Opinion
B228423
12-09-2011
In re the Marriage of ROBERT and HYEONJOO MUNDKOWSKY. ROBERT MUNDKOWSKY, Respondent, v. HYEONJOO MUNDKOWSKY, Appellant.
Hyeonjoo Mundkowsky, in pro. per., for Appellant. Robert Mundkowsky, in pro. per., for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PD041594)
APPEAL from an order of the Superior Court of Los Angeles County, Patricia M. Ito, Temporary Judge. Affirmed.
Hyeonjoo Mundkowsky, in pro. per., for Appellant.
Robert Mundkowsky, in pro. per., for Respondent.
INTRODUCTION
This marital dissolution case began in 2006. Since then appellant Hyeonjoo Mundkowsky (wife) and respondent Robert Mundkowsky (husband) have engaged in continuous, hard-fought litigation. Over the last few years, the litigation has primarily related to husband's payment of child support to wife, and husband's involvement in the life of the couple's daughter, Elizabeth Mundkowsky.
In addition to the docket sheet found in the record, we have reviewed an updated docket sheet from the superior court. We take judicial notice of the updated docket sheet and note that the parties continued to vigorously litigate this case after this appeal was filed.
We issued an unpublished opinion (Mundkowsky I) on August 20, 2010, which we shall discuss post. In this second appeal, wife challenges an order dated September 13, 2010, on numerous grounds. The order concerned various disputes between the parties regarding financial issues.
We shall conclude that wife did not meet her burden of showing the trial court committed reversible error. We do not reach the merits of most of wife's arguments because she failed to meet her obligations as an appellant. Among other things, wife did not provide a sufficient appellate record, she did not present coherent and comprehensible arguments, and she did not preserve issues on appeal by asserting them below. We thus affirm the order dated September 13, 2010.
Wife is propria persona. "Pro. per litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
FACTUAL AND PROCEDURAL BACKGROUND
The order dated September 13, 2010, related to three sets of papers filed by the parties, including a request by wife to vacate a previous order. In order to understand wife's arguments, it is necessary to review the relevant underlying facts and procedural history of the case. The appellate record, however, is incomplete. Below we note the material omissions from the record.
1. Facts from Munkowsky I Opinion
To provide context, we first shall summarize some facts found in the Mundkowsky I opinion, though we cannot independently verify many of these facts from the record in this case. On July 17, 2008, pursuant to a stipulation of the parties, the trial court entered a judgment (Judgment), wherein wife was awarded sole legal and physical custody of Elizabeth and the right to move back with Elizabeth to wife's native country, South Korea. The Judgment also required husband to pay wife child and spousal support.
On January 14, 2009, the trial court entered another judgment (Second Judgment). The Second Judgment required wife to post a $50,000 bond before removing Elizabeth from the United States. It also stated that if Elizabeth's residence changed to South Korea, each party shall pay one-half of all travel expenses and one-half of the expense of husband's psychological evaluations related to husband's court-ordered visitations. Wife appealed the Second Judgment.
The Judgment and Second Judgment are not in the record.
Husband was diagnosed with paranoid schizophrenia. The court conditioned husband's right to visit Elizabeth on his successful completion of certain psychological evaluations.
2. July 2009 OSCs
In July 2009, both husband and wife filed proposed Orders to Show Cause (OSCs), which shall be discussed post. These OSCs and the parties' responses to them are not in the record. Although we cannot determine with certainty what relief the parties sought, it appears husband requested, among other things, an order imputing income to wife.
3. Hearing on February 22, 2010
On February 22, 2010, the trial court held a hearing on a "further Order to Show Cause." The hearing was regarding certain orders sought by husband. The papers husband filed to cause the hearing on February 22, 2010, are not in the record. It appears the hearing was regarding husband's OSC filed in July 2009, but the record is unclear on this point.
Three days prior to the hearing wife filed a notice of unavailability stating that she would be "unavailable at the hearing set on February 22, 2009 [sic] due to temporary illness." The court did not, however, find good cause to continue the hearing. Husband and counsel for Elizabeth, Kenneth P. Sherman, were there.
Elizabeth was six years old at the time.
