Opinion
F085907
09-30-2024
In re the Marriage of RANJEET MANN and PARDEEP SINGH MANN. v. PARDEEP SINGH MANN, Appellant. RANJEET MANN, Respondent,
Law Office of Stanley S. Ma and Stanley S. Ma for Appellant. Christine J. Levin for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 21CEFL04456. Irene A. Luna, Judge.
Law Office of Stanley S. Ma and Stanley S. Ma for Appellant.
Christine J. Levin for Respondent.
OPINION
POOCHIGIAN, J.
In this marital dissolution action, after a contested evidentiary hearing to determine appellant Pardeep Singh Mann's income, the trial court issued a ruling ordering him to pay respondent Ranjeet Mann child support, temporary spousal support, and attorney fees. On appeal, appellant argues the court lacked substantial evidence to determine his income, so the child support and temporary spousal support awards are improper. By extension, he argues the improper determination of his income invalidates the attorney fee award under Family Code section 2030. Finally, he contends the court improperly marked his income as "wages" rather than "self-employed" income in the "DissoMaster" computer program used to generate guideline child support and temporary spousal support amounts. We affirm.
All undesignated statutory references are to the Family Code.
PROCEDURAL BACKGROUND
On April 13, 2022, respondent filed a request for child support for the parties' three minor children, temporary spousal support, and attorney fees. A dispute arose between appellant and respondent as to appellant's actual income for purposes of calculating child support and temporary spousal support. Appellant claimed he earned $2,912 per month as a clerk at a convenience store and barely afforded the costs of living. Though he admitted he owned a one-third interest in the convenience store, he claimed no income from profits because the business purportedly operated at a loss. Respondent disputed the truth of appellant's representations.
The trial court consolidated this case with Fresno County Superior Court case No. 21CEFL02994.
Beginning January 19, 2023, the trial court held a contested evidentiary hearing to determine the appropriate child and temporary spousal support amounts based on appellant's income and the marital standard of living. On January 30, 2023, the court issued a written ruling finding appellant's income was $14,213 per month. The court awarded respondent (1) retroactive child and temporary spousal support totaling $4,646 per month between May 1, 2022, and November 30, 2022, and (2) ongoing child support and temporary spousal support beginning December 1, 2022, totaling $3,900 per month. The court awarded respondent $20,000 in attorney fees under section 2030.
On March 8, 2023, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Evidence of the Marital Standard of Living
Appellant and respondent married in February 2014. During their marriage, respondent worked little outside the home. She primarily cared for the couple's three children - a boy and twin girls who were six and two years old, respectively, at the time of the evidentiary hearing - and managed the household expenses.
Appellant worked as a clerk at, and owned a one-third interest in, a convenience store, which the couple, along with two other couples as partners, purchased on April 1, 2018. The couples purchased the convenience store for $627,956.30 on paper, but respondent contended, and appellant disputed, that the deal involved an additional $100,000 "under the table" loan from the prior owner, bringing the total purchase price to $727,956.30. At the time of the hearing, appellant testified he still made payments on the purchase indebtedness but produced no tangible evidence of such payments. Respondent testified the debts were entirely paid by July 2021.
During their marriage, respondent never worried about paying for any living expenses: a mortgage on a four-bedroom, two-bath home ($1,750 or $1,800), monthly payments for vehicles and luxury vehicles ($1,060), monthly payments for vehicle insurance and gas ($800), monthly grocery expenses ($1,200), monthly payments for utilities ($330), solar panels ($10,000), monthly entertainment ($300 to $400), restaurants ($300 to $400), and appellant's $3,333.25 to $4,608 monthly share of the convenience store purchase loans. Appellant's testimony indicated the couple spent, on average, $7,343.25 per month. Adding respondent's uncontested testimony about household and childcare expenses, even a conservative estimate shows the couple spent, on average, approximately $9,223.25 per month. Yet, the couple always paid off their credit cards and lacked personal debt.
The $4,608 figure was calculated by respondent's counsel based on the "three debts" related to the purchase of the convenience store.
The couple also sent money to family abroad and saved money for themselves. Though amounts were contested, the couple may have sent between $4,000 to $50,000 to other family members during their marriage. The couple also saved approximately $20,000 between April 2020 and May 2021.
Evidence of Appellant's Income
Despite the evidence of the couple's debt free, comfortable standard of living, appellant testified he grossed no more than $2,800 per month in 2021 and, on average, $2,400 per month in 2022. His income and expense declaration stated that his monthly income was $2,900 per month in 2021.
