Opinion
B290796
02-18-2020
K.A., Petitioner and Respondent, v. R.J., Respondent and Appellant.
Gordon Lawyers and Errol J. Gordon for Respondent and Appellant. L. Bishop Austin & Associates, L. Bishop Austin and Travis McKinley Poteat for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YF002076) APPEAL from an order of the Superior Court of Los Angeles County. Laura Streimer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 24.) Affirmed. Gordon Lawyers and Errol J. Gordon for Respondent and Appellant. L. Bishop Austin & Associates, L. Bishop Austin and Travis McKinley Poteat for Petitioner and Respondent.
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Appellant R.J. (Father) sought an order giving him credit for child support payments to K.A. (Mother), the mother of his child. Following an evidentiary hearing, the court gave Father credit for only a handful of the payments he claimed to have made. On appeal, Father contends the court applied the wrong standard of proof, failed to shift the burden of proof to Mother, and made various other errors. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, Father was ordered to pay Mother child support for their daughter. More than a decade later, in 2015, the parties stipulated, without prejudice, to arrears totaling $99,211. Two years later, Father filed a request for order determining arrears, claiming he made payments to Mother for which he had not received credit.
This was Father's second request for order determining arrears. The first request resulted in an order by a commissioner that was vacated due to "irregularities" in the hearing process.
At the evidentiary hearing, Father testified he generally paid child support each month between 2002 and 2010, although he had missed a few payments. He introduced into evidence photocopies of numerous personal checks, cashier checks, and money orders he purportedly delivered to Mother for child support. Two personal checks and eleven money orders had been endorsed by Mother. The remaining checks and money orders did not display endorsements, apparently because Father made the photocopies before delivering them.
The money orders bearing endorsements were produced by Western Union in response to a subpoena.
Father attempted to correlate the checks and money orders to deposit records for Mother's bank accounts. A handful of checks and money orders closely corresponded with the dates and amounts of deposits. The connections between others, however, were less apparent. For example, Father argued a single deposit of $5,785 in August 2004 corresponded to 10 separate child support payments of $599 made between June 2003 and March 2004.
Mother did not contest that she received the personal checks and money orders bearing her signature. She insisted, however, she had not received the other payments. According to Mother, when she received a money order from Father, she always deposited it into her bank account. She did not cash any of the money orders. Mother had previously submitted several declarations detailing the missing support payments, parts of which were inconsistent with her testimony at the hearing.
At the conclusion of the hearing, the court noted the documentary evidence was crucial because it found Mother's and Father's testimony to be credible. The court suggested, however, that it did not find conclusive Father's photocopies of non-endorsed checks and money orders given the possibility he altered the images or simply did not deliver them to Mother. Given Mother's credible testimony that she deposited all money orders in her bank account, the court indicated it was inclined to give Father credit only for payments he was able to correlate with the bank records.
In its final order, the court gave Father credit for the endorsed money orders and checks bearing Mother's signature. It also gave him credit for seven payments where a check or money order closely corresponded to a deposit in Mother's bank accounts. The court denied Father's other claims for credit against child support arrears.
Father timely appealed.
DISCUSSION
I. The Court Applied the Correct Standard of Proof
Father contends the trial court applied the wrong standard of proof. We disagree.
Contrary to Mother's argument, we may review whether the trial court applied the correct standard of proof. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 676.)
The court expressly stated at the hearing that Father had to prove his claims by a preponderance of the evidence, which Father agrees was the correct standard of proof. Despite this, he insists the court made several other statements that "unequivocally" show it applied a higher standard. Specifically, he points to the court's statements that it found both parties' testimony credible, Father had not established that Mother signed the money orders or that they were processed by her bank, and a commissioner had previously found Father's documentary evidence not credible. Precisely how these statements demonstrate that the court applied the wrong standard of proof is not self-evident, and Father's briefing offers no help in that regard. His failure to provide any cogent analysis, coupled with the court's explicit statement at the hearing, is fatal to his claim.
Father argues in passing the court's reference to the commissioner's findings is itself error given those findings had been vacated. It does not appear, however, that the court's order was in any way premised on the commissioner's findings. Rather, the court was simply remarking that its decision to give Father's documentary evidence little weight was consistent with the prior order.
Father next asserts the court erred in requiring he correlate the alleged payments with deposits into Mother's bank accounts. According to Father, such an additional step was unnecessary given the strength of his evidence and inconsistencies in Mother's testimony. This additional step, Father asserts, effectively required he prove beyond a reasonable doubt that Mother received the payments. Once again, we are unpersuaded.
Although not expressed in these terms, Father is essentially arguing that his evidence was so strong, and Mother's evidence so weak, the only way the court could have ruled against him is if it applied the wrong standard of proof. This is nothing more than a thinly disguised attempt to have us reweigh the evidence. It is the exclusive province of the trial court, however, "to assess the credibility of the various witnesses [and] to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Accordingly, we refuse Father's invitation to reweigh the evidence and reject his derivative claim that the trial court applied the wrong standard of proof.
II. The Court Was Not Required to Shift the Burden of Proof
Father next insists the trial court erred in failing to shift the burden of proof to Mother. According to Father, once he made a prima facie showing of the payments, the burden should have shifted to Mother to prove she did not receive them. We are not convinced.
