Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. F071155
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Ester Adut appeals from various orders issued by the trial court in this contentious dissolution proceeding. We vacate and remand one of the orders. In all other respects, we affirm.
As in the prior appeals, respondent has elected not to file a brief. Because no respondent’s brief was filed, we will decide the present appeal on the record, the opening brief, and any oral argument by the appellant. (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is the seventh appeal appellant has filed in this matter. Her eighth appeal is pending. We need not detail the factual background of this proceeding as the facts are well know to the parties and to this court, and have been recited in our prior opinions.
In re Marriage of Sakov & Adut (July 21, 2008, A118784 [nonpub. opn.]), the consolidated cases, In re Marriage of Sakov & Adut (Jan. 22, 2009, A112701, A115566, A116796, A118009, and A118262 [nonpub. opn.]). She has also filed two writ petitions (A112129 and A114352).
A121783.
On September 20, 2007, respondent Joshua Sakov filed a motion for: (1) an order adopting the parties’ alleged agreement regarding mutual reimbursement claims, (2) an order for the distribution of the proceeds of the sale of Tasman stock, (3) an order requiring appellant to provide documentation regarding her continued absence from employment with United Airlines, (4) an order providing for the distribution of a Bank of America rollover IRA, (5) an order setting the amount of “add-on” expenses owed by appellant to respondent (with a payback schedule), and (6) an order that appellant contribute $2,500 to respondent’s attorney fees and costs in connection with his motion.
On January 10, 2008, appellant filed an application for temporary and permanent domestic violence restraining orders.
On January 29, 2008, respondent filed his answer to the domestic violence application.
On January 30, 2008, appellant filed her response to respondent’s original motion.
On February 11, 2008, the trial court held a hearing in which it heard respondent’s motion and appellant’s application for the domestic violence restraining order. The court denied the request for the restraining order.
On March 24, 2008, the trial court filed its order granting respondent’s request for an order setting $9,587.60 as the amount of add-on expenses owed to him by appellant. The court also ordered that one-half of the Tasman stock proceeds be distributed to appellant. The other requests made in his motion were denied.
The order does not address the rollover IRA. In her response to the motion, appellant indicated that the issue was moot.
On April 4, 2008, the court heard appellant’s motion for reimbursement of child support to cover a period of time when respondent was out of the country. The request for reimbursement was denied. This appeal followed.
The court also heard respondent’s motion for modification of custody and visitation.
DISCUSSION
I. Court Had Jurisdiction to Order Add-on Reimbursements
Appellant challenges the trial court’s order setting $9,587.60 as the amount owed to respondent for add-ons. Respondent’s claim to this amount was based on two orders entered on August 8, 2006, both of which appellant appealed in appeal A115566, one of the five prior consolidated appeals. One of these orders provides that appellant pay one-third of respondent’s child care expenses. The other provides that she pay one-half of the daughter’s private school tuition. Respondent submitted a declaration stating that the total amount owing on these expenses as of June 2, 2007, was $9,587. He requested that this amount be reimbursed to him at the rate of $250 per month as a deduction from appellant’s spousal support, with interest accruing on the unpaid balance at the rate of 10 percent per annum. Appellant claims the court’s order approving the reimbursement is void because it was “predicated on the supposed authority of orders under appeal.”
As a general rule, the act of filing an appeal stays proceedings in the trial court with respect to matters “embraced” or “affected” by the challenged judgment or order. (Code Civ. Proc., § 916, subd. (a).) Whether a matter falls within those categories “depends on whether postjudgment proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; accord, Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) That, in turn, may depend on the nature of the underlying order and whether it is subject to modification to account for changed circumstances. (Horowitz, supra, at p. 383 [modifiable spousal support order was not stayed pending appeal].) “The purpose of the rule depriving the trial court of jurisdiction pending appeal in civil actions is to protect the jurisdiction of the appellate court; the rule prevents the trial court from rendering the appeal futile by changing the judgment into something different.” (Id. at p. 381.) The automatic stay thus serves to preserve the status quo until the appeal is decided. (Varian Medical Systems, Inc., supra, at p. 189; Horowitz, supra, at p. 383.)