Contrary to appellant's testimony, the couple's bank records showed, on average, over $3,000 in deposits from the convenience store each month. Respondent testified that appellant received approximately $20,000 per month from the convenience store.
Appellant received a one-third share of the convenience store's profits. The parties stipulated to admit into evidence the convenience store's 2020, 2021, and 2022 bank records. They also stipulated that the convenience store's total yearly bank deposits were (1) $1,659,587.84 in 2020, (2) $1,728,984.86 in 2021, and (3) $1,698,640.86 in 2022. Later, respondent's counsel reaffirmed, and appellant's counsel did not object, that the stipulated 2020 total the convenience store deposits totaled $1,659,587.84. Appellant further testified the convenience store's profit margin was 18 to 20 percent; respondent, 33 to 35 percent.
However, appellant explained that this "profit margin" applied merely to sales revenue less stock inventory purchases. He claimed other business expenses (utilities, rent, payroll, business loan payments) always ate up any profit, resulting in a net loss and no income to the owners. However, appellant neither testified to the amount of business expenses, even on average or a best estimate, except for the utility costs and business loan payments. Regarding the business loan payments, he offered no tangible evidence to rebut respondent's testimony that all the purchase-related debts were paid off by July 2021.
Appellant testified that the convenience store incurred about $2,300 per month in utility expenses in the winter and $3,000 to $3,200 per month in the summer.
Further, appellant claimed a lack of knowledge of the convenience store's finances. He could not testify about the average daily cash received, the average weekly cash deposits, not even a "best estimate," or the average monthly credit card payments. He said he lacked this knowledge because, as he testified and his counsel admitted in closing, another part owner, his cousin, managed the convenience store's finances. Appellant did not produce utility bills, the lease, or other documentary evidence of claimed business expenses, nor did he call his uncle to testify. Though the parties agreed to admit an exhibit summarizing the convenience store's yearly debits and deposits, the summary did not explain whether the "debits" were business expenses or payments to the business partners.
The Trial Court's Ruling
The trial court, in relevant part, found the following:
"The Court found [respondent]'s testimony as to the marital standard of living, monthly household expenses, and [appellant]'s income credible. The Court finds the parties maintained an upper-middle class standard of living during the marriage, with average monthly expenses totaling $6,264.00. Both [respondent] and [appellant] testified that each of their monthly expenses and credit cards were paid in full, and they had money left over to place into a savings account. At all times during the marriage they had two vehicles, including luxury vehicles.
"The Court found [appellant]'s testimony, overall, lacked credibility, particularly with respect to his income and monthly expenses for the household and [the convenience store]. [Appellant] testified his average monthly income varied from $2,400, $2,500, $2,800, to $2,900. He expects the Court to believe he earned less than $3,000.00 per month. While the parties' personal bank statements were carefully reviewed in [appellant]'s testimony, it is clear to the Court that the monthly deposits were always over $3,000.00, and it is unreasonable for the Court to accept [appellant]'s testimony. Further, he provided no explanation for having expenses that exceeded his claimed income without incurring any debt.
"Throughout his testimony, [appellant] was unable to recall information relating to his finances, and only after the first day of trial did he provide the [convenience store's] business bank account statement to [respondent]'s attorney upon the Court's order. He testified his English was not great when questioned about the amount of the business' cash flow or expenses, however, the Court admonished him for repeatedly answering directly to opposing counsel's questions in English during testimony about the parties' personal bank statements, without waiting for the questions to be translated from English to Punjabi.
"It is clear the [the convenience store] business, of which [respondent] and [appellant] owned an equal [one-third] share with two other couples, was the primary source of the parties' income. In 2020, 2021, and 2022, the annual gross sales were over $1,650,000.00. It was [appellant]'s burden to provide evidence of the business' expenses, and he failed to do so. His tax returns and Schedule K-1 filings indicated reflected losses and [appellant] testified the business had not yet been profitable. The Court does not find it appropriate to accept this testimony or his documents as an accurate reflection of his income." (Fn. omitted.)
The court found that appellant earned $14,213 per month as follows:
"The Court has relied on [the convenience store]'s total deposits from 2021 of $1,728,984.00, applied a 20% profit margin (per [appellant]'s testimony); the Court divided this amount equally amongst the three owners for an average, accounted-for monthly income for [appellant] of $9,605.00. The Court added $4,608.00 to this amount, as [appellant]'s share of the monthly store expenses, which included paying off his share of the loan amount of $727,956.00 to acquire the business in 2018. There was no clear or reliable evidence presented as to the business' cash receipts."
