Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. GD010348, Louise Halevy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Gary W. Kearney, Gary W. Kearney and Robert M. Peterson for Appellant.
No appearance for Respondent.
WILLHITE, JUDGE
In this appeal, Dianne Starling (Dianne) challenges two orders related to child support for her two sons. First, she challenges the trial court’s order that she reimburse her former husband, Kenneth Harold Starling (Kenneth), the amount of Social Security disability payments she received on behalf of the children that should have been credited toward the child support Kenneth paid. Second, she challenges the basis for the trial court’s determination of her income in ruling on her request for modification of child support. We are hampered in our review of the court’s rulings by an inadequate record on appeal. Based upon the record before us and the rules of appellate review, we affirm both orders.
BACKGROUND
The record on appeal consists of an appellant’s appendix that includes seven documents -- the notice of appeal, the Los Angeles Superior Court Civil Case Summary, the trial court’s May 4, 2007 ruling that includes the orders at issue in this appeal, Kenneth’s November 22, 2004 order to show cause seeking (among other things) reimbursement for over paid child support, Dianne’s November 1, 2004 order to show cause seeking (among other things) modification of child support, and two loan applications by Dianne from March and May of 2004 -- and a reporter’s transcript of four hearings held in 2002 and a hearing held in December 2006. From this sparse record, we can provide only a minimal recitation of the facts. We rely primarily upon the trial court’s detailed May 4, 2007 ruling, in which the court summarized various motions and other documents in the court file. Because the documents upon which the trial court based its summary are not included in the appellate record, we are unable to verify the accuracy of the trial court’s summary or review those documents for additional relevant facts.
Dianne and Kenneth were married and had two sons. Dianne filed a petition for dissolution of marriage in November 1993. Originally, Dianne was the primary custodial parent, and Kenneth was ordered to pay child support. In 1996, Dianne sought increased child support, which the court granted in January 1997. Shortly after the hearing on Dianne’s request, Kenneth was in a serious car accident and became disabled. The Social Security Administration classified him as unable to work and he began receiving Social Security disability payments. In June 1997, he filed a request for a downward modification of child support due to his disability. That request was denied without prejudice in July 1997.
In May 1998, Kenneth filed a motion in which he asked the trial court to order Dianne to apply to the Social Security Administration for dependent benefits for their sons. He asked that if and when Dianne received those benefits, she be ordered to reimburse him for the child support he paid during the period for which she received the benefits. That motion was taken off calendar because it was filed in the wrong branch court. Kenneth, who was not represented by counsel in June 1998, did not refile the motion at that time, although it appears that Kenneth (and/or his attorney) informally raised the issue several times subsequently.
The trial court blamed itself for “inadvertently compound[ing]” Kenneth’s problems by this action. It noted that the family court policy at that time was to take a matter off calendar when it was filed in the wrong court; that policy was changed later that year to provide a protocol for motions filed in the wrong branch court; the branch court was to transfer the motion to the correct court with a set hearing date rather than simply taking the matter off calendar.
Sometime in late 2001, Dianne moved to San Jacinto and Kenneth became the primary custodial parent. Despite the change in custody, Kenneth continued to pay the court-ordered child support, and Dianne continued to receive the disability benefits on behalf of the children. In late 2001, Kenneth, who was then represented by counsel, sought the return of both the child support he paid after he became the primary custodial parent, as well as the disability benefits paid to Dianne during that time. In addition, Kenneth’s counsel orally raised the issue of reimbursement of the child support he paid during the entire time that Dianne was receiving the disability benefits as the custodial parent. In January 2002, the court ordered Dianne to repay Kenneth the child support he paid and the children’s disability benefits she received in the previous four months (while he was the custodial parent), and reserved the issue regarding repayment of the child support he paid while she was the custodial parent and receiving the children’s disability benefits. The court also ordered Dianne to pay Kenneth child support as the custodial parent.
It appears there was considerable delay in getting a written order that included the trial court’s rulings from the January 2002 hearing (as well as some previous hearings). The record suggests that counsel for the parties were still negotiating the terms of the order in October 2002, and that the order was not filed until December 16, 2002. Kenneth’s counsel eventually substituted out, and his new counsel did not file an order to show cause to litigate the disability benefits issue until November 2004. In that order to show cause, Kenneth sought repayment of the child support he had paid while Dianne received the children’s disability benefits (i.e., from September 1997 through August 2001). He did not seek interest on that amount.
