Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. SD025502, Henry J. Walsh, Judge.
Colleen McGovern, in pro. per., for Plaintiff and Appellant.
E. P. Michael Karcis, in pro. per., for Defendant and Respondent.
GILBERT, P.J.
Plaintiff Colleen McGovern appeals an order which reduced the amount of monthly child support owed by defendant Edward Paul Michael Karcis. We conclude, among other things the trial court: 1) did not err by lowering Karcis's monthly child support to $586; 2) did not abuse its discretion by denying McGovern's request for a continuance on the day of the hearing, and 3) did not err by finding that Karcis did not fraudulently convey property to avoid his support obligations. We affirm.
FACTS
Karcis and McGovern were never married. They are the parents of a young boy. Karcis was ordered to pay support for the child. At the time of the initial support order, Karcis was an attorney making a substantial income.
In 2005, Karcis was unemployed. He had a wife and two children in Massachusetts that he was supporting. He filed an Order to Show Cause (OSC) re Modification to reduce his monthly child support obligation because of his reduced income.
McGovern filed an opposition. She attached a document from Karcis's bankruptcy case, a letter from a Chapter 7 trustee asking Karcis whether he transferred assets to his wife to avoid his obligations to creditors. McGovern claimed Karcis hid assets to reduce his support obligation.
At the hearing, Karcis testified he received unemployment insurance benefits. His expenses exceeded his income He was in debt and had declared bankruptcy for protection from creditors.
The trial court found that Karcis had shown good cause for a reduction in his child support and ordered him to pay $586 a month. The court also found that Karcis had not made any fraudulent conveyances to his wife.
The Request for Continuance
At the beginning of the hearing, McGovern's counsel requested a continuance. He said he had just that day received discovery documents from Karcis and did not have time to review them. The court granted a recess to allow him time to review the documents.
DISCUSSION
I. Child Support
McGovern contends the amount of monthly child support the court awarded is too low. We disagree.
We review child support orders by determining whether the trial court abused its discretion. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928 (Cohn); In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150-1151 (Drake); In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043.) "'. . . Reversal will be ordered only if prejudicial error is found after examining the record of the proceedings below. . . .' [Citation.]" (Drake, supra, at p. 1151.)
But here McGovern has not produced a complete record. There was an evidentiary hearing, but the reporter's transcript covers only part of that proceeding. Much of the testimony presented to the trial court is not in the appellate record. McGovern did not file a settled statement. An appellant must affirmatively show error by an adequate record. A judgment is presumed correct. All presumptions are indulged to support it on matters as to which the record is silent. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 (Null).) Where the record is incomplete, we presume that the trial court's decision is supported by the missing portion of the transcript. (Ibid.; Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24.)
On the record before us, the result does not change. Karcis testified he had been unemployed since December 2005, and had been unable to find work. In addition to his son, he had a wife and two other children he supported in Massachusetts. His only income was $601 a week in unemployment insurance benefits. His monthly expenses exceeded his income. He was "overwhelmed" with credit card debt. He declared bankruptcy to seek protection from creditors. From this testimony, the trial court could reasonably infer that Karcis was in a desperate financial condition and his support obligation had to be adjusted. (Cohn, supra, 65 Cal.App.4th at p. 928.)
McGovern claims the court ignored her child care and health-related expenses when it set the amount of support. The court noted McGovern's "income has been limited" by these expenses. The reduced amount of support put McGovern in a less favorable financial position. But the court, sensitive to the child's interests, intended that the reduced award would be temporary. It said, "The amount ordered is driven by the unusual circumstances which, [Karcis] finds himself to be in. Those are not accepted as being permanent circumstances, nor should the interests of the minor be wholly dependent on respondent's self-reporting of improved circumstances." The court scheduled another hearing within four months to review Karcis's financial condition. In setting the amount of support, the court properly considered Karcis's current financial condition. (Cohn, supra, 65 Cal.App.4th at p. 931.) McGovern has not shown an abuse of discretion.
II. Denying a Continuance
McGovern contends the trial court abused its discretion by denying her request to continue the hearing so she could obtain additional discovery from Karcis. We disagree. The decision to grant or deny a continuance is a matter within the sound discretion of the trial court. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) A postponement is properly denied where the party seeking it has been dilatory. (Ring v. Smith (1970) 5 Cal.App.3d 197, 202.)
