Opinion
G063068
10-21-2024
In re the Marriage of MO and DAWN RABII. v. DAWN RABII, Respondent. MO RABII, Appellant,
Mo Rabii, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 19D008560 Thomas J. Lo, Judge. Affirmed.
Mo Rabii, in pro. per., for Appellant.
No appearance for Respondent.
OPINION
MOORE, ACTING P. J.
Appellant Mo Rabii (Mo) and respondent Dawn Rabii (Dawn) are ex-spouses who share a child together (the child). During their divorce proceeding, the family court ordered Mo to pay Dawn $785 per month in child support. Nearly two years after this order, Mo filed a request to modify child support (the RFO) based on his belief that Dawn's income had increased. Dawn's response stated she had been paying for childcare and the child's extracurricular activities by herself. She requested that the court order Mo to split these costs with her and also asked for reimbursement of past expenses.
The RFO was heard after several continuances. The court denied Mo's request to modify child support, finding there had been no material change in circumstances. It granted Dawn's request for an order splitting the extracurricular and childcare expenses between the parties and ordered Mo to pay Dawn $3,724 in arrearages. Finally, the court found Mo had brought the RFO in bad faith and ordered him to pay Dawn $2,500 in sanctions under Family Code section 271.
All further undesignated statutory references are to the Family Code.
On appeal, Mo makes several challenges to the family court's order. First, he contends the child support issue should have been determined by a child support commissioner and, accordingly, the court lacked authority to decide this issue. Second, he claims that even if the court had authority to address this issue, it abused its discretion by failing to modify child support. Third, he asserts the court included improper expenses when calculating the $3,724 arrearage payment. Finally, he claims the court improperly issued sanctions against him. We find these arguments lack merit and affirm the family court's order.
This matter was submitted for decision on September 3, 2024. On September 18, 2024, Mo submitted a request to dismiss this appeal. Once a matter is submitted, "the time has expired to file all briefs and papers." (Cal. Rules of Court, rule 8.256(d)(1).) As such, Mo's request for dismissal was untimely. Regardless, "[a]n appellant may not dismiss an appeal as a matter of right, and we have discretion not to dismiss the appeal." (Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. (2019) 33 Cal.App.5th 719, 728, fn. 10.) Even if Mo's request was timely, we would exercise our discretion to decide this appeal. Given Mo's conduct in the family court, we find it necessary to decide these issues to ensure they are not raised again in the family court or on appeal.
FACTS AND PROCEDURAL HISTORY
Mo and Dawn were married for over 8 years and had one child together. Mo petitioned to dissolve their marriage in October 2019. Each party filed expense and income declarations during the dissolution proceeding. Dawn initially filed a declaration stating she was paid $15 an hour and averaged $1,104 in wages per month and $1,093 in bonuses or commissions. However, a few months later, she filed a second income and expense declaration that listed her average total monthly wages as $2,691. The declaration noted this figure included wages, overtime, commissions, and bonuses.
The court held a hearing on custody, visitation, and child and spousal support on March 17, 2021, Judge Claudia Silbar presiding. Following the hearing, the court issued an order (the March 2021 order) requiring Mo to pay Dawn $785 a month in child support per the parties' stipulation. The order also states, "[Mo's] counsel stipulates to the figures discussed and will forego the Smith/Ostler" and that Dawn's counsel agreed to "no Smith/Ostler." (Capitalization omitted.)
Because future bonus income is variable and not guaranteed, courts can fashion a support order that requires a percentage of a spouse's future bonuses or commissions to be included in child support calculations. (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 27.) Such a calculation is commonly known as an Ostler & Smith percentage or calculation. (In re Marriage of Pletcher (2021) 68 Cal.App.5th 906, 916; In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 41.)
The court subsequently entered a partial judgment granting the parties joint legal and physical custody of the child. A DissoMaster report indicates the child would spend 42 percent of her time with Mo and the remainder of her time with Dawn. But the partial judgment states, "the parties / parents should be working toward a 50/50 schedule."