Here, the challenged reimbursement order did nothing to diminish the effectiveness of the prior appeal. The order did not render the appeal futile by changing the August 8, 2006 judgment into something different. Rather, it implemented an order within the judgment. We note further that Code of Civil Procedure section 917.1, subdivision (a)(1), provides: “Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for... [¶] [m]oney or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.” Appellant does not allege that she provided an appeal bond. In any event, the present appeal was filed before our opinion was filed in appeal A115566. In that opinion, we upheld the trial court’s August 8, 2006 orders. Accordingly, the orders underlying the reimbursement order are valid. In sum, we find no error.
II. The Claim of Retroactive Modification of Child Support Is Not Substantiated
Appellant claims that the request for reimbursement of $3,517 for one-half of the private school tuition was error because it constituted a retroactive modification of child support. However, the $3,517 sum is included within the $9,587.60 reimbursement award, which respondent requested as an offset against spousal support, not child support. Thus, child support was not affected by the reimbursement order.
Appellant asserts in conclusory fashion that “no law” requires her to reimburse respondent for the household employer taxes he paid for the nannies he hired to care for the children. We remind appellant that every claim presented on appeal must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 (Berger).) As appellant does not cite to any authority that would prohibit reimbursement of nanny taxes, we decline her invitation to reverse the order.
III. Attack on Court’s Order and Statement of Decision
Appellant contends that the trial court’s March 24, 2008 order is a nullity because the accompanying statement of decision does not state the legal and factual basis for its decision, or states findings that contradict the evidence. In preparing the statement, the court made extensive modifications to appellant’s proposed order and statement of decision. She raises several claims of error.
A. Cruel and Unjust Hardship
Appellant first claims the court erred in deleting her proposed finding that she and the children had suffered “cruel and unjust hardship” as a result of her not having received child and spousal support between March 14, 2004, and February 11, 2008. The court crossed out this proposed finding, along with the accompanying finding that respondent had sufficient funds to have paid this support, noting that these findings were “not supported by the evidence presented or [were] beyond the scope of this hearing.” We find no error.
As noted above, the contested order was based on the statement of decision and final judgment on reserved issues filed August 8, 2006. The present appeal arises out of respondent’s motion filed on September 20, 2007, more than a year after the final judgment on reserved issues had been filed. In claiming the trial court erred in not finding hardship, appellant is essentially faulting the court for not reconsidering issues that were decided by the August 8, 2006 order. We therefore agree with the court that this request was beyond the scope of respondent’s motion.
B. Waiver of Medical Expense Claims
Appellant also claims the court erred in concluding that certain child care and health care arrears allegedly owed to her by respondent were waived. The court denied her claim for these expenses, stating that it been waived by failure to raise it at the time of trial. A portion of a reporter’s transcript attached to appellant’s brief suggests that the issue was, in fact, raised at trial but relief was denied because the evidence supporting the claim had not been submitted in a timely manner.
At the February 11, 2008 hearing, respondent’s attorney recalled that appellant’s claims for medical expenses had been waived because she did not submit invoices to respondent within 30 days. Family Code section 4062, subdivision (a)(2), specifies that the court “shall order... as additional child support: [¶]... [¶] The reasonable uninsured health care costs for the children as provided in Section 4063.” Where a court makes an order for such “add-on” child support, section 4063, subdivision (b), provides that “when either parent accrues or pays costs pursuant to an order under this section, that parent shall provide the other parent with an itemized statement of the costs within a reasonable time, but not more than 30 days after accruing the costs.” (See generally In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 466–468, 475.) While appellant asserted at the hearing that she did submit most of her claims within 30 days, she did not provide the court with any documentation supporting this assertion. Appellant’s claim of error fails.
C. Reimbursement Amounts
Appellant claims the trial court erred in denying her request for an order compelling respondent to reimburse her for any tax credit he receives as a result of deducting her portion of child care expenses from his income taxes. The court denied this request, finding it to be unsupported by any legal authority. On appeal, she claims that Family Code section 4062, subdivisions (a) and (b), does provide the authority because add-ons are intended to cover actual “costs,” and not gross payments. She claims any tax savings to respondent should be passed on to her, and that she should be responsible for his after-tax costs only.
