Opinion
E043274
4-25-2008
In re the Marriage of VIKKI AND DAVID P. SIMON. VIKKI L. SIMON, Respondent, v. DAVID P. SIMON, Appellant.
Swarner & Fitzgerald and Lewis F. Jacobsen for Appellant. James W. Wiley; Swanson & Myers and Marie Myers for Respondent.
NOT TO BE PUBLISHED
Appellant David P. Simon (David) appeals from certain portions of the trial courts family law judgment on reserved issues. First, David challenges the portion of the judgment making its award of permanent spousal support to respondent Vikki L. Simon (Vikki) effective the first day of trial (November 16, 2004), rather than the date judgment was entered (March 8, 2007). Second, David challenges the trial courts decision to make the increase in child support effective just after the date he filed his order to show cause to modify (decrease) child support (September 1, 2002), rather than the date judgment was entered (March 8, 2007). Third, David challenges the award of interest on the retroactive payments of spousal support. As discussed below, we affirm the judgment but reverse as to the award of interest on the retroactive installments of spousal support.
STATEMENT OF FACTS
On March 28, 2000, Vikki filed a petition for dissolution of marriage. Vikki filed an order to show cause for initial child custody, visitation, spousal support, and child support on May 22, 2000. On July 20, 2000, the parties entered into a stipulation and order, which provided that, pending trial and "without prejudice to either party," David would pay to Vikki $500 per month in spousal support and $1,050 per month in child support. The terms of the stipulation were made part of the courts findings and order after hearing filed on September 19, 2000. However, on September 27, 2000, the parties entered into a stipulation for judgment which reserved the issue of child support until further order. On the last page of the handwritten stipulation is the following provision: "If [Vikki] requests child support from [David] before [childs] majority age, this judgment shall be set aside."
The judgment of dissolution was filed on December 14, 2000. The judgment incorporated a marital settlement agreement, which provided that the issue of child support was reserved until further order of the court, and that each party permanently waived spousal support. The agreement further provided that the judgment could be set aside if Vikki requested child support or if either party filed bankruptcy. Both parties later filed for bankruptcy.
On June 27, 2001, Vikki filed an order to show cause to set child support. The hearing was held on November 1, 2001. In its March 13, 2002, findings and order after hearing, the court set aside the December 14, 2000, judgment and ordered David to pay $1,198 per month in child support, retroactive to July 1, 2001. The court also reopened discovery and assigned the matter to case management.
On July 26, 2002, Vikki filed an order to show cause to set spousal support and arrearages. After a September 24, 2002, hearing, the court issued its ruling on December 16, 2002. The court set spousal support at $500 per month, by way of reinstating the pendente lite spousal support order of July 20, 2000. The court set arrearages at $12,000, but stayed enforcement of the order from September 30, 2000 to September 30, 2002, pending further order of the court. However, the court denied Vikkis motion to modify the $500 per month reinstated spousal support order because she failed to submit a current income and expense declaration. Neither party appealed from these orders.
In the meantime, David filed an order to show cause for modification of child support on August 29, 2002. In this filing, David sought to reduce his $1,198 monthly child support obligation based on a reduction in his income. Vikki filed a responsive declaration on October 15, 2002, requesting that David pay guideline child support. On October 24, 2002, Vikki filed a supplemental responsive declaration requesting the court to set child support on Davids ability to earn. At the hearing scheduled for October 28, 2002, the parties stipulated to continue the hearing to April 28, 2003. At the trial readiness conference scheduled for April 24, 2003, only Vikkis counsel was present. The minute order for that date states: "Court trials to be vacated." The court set a long cause court trial for November 17, 2003, with a trial status conference for November 14, 2003. A minute order for April 28, 2003, indicates that a hearing set for modification of child support was vacated per the courts April 24 order.
On March 2, 2004, the minor child of the parties became 18 years old.
On April 15, 2004, David filed an order to show cause to "establish child/spousal support arrearages/payment plan."
Trial on the reserved issues of spousal support, child support, and property issues was held on November 16 through 18, 2004, May 2 through 4, November 3, 10 and 17, and December 22, 2005. After various tentative and further statements of decision and objections by David, including a 14-page further statement of decision filed August 16, 2006, that specifically addressed the retroactivity issues at issue in this appeal, the court filed its judgment on reserved issues on March 8, 2007. The court increased Vikkis pendente lite spousal support award to $3,000 per month as of November 16, 2004, the first day of trial. The court also increased child support to $1,826 per month for the period September 1 to December 31, 2002, and to $1,888 per month for the period January 1, 2003 to March 2, 2004. This appeal followed.