"DissoMaster is a computer software program widely used by courts to set child support and temporary spousal support." (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1578, fn. 4.)
On January 17, 2023, Mo filed the RFO asking the court to modify the existing child support and spousal support orders. Mo claimed modification was warranted because his personal expenses had increased, Dawn's pay had increased, and his custody time had increased to 50 percent.
Along with the RFO, Mo filed a new income and expense declaration stating his monthly gross income was $9,038.34 plus commissions/bonuses of $583 and $7,546.51 in expenses. Mo estimated Dawn's income to be $6,000 per month based on "change in income mentioned by [her] council [sic] + promotion."
The court held a hearing on the RFO on March 13, 2023. At the hearing, Dawn argued the matter could not go forward because Mo had not provided proper service. Dawn's counsel had requested that Mo serve him with the RFO via e-mail, but Mo refused to serve counsel and served Dawn personally through a process server. Dawn claimed Mo had done this to harass her. Regardless, by the time Mo served her counsel with the RFO, Dawn's deadline to respond had passed.
Text messages were introduced showing Mo had been told he needed to serve Dawn's counsel with the RFO. In particular, there was a text message Mo sent to Dawn, stating, "Your lawyer's harassing me for information. He needs paperwork, and I am not obligated to serve him. He keeps pressing me for documents. If you are keeping him-if you're keeping him for this, you need to serve him the papers you got." Dawn's counsel also explained he had asked Mo to send him a copy of the RFO, and Mo said something to the effect of, "I have no way [to know] that you are retained. Your client [(Dawn)] was served papers. She has the papers, and she can get them to you." Mo also repeatedly asked Dawn's counsel to show him the statute or rule requiring service to a party's counsel.
Dawn's counsel also explained to the court that he recommended to Mo that the parties continue the March 13, 2023 hearing date 20 court days to allow for timely service, but Mo refused. Counsel had then informed Mo that Dawn would contest service and request sanctions in the amount of the attorney fees incurred to prepare for the March 13, 2023 hearing. Consequently, at the hearing, Dawn's counsel asked the court to sanction Mo $375 for refusing to serve counsel and for refusing to agree to a continuance, which forced the parties to attend the hearing. The court continued the matter so Dawn could respond to the RFO, and it reserved the sanctions issue.
In early May 2023, Dawn filed an income and expense declaration stating she made $25 an hour and listing her average monthly wages as $2,297.52 plus $55.63 in overtime and $3,493.92 in bonuses and commissions. She claimed monthly expenses of $7,302. Dawn also filed a response to the RFO stating she had been paying for childcare and the child's extracurricular activities (including dance, swim lessons, and gymnastics) without any contributions from Mo. She asked the court for an order splitting these expenses between the parties and requested reimbursement for past costs.
The continued RFO hearing was scheduled for May 16, 2023. Unfortunately, the court experienced a power outage that day. Despite the power outage, the parties made appearances and provided brief updates to the court. Among other things, they noted that the Orange County Department of Child Support Services (the department) had become involved with the child support component of the case. Dawn's counsel explained the department wanted the hearing to be rescheduled so it could intervene and take over the child support issues. The parties also asked the court to rule on Mo's request to modify spousal support, among other issues. The court could not make any orders because its computer system was down, so it continued the RFO hearing to July 7, 2023.
According to Dawn's counsel, Mo informed Dawn "that his company has a big legal department, and they're going to drag things out for over a year, and he's not going to turn anything over." This led Dawn to open a case with the department in an attempt to reduce her attorney fees.
After this second continuance, the department filed a response to the RFO. It stated it was already "enforcing a related child support obligation owed to the obligee parent by the same obligor." It asserted that under section 4251, subdivision (a), "a child support commissioner shall hear all actions in which enforcement services are being provided." Thus, it objected to the child support issues in this case being heard by a judge instead of a child support commissioner, and it requested that the case be transferred.