Here the court granted a recess instead of a continuance. It found that McGovern served document production requests on Karcis without allowing enough time for her to receive the documents prior to the hearing. It said she should have served her requests earlier. The record supports these findings. The hearing was on March 23. But McGovern did not file her requests for production until February 13 and February 20. Consequently, the records McGovern requested from Karcis were due only a few days before the hearing. Karcis's counsel served the requested documents by mail on March 20 from San Jose, California.
At the hearing, McGovern's counsel obtained 150 to 200 pages of records from Karcis. McGovern's lawyer said that because he had just received them, he had insufficient time to review them and the hearing should be postponed. The court asked, "[I]f I recess now and give you time to look at all this stuff, that works to your advantage, doesn't it?" McGovern's counsel said, "Certainly, I would be happy to do that . . . ." The court granted a recess to allow him to inspect the records. It reconvened after the recess and completed the hearing that same day.
At the hearing, McGovern's counsel claimed that Karcis had not produced all the records McGovern requested. But Karcis testified that he had fully complied and had produced all the documents in his possession. Karcis's counsel told the court, "I've done verified responses to everything. I have given him every single bank statement, every single thing he's asked for. We've not withheld a thing." McGovern has not shown an abuse of discretion.
III. The Finding on the Issue of Fraudulent Conveyances
McGovern contends that the court erred by finding that Karcis did not fraudulently convey property to avoid his support obligations. She claims this issue was not presented at the hearing, therefore the court could not decide it. Karcis claims this issue was raised and McGovern failed to prove that he fraudulently conveyed property.
We conclude that McGovern has waived this issue by not producing a complete record of the hearing. (Null, supra, 206 Cal.App.3d at p. 1532.) "It is a fundamental principle of appellate review that the factual findings of the trial court are presumed correct. [Citations.]" (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179 (Construction Financial).) An appellant may not challenge factual findings without an adequate record. (Ibid.)
Whether the fraudulent conveyance issue was an evidentiary issue at the hearing can only be resolved by a complete record. Because the record is incomplete, we presume that evidence in the missing portion of the reporter's transcript supports the trial court's finding. "If any matters could have been presented to the court below which would have supported its findings . . ., it will be presumed that such matters were presented. [Citation.]" (Construction Financial, supra, 53 Cal.App.4th at p. 179 [if record is incomplete reviewing court conclusively presumes the evidence was ample to sustain the trial court's findings].) Because of the state of the record, we may not speculate that the court made only a gratuitous finding. (Ibid.)
McGovern claims that the issue of fraudulent conveyances was not raised in any of the moving or responsive papers prior to hearing. We disagree. McGovern's opposition to Karcis's OSC included a bankruptcy document. It was a letter from the Chapter 7 trustee to Karcis questioning whether Karcis had made a fraudulent transfer of property to his wife for no consideration. McGovern attached this to show Karcis's OSC was "brought in bad faith" because he had conveyed property to avoid his support obligations. She also attached a letter from her counsel to Karcis's attorney which stated, "We are aware that Mr. Karcis has already hidden significant assets in his wife's name, transferring title to his property to her on two occasions by quitclaim deed."
In her opposition, McGovern also said she was incorporating "by reference" her June 2005 opposition to an earlier Karcis OSC to modify support. In that 2005 opposition, McGovern said Karcis's "property and assets are at issue in this matter . . . ." In her attached declaration, McGovern declared, "[Karcis] has transferred significant assets to his wife's name in an effort to substantiate his request for a reduction in support payments based upon his changed financial circumstances. . . . Attached . . . are true . . . copies of two Quitclaim Deeds evidencing the transfer of [Karcis's] interest in real property to his wife . . . ." Moreover, although McGovern claims she was not prepared to present evidence on the fraudulent transfer issue, she concedes that she cross-examined Karcis about the transfers. She has not shown error.
McGovern is apparently concerned the court's finding prevents her from introducing new evidence that Karcis hid assets to reduce his support. But the court in denying McGovern's motion for reconsideration carefully qualified its finding on the fraudulent conveyance issue. It said, "[T]here are no[] circumstances presently seen that would give [McGovern] any basis for alleging these transfers were fraudulent . . . ." It ruled that its order was without prejudice and that McGovern could take the deposition of Karcis's wife. The court was aware of its "inherent authority" to revaluate its rulings in the interests of justice. (Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156-1157; In re Olivia A. (1986) 181 Cal.App.3d 237, 242.)
We have reviewed McGovern's remaining contentions and conclude she has not shown reversible error.
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: YEGAN, J., COFFEE, J.