Also in November 2004, Dianne filed an order to show cause seeking a modification of custody and child support, based upon her recent move from San Jacinto to San Gabriel. A hearing on Dianne’s and Kenneth’s orders to show cause was held on December 21, 2006. At that hearing, the trial court noted it had received briefs on the disability benefits issue (they are not included in the record), and explained its efforts to determine what had happened at the hearing in June 1998 on Kenneth’s May 1998 order to show cause in which the issue was first raised. The court then heard testimony from Kenneth, Dianne, and another witness on the issue of modifying the current child support, and received several documents into evidence. During her testimony, Dianne was questioned about the income she listed on various income and expense declarations and tax returns (none of which is in the record), as well as income she declared on three loan applications in March 2004, May 2004, and August 2005 (only the March and May 2004 applications are included in the record). It appears there were significant inconsistencies among the documents.
It appears this was a continuation of an earlier hearing. The reporter’s transcript of the December 21, 2006 hearing includes references to previous testimony, but the record does not include transcripts of any prior hearing on the November 2004 orders to show cause.
On May 4, 2007, the trial court issued its ruling on the November 2004 orders to show cause (as well as two subsequent orders to show cause that Dianne filed in 2005). Among other things, the court ordered Dianne to pay $25,594 to Kenneth, which represents the disability benefits she received on behalf of the children from September 1997 through August 2001 without offset against the child support Kenneth paid. The court also modified the child support order, beginning November 1, 2004. Dianne timely filed a notice of appeal from the trial court’s ruling.
DISCUSSION
A. Repayment of Child Support Payments Made Without Credit for Disability Benefits Received on Behalf of Children
Dianne contends the trial court exceeded its jurisdiction by ordering repayment of child support Kenneth paid while Dianne was receiving disability benefits on behalf of the children, arguing that the order was an impermissible retroactive modification of a child support order. She is mistaken.
Contrary to Dianne’s argument, there was no modification of a child support order. From 1997 through 2001, Kenneth was ordered to pay $350 per month in child support. That did not change. What did change was the source of the funds for the child support payments. Beginning in September 1997, the funds came from the Social Security Administration, in the form of disability benefits for the children. Thus, Family Code section 3653, which limits the trial court’s power to order repayment of child support previously paid when the support order is retroactively modified, does not apply here.
Because the actual order is not in the record, we rely upon references in the reporter’s transcript from hearings in 2002 to determine the amount of the support ordered.
The trial court noted there was a discrepancy in the documentation from the Social Security Administration, and payments may have been made for the months before August 1997 during which Kenneth was disabled.
Instead, Family Code section 4504 controls. During the time period at issue, that statute provided in relevant part: “If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act . . . because of the retirement or disability of the noncustodial parent and transmitted to the custodial parent . . . each month shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid.” (Fam. Code, § 4504, eff. Jan. 1,1997 through Dec. 31, 2001 [hereafter, section 4504].)
Family Code section 4504 has been amended several times since the events at issue here. We will refer to the statute as it existed during the period from 1997 to 2001. During that time, it had no subdivisions. In 2001, the statute was amended (effective Jan. 1, 2002), and the entire text of the former version, with slight modifications, was moved to subdivision (b), where (with additional insignificant modifications) it remains today.
Clearly, the payments made by the federal government were not taken into consideration by the court in determining the amount of support to be paid, because Kenneth did not become disabled until after that determination was made. Thus, section 4504 mandates that the disability benefits Dianne received be credited toward the amount Kenneth was ordered to pay. Accordingly, the trial court properly credited the disability benefits Dianne received each month against the support Kenneth owed each month during the time period in question and, because Kenneth had paid in full the court ordered support each month, the court ordered Dianne to return the over payments he made.
Relying upon statements in In re Marriage of Robinson (1998) 65 Cal.App.4th 93, that disability benefit payments are not child support payments, Dianne argues that Kenneth’s payment of the court ordered child support while Dianne was receiving the children’s disability benefits cannot be seen as overpayment of support. Her reliance is misplaced.
In In re Marriage of Robinson, the father was ordered to pay child support for his son, but missed many payments, resulting in substantial arrearages. He then became disabled, and his son began to receive monthly disability benefits from the Social Security Administration that exceeded the monthly child support the father was ordered to pay. The disability benefits were credited against the support payment due each month, but the excess was not credited against the support arrearages. (In re Marriage of Robinson, supra, 65 Cal.App.4th at p. 95.) The appellate court rejected the father’s argument that the excess benefits should have been credited against the arrearages: “We find section 4504 to be unambiguous in its directive that Social Security payments be credited against the amount ‘to be paid for that month.’ It does not authorize payments to be credited to amounts due in prior months, nor to accrued interest on those arrearages. Since the right to any credit exists only by virtue of statutory authorization, it is limited to the extent set forth in section 4504.” (Id. at p. 96.)