DISCUSSION
1. Issues Presented
David contends the trial court erred in making the increased award of spousal support effective November 16, 2004, the first day of trial on reserved issues, with interest. He also contends the trial court erred in making the increased award of child support effective September 1, 2002, just after the date (August 29, 2002) David filed his order to show cause seeking to decrease child support. Third, David argues he did not waive his right to contest the effective date of either support award.
2. Effective Date of Spousal Support
The first issue is whether the trial court abused its discretion when it awarded permanent spousal support as of the first day of commencement of trial, rather than March 8, 2007, the date judgment was entered. The standard of review when considering spousal support modification is whether the trial court abused its discretion in light of the facts and circumstances of the case. (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 809.) Abuse of discretion occurs only where it is shown that the trial court exceeded the bounds of reason, thus resulting in a miscarriage of justice. (Wm. R. Clarke Corp. v. Safeco Ins. Co. of America (2000) 78 Cal.App.4th 355, 359; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.)
Davids argument is as follows. The modification of a support order may be retroactive to the date of filing the notice of motion or order to show cause, and no earlier. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595; Fam. Code, §§ 3653, 4333.) Here, David argues, there was no pending order to show cause or motion to modify the existing temporary spousal support order of $500 per month. This is because on December 16, 2002, the trial court had reinstated the July 20, 2000, spousal support order and had denied Vikkis motion to modify the reinstated amount. Further, no further orders to show cause or motions for modification were filed.
Family Code section 3653 provides: "(a) An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law."
Family Code section 4333 provides: "An order for spousal support in a proceeding for dissolution of marriage or for legal separation of the parties may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date."
As explained below, we agree with the trial court that the issue of whether the trial court abused its discretion when it made the increase in spousal support payments effective on the first day of trial is completely separate from the issue David raises; that is, even if the court lacked authority to make the increase retroactive to the date of the last motion to modify (because there was no such motion still pending), this has no bearing on whether the trial court is limited in making the spousal support order effective on the date of entry of judgment, rather than the date of trial. Further, David cites no statutes or case law limiting the trial courts ability to make such an increase effective the first day of trial.
David does cite In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 717, which held that a temporary support order dated some time in October 1993 was superseded by a permanent support order contained in a judgment of dissolution dated November 12, 1993. However, the judgment in that case was a stipulated judgment, and so did not involve a trial, much less a trial that took place over more than a year and in which the final judgment was entered nearly 28 months after the first day of trial, as is the case here. Consequently, the court in Hamer did not address the question at issue here—whether a trial court can choose the first day of trial as the effective date of a permanent order of spousal support.
The actual language is: "We turn first to the question whether the October 1993 order or the November 1993 judgment was legally effective to determine Gregs support obligations as of November 12, 1993, when judgment was entered and, for all intents and purposes, the parties dissolution action was concluded. The answer is straightforward: the temporary support order of October 1993 was superseded by the permanent support order in the November 1993 judgment." (In re Marriage of Hamer, supra, 81 Cal.App.4th at p. 717.)
The trial court in its August 16, 2006, further statement of decision, points out that the trial largely concerned a historical reconstruction of the parties income, expenses, and assets based on the investigation and testimony of a forensic accountant covering the years 2000 through 2002. Neither David nor Vikki proffered any evidence covering the period after November 16, 2004, the first day of trial. Thus, there was nothing in the evidence that would indicate that the parties relative financial positions had changed after that date, and so no reason in terms of fairness and equity that the support order should not be effective as of that date.
More to the point, it is the burden of the appellant to demonstrate that the trial court erred such that reversal is merited. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Here, David does not present any legal authority stating that a trial court abuses its discretion when it sets the first day of trial as the effective date of a permanent spousal support order. Therefore, we affirm the portion of the courts judgment making spousal support effective as of the first date of trial.
David also argues that there should be no interest on the retroactive installments of either spousal support or child support. We note that the trial court did not award interest regarding child support. Vikki does not address this issue in her responsive brief. As to spousal support, the court ordered: "Arrears in spousal support shall be paid at the rate of $750.00 per month and bear interest at the rate of 10% per anum." Code of Civil Procedure section 685.020 provides: "(a) Except as provided in subdivision (b), interest commences to accrue on a money judgment on the date of entry of the judgment. [¶] (b) Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due." The trial courts award of interest on the retroactive installments of spousal support is reversed.
