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In re Marriage of Valdez

California Court of Appeals, First District, Fourth Division
Mar 28, 2008
No. A118713 (Cal. Ct. App. Mar. 28, 2008)

Opinion


In re the Marriage of KAREN M. VALDEZ and NORMAN J. VALDEZ, JR. KAREN M. VALDEZ, Respondent, v. NORMAN J. VALDEZ, JR., Appellant. A118713 California Court of Appeal, First District, Fourth Division March 28, 2008

NOT TO BE PUBLISHED

Lake County Super. Ct. No. FL201585

Sepulveda, J.

In proceedings following dissolution of marriage, Norman J. Valdez, Jr. (Norman) appeals, in propria persona, from the trial court’s order denying modification of child support. We affirm the order.

Given the parties’ shared last name, we refer to them by their first names to avoid confusion.

I. facts

The parties married on May 10, 1991, and have four minor children. The couple separated in late 2003, and Karen M. Valdez (Karen) filed a petition for dissolution of the marriage on February 28, 2005. Judgment of dissolution was entered April 14, 2006. The court awarded physical custody of the children to Karen, with visitation by Norman, and fixed monthly child support by Norman. Property division issues were reserved, and judgment on those reserved issues was entered on July 21, 2006. Norman appealed the judgment dividing marital property, and we affirmed. (In re Marriage of Valdez (Sept. 26, 2007, A114846) [nonpub. opn.].)

The separate issue of child support is the subject of the present appeal. This appeal concerns denial of Norman’s January 2007 motion to modify child support. An overview of child support proceedings predating that modification motion is helpful to an understanding of the case.

In January 2004, during separation and before court involvement, the parties stipulated that Norman would pay $2,000 monthly in child support. That obligation continued until April 2005, when the court ordered Norman to pay $1,973 monthly, based on an active duty military salary of $5,230 monthly.

In October 2005, Norman filed a motion for modification of child support after he left active duty. Norman stated that he earned about $1,200 monthly as a part-time construction employee, working 25 hours a week for $12 an hour. Norman was also, at that time, on reserve status in the Army National Guard. The court concluded, from documents not provided to us, that Norman earned $495 monthly from his military service.

Norman did not include his October 2005 modification motion and income declaration in the record on appeal.

At hearings on the 2005 modification motion, the trial court agreed that Norman was entitled to a reduction in child support from the amount awarded when Norman was on active duty. However, the court said it was disinclined to set child support based on Norman’s part-time employment, and questioned his claimed inability to work a full-time schedule. Norman stated that construction work slows down in winter, and that his employer “doesn’t really care to work that much.” Norman also said his left hand and wrist start to hurt after about four or five hours of working, from an injury he suffered in the Iraq war. Yet, earlier in the hearing, Norman admitted that he was released from a military rehabilitation program and returned to reserve status because he had recovered 96 percent grip strength in his hand and had a range of motion greater than his pre-injury condition. When the court confronted Norman with this apparent inconsistency, Norman explained that he loses grip strength and experiences numbness in his left hand with repetition, and that his pain increases in the winter. Norman is right-handed.

After a recess in the hearing to allow settlement discussions, Norman suggested that child support could be based on an assumption that he work full time from spring to fall and 35 hours a week in the winter, at the rate of $12 an hour. The parties also discussed Karen’s offer to set child support at $800 monthly, subject to agreement on certain property issues. No agreement was reached on those issues, and the proposed stipulation was abandoned.

On April 19, 2006, the court issued an order granting Norman’s modification motion, in part. The court reduced monthly child support from $1,973 to $1,214, effective November 1, 2005. The court found: Norman “has the present ability to perform full time work grossing $2,167 per month (40 hours per week times $12.50 per hour) plus $495 for inactive [N]ational [G]uard status,” for a total monthly income of $2,662. In imputing income to Norman, the court noted that Karen managed to work full time (about 45 hours a week) while caring for the parties’ four children. The court set child support pursuant to statutory guidelines: $964 in base support, plus $250 for health insurance premiums.

Within a week of the court’s order, on April 25, 2006, Norman filed an application for an order to show cause repeating his requests for modified child support and other relief sought in earlier proceedings. The court denied the application, commenting that “Family Law and other matters are not supposed to be re-litigated every three months.” A month later, on May 24, 2006, Norman again filed a motion for modification of child support. About a week later, on May 31, 2006, Norman also filed an application for an order to show cause repeating his request for reduced child support. The court denied the application, noting that the same issue was presented in the pending modification motion. The court considered, and denied, Norman’s modification motion in August 2006, finding no material change in circumstances.

Over the years, Norman has failed to meet his child support obligations. Norman did not pay the amount he agreed to pay under the parties’ separation agreement on the ground that Karen “breached” the agreement by making excessive withdrawals from the parties’ joint bank account—a claim rejected by the trial court when the matter was eventually litigated. Norman also unilaterally reduced his court-ordered child support payments—despite the court cautioning him to make the payments unless and until modified by court action. The court conducted a hearing to determine the amount of child support arrears from December 2003 through June 2006, and assessed the amount at $14,326. The court referred the matter to the Lake County Department of Child Support Services (County), which intervened in the action to enforce the child support orders. (Fam. Code, § 17400, subd. (a) [all further section references are to this code].)