Family Code section 4062 provides:
We observe appellant does not provide a citation to.0
the record in which she argued to the trial court that her claim was supported by Family Code section 4062. Issues not raised in the trial court may be deemed waived on appeal. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:229, p. 8-155.) Further, while section 4062 does reference “costs,” it does not specifically address the tax consequences of payments made for child care, nor has our independent research located a published decision addressing this issue. For these reasons, we find appellant has not established her claim of error.
D. Support Payment Due March 15, 2004
Appellant claims the trial court erred in concluding that it lacked jurisdiction to order respondent to make a payment for child and spousal support that was due on March 15, 2004. We confess to some confusion as it appears from the record that the court, on December 5, 2005, ordered respondent to make this payment. Further, respondent included this payment in his calculation of support payments owed to appellant when he made his request for offsetting reimbursements. The only issue that the parties disputed at the hearing on February 11, 2008, was whether interest on the payment accrued from March 15, 2004, the date the payment was due, or from December 5, 2005, the date the court ordered respondent to make the payment. Accordingly, it appears that the court’s March 24, 2008 order is inconsistent with its December 5, 2005 order with respect to the respondent’s obligation to make the March 2004 support payment. We have been unable to locate anything in the record before us that would explain this inconsistency. Accordingly, we vacate the order insofar as it holds that appellant has waived her claim to the March 2004 payment or that the court lacks jurisdiction over it. We remand this issue for the court to determine whether this payment is still outstanding, and, if so, the amount of any interest that is owed.
The trial court also found that the claim had been waived.
It appears we are not alone in our confusion. At the April 4, 2008 hearing, respondent’s counsel stated that she found the statement of decision and order “very confusing” with respect to the reimbursements. The court then agreed to discuss the order. Unfortunately, this discussion took place off the record.
E. Interest on Tasman Stock Proceeds
Appellant claims that the court erred by granting to respondent the interest earned on her share of the proceeds of sale of Tasman stock. The order that precipitated the sale of the stock was filed on January 11, 2007. The January 2007 order provides that the sale proceeds are to be paid by a check in both parties’ names, to be deposited in an interest-bearing account. The funds are not to be distributed except by court order or the parties’ written mutual agreement.
The contested order provides: “The motion of [respondent] for an order for the distribution of [one-half] of amount received as the proceeds of sale of Tasman stock by [respondent] and deposited is granted.” While the order does not expressly award her interest on the proceeds, it also does not explicitly deny her this interest, nor does it grant the interest to respondent. At the hearing on February 11, 2008, respondent stated his position that appellant should receive half the value of the account in which the proceeds had been deposited, including half of the accrued interest. In view of this concession, and in light of the fact that the order does not expressly deny her the interest she demands, we decline to reverse this order.
IV. The April 10, 2008 Minute Order
Appellant contests the minute order entered on April 10, 2008, which appears to be somewhat inconsistent with the trial court’s written order filed on March 24, 2008. For example, the April order states that respondent is to pay $21,824 to appellant for the Tasman stock proceeds, whereas the March order states that he is to pay one-half of the proceeds. The April order also states that a redemption request has been signed by both parties, a finding that appellant contests.
The minute order appears within the register of actions, which appellant has submitted to this court as part of the record on appeal. Our Supreme Court has explained: “ ‘It may be said... as a general rule that when... the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]....’ ” (People v. Smith (1983) 33 Cal.3d 596, 599, citing In re Evans (1945) 70 Cal.App.2d 213, 216.) Further, the trial court has inherent and statutory power to correct clerical mistakes and orders in judgments to reflect the true decision at any time. (Code Civ. Proc., § 473; In re Candelario (1970) 3 Cal.3d 702, 705 [inherent power]; Estate of Goldberg (1938) 10 Cal.2d 709, 717; Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034–1035 [inherent and statutory power].) To the extent the April 2008 minute order fails to conform to the March 2008 written order, any inconsistency must be viewed as clerical error. Thus, while we agree that the court’s minutes are inconsistent with the court’s written order, there is no need for us to reverse it. If any issues arise as a result of this inconsistency, the trial court has the inherent power to make any necessary corrections.
V. Child Support
Appellant claims the trial court erred in refusing to hear her request for child support, which accompanied her restraining order application. She also claims the court should have modified child support during the time when the temporary domestic violence restraining order was in place. As noted above, the court declined to grant the restraining order. In announcing its decision, the court found appellant had not demonstrated that an act of domestic violence had occurred. Thus, the court found it did not have jurisdiction to hear any of the ancillary requests made in the parties’ moving papers.