Prior to the continued hearing, Dawn filed a supplemental declaration stating she had stepped down to a lower-paying position at work as of June 2023. As a result, her pay had decreased from $25 per hour to $18 per hour and her work hours had also decreased. She explained the change had been made "because I was working more to make less overall. I had less time with [the child], and the cost of day care, which [Mo] refuse[d] to assist with, was more than the extra amount I was earning." Dawn also filed a new income and expense declaration stating she made $18 an hour and worked about 30 to 34 hours per week.
Dawn also declared that she changed positions because Mo had refused to move their exchange time for the child from 6:00 p.m. to 6:15 p.m., forcing her to leave work early to make it to exchanges on time. In connection with the RFO, she requested an order changing the exchange time to 6:15 p.m., which the court granted.
On July 7, 2023, the court held a hearing on the RFO, Judge Thomas J. Lo presiding. During the hearing, the court asked the parties whether there was an upcoming hearing date with a child support commissioner on the child support issues. Dawn's counsel explained, there was no date because "[the department] need[s] this Court to transfer this case today." He continued, "They said you have to coordinate with the department to take it over. And then it's going to be transferred ...." The court responded, "All right. Or we can just keep it in here."
The court then found there had not been "a significant change in circumstances" that would justify decreasing Mo's child support obligations. The court did not consider Dawn's bonus income when making this determination because of the parties' prior waiver of an Ostler &Smith calculation. It reasoned, "[Dawn's] increased earning[s] from the bonuses . . . were already known at the time Judge Silbar issued the [March 2021] order, and you [(Mo)]. . . waived that consideration of the Ostler-Smith. [¶] So your request to change child support . . . is denied." Neither party objected to the court ruling on the child support request.
The court also ordered Mo to pay half the costs of the child's extracurricular activities and daycare under section 4061, and it ordered Mo to pay Dawn $3,724 in arrearages.
Finally, the court found Mo had filed the RFO in bad faith and sanctioned him $2,500 under section 271. The court explained to Mo that the March 2021 order "is clear . . . that you waived the consideration of OstlerSmith when determining the amount of child and spousal support.... And you're coming back to court, and now you want to include the bonuses or Ostler-Smith, and that has already been decided." The court found Mo's "conduct frustrates the policy of the law which includes, among other things, the reduction of cost of litigation and the encouragement of cooperation between the parties and attorneys." While Mo argued he was unable to pay the sanctions, the court found his testimony lacked credibility. It stated, "Sir, based upon everything I've heard from you and these proceedings, I don't find you credible. I don't find you believable."
DISCUSSION
Mo appeals the family court's order on four grounds. First, he argues the court lacked authority to determine the child support dispute because it should have been heard by a child support commissioner under section 4251. Second, he contends the court abused its discretion by finding there was no material change in circumstances to modify the child support order. Third, he asserts the court included improper expenses when calculating the $3,724 arrearage payment. Finally, he challenges the court's imposition of sanctions against him.
On appeal, we presume the family court's order is correct, and Mo has the burden of showing error. (Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 374.) He has not met this burden.
We note that no respondent's brief or reply brief was filed.
I.
FAMILY COURT'S AUTHORITY
Mo contends a child support commissioner was required to hear the child support issues under section 4251. As such, the court lacked authority to rule on these issues. His argument fails for procedural and substantive reasons.
Section 4251, subdivision (a), provides that "[a]ll actions or proceedings filed by a party . . . to modify or enforce a support order established by the local child support agency or for which enforcement services are being provided . . . shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances ...." These "exceptional circumstances" include, among other things, that "[t]he failure of the judge to hear the action would result in significant prejudice or delay to a party including added cost or loss of work time." (Cal. Rules of Court, rule 5.305(a)(1).) Here, the record indicates the department was providing child support enforcement services. Thus, it appears a child support commissioner should have heard the child support issues raised by the RFO unless exceptional circumstances existed.
