With respect to the asset income, appellant claims the court erroneously omitted $244 in monthly interest income that respondent was receiving from $288,000 in assets. At the time of trial, respondent testified that he was in escrow to buy a home and had committed $260,000 towards that purchase. While appellant claims that respondent ultimately did not, in fact, buy the house as planned, the court did not err in relying on his testimony. We find no abuse of discretion.
XX. Alleged Evidentiary Errors (A115566)
Appellant claims that the court erred in referring to a vocational evaluation report that was not admitted into evidence, and that the court misstated the testimony regarding her lack of effort to become a teacher. She also claims that some of the court’s findings were made absent any evidence or against the evidence. These arguments are unsupported by citation to any legal authority and are therefore deemed waived.
Regardless, appellant does not demonstrate that the error, if any, was prejudicial. The portion of the judgment containing the allegedly improper references to unadmitted evidence pertains to the income figure imputed to appellant for the period from May 2005 to November 2005. Rather than rely on estimates provided by the vocational expert, however, the court imputed appellant’s income at $45,000 per year, which was the same amount that had previously been imputed to her. Accordingly, even if the vocational evidence was improper, the effect was not prejudicial. We reach the same conclusion with respect to the other allegedly erroneous findings made by the court.
The other findings contested by appellant are: (1) That the children are more of a financial impact on respondent, (2) that she has failed to find gainful employment, and (3) that the parties became employed one in April and then the other in May 2005.
XXI. Deference to Court Appointed Vocational Expert (A115566)
Appellant complains that the court delegated the determination of respondent’s income and earning capacity to the court-appointed vocational expert. We disagree. The court heard testimony from the expert as well as the parties and chose to base respondent’s income for the 13-month period on his 2004 income tax returns. The court did not defer to the expert, but rather found that its decision to use the returns was supported by the expert’s testimony with respect to respondent’s earning capacity during the relevant time period. The court found that “based on [respondent’s] efforts and ultimate employment” it was “unnecessary to impute more to [respondent] than what he actually earned during the 13-month period of time.” Appellant’s repeated complaints regarding the court’s consideration of evidence provided by the vocational expert do not support a finding of reversible error.
XXII. Calculation of Appellant’s Income (A115566)
Appellant complains that the court unfairly included $2,000 of travel expenses in her income and in imputing income to her while she was allegedly on medical leave from work. We disagree. Appellant testified that the travel expenses were related to her work, but the court apparently did not find that testimony convincing: “The court was not clear whether the travel was personal or not.” To the extent the evidence showed that the travel was related to work, the court found there was not evidence showing it amounted to $2,000. The transcript of appellant’s testimony is consistent with the court’s description. Similarly, while appellant claims that she was on medical leave, the court did not find her testimony on this point to be credible: “Although [appellant] stated that she is on medical leave, she presented no evidence to the court of any medical condition preventing her from working.” As substantial evidence supports the court’s findings, we find no abuse of discretion.
XXIII. Spousal Support (A115566)
Appellant claims that the court erred in awarding only $429 per month in spousal support for the 13-month period. She claims that the amount is inconsistent with the local court rule for calculating support and lower than the standard set by case law. She also challenges the award of $1,000 per month in support for the time period of May 2005 to November 2005 as being inconsistent with the Family Code provisions pertaining to spousal support. Courts have broad discretion in fixing temporary spousal support and are not restricted by any set of statutory guidelines. Such orders are reversible on appeal only on a showing of clear abuse of discretion. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.)
With respect to the temporary support, appellant relies on San Mateo County Local Rules, rule 5.7(I). That rule provides: “Temporary spousal support is generally computed by taking 40% of net income of the payor, minus 50% of the net income of the payee, adjusted for tax consequences. In the event there is child support, temporary spousal support is calculated on the net income not allocated to child support and/or child-related expenses.” (Italics added.) As appellant runs the numbers, she claims the court should have awarded $1,371.90 per month instead of $429. Notably, appellant’s calculation does not account for any child-related expenses incurred by respondent apart from his child support payment, such as daycare. Nor does it account for the fact that respondent had 50 percent physical custody of the children. The portion of his income that respondent spent while caring for his own children during his time would seem to qualify as a “child-related expense” that would, most likely, consist of an amount comparable to the $1,366 that he was required to pay to her for child support. It thus seems plausible that the net income which the court used to calculate respondent’s spousal support obligation is less than the $4,586 figure relied upon by appellant. Indeed, the court’s order states: “In doing the calculation for child support, the court has put the three minor children under [appellant’s] column at 49.99 percent visitation and both parties as Head of Household. [Respondent] has 50.01 percent visitation.” In addition to demonstrating that the court took respondent’s custody time into account, this portion of the order suggests to us that the court used a DissoMaster calculation to arrive at a guideline figure. Temporary spousal support may properly be set in reliance on such guidelines. (In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1933.) Appellant has failed to demonstrate error.
It does appear that the court used a DissoMaster print-out.
With respect to the order for permanent support (for the period from May through November 2005), appellant claims that the court did not properly consider the factors under Family Code sections 4320 and 4332. She claims the court omitted some factors and made erroneous findings concerning others.
Section 4320 sets forth factors the court must consider in exercising its discretion to grant, modify or terminate support, which include the “ability of the supporting party to pay” (subd. (c)), the “ability of the supported party to engage in gainful employment” (subd. (g)), the “age and health of the parties” (subd. (h)), and the “goal that the supported party shall be self-supporting within a reasonable period of time,” which, “[e]xcept in the case of a marriage of long duration,” is generally “one-half the length of the marriage.” (§ 4320, subd. (l).) Section 4332 provides: “In a proceeding for dissolution of marriage or for legal separation of the parties, the court shall make specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, the court shall make appropriate factual determinations with respect to other circumstances.” On review we must uphold the court’s judgment unless the record demonstrates that the court abused its discretion. (See In re Marriage of Christie (1994) 28 Cal.App.4th 849, 856; In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 916–917.)
We note “the legal standard, ‘marital standard of living,’ is a mere general reference point” from which the determination of permanent spousal support proceeds. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1560.) “Section 4330 does not make ‘marital standard of living’ the absolute measure of reasonable need. ‘Marital standard of living’ is merely a threshold or reference point against which all of the statutory factors may be weighed.” (Ibid.) “It is neither a floor nor a ceiling for a spousal support award.” (Ibid.) “The Legislature intended ‘marital standard of living’ to be a general description of the station in life that the parties had achieved by the date of separation.” (Ibid.)
