Opinion
E065264
11-09-2017
In re the Marriage of MICHAEL and LUCY McINTOSH. MICHAEL McINTOSH, Respondent, v. LUCY McINTOSH, Appellant.
Lucy Alvites McIntosh, Appellant in pro. per. Law Offices of Miles & Hatcher, Cornell L. Hatcher and Brian C. Miles for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FAMSS1203575) OPINION APPEAL from the Superior Court of San Bernardino County. Michael J. Torchia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Lucy Alvites McIntosh, Appellant in pro. per. Law Offices of Miles & Hatcher, Cornell L. Hatcher and Brian C. Miles for Respondent.
Michael and Lucy McIntosh were married for nearly 30 years. In 2012, after an angry incident in which each of them claims the other got physical by shoving them, they separated, and Michael filed this divorce proceeding. Initially, the trial court ordered Lucy to pay spousal support. In 2015, however, after a trial, it reduced spousal support to zero, and it made the reduction retroactive to 2014.
Lucy appeals; she contends that, because Michael committed domestic violence against her, the trial court should have made the reduction retroactive to 2012, so that Michael would have to repay all of the spousal support that he received.
We will hold that the trial court properly took into account the evidence of domestic violence, along with all of the other applicable factors, in deciding to make the reduction of spousal support retroactive to 2014. Thus, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Preliminarily, we explain what facts we can and cannot consider.
The trial court rendered a detailed written ruling, including extensive findings of fact. Neither party has claimed that any of its findings lacked evidentiary support. Moreover, Lucy has not provided us with a complete record; she has given us a reporter's transcript of the first day of trial, but not of the second day (when there was no court reporter). "It is fundamental that an order is presumed correct, and the burden of affirmatively demonstrating error is on the appellant. [Citation.] This places on appellant the burden to provide an adequate record on appeal to allow the reviewing court to assess the purported error [citation], and if the record on appeal does not contain all of the documents or other evidence considered by the trial court, a reviewing court will 'decline to find error on a silent record, and thus infer that substantial evidence' supports the trial court's findings. [Citation.]" (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434, fn. 9.) We therefore accept all of the trial court's factual findings as true and correct.
Meanwhile, Lucy's brief makes numerous factual assertions. However, with a few minor exceptions, she does not cite them to the record (see Cal. Rules of Court, rule 8.204(a)(1)(C)); indeed, she could not do so, because the record does not support them. Accordingly, we cannot accept them as true. (Lee v. Rich (2016) 6 Cal.App.5th 270, 273.)
The record, when viewed in this light, shows the following.
Lucy and Michael were married in 1983. Michael suffers from schizophrenia and/or bipolar disorder. As a result, he was unable to hold down a job. Lucy was the family breadwinner. She worked as a pharmacist.
In April 2012, during a "loud" verbal exchange between the two, Lucy called 911. Lucy claims that Michael then grabbed her, "bang[ed]" her up against a bureau, and shoved her down. Michael denies using any force; rather, he claims that Lucy pushed him and broke his glasses.
The parties separated. Michael was arrested and charged with spousal battery; he pleaded guilty to disturbing the peace. Lucy obtained a restraining order against Michael.
In July 2012, Michael filed this divorce proceeding. In August 2012, the trial court ordered Lucy to pay spousal support of $982 a month, effective on August 1, 2012.
Through most of the divorce proceeding, Lucy worked only part-time. Sometime before trial, however, she stopped working entirely, asserting that she had become disabled. In February 2014, she filed a request for an order terminating spousal support.
In October 2015, the court held a trial on a number of issues, including permanent spousal support. In November 2015, it issued its ruling.
With regard to whether Lucy was disabled, it found that "[s]he suffers from back, neck and hip ailments. . . . Although [Michael] has cast doubt on her condition, he has presented no evidence that she . . . has the ability to continue working. Moreover, as she is 64 years old, it is quite dubious she would be able to locate meaningful employment."
With regard to whether either spouse had committed domestic violence, it found: "The evidence [of domestic violence] was sketchy and somewhat ambiguous. However, . . . [Michael] was arrested and charged with battery on a spouse. Although he eventually entered a plea to disturbing the peace, he spent 10 days in jail, and was placed on two years' probation. Hence, while not a conviction of . . . domestic violence, it is at least tangential evidence of a violent confrontation."
After considering the controlling factors, as set forth in Family Code section 4320, it set spousal support at zero, effective October 29, 2014 (the date when the matter had been originally set for trial, before it was repeatedly continued, at Michael's request).