Procedurally, though, Mo's argument fails because he did not object to the court ruling on the child support issues. Generally, a "defendant's failure to object precludes his obtaining appellate relief on the basis of the statutory error committed by the trial court." (People v. Saunders (1993) 5 Cal.4th 580, 589.) "'"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 [trial] court by some appropriate method ....[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial."'" (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) "Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, '"thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not."'" (Ibid.)
Mo does not explain why this general rule should not apply here. While he highlights the department's objection prior to the hearing, he has failed to provide any authority or argument that he may rely on that objection. We will not make these arguments for him. (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679, fn. 8.) While we recognize that Mo did not have an attorney below and is representing himself on appeal, "a party appearing in propria persona . . . 'is entitled to the same, but no greater, consideration than other litigants and attorneys.'" (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.)
Mo's argument also fails on substantive grounds. "When modifying a support order, the trial court must provide a statement of decision explaining its ruling if requested by either parent." (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248; § 3654.) "'Under the doctrine of "implied findings," when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence.'" (Ibid.)
Thus, under the doctrine of implied findings, we presume the family court found a child support commissioner was unavailable due to "exceptional circumstances." In reviewing whether this finding is supported by substantial evidence, "we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
Here, there is sufficient evidence that the court's failure to hear the child support issue at the July 7, 2023 hearing "would result in significant prejudice or delay to a party." (Cal. Rules of Court, rule 5.305(a)(1).) Mo filed the RFO on January 17, 2023. It was initially supposed to be heard on March 13, 2023. However, the matter could not be heard on that date because Mo failed to properly serve Dawn's counsel and insisted on personally serving her. So the court continued the hearing to May 16, 2023. Then, on May 16, the hearing was continued again so the department had time to intervene and because of the power outage.
By the time the court heard the RFO in July 2023, nearly six months had passed since its filing. The case had not yet been transferred to the department and there was no set hearing date with a child support commissioner. Nor was there any indication of when a potential hearing might occur. Based on these facts, the court could reasonably conclude that failing to rule on the child support issue "would result in significant . . . delay" to the parties. (Cal. Rules of Court, rule 5.305(a)(1).)
Indeed, two months earlier at the May 16, 2023 hearing, Mo had asked the court to decide the child support issues rather than waiting for a child support commissioner. Specifically, he requested that the parties come back to the courtroom later that day after power had been restored so the court could rule on child support. Mo argued that "it's been one continuance after another. And I understand this case is somehow different because [the department] is involved, but now they're being involved very late in the game ...." Mo noted the RFO had been filed in January 2023, and reasoned that "now we're into May and very late in the game. [The department] can't even say that they're 100 percent involved. [¶] "So . . . your judgment can still be very much valid, because [the department is] saying they're not even quite involved yet." (Italics added.) Mo's statements provide further support for the court's conclusion that failing to rule on the child support issues would cause a significant delay to the parties.
II.
CHILD SUPPORT ORDER
Mo argues he never waived any right to include Dawn's bonuses and commissions in the child support calculation. Further, even if he did make such a waiver, he contends there is insufficient evidence to support the court's finding that there has been no material change in circumstances. We disagree.
"Child support awards and a trial court's determination of a request for modification of child support are reviewed for abuse of discretion." (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357.) When the family court's findings regarding the amount of support are challenged, "an appellate court cannot interfere with the trial court order unless, as a matter of law, an abuse of discretion is shown. [Citations.] The power of the appellate court therefore begins and ends with the determination as to whether the trial court had any substantial evidence (whether or not contradicted) to support its conclusions. [Citation.] The appellate court should not substitute its own judgment for that of the trial court; it should determine only if any judge reasonably could have made such an order." (In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 876.)
The March 2021 order states the parties had agreed to waive any Ostler &Smith calculations. On appeal, Mo appears to argue the waiver was only meant to apply to his bonuses and commissions and not Dawn's. He notes that Dawn included her bonuses and commissions as part of the $2,691 in gross wages she claimed on her second income and expense declaration filed prior to the March 17, 2021 hearing. He also highlights that the DissoMaster report shows the court used this $2,691 figure in calculating Mo's child support obligations.