The court entered this information into the "DissoMaster" program to arrive at the guideline child support and temporary spousal support awards. Though the court afforded appellant an opportunity to object to the court's written ruling, appellant challenged neither the ruling nor the "DissoMaster" report.
"DissoMaster" is a computer software program widely used by courts to set child support and temporary spousal support. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3; see Cal. Rules of Court, rule 5.275 [standards for computer software to assist in determining support].)
DISCUSSION
I. Substantial Evidence Supports the Child and Spousal Support Orders
Appellant argues the court's child support and temporary spousal support orders are unsupported by substantial evidence of his income. He contends the trial court incorrectly (1) relied on unadmitted evidence of the convenience store's gross receipts at trial, (2) attributed a 20 percent profit margin to the convenience store without considering evidence of business expenditures, and (3) attributed an additional $4,608 per month to appellant's income based on his share of the convenience store's indebtedness and business expenses. We disagree.
A. Legal Standard
The trial court may order a spouse to pay any amount necessary to support a child or the other spouse. (§§ 3600, 4001; In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326.) Child support is highly regulated. Courts must "adhere to the statewide uniform guideline and may depart from the guideline only in .. [specified] special circumstances ..." (§ 4052.) Section 4055 provides a formula for child support that, if followed, provides a presumptively correct amount. This formula factors in "annual gross income" defined as "income from whatever source derived," including but not limited to more than a dozen possible income sources. (§ 4058, subd. (a).)
Despite statutory regulation of child support calculations, "the main concern is the child's best interests.... [S]ection 4053, subdivision (a) provides that it is a parent's principal obligation 'to support his or her minor children according to the parent's circumstances and station in life,' and subdivision (f) provides that the '[c]hildren should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.'" (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1326.)
On the other hand," 'temporary spousal support "is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations." '" (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) No statutory guidelines restrict the court's determination of a temporary spousal support amount. (Ibid.) The court has very broad discretion to fix temporary spousal support in" 'any amount'" based on one spouse's need and the other's ability to pay. (Id. at p. 1327; In re Marriage of Lim &Carrasco (2013) 214 Cal.App.4th 768, 773.)
We review both child support and temporary spousal support orders for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 825; In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932.)" 'We cannot substitute our judgment for that of the trial court, but only determine if any judge reasonably could have made such an order. [Citation.] Our review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial court's conclusions.'" (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) We view the evidence most favorably in support of the court's order and affirm "if any reasonable judge could have made such an order." (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104; In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.)
B. Analysis
1. Gross Receipts
Appellant argues that the court lacked substantial evidence of the convenience store's total 2021 deposits, which it used to calculate appellant's income. We disagree.
Appellant ignores that his trial counsel's stipulation that the convenience store's 2021 total deposits totaled $1,728,984.86 is binding on appellant. California law clearly provides that a factual stipulation "is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted." (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141-142; Palmer v. City of Anaheim (2023) 90 Cal.App.5th 718, 723.) Counsel's stipulation is evidence. (See CACI No. 106 [where facts are stipulated to "[n]o other proof is needed ..."].) To claim that the court lacked "admissible evidence" of the 2021 total deposits is untrue.
Appellant's trial counsel also stipulated to the convenience store's gross receipts for 2020, totaling $1,659,587.84, and 2022, totaling $1,728,984.86. When respondent's counsel reaffirmed in closing argument that the 2020 stipulated amount was $1,659,587.84, appellant's trial counsel did not object. Appellant's counsel utilized the 2022 number in his closing argument.
To the extent appellant challenges the stipulation on appeal, he forfeited this argument by failing to object below. (Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 [" '[f]ailure to raise specific challenges in the trial court forfeits the claim on appeal' "]; Palmer v. City of Anaheim, supra, 90 Cal.App.5th at p. 723) [trial court has discretion to relieve a party from a stipulation].) Nor is such an argument persuasive where simply adding up the 2021 deposits in the bank records yields $1,874,085.28, well within a reasonable range of the stipulated amount.
2. Profit Margin
Appellant argues that the court erred in applying a 20 percent profit margin without further reducing this number by expenditures under section 4058, subdivision (a)(2). We disagree.
Section 4058 defines "annual gross income" to include "[i]ncome from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for operation of the business." (§ 4058, subd. (a)(2).)
Here, the court could not deduct expenditures because it lacked competent evidence of any expenditures. At trial, appellant relied on his testimony about the existence, not the amount, of these expenses, except for the utility expenses, for which appellant provided no evidence. But, as his counsel admitted in closing, his "testimony regarding the accounting of the business was not in detail because he [was] not in charge." His uncle maintained the finances, but appellant did not call him to testify. Unsurprisingly, the court found his testimony lacked credibility. Further, appellant produced no evidence of expenses for utilities, rent, payroll, inventory purchases, loan payments, or other business expenses to bolster his lack of knowledge about the convenience store's expenses. Thus, though appellant had the opportunity to account for these expenses, he failed to do so either through his testimony or other evidence at trial.