Contrary to Mother's argument, we may review whether the trial court properly allocated the burden of proof. (See In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1267.)
Evidence Code section 500 states the general rule that "a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." This rule, however, is not absolute. In determining whether to deviate from it, courts consider (1) the knowledge of the parties concerning the particular fact, (2) the availability of the evidence to the parties, (3) the most desirable result in terms of public policy in the absence of proof of the particular fact, and (4) the probability of the existence or nonexistence of the fact. (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193.) How to allocate the burden of proof is ultimately a question of fairness and policy. (Adams v. Murakami (1991) 54 Cal.3d 105, 119; In re Marriage of Prentis-Margulis & Margulis, supra, 198 Cal.App.4th at p. 1268.)
Father insists the trial court should have deviated from the general rule articulated in Evidence Code section 500 and placed the burden on Mother to prove non-payment because (1) she gave prior inconsistent statements; (2) her testimony was based on her "recollection"; and (3) she had access and control over the deposits into her checking account. Of these facts, only the third is even remotely relevant to the proper allocation of the burden of proof. Even then, Father fails to identify precisely what evidence was available to Mother that was not available to him.
Father also overlooks that the lack of evidence supporting his claims was largely his own fault. As the trial court noted, Father could have taken steps to ensure he obtained proof of payment, such as requiring Mother's signature upon delivery of the payments. Alternatively, he could have made the payments using personal checks so that he received a copy of the cancelled checks showing Mother's endorsement. The trial court, in fact, gave Father credit for payments for which he was able to produce such evidence. It was only because Father did not take similar steps with respect to all the payments that he had to resort to correlating the payments with deposits into Mother's accounts. Mother should not bear the burden of proof simply because Father neglected to obtain adequate proof of payment.
In re Marriage of Prentis-Margulis & Margulis, supra, 198 Cal.App.4th 1252, upon which Father briefly relies, is inapposite. In that case, the court articulated a rule that in a marital dissolution proceeding to divide the community property, once the nonmanaging spouse offers prima facie evidence that community assets of a certain value have disappeared while in the control of the managing spouse postseparation, the managing spouse has the burden of proof to account for the missing assets. The court explained that such a rule is supported by "general case law explaining the circumstances and equitable principles that justify shifting the burden of proof, Family Code provisions that impose fiduciary duties of disclosure and accounting on spouses, and family law cases addressing the problem of missing community assets." (Id. at p. 1267.) Here, Father provides no similar support for his proposed rule.
We further reject Father's contention that Mother bore the burden of proof because the payments in 2009 and 2010 gave rise to a presumption that he made all previous payments. In support, he relies on Evidence Code section 636, which states, "The payment of earlier rent or installments is presumed from a receipt for later rent or installments." Father, however, provides no authority or analysis demonstrating that child support payments are governed by Evidence Code section 636. This alone is reason enough to reject his claim. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when an appellant raises a point "but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
Father erroneously refers to Evidence Code section 636 as Evidence Code section 363.
Even assuming Evidence Code section 636 applies, Father's claim still lacks merit. Contrary to Father's suggestions, the presumption only affects the burden of production; it does not impact the burden of proof. (Evid. Code, § 630.) Therefore, even if an Evidence Code section 636 presumption arose, the burden of proof remained with Father.
To the extent Father is claiming Mother failed to produce sufficient evidence to meet any burden of production, he is also mistaken. "The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." (Evid. Code, § 604.) Mother's testimony that she did not receive the payments was more than enough to overcome any presumption affecting the burden of production, including a presumption arising under Evidence Code section 636.
III. Father's Remaining Claims Lack Merit
Father contends the trial court was required to find in his favor because the record contains no evidence refuting or rebutting his evidence. Not so. Mother testified she did not receive most of the payments Father claimed to have made, which directly refuted much of his evidence. Father's insistence that Mother's testimony was insufficient because it was "based upon [her] best recollection" is absurd. All truthful non-opinion testimony is based upon the witness's best recollection.
Father next points to various factual errors in the trial court's minute order, which he contends "demonstrate[] that the court had no credible basis to disregard or discount [his] testimony and evidence." Specifically, he complains that the court gave the wrong date for when the County began enforcing support, mistakenly stated he had been found in contempt, and erroneously referred to a prior arrears determination as being "with prejudice." He fails to explain, however, how these purported errors were prejudicial. Accordingly, he has not met his burden of establishing reversible error. (See Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1076 ["Because the trial court's judgment is presumed correct, [the appellant] has the burden of establishing reversible error."].)
In his reply brief, Father contends the trial court's order was not supported by substantial evidence and the court abused its discretion by relying on irrelevant and erroneous evidence and failing to consider all the evidence presented at the hearing. To the extent the arguments were not sufficiently raised in the opening brief, they are untimely and we decline to consider them. (WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7 ["Arguments raised for the first time in the reply brief are untimely and may be disregarded."].) Moreover, to the extent Father purports to raise other issues on appeal, we deem them forfeited by his failure to support them with cogent analysis and citation to relevant legal authority. (See Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785; Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; People v. DeSantis (1992) 2 Cal.4th 1198, 1240, fn. 18.) --------
DISPOSITION
The order is affirmed. K.A. is awarded costs on appeal.
BIGELOW, P.J. WE CONCUR:
GRIMES, J.
WILEY, J.