Mo's argument calls for us to review the breadth of the parties' Ostler &Smith waivers set forth in the March 2021 order. Generally, income from bonuses and commissions is volatile. An Ostler-Smith calculation provides courts with a predictable method of incorporating bonuses and commissions into a support order. (In re Marriage of Samson, supra, 197 Cal.App.4th at p. 27.) Here, the March 2021 order states Mo's counsel stipulated to "forgo the Smith/Ostler," and Dawn's counsel agreed to "no Smith/Ostler." There is no indication this waiver was only meant to apply to Mo's bonuses and commissions.
Further, in the RFO hearings, Dawn's counsel stated several times that Mo and Dawn had agreed in March 2021 that neither party's bonuses or commissions would be included in the child support calculations. Mo never corrected these statements. For example, at the May 16, 2023 hearing, Dawn's counsel represented to the court that "both parties had agreed that they would not include their commissions and bonuses." Rather, they "both agreed: Let's just deal with the base income." Mo did not contest this characterization.
At the July 7, 2023 hearing, Dawn's counsel stated that in the March 2021 order, the parties agreed "to take bonuses off the table .... Part of that agreement, which may not be apparent, is that [Dawn] was not actually making that much money. It was just what he had her at the vocational assessment ...." Again, Mo did not contest this point.
Similarly, at the July 7, 2023 hearing, the court explained to Mo that "Judge Silbar's minute order of March 17, 2021, . . . says [your] counsel stipulates to the figures discussed and will forego the Smith-Ostler. [¶] So what that means, sir, is your counsel, on your behalf, agreed not to consider the bonuses. And so now if you come back and say, I want the bonuses and commission to be considered, you've already stipulated that it wouldn't." "You waived that or agreed that it would not be considered for support, so for you to come back now and say, I want her bonuses and commission to be considered, and that is a change in circumstances, and she makes more money now, you've already waived that issue."
Significantly, Mo did not object or attempt to correct the court's characterization of the Ostler &Smith waiver. Rather, he argued, "Your Honor . . . it's a significant amount of money, and it was never really declared how significant it was . . . until I could actually see that in the last few months, when I actually saw what the W-2s were. It was almost instantaneous. These orders were from 2021. The W-2 from 2021, she made over $65,000 that year." In other words, in the family court, Mo did not deny waiving his right to include Dawn's bonuses and commissions in the child support calculation. Rather, he had second thoughts about this waiver after realizing her bonus/commission income was significant. Only then did Mo seek to include this income in the support calculations. But Mo has provided no authority that he may seek to undo his stipulation based on regret.
Mo cites a portion of In re Marriage of Henry (2005) 126 Cal.App.4th 111, 118, which states, "A parent's primary obligation is to support his or her children according to the parent's station in life and ability to pay." But he fails to explain how this quote would allow him to undo the parties' stipulation to waive an Ostler & Smith calculation.
Further, Mo has not provided a transcript from the March 17, 2021 hearing or any other evidence that the parties' waiver of Ostler &Smith only applied to his bonuses. While Dawn included her bonuses in her income and expense report filed in March 2021, this can be viewed as a windfall to Mo. The March 2021 order states the parties were waiving the Ostler &Smith calculation. And nothing in the record shows Mo ever claimed below that the parties' Ostler &Smith waiver only applied to his income. Instead, it appears he developed this theory for the first time on appeal. His argument fails for this reason as well. (People v. Graham (2024) 102 Cal.App.5th 787, 798 ["'It is axiomatic that arguments not raised in the trial court are forfeited on appeal'"].) Simply put, Mo has not met his burden of showing error in the family court's ruling.
Next, Mo argues that even if he waived inclusion of Dawn's bonuses and commissions in the child support calculation, the court's finding that there was no material change in circumstances is not supported by substantial evidence. Specifically, he notes Dawn's monthly income in 2021 was $2,691. He then asserts her income - not including bonuses and commissions - had increased by 38 percent to $3,735 per month by the July 2023 hearing. He claims this 38 percent increase in income is a material change in circumstances.