4. Order Dated March 5, 2010
On March 5, 2010, the court issued an order in connection with the OSC that was the subject of the hearing on February 22, 2010. The order provided that husband shall be entitled to visitation with Elizabeth at certain times. It also stated that wife was to enroll Elizabeth in school forthwith, that wife shall not take Elizabeth out of the seven southern counties of California without written permission of husband and minor's counsel or court order, that husband and wife shall have joint legal custody of Elizabeth for purposes of education and medical issues, and that neither party shall "home school" Elizabeth. Finally, the order stated the "matter" was continued to May 5, 2010.
5. Wife's Motion dated March 5, 2010
On March 5, 2010, wife filed a motion to vacate "the order made on 02/22/2010." No such order is in the record. Our review of the arguments set forth in the motion indicates wife was apparently challenging the order dated March 5, 2010, or a similar order dated February 22, 2010.
Wife argued that (1) husband's "last supplement OSC" mailed on February 16, 2010, was not timely served, (2) her notice of unavailability for the February 22, 2010, hearing was made in good faith, (3) husband should be "penalized" for falsely accusing wife of faking injuries she and Elizabeth sustained, (4) husband should be "penalized" for falsely accusing wife of keeping Elizabeth out of school for no reason, and (5) wife should be allowed to move to Northern California. She requested the trial court to, inter alia, (1) vacate the "order of February 22, 2010," (2) order husband's visits be supervised by wife, and (3) order husband to pay for one-half of $1,400.47 in uninsured medical expenses mother incurred ($700.25).
The "last supplement OSC" is not in the record.
On April 20, 2010, wife filed a supplement to her motion dated March 5, 2010. In this supplement, wife made numerous additional requests, including a request for an order requiring father to pay for wife's moving expenses from Northern California to Southern California. The record indicates that at some point wife moved from Southern California to Northern California, then back again to Southern California. Nothing in the record, however, indicates why wife moved back to Southern California prior to the hearing on February 22, 2010.
Wife argued at the May 5, 2010, hearing that husband forced her to move by falsely accusing her of various things. The court, however, stated that it did not order wife to come back to Southern California, and that wife "voluntarily" did so.
6. May 5, 2010, Hearing and Order
On May 5, 2010, the trial court held a hearing on four matters: (1) wife's motion to disqualify Sherman as Elizabeth's counsel, which is not in the record, (2) wife's motion to vacate the order dated March 5, 2010, (3) husband's OSC to modify custody, which is not in the record and (4) wife's OSC to modify child support, which is not in the record. The latter two OSCs were apparently issued in July 2009, but the record is unclear.
The motion to disqualify Sherman was apparently based on wife's claim that Sherman improperly advised the trial court about Elizabeth's absence from school for three weeks. Wife claimed that Elizabeth was sick from mold poisoning. The trial court denied the motion and found that wife did not present evidence showing Elizabeth could not attend school as a result of her alleged mold poisoning.
The court also denied wife's motion to vacate the order dated March 5, 2010. In so doing, the court stated that she did not believe wife's claim that she was too sick to attend the hearing on February 22, 2010, nor did it believe wife's claim that she did not have cell phone coverage to attend the hearing by telephone. However, in light of wife's representation she had enrolled Elizabeth in school, the court granted wife permission to go to Northern California to seek employment "upon written verification from the employer that she has been offered a job."
The court also heard arguments regarding a host of claims by wife and husband regarding financial issues. One of wife's arguments was that husband did not pay her the full child support due in December 2009, because he deducted his traveling expenses from the amount he paid her. The court delayed ruling on financial issues, and set a hearing on June 22, 2010.
The court also stated "there is a possibility [at the hearing on June 22, 2010] that I would be imputing income to Miss Mundkowsky. Because Miss Mundkowsky, it doesn't appear to me that you have had a job for, like, over three years. So one [of the] questions [the court will address is] how diligently you are looking. But you indicated that you had interviews. And perhaps by June 22nd, there will be good news to report."
7. Hearing on June 22, 2010
On June 22, 2010, the trial court held a hearing on various financial issues. This hearing was apparently on the July 2009 OSCs.