Without any evidence of the amount of monthly expenditures, his counsel could only guess that "we're actually coming down to a [monthly income] which is close to like $5,000 that may be left for the partners." The court was not required to accept this conclusion where appellant failed to produce evidence showing the amount of the convenience store's expenses. Nor was the court required to guess at the amount to deduct, especially where it was appellant's burden to establish any number to deduct.
Despite this, appellant argues the court should have used an exhibit summarizing the convenience store's 2020 bank records showing deposits, debits, and cash. We do not understand, nor does appellant explain, how the court could have determined business expenditures from, for example, debits totaling $143,792.42 for December 2020 given that number could have included nonbusiness expenditures like payments to the convenience store's owners. Neither was the court required to perform its own accounting of the convenience store's bank records to determine, on its own, which withdrawals were for business expenses.
Finally, appellant argues it was irrational for the court to find appellant's testimony about his expenses lacked credibility but to accept his testimony about the convenience store's 20 percent profit margin. But the "trier of fact is permitted to credit some portions of a witness's testimony, and not credit others." (People v. Williams (1992) 4 Cal.4th 354, 364.) Clearly the court found appellant's testimony not credible because he "was unable to recall information relating to his finances, and only after the first day of trial did he provide the convenience store business bank account statements ... upon the Court's order," and he failed to meet his "burden to provide evidence of the business'[s] expenses." We find the court's credibility determination reasonable and find no error in the court's use of the 20 percent profit margin in light of appellant's failure to present evidence of expenses.
3. Loan Repayments
Appellant argues the "trial court erred when it added an additional $4,608 to Appellant's monthly income based on monthly payment of store expenses and his share of a purchase amount of $727,956 to acquire [the business] in 2018." He raises two sub arguments: (1) the court erred by crediting respondent's testimony that the convenience store purchase consisted in $627,956 plus an additional $100,000 "under the table" payment, instead of his testimony that the purchase price was only $627,956, and (2) In re Marriage of Deluca (2020) 45 Cal.App.5th 184 (Deluca) requires us to remand this case for the trial court to reconsider the addition of business expenses to appellant's income. We disagree.
Appellant's counsel arrived at this figure utilizing the amortization charts for the various loans used to purchase the convenience store. However, respondent testified the monthly loan payments were even higher, totaling about $7,200 per month.
Appellant's first argument fails because it asks us to hold that the trial court erred in finding respondent's testimony more credible than his own. It is not, as appellant assumes, "clear that the $100,000.00 [respondent] was referring to was actually disclosed as an initial Buyer's deposit into escrow in the First American Company's Final Buyer's Statement Loan Summary." If there had been such an undisclosed payment, it might lack documentation, and respondent's testimony alone is sufficient to establish the fact of the payment. (Evid. Code, § 411) [the testimony of one witness is sufficient to establish any fact].) We find no reason to find the court's credibility determination irrational.
Appellant's second argument presupposes he has not forfeited his reliance on Deluca. Deluca held that the trial court has discretion to "deduct a payment [for business debt] if it finds, based on substantial evidence, that the payment reasonably and legitimately reduces the spouse's net income available for support, considering the totality of the relevant circumstances, including the extent to which the payment constitutes an ordinary and necessary business expense and whether disallowing the deduction would work a substantial hardship on the payor spouse." (Deluca, supra, 45 Cal.App.5th at p. 199, fn. omitted.)
Appellant did not raise this argument below. He had the opportunity to argue the Deluca factors, but, reviewing the record, did not. Nor did appellant avail himself of the opportunity to argue the court's tentative decision after trial. The court had no sua sponte duty to consider it. Thus, appellant forfeits any argument that the court abused its discretion by failing to apply Deluca on appeal, for the court was never prompted to exercise its discretion in the first place. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591 [arguments raised for the first time on appeal are generally forfeited].)
In other words, the trial court was never asked to exercise its discretion under Deluca. Thus, on appeal, appellant must explain whether the lack of any exercise of discretion prejudiced him: a burden he fails to carry. (Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72.) Importantly, he does not argue that a more favorable result is reasonably probable if the court were to exercise its discretion. (Ibid. [prejudice in civil cases requires showing a reasonable likelihood that appellant would receive a more favorable result absent the error].)