It awarded each party any bank accounts and any vehicles that were in that party's name. It gave Lucy 60 days to make an offer to buy the family house, but it ordered that, if she failed to do so, it must be listed for sale; it reserved jurisdiction to divide the net proceeds. It also reserved jurisdiction "over any community debt, whether outstanding or paid, and over any credits to the parties for the satisfaction of said debt."
In January 2016, the trial court entered a status-only judgment of dissolution.
Lucy filed a timely notice of appeal from the judgment. Even assuming, for purposes of argument, that she was required to appeal from the November 2015 ruling rather than from the January 2016 judgment, her appeal was still timely.
II
FAILURE TO MAKE THE TERMINATION
OF SPOUSAL SUPPORT FULLY RETROACTIVE
Lucy contends that the order reducing spousal support to zero should have been made retroactive to the beginning of the case.
In August 2012, the trial court ordered Lucy to pay spousal support of $982 a month. She did not file a timely appeal from that order. We have no jurisdiction to affirm, reverse, or modify it in this appeal. (Code Civ. Proc., § 906.)
In November 2015, in the only order properly challenged in this appeal, the trial court set spousal support at zero, retroactive to October 29, 2014. Lucy argues that it should have made this order retroactive to August 1, 2012, which would effectively wipe out the August 2012 award.
A spousal support order can be made retroactive, but not to any earlier than the date on which the notice of motion or order to show cause was filed. (Fam. Code, §§ 3603, 3651, subd. (c)(1), 4333.) Here, Lucy filed her request to terminate spousal support on February 28, 2014. Thus, the trial court could have made its order retroactive to that date, but not any earlier.
Lucy's only argument as to why the trial court should have made its order retroactive, however, is that Michael had supposedly committed domestic violence against her.
In making an award of spousal support, the trial court must consider the 14 factors listed in Family Code section 4320. One of these is "[d]ocumented evidence . . . of any history of domestic violence, as defined in Section 6211, between the parties." (Fam. Code, § 4320, subd. (i).) "The trial court has broad discretion balancing and determining the appropriate weight to be given to each factor, '"with the goal of accomplishing substantial justice for the parties in the case before it."' [Citation.]" (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 288.) "As a general rule, we review spousal support orders under the deferential abuse of discretion standard. [Citation.]" (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.) "'[W]e do not substitute our judgment for that of the trial court, and we will disturb the trial court's decision only if no judge could have reasonably made the challenged decision. [Citation.]' [Citation.]" (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1312.)
It is clear that the predominant consideration, in the trial court's view, was that neither Michael nor Lucy was able to work. It specifically found that "the hardships between them are equal." Family Code section 4320, subdivision (i) refers to "[d]ocumented" evidence of domestic violence; the evidence of domestic violence in this case was not "[d]ocumented", so the trial court could properly have declined to consider it at all. Nevertheless, it found that there was "tangential evidence of a violent confrontation." Based on all these factors, it set spousal support at zero. Moreover, it slightly favored Lucy by making its order retroactive for more than a year. While it had the raw power to make it retroactive for an additional eight months, we cannot say that it abused its discretion by not doing so. Certainly the "sketchy" and "tangential" evidence of domestic violence, which was relatively mild in any event, did not require it to do so.
Lucy cites Family Code section 4325, which provides: "In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made." (Id., subd. (a).) Here, however, there was no "criminal conviction for an act of domestic violence." Michael was only convicted of disturbing the peace. Thus, Family Code section 4325 does not apply.
We therefore conclude that Lucy has not shown that the trial court erred in setting the effective date of its order.
III
ADDITIONAL CONTENTIONS
Lucy also asks us to order that "debts at separation and payments made to said debts be considered . . . ." She has forfeited this point by failing to support it with any argument or citations. (Cal. Rules of Court, rule 8.204(a)(1)(B).) "'"Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" [Citation.] "We are not bound to develop appellants' arguments for them."' [Citation.]" (In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1481.)
In any event, the challenged order did not decide any issue regarding debts or debt payments; to the contrary, it reserved jurisdiction over these matters. "In other words, there is simply no ruling for us to review." (Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
In addition, Lucy asks us to order that the "property should not be equally divided." Once again, she has forfeited this point by failing to support it with argument and authority.
And, once again, there is no ruling for us to review. The challenged order did not divide all of the community property. It made some specific awards of bank accounts and vehicles; however, it reserved jurisdiction to divide the proceeds of the sale of the house and, as noted, to divide the community debts. Thus, at this point, we have no way of knowing whether the trial court will ultimately divide the community property equally.
IV
DISPOSITION
The November 2015 order and the January 2016 judgment are affirmed. In the interest of justice, each side shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.