The court also held a hearing on wife's request for a temporary restraining order (TRO) and permanent restraining order against husband based on husband's alleged sexual assault of wife on May 6, 2010. Husband did not oppose the TRO or restraining order. The court granted the TRO and set a hearing on a permanent restraining order. On July 13, 2010, the court granted wife a three-year restraining order.
Husband argued he was entitled to reimbursement for overpayment of child support to wife in 2009 and 2007. He further argued that the trial court should impute income to wife because she had not obtained a job since the Judgment in 2008. In response, wife argued that the trial court's requirement of a $50,000 bond prevented her from accepting job offers in Asia for positions with yearly salaries in excess of $100,000. The court took the matters under submission.
8. Husband's OSC dated July 19, 2010
On July 19, 2010, husband filed an application for an OSC. The OSC was issued the same day. In this application husband requested a modification of child support in light of the fact that he was laid off from his job. He also requested an order imputing $3,333.33 to wife as income. Husband filed a declaration in support of this application dated July 15, 2010. In this declaration husband stated facts regarding his request for an order imputing income to wife.
In its order dated September 13, 2010, which we shall discuss post, the trial court apparently mistakenly believed this application for an OSC was filed on July 10, 2010.
9. Order Dated July 29, 2010
On July 29, 2010, the trial court issued an order regarding husband's July 2009 OSC and wife's July 2009 OSC. The order apparently did not relate to husband's OSC dated July 19, 2010.
The first paragraph of the order stated: "Having taken under submission on June 22, 2010 [husband's] Order to Show Cause filed July 14, 2009 for reimbursement of overpayment of support and for other relief ('petitioner's OSC') and [wife's] Order to Show cause filed July 14, 2009 for modification of child support and for other relief which was later amended to seek reimbursement of uninsured medical expenses ('respondent's OSC'), the Court now rules as follows:"
The order granted husband's OSC with respect to overpayment of child support. It stated that husband overpaid in the amount of $2,656.73. The order required wife to repay husband $50 a month until the $2,656.73 balance was paid.
The order also granted wife's OSC in part and denied it in part. The order stated that commencing September 1, 2010, husband "shall pay to the State Disbursement Unit as child support the sum of $1,371.00 . . . ."
The order also stated: "The Court imputes full-time minimum wage income to [wife] based on her earning capacity. [Wife] testified that she has been offered jobs abroad recently with salaries of over $100,000.00. [Wife] earned approximately $40,000.00 per year at her last job. Although there is insufficient evidence to show that [wife] could earn a similar salary in the United States, the Court finds that she is capable of earning at least the California minimum wage of $8.00 per hour. [Wife] has a Bachelor of Science degree from Korea and speaks English very well. Her unemployment for the last six years is so prolonged as to be deemed willful. The Court finds that both parties have a duty to support their child and that it is in the best interests of the child that the parties do so. The Court finds that imputation of income to [wife] is in the child's best interests since failure to do so encourages [wife] to shirk her responsibility to assist in supporting the child."
Additionally, the order stated that wife's request for reimbursement of medical expenses was granted in the amount of $84.14. The order, however, denied wife's request with respect to certain medical expenses. On this issue, the order stated: "It was unclear whether certain expenses were incurred on behalf of the child or [wife]. [Wife's] exhibits included many of her own medical bills. There was insufficient proof of payment by [wife] for many of the uninsured medical expenses, i.e. canceled checks. In some, but not all instances, the Court was able to connect a checking account statement or credit card statement to an item that [wife] contended that she paid by date and gave [wife] credit accordingly."
Finally, the order stated that other issues raised by husband's July 2009 OSC and wife's July 2009 OSC were denied or were ruled upon previously.
10. Husband's OSC dated August 3, 2010
On August 3, 2010, husband filed an application for an OSC. An OSC was apparently issued the same day. It appears the OSC related to husband claiming Elizabeth as an exemption on his 2009 tax returns. Unfortunately, this OSC is not in the record.
11. Mundkowsky I
On August 20, 2010, we filed the opinion in Mundkowsky I. We held that the Second Judgment was reversed with respect to the requirement that wife post a $50,000 bond and the requirement that wife pay for one-half of husband's costs relating to psychological evaluations and travel. The matter was remanded to the trial court to consider whether a bond should be required and, if so, the amount of the bond. The Second Judgment was otherwise affirmed.