Appellant also raises a host of complaints concerning the award, including that the court (1) failed to consider her needs, (2) failed to determine the marital living standard, (3) left her with a sharply lower standard of living, (4) erroneously considered her unattained earning capacity, (5) failed to consider respondent’s ability to pay, (6) failed to consider separate property, (7) failed to consider the children’s interests, and (8) did not fairly balance the hardships to each party.
We have reviewed the judgment and much of the record in this case and we are satisfied that the court appropriately considered the factors set forth in the Family Code in light of the admissible evidence offered by both parties. We repeat, “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, supra, 51 Cal.3d 1130, 1133.) “A reviewing court must start with the presumption that the record contains evidence to support every finding of fact; the burden is on the party attacking a finding of fact for lack of evidentiary support to demonstrate that there is no substantial evidence to support the challenged finding . . . .” (Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758.) Appellant has not carried her burden of demonstrating error here.
In our view, much of appellant’s briefing reflects her unwillingness to accept the court’s finding that imputed to her a monthly income of $3,750. For example, she complains of being compelled to live on less than $1,000 per month, whereas the court was entitled to consider that if she had been earning the income she was capable of the support awarded would have resulted in a monthly income of $4,750, plus approximately $1,400 in child support. In view of the fact that appellant has worked in the past, is well-educated, and is a licensed attorney, we do not find the imputation of income to be unreasonable. In sum, appellant has not demonstrated that the court abused its discretion in making the spousal support awards.
The court also noted that appellant’s parents were paying her mortgage, resulting in a savings to her of $2,070 per month.
We have already addressed appellant’s claim that the court erred in imputing income to her while she was allegedly on medical leave.
XXIV. Reimbursements to Respondent (A115566)
The judgment granted respondent’s request for an offset on back spousal support as reimbursements for payments made by him towards appellant’s share of their daughter’s private school tuition, child care and summer camp costs, a bill for a line of credit, and the balance owed on the parties’ property agreement. Appellant claims that these reimbursements were made without benefit of notice or hearing to her. This claim is disingenuous.
The order allowing the offsets against spousal support did not arise in a vacuum. With respect to the tuition costs, an order filed on August 8, 2006 (after a hearing held on Apr. 11, 2005) required appellant to pay half of the tuition due for February to June 2005. The final judgment on custody, filed on November 1, 2005 (after the hearing held on Aug. 3, 2005) required the parties to share the tuition equally for the academic year 2005–2006. In a stipulated judgment on partial property issues filed on April 5, 2005, appellant agreed to pay respondent $325,000 to buy out his share of the family home. She was to make an initial payment of $315,000, and then pay the remaining $10,000, plus six percent interest, by the end of the year. She was also required to make an equalizing payment of $12,000 for other reimbursable claims, including reimbursement for the school tuition.
Respondent requested the following reimbursements: (1) the balance owed to him for the payments she was required to make for the family residence, (2) half of his child care expenses, (3) half of the line of credit payment, and (3) half of their daughter’s private tuition costs. The court ordered appellant to pay to respondent the balance owed on the $315,000 initial payment for the family home (plus interest), one-third of his child care and summer camp costs, and one-half of the private school payments. The total amount thus owed to respondent was approximately $14,000. The total amount of spousal support in arrears was $12,577. As noted above, with the possible exception of the child care and summer camp expenses, appellant was already under a court order to make these payments to respondent. Thus, it is disingenuous for her to suggest that she was denied due process when the court ultimately allowed respondent to receive a credit against his past-due support obligations to compensate him for the unpaid amounts.
Appellant also claims that the tuition payment is not authorized because the order authorized respondent to pay her share of the tuition if she failed to pay it within five days of when it was due. She claims he always paid the late tuition before the five-day period expired, essentially forcing her to become indebted to him. She does not cite to any portion of the record supporting her underlying factual assertion or demonstrating that she raised this issue with the trial court. Issues not raised in the trial court may be deemed waived on appeal. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:229, p. 8-155.) We decline to consider this argument.
Appellant also argues that the judgment on custody (entered on Nov. 1, 2005) and order (filed on Aug. 8, 2006) do not permit reimbursement. This argument is confusing as the August 8, 2006 judgment specifically provides for reimbursement.
Appellant also attacks the order for reimbursement of tuition costs as having been entered in violation of Family Code section 3951, subdivision (a). That subdivision provides: “A parent is not bound to compensate the other parent . . . for the voluntary support of the parent’s child, without an agreement for compensation.” However, as the tuition payments were not “voluntary,” being made pursuant to a court order, this provision does not apply. For similar reasons, her reliance on Family Code section 4063, subdivision (b) is also misplaced. That section requires a parent to provide the other parent with an itemized statement of costs not more than 30 days after the costs are accrued. Again, we see no evidence that appellant invoked this statute in the trial court. In any event, the argument fails. “[S]ection 4063 does not prohibit a party from seeking reimbursement in case of a failure to timely present an itemization of costs. Rather, section 4063, subdivision (c) allows the court to award filing costs and reasonable attorney fees ‘if it finds that either party acted without reasonable cause.’ ” (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 236–237.) The court implicitly found respondent did not act unreasonably under the circumstances and properly exercised its discretion in ordering appellant to reimburse him for one-half of the tuition expenses.
Finally, appellant’s argument that the court erred in allowing respondent to offset her debt against spousal and child support lacks merit. After being made aware that the amount she owed respondent exceeded the spousal support arrearage, she stipulated that he be allowed to offset the outstanding amount against child support. Additionally, the offsets against support were for amounts that appellant owed in connection with the divorce proceeding, not as an outstanding debt. In sum, we discern no error in the reimbursement order.
XXV. Denial of Attorney Fees (A115566)
Appellant claims that the court erred in denying her multiple requests for attorney fees. As noted above, we review the denial of attorney fees for abuse of discretion. We have already addressed the denial of her July 5, 2005 oral request for fees.