However, Mo's calculation of Dawn's income is misleading. Mo calculated a $3,735 per month income by taking Dawn's year-to-date earnings of $20,540.56 as of June 1, 2023, and dividing it by 5.5 months. As set forth above, though, Dawn submitted a supplemental declaration stating she had stepped down from a higher paying position. As a result, beginning in June 2023, her pay decreased from $25 per hour to $18 per hour and her work hours also decreased. Mo's calculation uses Dawn's income prior to June 2023, which was based on a higher hourly wage.
The paystubs in the record also support Dawn's statement that her wages decreased following her position change in June 2023. Dawn's paystub for the pay period from June 1 through 15, 2023, after she changed positions, shows she made $1,222.56 in regular wages (roughly $2,445.12 a month) for 67.92 hours of work. A paystub from March 1 through 15, 2023, before she changed positions, shows she made $1,612.50 in regular wages for 64.50 hours of work (roughly $3,225 a month), or about 31.9 percent more than her June 2023 wages. Likewise, a paystub from February 16 through 28, 2023, shows she made $1,729.50 (roughly $3,459 a month) in regular wages for 69.18 hours of work, about 41.5 percent more than her June 2023 wages. This evidence demonstrates that Dawn lost a substantial portion of her income after changing positions, undercutting Mo's argument that her base income has substantially increased since March 2021.
III.
EXTRACURRICULAR AND CHILDCARE COSTS
The court ordered Mo to pay 50 percent of extracurricular activities and childcare costs under section 4061, and it ordered Mo to pay Dawn $3,724 in arrearages. Mo challenges the amount of the arrearage payment, arguing it improperly included expenses Dawn incurred prior to the RFO's filing.
Generally, "a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (§ 3651, subd. (c)(1).) "An order modifying . . . 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 to any subsequent date ...." (§ 3653, subd. (a).) "'The filing date [of the modification request], in other words, establishes the outermost limit of retroactivity.'" (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 26.) "A court order modifying support retroactive to any time period before the filing date of a modification motion . . . violate[s] the governing statutory scheme. Such an act, moreover, would be in excess of the court's jurisdiction." (Ibid.)
Here, Mo filed the RFO on January 17, 2023. Thus, the court could not order retroactive payments for extracurricular activities and childcare costs incurred prior to this date. (§ 3651, subd. (c)(1); § 3653, subd. (a).) But Mo has not identified any error in the court's calculation. As he acknowledges in his opening brief, "[t]here was no date stated for the ordered retroactivity and there were no exhibits taken into evidence on July 7, 2023, proving those expenses or the dates they were incurred, so it is impossible to determine how the 'arrearages' were determined and exactly how far back they go." (Italics added.)
Mo suggests the court's order can only be made retroactive to May 4, 2023, when Dawn filed her response to the RFO that requested reimbursement for childcare and extracurricular activities. He provides no argument in support of this contention, and we will not make the argument for him. (City of Riverside v. Horspool, supra, 223 Cal.App.4th at p. 679, fn. 8.)
Ambiguity is insufficient to reverse an order. As set forth above, we presume the court's order is correct and Mo has the burden to show error. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Further, under the doctrine of implied findings, we presume "the trial court made all factual findings necessary to support the judgment" for which there is substantial evidence. (Ibid.)
Mo does not argue there is insufficient evidence in the record to support the court's calculation of the arrearage payment. Rather, he only claims that "[f]rom the testimony, it appears the court considered the add-ons more than a year prior to the hearing date." (Italics added.) But he has not cited any of this testimony, let alone explained how it supports his theory. As such, Mo has failed to meet his burden of showing error. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 ["'[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record'"].)