3. Effective Date of Child Support
David makes a similar but more relevant argument as to the effective date of the child support order. The court ordered David to pay child support as of September 1, 2002, which is just after the date on which David filed his motion to "[m]odify current support order of $1198.00/mo. ordered on 11/1/01 to guideline level." David contends that this motion was not pending at the time the judgment on reserved issues was entered, because the hearing on the modification motion initially set for October 28, 2002, was continued to April 28, 2003, by agreement of the parties, but was vacated on April 24, 2003, and never reset. If that interpretation of the facts in this case is correct, then Family Code section 3653 allowing a support award to become effective as far back as the date a motion for modification or order to show cause was filed would not apply here and the trial court would be in error.
There is no reporters transcript for the April 24, 2003, trial readiness conference, and the trial court later stated that it had no independent memory of that date. The minute order for that date, prior to the nunc pro tunc correction discussed below, states: "No appearance by either party/counsel in open court when the case was called. [¶] Mary Swanson [Vikkis counsel] present. [¶] Trial Status Conference Set for 11/14/03 @ 9:00 in Dept[.] F3. [¶] Court Trial — Long Cause — Estimate 2 days set for 11/17/03 @ 1:30 in Dept. F3. [¶] Court Trial set for 11/18/03 at 1:30 [D]ept[.] F3; time estimate 3 hours. [¶] Notice to be given by Mary Swanson [¶] Court Trials to be vacated." (Capitalization omitted.)
The minute order for April 28, 2003, the date initially set for the court trial on the reserved issues and the child support modification, states simply "Vacated: Per 4/24/03." The trial court found in its August 16, 2006, further statement of decision that "[t]he parties do not dispute that on October 28, 2002 (the date set for hearing of [Davids order to show cause]) the hearing was continued to April 28, 2003 at 1:30 p.m. This is the same time and date which had been previously set (on September 24, 2002) for trial of the parties dissolution. Thus it is clear, and I so find, that the parties and the court intended that the issues raised by [Davids order to show cause] be heard in conjunction with trial of the dissolution issues." The court further reasoned that, because Vikki had filed a response to Davids August 29, 2002, motion, and in her response had requested affirmative relief in the form of increased child support, she would not have consented to having her prayer for affirmative relief simply go off calendar. The trial court concluded that Vikki had "neither expressly nor impliedly stipulated to have the [order to show cause] taken off calendar." Based on its conclusion that the parties had intended for the child support modification issue to be tried along with the reserved issues, and that thus the matter was not permanently vacated by the April 24, 2003, order, the trial court ordered that the minute order of April 24, 2003, be corrected nunc pro tunc to add: "Hearing re: modify child support/atty fees & costs set 11/17/03 at 01:30 Dept[.] F3." (Capitalization omitted.) The court further ordered that subsequent minute orders continuing and resetting the trial be similarly corrected.
"In a hearing on an order to show cause, or on a modification thereof, or in a hearing on a motion, other than for contempt, the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court." (Fam. Code, § 213, subd. (a).)
We find this to be a reasonable interpretation of the parties intent in vacating the April 28, 2003, hearing date on the spousal support modification. "In the absence of any showing to the contrary, it must be presumed that the action of the court in correcting the minutes was a proper one." (Beall v. Erickson (1931) 113 Cal.App. 36, 41.) "The scope of orders and judgments nunc pro tunc in California has consistently been described by our Supreme Court in the following terms: `A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. [Citations.] It cannot, however, change an order which has become final even though made in error, if in fact the order made was that intended to be made. . . . "The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made. . . ." [Citation.] . . . `It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order. [Citations.]" (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890.)
Here, the trial court explained that it found no indication that either the court or the parties intended for the hearing on the motion for modification of child support to be vacated and not reset. Further, David does not in this appeal explain why both he and Vikki would have intended for the modification motion to go off calendar when both of them sought affirmative action—he in the form of reduced child support and she in the form of increased child support. Thus, we conclude that David has not established that the trial court did anything other than correct a clerical error by clarifying the minute orders to reflect that the court and the parties intended for the trial on the motion to modify child support to be reset along with the trial on the other reserved issues.
Given this set of facts, David has not met his burden on appeal to establish that the trial court erred in setting the effective date of the increased child support as September 1, 2002, shortly after David filed his motion to modify child support.
Davids contentions as to waiver and prejudice are moot.
DISPOSITION
The judgment of the trial court is affirmed. The award of interest on the retroactive installments of spousal support is reversed. Vikki is awarded her costs on appeal.
We Concur:
GAUT, J.
KING, J.