Appellant first claims the court erred in deciding the issue based on declarations and declining to hold a hearing or issue a statement of decision. As to the failure to hold a hearing, she argues that a motion for sanctions under Family Code section 271 (which was filed by respondent) requires findings resulting in a judgment, thereby requiring that the court hold a hearing. We do not understand how this point supports her claim regarding attorney fees. She also faults the court’s failure to file a statement of decision, but, as noted above, a statement of decision is not required under these circumstances. (Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th 1242, 1252.)
Next, appellant claims that a need-based attorney fee order was warranted. The court denied appellant’s renewed request for attorney fees on the grounds that she had received income from rental property, her parents had given her $150,000 in one year and were paying her mortgage, and she had recently paid respondent the sum of $315,000 towards buying out his interest in the family home. Family Code section 2032 requires the trial court to make its attorney fees orders based, among other things, upon the relative financial needs of the parties. (Fam. Code, § 2032, subds. (a), (b).) In order to make an award of attorney fees under Family Code section 2032 the trial court must have some evidence that the moving party needs the money. “The burden of establishing such necessity is upon the applicant.” (Straub v. Straub (1963) 213 Cal.App.2d 792, 799.) While appellant claims that the court denied her request because it wanted to punish her, the court appears to have based its decision on its assessment of her financial situation. We find no abuse of discretion.
Given the number of appeals and writs generated by appellant, who is a member of the California State Bar, we cannot see how she has been prevented from fully litigating her rights because she has not been granted an award of attorney fees.
XXVI. Sanctions (A115566 )
Appellant raises multiple challenges to the court’s order awarding $5,000 in sanctions to respondent under Family Code section 271. The August 8, 2006 order indicates the court found that appellant had frustrated settlement and prolonged the litigation. The court also found that she had the ability to pay sanctions, as demonstrated by the fact that she had paid respondent $315,000, that she owned rental property, and that she had low housing expenses.
Family Code section 271, subdivision (a), provides, “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” “The policy of the law is to promote settlement and to encourage cooperation which will reduce the cost of litigation.” (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.) But the sanction must be scaled to the payor’s ability to pay and must be made in light of both parties’ financial circumstances. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 59–60.)
Appellant maintains that the court erred in ordering sanctions without a hearing, and that it failed to consider the parties’ respective financial positions when it imposed the sanctions under Family Code section 271 such that the resulting order imposes an unreasonable burden upon her. She also denies that she engaged in sanctionable conduct. In reviewing the sanctions order, we indulge all reasonable inferences to uphold it. “We will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178.) We will reverse such an order “ ‘ “ ‘only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order.’ ” ’ [Citation.]” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)
With respect to her claim regarding the lack of a hearing, we note section 271 “does not specify the nature of the hearing it contemplates. We observe, however, that the opportunity to be heard does not necessarily compel an oral hearing. [Citations.] ‘California courts have concluded that use of the terms “heard” or “hearing” does not require an opportunity for an oral presentation, unless the context or other language indicates a contrary intent.’ [Citation.] Furthermore, even if a hearing is required, ‘due process does not necessarily require that a motion for sanctions for alleged misconduct during a hearing be heard on a separate and later hearing date.’ [Citations.] ‘[T]he scope of a hearing on an application for sanctions is within the trial court’s discretion, as with motions generally.’ [Citation.]” (In re Marriage of Petropoulos, supra, 91 Cal.App.4th 161, 178–179.)
Appellant states in her brief that respondent submitted three documents totaling 188 pages regarding attorney fees and sanctions. She filed her own additional declaration a few days later. Her declaration and its attachments comprise 146 pages of the record. Suffice it to say, we believe the trial court had enough information from both parties to make an informed decision on the sanctions issue without an oral hearing.
Appellant does not direct us to a citation in the record for respondent’s documents. We will accept her characterization of these documents for purposes of addressing this argument.
As to whether appellant engaged in culpable conduct, appellant does not satisfy us that the court abused its discretion. While it is true that the court’s order does not provide examples for why “Clearly in this case, [appellant’s] conduct is sanctionable” we must presume that the court fully considered the parties’ moving papers. Rather than challenging the court’s opinion of her conduct, appellant devotes most of her brief on this point to complaining about the conduct of respondent and his attorney. For example, she asserts that he did not fully disclose his income and that he “sought custody and support orders that were blind to the children’s needs.” Admittedly, we are hampered in our analysis due to the lack of a respondent’s brief and appellant’s failure to cite us to her opponent’s moving papers. Nevertheless, our independent review of the extensive record gives us confidence that the court was justified in making the sanction award.
We note respondent indicated that by the end of trial he had spent upwards of $150,000 in attorney fees in this matter. Given the property interests involved and that both parties appear to want what is best for their children, this amount seems high and does suggest to us that this divorce was excessively litigated.
We also perceive that the trial court plainly did not disregard evidence of appellant’s ability to pay the sanctions. Indeed, the court expressly stated that it considered the financial circumstances of the parties, including appellant’s real estate assets. On this record, there is no showing that the sanction places an unreasonable burden on appellant. (In re Marriage of Quay, supra, 18 Cal.App.4th 961, 970.) To the contrary, it appears from the record before us that she has the wherewithal to pay the award. She had full ownership of the family home, appeared to be receiving income from rental property that she owned as her separate property, received spousal support and support from her parents, and had the ability to earn income. Furthermore, there is no suggestion on this record that the trial court disregarded the evidence of her ability to pay, or that it otherwise abused its discretion in awarding sanctions against her. The record, therefore, does not show that the award imposed an unreasonable burden.
XXVII. Orders Entered on August 8, 2006
A. Child Care Expenses
As noted above, the May 13, 2004 order required the parties to each pay one-half of all child care costs. On August 9, 2005, appellant filed a request that the parties pay their own costs for child care. The court denied the request and ordered her to pay one-third of respondent’s child care expenses. The court reasoned that the Family Code “is quite clear that child support is to be paid for furtherance of employment” and since appellant was not working it would be unfair for respondent to pay the entire amount. Appellant claims the court erred because it was required to apportion child care costs according to the parties’ incomes.
It seems to us that the court misspoke. We believe the court meant to say “child care” and not “child support,” as child support is not specifically intended to further employment.
Family Code section 4062, subdivision (a), provides: “The court shall order the following as additional child support: [¶] (1) Child care costs related to employment or to reasonably necessary education or training for employment skills.” Family Code section 4061, subdivision (a), provides: “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: [¶] 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.” (Italics added.)