Mo does cite portions of the record showing Dawn filed documents in response to the RFO, which included childcare and extracurricular expenses incurred prior to January 2023. But it is unclear whether the court incorporated these expenses when calculating the arrearage payment, and Mo has not provided any reasoned explanation as to why he believes they were included. Absent any evidence to the contrary, "[w]e presume the trial court knew and properly applied the law ...." (McDermott Will &Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103.) Thus, given the lack of contrary evidence, we must presume the court followed the applicable law when calculating the arrearage payment and did not include any expenses that predated the RFO's filing.
IV.
SANCTIONS
Finally, Mo challenges the sanctions imposed against him on three different grounds: (1) he was not given proper notice and an opportunity to be heard; (2) there was insufficient evidence the RFO was brought in bad faith; and (3) the court failed to consider his ability to pay the sanctions. We find the court acted within its discretion. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 [sanction awards are reviewed under the abuse of discretion standard].)
As to Mo's first contention, due process requires "notice, an opportunity to respond, and a hearing." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.) "When sanctions are at issue, due process can be satisfied if the court gives a clear warning identifying the anticipated grounds for the sanctions or if those grounds are identified by the opposing party, and the court provides counsel with an opportunity to respond at least orally." (Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 631-632, italics added.) These requirements have been met here.
Mo had adequate notice of the conduct underlying the sanction request. Dawn first moved for sanctions at the March 13, 2023 hearing. Her counsel represented that Mo's actions had wasted counsel's time and increased Dawn's attorney fees, including (1) Mo's refusal to serve counsel, (2) his numerous argumentative e-mails to counsel, and (3) his refusal to continue the hearing to allow for timely service of the RFO. Further, at the July 7, 2023 hearing, Dawn and her counsel described the extra work created by Mo's conduct in this litigation and asked the court to sanction him $2,500, representing about six hours of attorney fees.
The court also gave Mo an opportunity to respond to Dawn's sanction request. At the July 7, 2023 hearing, he attempted to explain his conduct and argued against the imposition of sanctions. But the court did not find him credible. It explained, "Your demeanor, the way you answer questions, the evidence is inconsistent based upon what [Dawn] has presented and what [Dawn] has said, based upon what [Dawn's] Counsel has said; it just is not adding up, everything you say."
As to Mo's second contention, the family court could reasonably find he brought the RFO in bad faith. As set forth above, Mo waived the right to include Dawn's bonuses and commissions in the child support calculations. He failed to present evidence to the family court that the parties' Ostler &Smith waiver only applied to his bonuses or commissions. Indeed, at the July 7, 2023 hearing, he seemingly admitted to waiving inclusion of Dawn's bonuses in the child support calculations but stated he had second thoughts when he realized how significant it was. Based on this conduct, along with the other evidence concerning his behavior set forth above, the court could reasonably conclude Mo had filed the RFO in bad faith.
As to Mo's final argument, the record shows the court considered the income and expense declaration he filed on January 17, 2023, and concluded he was able to pay $2,500 in sanctions. While Mo claimed he was unable to pay this amount, the court expressly stated it did not believe his testimony. We do not reweigh the evidence or review the court's credibility findings on appeal. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
Additionally, there was evidence in the record indicating Mo's claimed expenses were inflated or self-inflicted. For example, he claimed expenses of $1,965 for daycare (it is unclear from the record what timeframe this payment covered). When asked by the court if he had receipts for this expense, he explained that he made payments via PayPal to an "individual." When pressed by the court to identify the daycare, he admitted "[i]t's in my house, so I pay for my mother's time to come [over and watch the child] ...." Mo also claimed to have incurred $4,395.61 in one year for the child to attend preschool. However, it was revealed that Mo paid for the child to attend preschool three days a week, but the child was only attending preschool once or twice a week. Given these revelations, the court could reasonably conclude Mo's expenses were less than the amount claimed and disbelieve his assertion that he was unable to pay the sanctions.
DISPOSITION
We affirm the family court's order. To the extent Dawn incurred any costs in this appeal, she is entitled to reimbursement of these costs from Mo.
WE CONCUR: GOETHALS, J. GOODING, J.