Addressing the father’s argument that the disability benefits “should be treated as a ‘child support payment’ and, by extension, a payment in satisfaction of a judgment for support” under the statutory scheme regarding satisfaction of money judgments (In re Marriage of Robinson, supra, 65 Cal.App.4th at p. 97), the appellate court discussed the proper characterization of Social Security disability benefits. The court explained that “although such payments are ‘support’ in the generic sense, they are not child support payments from absent parents but are ‘“insurance” benefits and are paid out of the public treasury to all applicants meeting the statutory criteria.’” (Ibid.) Since the child received the disability benefits because he met the statutory criteria and not because his father was delinquent in payment of his support obligation, the court concluded that the benefits were not received in satisfaction of a money judgment for support and therefore the statutory scheme governing how amounts paid in satisfaction of a money judgment were to be credited did not apply.
The court’s distinction between support payments and insurance benefits must be read in the context of the father’s argument in that case. As the court explained, “[W]e perceive no injustice or illogic in permitting a child’s Social Security benefits to offset current support obligations, but not arrearages. Appellant seeks to have [the son’s] current resources reduced to make up for appellant’s prior default. Requiring appellant to pay arrears merely restores [the son] to the financial position he would have been in had appellant paid the requisite amount of support prior to becoming disabled.” (In re Marriage of Robinson, supra, 65 Cal.App.4th at pp. 97-98.)
In the present case, requiring Dianne to reimburse Kenneth for the payments he made during the months she received the children’s disability benefits merely restores her to the financial position she would have been in had Kenneth received the credit required under section 4504 at the time those payments were made. We reject Dianne’s assertion that Kenneth is not entitled to reimbursement if he failed to take that credit at the time he made his support payments. There is no time limit in the statute for applying the credit, and the trial court in this case determined that equitable considerations demanded that Kenneth’s request for reimbursement be granted. We find no error in the court’s order requiring Dianne to return the overpayments Kenneth made despite his delay in requesting application of the credit under section 4504. Although it appears that the disability benefits Dianne received each month may have exceeded the amount of support Kenneth was ordered to pay, we presume -- as we must in light of the inadequate record -- that the amount the trial court ordered Dianne to repay was the amount that Kenneth paid, and not the excess disability benefits. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A judgment or order of the lower court is presumed 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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’”].)
Although there are references in the court’s ruling and in the reporter’s transcript indicating that the disability benefits were increased to $404 per month in 2002, there is no record to show what the payments were before then.
B. Calculation of Dianne’s Child Support Obligation
Dianne contends the trial court erred by using an average of the income she reported on three loan applications to determine her income for the purpose of calculating her child support obligation. Based upon the minimal record we have before us, we disagree.
In challenging a ruling on appeal, the appellant “must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court.” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
In its ruling, the trial court noted that Dianne was “unabashedly underemployed” as a part time substitute teacher for a single school district. Based upon a vocational evaluation the court had before it -- but which was not included in the record on appeal -- the court determined that Dianne could have been earning $40,000 to $45,000 annually as a teacher, and it considered imputing such an income for her during the relevant time period. But the court concluded that “[t]his is not likely to achieve a fair nor an accurate result, however, given the vastly disparate income reported by [Dianne] in loan documents[,] Income and Expense declarations, her testimony, and the earning history she acknowledged to the vocational evaluation. When the entire record is reviewed, it seemingly belies her assertions that she is only working part time and has been earning as little as she has historically claimed before this court. . . . The representations by her have been so inconsistent and baffling as to lead the court to adopt an average of the earnings she declared in those loan/refinance applications as her income for the time period the court has been requested to calculate current child support.”
The trial court’s ruling stated that Dianne’s reports of her income during the relevant period ranged from an average monthly income of $704 as reported in an November 2004 income and expense declaration to a monthly income of $8,435 as reported on a loan application a few months earlier, in May 2004. The court chose to credit the loan applications as the most accurate statement of her income, and determined that the best measure to use was an average of the incomes stated on the three applications. The record Dianne has provided on appeal regarding this issue -- two of the three loan applications and a reporter’s transcript of one of the days of the hearing -- is insufficient to demonstrate that the trial court erred in making this determination. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.)
DISPOSITION
The orders are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.