Attached to her petition for a domestic violence restraining order, appellant included Judicial Council Forms, form DV-105 (child custody, visitation, and support request), in which she checked the box next to the notation: “I already have a child support order, but I want it changed.” While appellant claims “there is no authority for the conclusion that if the court decides not to issue a restraining order, it is without jurisdiction to decide any other request for an order that was made concurrently with the request for [a] restraining order,” she does not cite to any authority for the proposition that a court does have jurisdiction to consider such requests under these circumstances. Again, every argument presented on appeal must be supported by both coherent argument and pertinent legal authority. (Berger, supra, 128 Cal.App.4th 989, 1007.) As appellant does not cite to any authority that would permit the court to modify child support even when it denies an application for a domestic violence restraining order, we decline her invitation to reverse the court’s order.
VI. Denial of Compensation for Time Respondent Was in Israel
In our opinion on appeal A118262 (one of the five consolidated appeals), we upheld the denial of appellant’s request for compensation for the extra time the children spent with her while respondent was vacationing in Israel. Before our appeal was filed, however, respondent made a payment for an extra seven days of support to the Department of Child Support Services (DCSS), which apparently was collecting his child support payments at that time. Appellant now asserts the trial court erred in finding that her request for this support was moot, claiming DCSS applied that payment toward regular monthly support and left her with no compensation. Given that we have already affirmed a court order denying her this compensation and find no new factual or legal basis for doing otherwise, we will not reverse the present order.
VII. Order Regarding Service of Process
On March 17, 2008, the trial court granted respondent’s attorney’s request that appellant’s process servers leave their documents on a cabinet located in the front of the attorney’s office building when making personal service on the attorney. The order also requires appellant to fax notice to the attorney when documents are served on her. According to respondent’s attorney, appellant’s process servers had on more than one occasion entered her private office and served papers on her by handing them to her personally, or had entered her office during non-business hours and left papers on her desk.
The right to appeal is statutory, and a judgment or order is not appealable unless made so by statute. (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365.) Under Code of Civil Procedure section 904.1, an appeal may be taken from a judgment that is not interlocutory (subd. (a)(1)), an order made after such an appealable judgment (subd. (a)(2)), or an order made appealable by the provisions of the Probate Code or the Family Code (Code Civ. Proc., subd. (a)(10)). The “one final judgment rule” provides that an appeal may be taken from a final judgment, but not an interlocutory order. (Code Civ. Proc., § 904.1, subd. (a)(1).) By definition, a judgment is the final determination of the rights of the parties. (Code Civ. Proc., § 577.) A judgment is final when it decides the rights and duties of the parties, terminates the litigation between the parties on the merits, and leaves no issue for future judicial determination except compliance with the judgment’s terms. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304; Olson v. Cory (1983) 35 Cal.3d 390, 399.) As the order in question does not concern the substantive rights of the parties, but rather the means for effecting personal service on a party’s attorney under Code of Civil Procedure section 1011, we find the challenged order is not reviewable on appeal.
Code of Civil Procedure section 1011, provides, in part: “The service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: [¶] (a) If upon an attorney, service may be made at the attorney’s office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof. When there is no person in the office with whom the notice or papers may be left... at the time service is to be effected, service may be made by leaving them between the hours of nine in the morning and five in the afternoon, in a conspicuous place in the office....”
We can consider an appeal from a nonappealable order or judgment to be a petition for extraordinary writ if (1) the briefs and record before the court contain in substance all the elements required by California Rules of Court, rule 8.490 for an original mandate proceeding, and (2) there are extraordinary circumstances justifying the exercise of that discretionary power. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745–747.) This case does not meet either of those requirements.
DISPOSITION
The order denying appellant’s claim to the child support payment that was due on March 15, 2004, is vacated and remanded for reconsideration consistent with this opinion. In all other respects the orders appealed from are affirmed.
We concur: Marchiano, P. J., Margulies, J.
“(a) 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.
“(2) The reasonable uninsured health care costs for the children as provided in Section 4063.
“(b) The court may order the following as additional child support:
“(1) Costs related to the educational or other special needs of the children.
“(2) Travel expenses for visitation.”