On appeal, appellant does not challenge the court’s decision to lower her share of the child care costs from one-half to one-third. Instead she asserts that the court was required to grant her motion because she introduced evidence that her income is too low to pay for child care in that she had a stated income of zero dollars per month. She claims the court erred in requiring her to pay an amount that she was unable to pay. However, on the same day that it ruled on appellant’s motion, the court imputed an income to her of $3,750 per month, not zero. Thus, the court implicitly found that her documentation was insufficient to demonstrate “that a different apportionment would be more appropriate” beyond the reduction from one-half to one-third. It is not our function to reweigh the evidence presented at trial. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) Appellant has not satisfied us that the court erred in denying her motion.
We assume that the order results in a lowering of appellant’s child care expenses as she does not claim that she herself has incurred any costs for child care.
B. Health Care Expenses
Appellant’s argument challenging the trial court’s denial of her motion requesting that respondent pay all of the children’s medical expenses is similar to the argument she raises regarding the child care expenses, namely that she had no income. For the reasons stated above with respect to the apportionment of child care costs, we find no error.
C. Tuition
Appellant filed a motion again requesting that respondent pay all of the tuition costs for their daughter. Again, she claims that the court erred in denying the motion because she “introduced evidence sufficient to sustain a decision in her favor” in the form of an Income and Expense Declaration showing her income to be zero. The court was entitled to deny her motion based on the evidence that it relied upon in imputing a monthly income of $3,750 to her in its contemporaneous judgment.
Appellant also complains that the court did not properly account for the fact that the school awarded financial aid based on her lack of income. She claims the court allowed respondent to take advantage of her situation by forcing her to pay half of the discounted tuition. She does not cite to any authority for the proposition that the parent who does not qualify for a discount may not receive any benefit from such aid.
XXVIII. Minute Order Entered September 27, 2006 (A115566)
Appellant appeals from a minute order entered September 27, 2006, which struck her at-issue memorandum filed on May 4, 2006. This order is not subject to appeal. “The existence of an appealable judgment [or order] is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Under the so-called “ ‘final judgment rule,’ ” an appeal “lies only from a final judgment,” unless the ruling is otherwise made appealable by statute. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962–963; Lester v. Lennane (2000) 84 Cal.App.4th 536, 560; Code Civ. Proc., § 904.1 subd. (a)(1) [appeal may be taken from “a judgment” other than “an interlocutory judgment”].) Neither Code of Civil Procedure section 904.1, the statute defining appealable judgments and orders in marital dissolution proceedings (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377), nor any other statutory provision authorizes an immediate appeal from an order striking an at-issue memorandum.
In exceptional cases, if justice cries out for immediate appellate review, some appellate courts have entertained an attempted appeal from a nonappealable interim ruling by treating the appeal as a writ. (See In re Marriage of Doherty (2002) 103 Cal.App.4th 895, 898 [premature appeal from nonappealable interlocutory order characterizing but not dividing wife’s mortgage benefit treated as petition for extraordinary writ]; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403–404 [premature appeal from nonappealable interim order finding community interest in husband’s medical benefit treated as petition for extraordinary writ]; In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 714, fn. 1 [premature appeal from interim nonappealable ruling on putative spouse status treated as petition for writ of mandate].) In this particular case, justice has not cried out. Therefore, no further review is required or warranted at this point.
XXIX. Motion to Modify Child Support (A116796)
In appeal A116796, appellant challenges an order filed on January 10, 2007, that modified child support.
A. Procedural History
On August 31, 2006, appellant submitted an application for an order to show cause to modify the judgment and order that was filed on August 8, 2006, with respect to child and spousal support. She also requested certain property restraints, a reservation of jurisdiction over respondent’s deferred income, and that he be ordered to pay all of his own child care expenses.
Appellant claims she submitted the original motion on August 31, 2006. The motion is marked as “received” on September 28, 2006, apparently because that is the date the clerk received the check for the filing fee.
On September 28, 2006, appellant submitted an “amendment” to her original motion. The primary difference between the two filings is that the box for attorney fees is checked on the first sheet of the amendment, but not the first sheet of the original. Another difference is that the forms have two different hearing dates. In any event, in this application she alleged that respondent’s income had increased to $12,750 per month. She also alleged that he was earning other income outside of his regular job. She requested that these sources of income be used to increase child support. She also alleged that his child care expenses were not always work-related and complained that she should not have to subsidize his income by paying towards these expenses. She further requested that he pay a proportionate share of her own child care expenses.
Two hearings were held on this application, the first on November 13, 2006, and the second on December 13, 2006. At the first hearing, the court ordered the child support issue to be put over to the Department of Child Support Services (DCSS) calendar. An attorney from the DCSS was present at the second hearing.
On January 10, 2007, the court filed its order after hearing (1) reducing child support from $1,555 to $1,529 per month, (2) requiring respondent to pay to appellant (as child support) 13 percent gross of any bonus he receives, (3) denying her request to modify the prior order regarding the apportionment of child care expenses, and (4) requiring respondent to reimburse her for certain costs. Notice of appeal was filed on January 12, 2007.
B. Preparation of the Order
The order filed on January 10, 2007, was prepared by the DCSS attorney. Appellant claims that the court was not authorized to enter an order submitted by a nonparty without notice to her. She relies on the San Mateo County Local Rules, rule 5.10(A) (rule 5.10(A)), which provides: “Unless otherwise ordered by the court, counsel for the moving party shall prepare a formal order or judgment.” (Italics added.) The reporter’s transcript reveals that a DCSS attorney was present at the hearing held on December 13, 2006. The transcript does not reflect any request that any party or attorney prepare the order. As we noted at the outset of this opinion, all orders of the trial court are presumed correct on appeal. Accordingly, we will presume that the court, off the record, ordered the DCSS attorney to prepare the order. We find the order complies with rule 5.10(A). Moreover, there is no showing of prejudice that would result in reversal.
It appears that the DCSS was collecting the child support order at this time.
