Opinion
D060936
10-17-2012
In re the Marriage of THUAN DINH NGO and LOAN PHUONG NGUYEN. THUAN DINH NGO, Respondent, v. LOAN PHUONG NGUYEN, Appellant.
Appellant Loan Phuong Nguyen appeals from two trial court orders. One order modified the spousal support obligation of her former husband, respondent Thuan Dinh Ngo, for each of their two children. The other order required Ngo to pay Nguyen $150 per month in child support arrears.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DS25486)
APPEAL from orders of the Superior Court of San Diego County, Kelly C. Doblado, Judge. Affirmed.
Appellant Loan Phuong Nguyen appeals from two trial court orders. One order modified the spousal support obligation of her former husband, respondent Thuan Dinh Ngo, for each of their two children. The other order required Ngo to pay Nguyen $150 per month in child support arrears.
Nguyen, who is appearing in propria persona, contends Ngo was not truthful in his declaration of income and expenses that he submitted in connection with a motion to modify child support. She also generally contends one or both of the orders are deficient because they omit certain subject matters/items discussed during the hearings that led to those orders. Affirmed.
BACKGROUND
Nguyen has elected to proceed on a clerk's transcript. (See Cal. Rules of Court, rules 8.121 & 8.122.) Thus, the appellate record does not include a reporter's transcript of the hearings in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.)
The limited record we have establishes that Ngo and Nguyen were married in 1997 and separated in 2004. As noted ante, Ngo and Nguyen have two children.
Nguyen filed a petition for dissolution of marriage in 2005, which was granted in 2006. In connection with the stipulated judgment of dissolution, Ngo was ordered, among other things, to pay monthly child support of $500 to each child and to make a lump sum payment of $3,498 in child support arrears, which payment was to made from his portion of the sale proceeds of the family home.
The clerk's transcript shows that in December 2007, Nguyen moved to terminate the stay of service of wage assignment as it related to the $3,498 payment, which Nguyen alleged remain unpaid.
In June 2010, the County of San Diego Department of Child Support Servicesfiled a motion for modification of Ngo's child support obligation based on the fact Ngo was then unemployed.
"In 1999, the Legislature created a new state agency for child support enforcement, the Department of Child Support Services. [Citation.] . . . Each county was directed to establish a local child support agency to be responsible for 'establishing, modifying, and enforcing child support obligations, including medical support, enforcing spousal support orders established by a court of competent jurisdiction, and determining paternity in the case of a child born out of wedlock.' [Citation.]" (Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806.)
In connection with the motion to modify child support, Ngo submitted an income and expense declaration. In that declaration, Ngo stated under penalty of perjury that he had been unemployed since October 2008 because his California electrical contractor's license had been suspended by the Department of Child Support Services. He also stated that his monthly average income for the previous 12 months, and total assets, were "0"; that his average monthly expenses (excluding his mortgage and credit card payments) was $1,050; that his monthly mortgage payment was about $1,096; and that his monthly credit card payments were collectively about $1,658, based on an outstanding credit card balance of about $69,000. Ngo stated he had not made any payments toward his credit card debt since October 2008.
Nguyen's primary contention on appeal involves the trial court's October 4, 2011 order that is not included in the clerk's transcript (but is attached to Nguyen's two-page opening brief filed in this court) and its November 14, 2011 order, which is included in the appellate record.
Although Nguyen improperly attached a copy of the October 4, 2011 order to her brief (see Cal. Rules of Court, rule 8.204(d)), on this court's own motion we order the record augmented to include that order. (See Cal. Rules of Court, rule 8.155(a)(1)(A).) We note Ngo has not filed a respondent's brief. His "failure to file a respondent's brief means that we 'decide the appeal on the record, the opening brief, and any oral argument by the appellant (Cal. Rules of Court, rule 8.220(a)(2)) . . . . [Citations.]" (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334, italics added.) Ngo was present at oral argument held October 9, 2012, and offered a brief summary of his position on appeal.
Specifically, with both Ngo and Nguyen present at the hearing of October 4, 2011, the trial court "set aside" its previous child support order and reduced Ngo's monthly child support payment for the youngest child from $500 to $308 and for the oldest child from $500 to $184, effective August 2011.
At the hearing on November 14, 2011, attended by both Ngo and Nguyen, the trial court ordered Ngo to pay Nguyen $150 per month in child support arrears, effective December 2011.
DISCUSSION
On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
Child support orders are subject to an abuse of discretion standard of review. (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128.) As is standard in this type of review, we 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. (See ibid.)
"A child support order may be modified when there has been a material change of circumstances. [Citation.] The party seeking the modification bears the burden of showing that circumstances have changed such that modification is warranted. [Citation.] 'The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.] . . . .' [Citation.]" (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1054.)
It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" such as in the instant case (see Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings. (See Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error "appears on the face of the record." (See National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; see also Cal. Rules of Court, rule 8.163.)
Moreover, these well-accepted rules of appellate procedure apply to Nguyen even though she is representing herself on appeal. (See Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
Here, we must conclusively presume evidence was presented that is sufficient to support the court's finding there had been a change in circumstance that warranted a reduction in Ngo's child support obligation, inasmuch as there is nothing in the record to contradict this finding. (See Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154; see also Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060 [a reviewing court "presumes the judgment of the trial court is correct and indulges all presumptions to support a judgment on matters as to which the record is silent."].)
Moreover, we are satisfied after our own, independent review of the clerk's transcript that there is substantial, credible evidence in the record to support the finding of changed circumstances. (See In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287-1288 [petitioner must show "changed circumstances" in order to justify a modification of child support].)
Indeed, the record shows that in April 2010 Ngo declared under penalty of perjury that he had been unemployed since October 2008, that he had no earnings in the previous 12 months from the date of his income and expense declaration and that he had accrued significant debt, including having a credit card balance of more than $69,000, which he could not pay.
Based on this admissible evidence, we conclude the trial properly exercised its discretion when it made a finding of Ngo's changed circumstances and modified his child support obligation accordingly. (See County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.)
Finally, because the record is limited to the clerk's transcript, we are unable to evaluate Nguyen's contention that either or both of the trial court's October 4 and November 14, 2011 orders are deficient because they omit various subject matters/items allegedly "addressed" (e.g., ordered) by the court during the hearings. (See Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083; Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)
To the extent Nguyen argues the November 14, 2011 order is deficient because it does not include a summary of child support payments listed on the October 4, 2011 order, we note that the November 14, 2011 order provides that "[a]ll orders previously made in this action shall remain in full force and effect except as specifically modified herein."
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DISPOSITION
The trial court's October 4 and November 14, 2011 orders are affirmed. Each party to bear his or her own costs of appeal, if any.
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BENKE, Acting P. J.
WE CONCUR: _________________
McDONALD, J.
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AARON, J.
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