Though appellant argues, without explanation, that the addition to his income was a "windfall" to respondent and inflicted "hardship" on himself, he does not explain, under Deluca, why this addition "reasonably and legitimately" reduced his net income for support or why "disallowing the deduction would work a substantial hardship" on him. (Deluca, supra, 45 Cal.App.5th at p. 199, italics added.) Thus, appellant fails to demonstrate a reasonable likelihood he would receive a more favorable outcome on remand, and he forfeits his undeveloped argument on appeal. (Oak Valley Hospital Dist. v. State Dept. of Health Care Services (2020) 53 Cal.App.5th 212, 228 [undeveloped arguments are forfeited on appeal].)
Even if we addressed the merits, we find appellant's position wanting. The widely divergent testimony of the parties concerning the family's finances and the business's income owned in partnership with others, coupled with little documentary evidence in support of their positions, required the court to exercise considerable discretion in evaluating the veracity of each party's factual claims. The court clearly weighed the conflicting evidence in respondent's favor: a decision that we may not disturb on appeal.
Appellant does not explain how this decision was irrational. Though he argues the court "fail[ed] to consider payments made to business debts like inventory, the $100,000.00 initial escrow payment, and monthly payments toward the 10-year amortized loan," as well as other business expenses like utilities and rent, which "unreasonably increased Appellant's income," the trial court explained that "[i]t was [appellant]'s burden to provide evidence of the business'[s] expenses, and he failed to do so." Neither does appellant explain why the court's statement is wrong nor where in the record such evidence exists. (Nwosu v Uba (2004) 122 Cal.App.4th 1229, 1245-1246 &fn. 14 [failure to present argument with references to the record results in forfeiture of that argument].)
Although appellant argues the court should not have added the $4,608 to his income, the evidence indicated that appellant (1) no longer made any payments toward business debts because they were fully paid, and (2) when he was making those payments, he did not make the payments back to the business, but his uncle transferred the payments within the business's financial accounts.
Taken together, the trial court could reasonably infer that appellant had additional income no longer paid the purchase debts, which were paid off, and that was never counted in his "take-home" pay. In fact, the court appeared to make such an inference by adding "$4,608.00 ... as [appellant's share of the monthly store expenses, which included paying off his share of the loan amount of $727,956.00 to acquire the business in 2018." In other words, because it appears appellant's share of payments toward the purchase debts never left the business's accounts, it was reasonable for the court to infer that appellant has that money available for support.
We conclude that appellant has not shown the trial court abused its discretion by adding an additional $4,608 to his monthly income.
II. Attorney Fee Award
Appellant argues the attorney fee award is improper. The court awarded respondent attorney fees under section 2030 given "a disparity in the parties' income, and to ensure each party equal access to justice ...." Appellant contends that, because the court erred in determining his income, the court could not find the requisite disparity necessary for an attorney fee award. We disagree.
Section 2030, subdivision (a) ensures equal access to litigants in marital dissolution proceedings by authorizing attorney fee awards "based on the income and needs assessments" of the parties, "whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties." "On appeal, we review an attorney fee award under section 2030 for an abuse of discretion." (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662.)
Given we conclude the court did not err in determining appellant's income, the court's attorney fee award was not based on a miscalculated disparity between the parties' incomes. Finding no abuse of discretion, appellant raising no other ground to overturn the award, and no other cause to question the award appearing, we conclude the attorney fee award was proper.
III. Designation of Appellant's Income
Appellant argues the court erroneously entered appellant's income as "wages" instead of "self-employed" income into the "DissoMaster" computer program. We reject this argument as forfeited.
First, the record does not reflect that appellant's trial counsel objected to the entry or requested a correction. The court afforded counsel opportunity to request oral argument on its ruling. The court apparently generated the "DissoMaster" report the same day it issued its ruling, yet appellant's counsel never objected to the ruling or the report. Appellant thus forfeited this objection. (In re S.B. (2004) 32 Cal.4th 1287, 1293 ["a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court"].)
Second, appellant's argument is factually and legally undeveloped. (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 855 [a party forfeits a claim on appeal where it "fails to make a legal argument or to cite any legal authority"].) Appellant assumes without argument that his income should be designated "self-employed" income, not "wages." He neither explains how the entry prejudiced him, e.g., resulted in an incorrect calculation, nor why it was "contrary to Family Code [section] 4053." (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 [" '[o]ne cannot simply say the court erred, and leave it up to the appellate court to figure out why' "].)
We conclude appellant forfeited this argument.
DISPOSITION
The order is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR: HILL, P. J. LEVY, J.