We now come to the modification motion at issue here. On January 19, 2007, Norman filed a motion for modification of child support. Norman has not included the modification motion or supporting income declaration in the record on appeal, so we have nothing but the reporter’s transcript of the hearing to suggest the grounds for the motion. On August 10, 2007, the trial court denied Norman’s modification motion “due to lack of sufficient evidence of change of circumstances.” The trial court also indicated at the hearing that it was sanctioning Norman for making repetitive, unfounded motions that showed “a long pattern of basically vindictiveness,” and set the amount at $105 to reimburse Karen’s lost wages for time spent at the hearing. The court said that the $105 sanction “is considered by the Court to be part and parcel of child support.” However, the written order on child support following the hearing makes no mention of the sanction.

Norman timely appealed the August 2007 order denying modification of child support. The County, as intervenor, shares Norman’s position on appeal in arguing that the trial court erred in a number of particulars. Norman and the County both fail to recognize that these claimed errors are beyond our purview, given the gross inadequacy of the record presented to us on appeal.

II. discussion

“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.) These rules are not mere technicalities but reflect the proper balance between the roles of the trial and appellate courts. Trial court rulings are presumed correct, and an appellate court cannot overturn a challenged ruling absent an affirmative demonstration of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) It is Norman’s responsibility, as the party challenging a court order, to provide an adequate record to assess error. (Id. at pp. 1140-1141; In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499.) He has failed in that responsibility.

The appellate review of any motion for modification of child support requires a comparison of the circumstances existing at the time of the previous order with current circumstances, to determine if there has been a material change in circumstances. (Petersen v. Petersen (1972) 24 Cal.App.3d 201, 206.) The documents Norman designated for inclusion in the clerk’s transcripts, from this and the previous appeal, do not include critical documents necessary for that comparison. The most serious deficiency in the record is Norman’s omission of his motion for modification. Without the motion, we have no statement of the alleged material change in circumstances as the matter was presented in the trial court. Norman also failed to include his income and expense declaration, or any other supporting materials that may have been filed with the motion. We cannot review an order denying a motion without seeing the motion.

The various arguments presented on appeal cannot be resolved on the record presented. For example, Norman argues that the trial court should have considered his employment as a hotel guest room attendant, earning $1,486 monthly, as a change in circumstances from the time of the prior order when Norman was a part-time construction worker and the court imputed full time wages of $2,167. Norman, and the County, contend that the court misconstrued its prior determination of Norman’s earning capacity as a conclusive “rule of the case,” and failed to assess whether Norman’s recent employment was a material change of circumstances. (See Clemente v. State of California (1985) 40 Cal.3d 202, 211 [law of the case doctrine limited to legal principles stated on appeal]; In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556 [child support orders modifiable for changed factual circumstances].) Norman and the County also contend that the court erred in failing to consider that Norman’s new marriage in May 2006 increased his expenses by raising his tax liability. (See County of Tulare v. Campbell (1996) 50 Cal.App.4th 847, 850-856 [section 4059 requires using new spouse’s income to compute taxes, despite section 4057.5’s general prohibition against using such income in calculating child support].)

These contentions cannot be addressed on this appeal. The record does not contain the motion so we have no way to ascertain that these alleged changes in circumstances were properly presented in a noticed motion. Also, the only indication of Norman’s alleged new employment and rate of pay is an oral comment by County counsel during the hearing. The record contains no income and expense declaration to support this claimed change in employment, nor the claim of increased tax liability. The appellate record also omits responsive papers that the court docket shows were filed by Karen and the County, and this omission dooms Norman’s additional argument that sanctions were imposed without notice. While it seems from the reporter’s transcript that sanctions had not been requested before the hearing, we cannot determine this fact without reviewing the responsive papers.

The only argument cognizable on appeal, given the inadequacy of the record, is the County’s claim that the trial court erred in stating that the court considered the sanctions “to be part and parcel of child support.” The argument has merit. (See Boutte v. Nears (1996) 50 Cal.App.4th 162, 165-167 [court may not characterize fee award as child support].) But the court’s verbal statement did not establish an effective child support order. The written order following the hearing was intended as the final and formal order of the court concerning child support, and the written order did not implement the challenged court comment. The written order states that “[a]ll orders previously made in this action remain in full force and effect except as specifically modified,” and there is no modification including sanctions in the previous child support orders. No corrective action is necessary on appeal.

III. disposition

The August 10, 2007 order denying modification of child support is affirmed.

We concur: Reardon, Acting P. J., Rivera, J.


Summaries of

In re Marriage of Valdez

California Court of Appeals, First District, Fourth Division
Mar 28, 2008
No. A118713 (Cal. Ct. App. Mar. 28, 2008)
Case details for

In re Marriage of Valdez

Case Details

Full title:KAREN M. VALDEZ, Respondent, v. NORMAN J. VALDEZ, JR., Appellant.

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 28, 2008

Citations

No. A118713 (Cal. Ct. App. Mar. 28, 2008)