Appellant complains that the DCSS did not present her with a copy of the order so that she could approve it as to form and content, in violation of rule 5.10(B). We have already addressed this rule above in the context of another one of her appeals. Again, the rule provides that the party preparing the order must send it to the opposing side for approval as to form “unless the court authorizes the preparer to submit it directly to the court.” As with the alleged violation of rule 5.10(A), we must presume that the order is correct and that the court authorized the DCSS attorney to submit the order directly to the court. Appellant has presented no evidence supporting a contrary conclusion. We find no error.
C. Objection Under Family Code Section 4251
Appellant claims that the order filed on January 10, 2007, was unauthorized because she objected to the commissioner acting as a temporary judge under Family Code section 4251. Preliminarily, it is unclear to us that this statute applies. This provision applies to motions filed by a party with respect to orders “established by the local child support agency or for which enforcement services are being provided . . . .” (Fam. Code, § 4251, subd. (a).) The order for child support at issue here arose out of the judgment filed on August 8, 2006, and was therefore not “established” by the DCSS. And while we infer that the DCSS was involved in this case, appellant does not allege that the DCSS was providing enforcement services with respect to the existing child support order.
We also note that on November 16, 2006, appellant filed an objection to the commissioner’s orders under Family Code section 4251, challenging the findings and recommendations that the commissioner made on November 13. However, as noted above, the child support issue was continued to December 13, 2006. Thus, section 4251 had no application to the commissioner’s jurisdiction with respect to orders issued on November 13, 2006.
With respect to the child support orders made at the December 13, 2006 hearing, appellant has not satisfactorily demonstrated that she complied with the relevant statutory procedures. Under section 4251, subdivision (b), the commissioner “shall act as a temporary judge unless an objection is made by the local child support agency or any other party.” Parties must object both at the hearing and after the recommended order is made: “If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. . . .” (Fam. Code, §4251, subd. (c), italics added.) The January 10, 2007 order does indicate that it was ratified by a judge. While appellant claims that she filed an objection to the commissioner’s decisions and findings on December 15, 2006, the citation she provides to us refers to a document filed on November 16, 2006. Thus, the record does not demonstrate that she objected to the recommended order. We find no error.
The register of actions does reflect that an unspecified “notice of objection” was filed on December 15, 2006.
Finally, it appears that the court did grant appellant a de novo hearing as it gave her notice on January 24, 2007, that it had scheduled a de novo hearing for February 13, 2007, in response to her objection to the December 13, 2006 hearing. However, by then she had already filed her notice of appeal. On February 13, 2007, the court held that it was without jurisdiction to hold the de novo hearing. Essentially, it appears appellant lost her de novo hearing by filing this notice of appeal a mere two days after the January 10, 2007 order was filed.
D. Appellant’s Substantive Challenges to the Order
“An order of child support ‘may be modified or terminated at any time as the court determines to be necessary.’ [Citation.] Statutory procedures for modification of child support ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ [Citations.] The burden of proof to establish that changed circumstances warrant [an upward] adjustment in child support rests with the [supported] spouse. [Citation.] [¶] . . . The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.] The reviewing court will resolve any conflicts in the evidence in favor of the trial court’s determination.” (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.)
1. Imputation of Income
Appellant raises a host of challenges to the January 10, 2007 order. Many of her arguments are the same as those she advanced against the child support orders contained in the August 8, 2006 judgment. For example, she claims the court erred in imputing a $3,750 monthly income to her. However, as noted above, “Statutory procedures for modification of child support ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ ” (In re Marriage of Leonard, supra, 119 Cal.App.4th 546, 556, italics added.) The court denied her request to eliminate imputed income to her because “she failed to show any change of circumstances since this issue was litigated at trial.” While appellant claimed that she was unable to work, the court found that she had “not provided any evidence or doctors’ testimony to prove any disability which [affects] her ability to work.” It was appellant’s burden to prove that her circumstances had changed with respect to the conditions that had caused the court to impute income to her in the first place. The court found she had not. Our review of the record on appeal supports the court’s conclusion. We find the court did not abuse its discretion in refusing to alter its prior order imputing an income of $3,750 per month to appellant.
We decline to consider the alleged “res judicata” effect of the court’s ruling in a subsequent spousal support modification proceeding regarding her inability to earn income.
Appellant’s other challenges are also without merit. She contends the court erred in failing to comply with Family Code section 4056, which requires that courts ordering child support differing from the guideline amount “[S]hall state, in writing or on the record, the following information . . .: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children.” (§ 4056, subd. (a).)
Appellant claims that the court erred in failing to explain on the record why it “deviated” from guideline support by adding13 percent of any bonuses, “reducing” support by requiring her to pay one-third of respondent’s child care expenses, and by “disregarding” her tax-filing status and deductions, her current earning ability, and respondent’s actual income. At the outset, we are not persuaded that the child support awarded differs from guideline support.
Family Code section 4055 sets forth a statewide uniform guideline for determining the appropriate amount of child support using an algebraic formula, normally by way of the DissoMaster printout. The printout attached to the order shows child support at $1,529, which is the amount awarded. The 13 percent of respondent’s bonus was awarded “in addition” to the guideline amount. The continuation of the order requiring appellant to pay one-third of respondent’s child care expenses was not accounted for as a reduction of guideline support.
Up until the time of the hearing, appellant had not made any payments toward her share of respondent’s child care expenses.
To the extent the court failed to articulate its reasons for awarding appellant 13 percent of respondent’s bonuses, we observe that in general, “the failure to make a material finding on an issue supported by the pleadings and substantial evidence is harmless when the missing finding may reasonably be found to be implicit in other findings. [Citation.] The court’s failure to make findings is also harmless when, under the facts of the case, the finding would necessarily have been adverse to the appellant.” (Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1450.) We note that the amount of guideline support awarded represented approximately 12 percent of respondent’s gross income. It is reasonable to conclude that the court sought to keep the award of bonus income consistent with the guideline support award. We find no error.
In In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, the court held that the trial court did not abuse its discretion by ordering that a father would pay as additional child support a fixed percentage of any future bonuses he received. Such orders involving the use of percentages to determine support have been recognized as beneficial and appropriate as they remove the need for further litigation with its attendant costs and emotional upheaval. (See, e.g., In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 95.)