12. Wife's Ex Parte OSC dated August 26, 2010
On August 26, 2010, wife filed an "Ex Parte OSC to Set Aside Order for Overpaid Child Support in 2009, New Child Support Order, Medical Expense and Imputation of Income." Wife sought to set aside various aspects of the trial court's order dated July 29, 2010. She argued that (1) the court's imputation of income to her was an abuse of discretion, (2) the calculation of child support was erroneous and based on fraud and mistake, (3) the court abused its discretion in requiring wife to reimburse husband for overpaid child support, (4) the court erroneously denied wife's request to recover from husband $564.53 in uninsured medical expenses, and (5) the court should reconsider its July 29, 2010, order in light of new circumstances, namely that wife planned on filing a petition for bankruptcy.
There is nothing in the record indicating wife actually filed a petition for bankruptcy.
13. September 3, 2010, Hearing
On September 3, 2010, the trial court held a hearing on a number of matters, including (1) husband's July 19, 2010, OSC regarding modification of child support, (2) husband's August 3, 2010, OSC regarding tax issues, and (3) wife's August 26, 2010, Ex Parte OSC regarding setting aside the order dated July 29, 2010. At this hearing, husband reported he obtained a new job in New Jersey, and that he would start working the following week. Husband further stated he would be paid "$62" and that he hoped to work 40 hours a week.
14. September 13, 2010, Order
On September 13, 2010, the trial court issued an order regarding the matters discussed at the hearing on September 3, 2010. With respect to husband's July 19, 2010, OSC, the order stated husband shall pay wife $1,748 per month in child support based on husband's income from his new job. It further stated that husband's request to reduce his child support for the period he was unemployed was denied. The order also stated: "The Court imputes income to [wife] as set forth in its July 29, 2010 ruling."
In connection with husband's August 3, 2010, OSC, the order stated "[wife] shall sign the Internal Revenue Service forms with respect to [husband] claiming the minor on his 2009 tax returns as required by the [Judgment] within one week of presentation by [husband]. [¶] Pending further Court order or written agreement of the parties, [wife] is awarded the tax exemption for the minor for 2010 and all future years."
Finally, the order stated that wife's August 26, 2010, OSC was denied "except as to her request that [husband] provide information regarding his new employment such as employer's name, address, pay and pay schedule."
On October 12, 2010, wife appealed the September 13, 2010, order.
CONTENTIONS
Wife argues the trial court abused its discretion by (1) ordering her to sign an Internal Revenue Service (IRS) form with respect to husband's 2009 tax returns, (2) imputing income to her, (3) ordering her to repay overpaid child support, (4) finding insufficient proof of $564.53 in uninsured medical expenses, (5) denying her childcare expenses, (6) deducting husband's travel expenses from child care support, and (7) denying wife's request for reimbursement of moving expenses.
DISCUSSION
1. The record is inadequate for us to address wife's first three arguments.
A judgment or an order of the trial court is presumed correct on appeal. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to affirmatively show error and to provide a record on appeal sufficient for us to determine whether there was error. (Ibid.; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.) Thus there are at least three immutable rules for appellants: "first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 (Protect Our Water).)
Here, the record is inadequate for us to address wife's first three arguments. Wife's first argument is that the trial court erroneously required her to sign an IRS form relating to husband's 2009 tax forms. Husband requested this relief in his proposed OSC dated August 3, 2010. His request was apparently based on a provision in the Judgment. Because both the August 3, 2010, OSC and the Judgment are not in the record, we cannot determine whether the trial court's ruling was erroneous, and thus presume it is correct.
Wife's second argument is that the trial court abused its discretion by imputing income to her. "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the [child.]" (Fam. Code, § 4058, subd. (b).) As the moving party, it was husband's burden to present evidence that wife had the ability and opportunity to work. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303.) Only if husband meets that burden can the trial court impute income to wife based on her earning capacity.