3. Alleged Errors in Guideline Calculation
Appellant raises several challenges to the guideline calculation. She first claims that the court underestimated respondent’s interest income. Respondent claimed an average monthly interest income of $418, with the last month’s interest income at $792. The court set interest income at $583, which it deemed “a reasonable rate of return on the money that [was] currently stated on his income and expense declaration.” While it is unclear exactly how the court arrived at the $583 figure, it is clear from the record that the court did consider the evidence in arriving at the amount it deemed reasonable.
Appellant also claims that the court improperly discounted respondent’s stock options and money that respondent allegedly earned outside of his salaried employment. We have reviewed the record and have been unable to find any evidence showing that he earned outside income or that his stock options had vested. This claim of error fails.
Finally, appellant claims that the court erred in reversing the parties’ tax deductions and filing status. We have previously addressed the issue of the parties’ tax status in the appeal above and decline to address it again in the context of this appeal. We do note an inconsistency in the record in that the trial transcript reflects that respondent was to take the children as deductions, whereas the DissoMaster form attached to the order indicates that appellant was assigned the children as exemptions. However, as before, we see no evidence that she raised this issue in the trial court. Nor does she demonstrate that she was prejudiced by the error beyond the conclusory allegation that the assumptions regarding filing status and exemptions reduced her support. In particular, she does not present any calculations demonstrating that her child support award would have increased if the court had used her alternative tax assumptions. Accordingly, the error, if any, is not reversible.
4. Request for Statement of Decision, Reasons, and Findings
Appellant claims that the court’s order “does not make essential factual findings necessary to the resolution of disputed principal issues.” She acknowledges that in order to preserve her right to appeal, she was required to have brought the missing information to the court’s attention. She claims that she could not have brought the shortcomings to the court’s attention after the hearing because she was never shown a draft of the order prior to its entry. As noted above, Code of Civil Procedure section 632 “requires the trial court to issue a statement of decision ‘upon the trial of a question of fact’ when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable.” (In re Marriage of Askmo, supra, 85 Cal.App.4th 1032, 1040.)
However, Family Code section 3654, also cited to in appellant’s request for a statement of decision, does provide: “At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision.” The statute does not set forth any format or content requirements. Within its order, the court did set forth its reasoning. For example, with respect to child care expenses, the order states: “Respondent’s request to modify the court’s previous order is denied, as there has been no change of circumstances shown. The amount [respondent] has been requesting monthly from [appellant] is deemed reasonable, after the court received further information breaking down the hourly cost [and] actual hours billed to [appellant].” While it is reversible error for a trial court to refuse to issue a statement of decision when one is timely and properly requested (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010), the judgment in this matter sufficiently sets forth the court’s factual and legal basis for its rulings on the principal controverted issues, and was thus the functional equivalent of the statement of decision that appellant requested. It would therefore be an idle act to reverse the judgment and remand the matter to the trial court, merely for the trial judge to repeat the reasons for her decision in the form of a statement of decision.
5. Child Care Expenses
As noted, the court declined to modify its August 2006 order requiring appellant to pay one-third of respondent’s child care expenses. The ruling is clearly based on the court’s finding that appellant failed to show any change in circumstances. She raises a multitude of challenges contesting the denial of her motion, but fails to rebut the court’s essential finding that she did not demonstrate a change in circumstances sufficient to justify a modification of the court’s existing order. Instead, she raises essentially the same arguments that she raised in contesting the August 2006 order. These arguments reiterate her objections to the imputation of $3,750 in monthly income to her and repeat her protests that the child care payments place an unfair financial burden on her because she does not have any actual income. We have already concluded that the court’s decision to continue imputing income to her was not an abuse of discretion. And we previously sustained the court’s August 2006 order reducing her obligation to pay respondent’s child care costs from one-half down to one-third. We find the court did not abuse its discretion in leaving the existing order intact. In sum, appellant’s substantive and procedural challenges to the order filed on January 10, 2007, do not persuade us that the order is infirm.
For example, appellant claims: “The uncontradicted evidence showed that [appellant’s] income is insufficient for her and the children’s basic necessaries.”
Appellant’s reliance on In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518 is inapposite. In that case, the trial court allowed the father to withhold a set amount of monthly guideline support payable to the mother, and deposit it in a travel fund for his use to visit cross-country, thereby reducing the guideline support that she received. (Id. at p. 521.) In the present case, respondent was ordered to pay appellant the full amount of guideline support. While she is also obligated to pay a share of his child care expenses, that cost is not automatically deducted from the child support that she receives.
XXX. Order Denying Increased Spousal Support (A118009)
In appeal A118009, appellant appeals from an order issued on March 6, 2007.
A. Procedural History
On August 18, 2006, respondent filed a motion requesting, among other things, that spousal support be terminated.
On September 18, 2006, appellant filed a responsive declaration. By an attached declaration she objected to his request to terminate spousal support and stated her own request to increase monthly spousal support from $1,000 to $5,000. She also requested a statement of decision, reasons, and findings.
The spousal support issue was heard on January 5, 2007. After hearing testimony from appellant that she was on medical leave from her job, the court stated that it would deny respondent’s motion if appellant produced documents from her employer by January 16, 2007, verifying her alleged inability to work.
On January 24, 2007, the court filed a statement of decision denying both respondent’s motion to decrease support and appellant’s motion to increase support. The court stated the following findings: “Husband’s motion is based on the argument that Wife can be employed. She has provided a minimalist ‘UAL Medical Department Encounter Form’ dated 1/10/07 which states that she is ‘unable to work’ until a further evaluation on 4/25/07. Wife has disclosed no further details. She has submitted an exhibit, which details her efforts to find employment. She has not followed up in any meaningful way with any applications. The request to reduce spousal support is denied based on the UAL document. The request to increase support is also denied. Wife has not been forthcoming in disclosing the reasons for her lack of employability at UAL. In previous hearings before Department 19, income has been attributed to Wife based on the testimony of a Vocational Evaluator. As recently as [12/13/06] Department 19 reiterated that finding. If a different finding is made as a result of the de novo hearing, then Wife can re-file her motion.”
Appellant is apparently employed by United Air Lines (UAL).
The “de novo” hearing is the hearing that the court had scheduled in response to the objection to the hearing on the motion to modify child support, which is the subject of appeal A116796. As noted above, the de novo hearing was never conducted because the court lost jurisdiction when appellant filed her notice of appeal.