The problem here is that the record does not contain all of the evidence presented by husband regarding wife's ability and opportunity to work. Although husband's declaration dated July 15, 2010—which included testimony regarding the wife's ability and opportunity to work—is in the record, the issue of imputation was raised by husband long before that declaration and the accompanying application for an OSC. The trial court discussed imputation at the hearings on May 5 and June 22, 2010, indicating husband previously moved for imputing income to wife. Further, in its July 29, 2010, order, when the trial court first stated it was imputing income to wife, the court indicated that it was ruling on wife's July 2009 OSC and husband's July 2009 OSC, and did not mention any other papers raising the issue of income imputation. Accordingly, it appears the court's order was based on evidence filed in connection with the July 2009 OSCs, or other evidence filed after July 2009 but before the May 5 and June 22, 2010, hearings. Because this evidence is not in the record, we cannot determine whether the trial court's ruling regarding imputing income to wife was erroneous, and thus presume it is correct.
Wife's third argument is that the trial court abused its discretion by ordering her to repay husband overpaid child support. The court issued this order on July 29, 2010. As we have explained, however, the order adjudicated the July 2009 OSCs, which are not in the record. Further, after July 2009 husband apparently filed additional evidence regarding his alleged overpayment of child support, including supplemental documents filed before the February 22, 2010, hearing. Husband's initial and supplemental documents are not in the record. We cannot determine whether the trial court's ruling regarding husband's overpayment of child support was erroneous and thus presume it is correct.
2. Wife forfeited her argument relating to uninsured medical expenses and, in any case, she did not meet her burden of showing there was sufficient evidence to support her claim for reimbursement of such expenses.
Wife's fourth argument is that the trial court abused its discretion by finding there was insufficient evidence to support wife's claim for reimbursement of uninsured medical expenses in the amount of $564.53. She asserted a claim for one-half of Elizabeth's uninsured medical expenses in her motion to vacate dated March 5, 2010 and in her Ex Parte OSC dated August 26, 2010. In her briefs in the trial court, however, wife did not provide a coherent explanation or summary of the expenses Elizabeth allegedly incurred. Likewise, there is no such coherent explanation or summary in her appellate briefs. Wife thus forfeited this argument on appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["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"].)
As additional child support, the trial court can order a parent to pay part or all of the "reasonable uninsured health care costs" of a child. (Fam. Code, § 4062, subd. (a)(2); see also Fam. Code, § 4063.)
Moreover, we agree with the trial court that the evidence wife presented was insufficient to support her claim. Wife filed two spreadsheets purportedly showing various health care costs incurred by Elizabeth. We have not found in the record, however, the underlying bills or receipts supporting the costs stated in either spreadsheet, nor have we found proof that wife paid for these expenses. The trial court thus acted well within its discretion in denying wife's request for reimbursement of these purported uninsured health care costs.
The first spreadsheet, filed with wife's March 5, 2010, motion, included a wide variety of expenses, including housekeeping, moving, and storage expenses that do not appear to be related to health care.
On the second spreadsheet, filed with wife's August 26, 2010, Ex Parte OSC, there is a hand-written note stating, "All Receipts/Bills were presented and filed with Court." We did not, however, find such receipts and bills in the appellate record. As we stated ante, "if it is not in the record, it did not happen[.]" (Protect Our Water, supra, 110 Cal.App.4th at p. 364.)
3. Wife forfeited her remaining arguments.
The only order wife appealed is the order dated September 13, 2010. That order adjudicated wife's August 26, 2010, Ex Parte OSC, as well as two OSCs filed by husband. Wife's last three arguments on appeal were not asserted in her August 26, 2010, Ex Parte OSC. Wife thus forfeited these arguments on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Wife's fifth argument is that the trial court abused its discretion by denying her childcare expenses. The record does not clearly indicate when, if ever, she requested the trial court to order husband to pay for such expenses. Wife's sixth argument is that the trial court abused its discretion by deducting husband's travel expenses from child care support. Although she made this argument at the May 5, 2010, hearing, she did not make it in her August 26, 2010, Ex Parte Order. Finally, wife's seventh argument is that the trial court abused its discretion by denying wife's request for reimbursement of moving expenses. This issue was discussed at the May 5, 2010, hearing, but was not raised by wife's August 26, 2010, Ex Parte Order.
--------
DISPOSITION
The order dated September 13, 2010, is affirmed. In the interests of justice, each party shall bear his or her own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.