On March 6, 2007, the court filed an order after hearing. The form had been prepared by appellant. The court crossed out much of the drafted order and attached a copy of its January 24, 2007 order. The March 2007 order states: “The statement of decision filed 1/24/07 is attached and adopted with the following clarifications made on the record 2/13/07.” Appellant had submitted a written objection, in letter form, to the January order, and the March order references paragraphs of that letter. We note that the record does not contain a reporter’s transcript for a hearing on February 13, 2007.
On March 21, 2007, appellant filed a motion to set aside the March 6, 2007 order. The motion was denied on May 23, 2007, and the court ordered her to pay $500 in sanctions to respondent’s attorney.
We affirmed the award of sanctions in a prior appeal (Sakov v. Adut [July 21, 2008, A118784] [nonpub. opn.]).
On June 1, 2007, appellant filed an appeal of the March 6, 2007 order.
B. Stated Grounds for Appeal
Appellant frames her appeal as follows: “The issue on appeal is whether in March 2007, the court was authorized to deny or erred in denying increased spousal support while finding that Adut had no present earning capacity.”
We have quoted the court’s findings above, which were set forth in the court’s statement of decision filed on January 24, 2007. The statement was attached to the order filed on March 6, 2007, and incorporated therein. The court did not find that appellant had “no present earning capacity.” Instead, the court found that she had not provided sufficient information to justify altering its earlier findings imputing a monthly income to her. While appellant advances several specific claims of error regarding the court’s failure to award her increased spousal support, in light of the fact that the premise of her appeal is clearly flawed it would serve no purpose for us to specifically address each of her claims. Nevertheless, we have reviewed her claims and find them to be without merit.
Appellant cites to an order after hearing (prepared by her and filed on March 6, 2007) that includes an attachment stating as a finding that she “does not presently have an earning capacity” due to being on medical leave from her employer. The page is marked with a long diagonal pen stroke, with the following notation at the bottom: “Not consistent w/ court order” followed by the judge’s initials. While the pen stroke does extend to the top of the page wherein the quoted “finding” reposes, there is no indication that the judge intended to preserve that portion of the document as its own finding.
C. Finding That Appellant Was Not Forthcoming
The court’s statement of decision reflects its finding that “Wife has not been forthcoming in disclosing the reasons for her lack of employability at UAL.” Appellant contests this finding. She claims she responded fully to questions presented by opposing counsel and the court. She also states that she provided the court with the form from UAL. We have reviewed the reporter’s transcript of the January 5, 2007 hearing, in which she describes having experienced such symptoms as crying all the time and having severe panic attacks. She refused, however, to provide the names of any doctor who had told her that she suffered from a disability. In any event, the document from UAL that she submitted to the court is not a part of the record on appeal. We thus are unable to determine whether the document contained information concerning the reasons for her lack of employment. We conclude that appellant has not overcome the presumption on appeal that all trial court orders are correct. (In re Marriage of Arceneaux, supra, 51 Cal.3d 1130, 1133.)
Appellant further asserts that in deciding to hear respondent’s motion to reduce spousal support to zero “the court made an implied finding that there had been a change of circumstances.” We are at a loss to understand the basis of this assertion. The court could not make any finding with respect to the parties’ circumstances until it had heard and considered the evidence presented at the hearing. As the court ultimately ordered no change to the existing spousal support order it would appear that the court’s finding is exactly the opposite of what she claims.
D. Alleged Finding on Appellant’s Earning Capacity
As noted above, appellant claims the trial court found she had no present earning capacity. Again, this assertion is based on a misrepresentation of the record on appeal. She also challenges the court’s reliance on its earlier rulings imputing income to her, arguing that the court was required to base its decision on her current circumstances. We find no error.
As part of its ruling, the court noted that it had affirmed its August 8, 2006 decision to impute income to appellant as recently as December 13, 2006, when it denied her motion to modify child support. The written order pertaining to the December 13 hearing was filed January 10, 2007, five days after the January 5, 2007 hearing that led to the order underlying the instant appeal. We have already affirmed the January 10, 2007 order. We find the court did not err in relying on its recent findings and orders concerning the imputation of income to appellant.
E. Other Claims of Error
Appellant claims that the court erred in relying on the prospective de novo hearing as a basis for denying increased spousal support. The January 24, 2007 order observed “[i]f a different finding [with respect to the imputation of income to appellant] is made as a result of the de novo hearing, then Wife can re-file her motion.” As noted in our discussion of the previous appeal (A116796), the court had scheduled a de novo hearing on her motion to modify child support. Ultimately, the de novo hearing was not held because the court lost jurisdiction when she filed her appeal.
Appellant does not persuade us that the upcoming hearing formed any part of the court’s rationale in denying increased support. Rather, the court was simply making an observation that she would have the opportunity to raise the issue again at the next hearing and thereafter file a new motion to modify spousal support if she proved a change in circumstances. We see nothing remarkable in this observation.
Appellant also claims, as before, that the order results in her receiving insufficient support to meet her expenses. Her reliance on In re Marriage of Ramer (1986) 187 Cal.App.3d 263, 272 is unavailing. In Ramer, the court found an abuse of discretion where the former wife was awarded $900 per month in spousal support. However, unlike in the present case, no income was imputed to the wife. In sum, we conclude that the court did not err in declining to grant appellant’s request to increase spousal support.
XXXI. Order Denying Temporary Support and Compensation (A118262)
Appellant appeals an order filed on May 29, 2007, denying her request for child and spousal support for the period from December 2002 through October 2003, and denying her request for financial compensation for seven days of custody time when respondent was on vacation.
A. Procedural History
On October 31, 2006, appellant filed a motion requesting, among other things, that the court award temporary child and spousal support for the period from December 2002 through October 2003 (the 11-month period), and that she be awarded financial compensation for seven days when respondent went on vacation without the children. The motion was heard on March 6, 2007.
On May 29, 2007, the trial court filed its findings and order after hearing. As to the compensation request, the order states: “[Appellant’s] request for reimbursement of expenses for the time the children were in her care while [respondent] was in Israel, is denied because [her] refusal to allow the children to travel to Israel with [respondent] was not reasonable.”
With regard to the support issue, the order states: “[Appellant’s] request for child and spousal support for the period December 2002 through October 31, 2003, is denied. The court finds that the parties are bound by the stipulation of August 24, 2004, which provides that the court had jurisdiction to order support retroactive to February 19, 2004, and thus the parties had waived their right to argue for support for the December 2002 through October 31, 2003 period of time.”
On June 13, 2007, appellant filed a notice of appeal.
B. Retroactive Support
Relying on In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469, appellant claims that the court erred in ruling she had waived child support because waivers of child support are void as against public policy. We will review the trial court’s ruling de novo, examining the relevant procedural history in some detail.
As noted above, on December 23, 2002, appellant filed an amended order to show cause requesting child and spousal support, attorney fees, and other relief. On January 15, 2003, the trial court declined to order child and spousal support as both parties were then unemployed. The issue of support was reserved to the next scheduled hearing date.
At this time, both parties were living in the family home with the children. Respondent moved out in March 2003.
A hearing was held on March 4, 2003; however, support issues were not discussed. The next hearing was scheduled for March 17, 2003, but the parties did not appear and the matter was dropped from the calendar. Appellant’s position at the hearing held on the instant motion was that the scheduled hearing date referred to by the court on January 15, 2003, never happened because the matter was dropped and was never reset.
On October 22, 2003, appellant filed another order to show cause. A hearing was held on November 25, 2003. Appellant, acting as her own attorney, verified that no support was being paid at that time. Respondent’s counsel informed the court that there was no existing order for support. After the court determined that it would award support to appellant, respondent’s counsel suggested that support payments begin as of November 1, 2003. Appellant protested that respondent had been working since July 2003. The court responded: “I have no jurisdiction to go beyond the date the motion was filed [October 22, 2003]. And because it was towards the end of the month, usually what the courts do for accounting purposes is just start either at the middle of the month or the beginning of the month. In this case it will be November 1st.” In its order after hearing (filed on May 13, 2004), the court required respondent to pay appellant child support in the amount of $1,626 per month and spousal support in the amount of $1,359 per month beginning on November 1, 2003.
The only citation to the record provided by appellant with respect to her motion is a notation in the register of actions. In spite of our best efforts, we have been unable to locate the actual document within the 19 volumes of clerk transcripts submitted by appellant.
On February 19, 2004, respondent filed a motion to modify support. A declaration attached to the motion indicates that he filed it because he had recently been laid off from his job (he had started the job in July 2003) and wanted a modification of support to reflect his current income of $410 per week, which he was receiving from unemployment insurance. In a subsequent declaration filed on June 23, 2004, he stated that appellant “never filed responsive pleadings to my motion. However, on the day of court, she showed up with her attorney and we agreed to a modification of the support amount.” At the hearing (held on Mar. 29, 2004), appellant’s attorney stated that the parties had reached a “temporary stipulation pending trial” and that the “support in this matter will be suspended and the court will have the opportunity at the time of trial to set support retroactive to the date of filing of this motion.” The parties then memorialized their agreement in a document filed on August 24, 2004.
We are unable to locate the complete document within the voluminous record submitted by appellant. However, a declaration filed by respondent on June 23, 2004, indicates that he filed a notice of motion for modification of support on February 19, 2004.
In section XVII of this opinion, we addressed appellant’s challenge to the trial court’s failure (in its judgment filed on Aug. 8, 2006) to award support for the 11-month period. We observed that in arriving at its determination the court relied on the parties’ stipulation filed on August 24, 2004, which provides that the issues of child and spousal support were to be suspended pending trial, whereupon the court would have the opportunity to award support retroactive to the date of filing of respondent’s motion (Feb. 19, 2004). We confess some confusion as to why the court chose, essentially, to reconsider its earlier ruling when it ruled on this same issue in response to appellant’s October 31, 2006 motion.
The only difference between the challenge here and the challenge we addressed above is a slight discrepancy in the dates. In the appeal discussed above, she claims the court erred in failing to award her support for the period from December 23, 2002, to November 25, 2003.
We also note that in her appeal of the final judgment, appellant does not raise the issue of the invalidity of the August 2004 waiver. Instead, she challenges the ruling based on the court’s alleged failure to state the reasoning for its decision. Having already concluded that the court did state its reasons and therefore did not err in declining to award her retroactive support beyond that date, we question the need to address this issue again, especially in light of the fact that the order appealed from here is founded on the same reasoning as the judgment.
In our view, the issue of whether the parties’ August 2004 stipulation constituted an invalid waiver of support is not determinative. The order entered after the January 15, 2003 hearing states that the court was reserving jurisdiction to the “next scheduled hearing date,” which was March 17, 2003, after which the matter was dropped and was never reset for hearing. Accordingly, it appears that by its own terms the court’s January 15, 2003 reservation of jurisdiction expired on March 17, 2003.
Moreover, if appellant wanted to preserve her right to appellate review of retroactive temporary child support, she should have raised this issue with the trial court at the November 25, 2003 hearing, wherein the court stated that it did not have jurisdiction to award support prior to October 22, 2003. Failure to raise an issue in the trial court results in a waiver of the issue on appeal. (See People v. Saunders, supra, 5 Cal.4th 580, 589–590.)
C. Compensation for Time Respondent Was in Israel
As to the denial of appellant’s request for compensation for the extra time the children spent with her while respondent was vacationing in Israel, Family Code section 3951 provides that a parent is not required to compensate the other parent for the voluntary support of the parties’ children without an agreement for compensation. While appellant protests that she was forced to take care of the children in order to keep them out of a war zone, the court found this position unreasonable. Her briefing on appeal does not persuade us that the court abused its discretion.
In closing, we note it is inherent in the nature of litigation that one party will invariably feel disappointed when a trial court makes a ruling on a contested issue. While strong emotions frequently provide powerful motivation to challenge these disappointing outcomes in a higher court, they do not breathe life into otherwise meritless appeals. We observe that appellant currently has two additional appeals pending before this court, and we do not know if these appeals have merit. But in view of the state of the record and briefing before us in the present appeals, we encourage appellant to carefully consider the standards governing appellate review since the “reviewing court clerk may decline to file [a noncomplying brief]” or it may be stricken. (Cal. Rules of Court, rule 8.204(e).
A121783 and A121308.
DISPOSITION
The judgments and orders are affirmed.
We concur: Marchiano, P. J. Margulies, J.