Opinion
H050384
11-30-2023
In re the Marriage of ANH D. NGUYEN and MIKE VAN. v. MIKE VAN, Appellant; SANTA CLARA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervenor and Respondent. ANH D. NGUYEN, Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 2014-1-FL-169508)
Greenwood, P. J.
Appellant Mike Van (Van) challenges the trial court's order awarding child and spousal support arrears that he owes to respondent Anh Nguyen (Nguyen). Intervenor Santa Clara County Department of Child Support Services (DCSS) provided enforcement services. Van claims the trial court erred in determining arrears because they are based on Nguyen's false statements regarding the support payments received. Van also argues the trial court abused its discretion in denying his request for a continuance. For the reasons explained below, we affirm the order.
Neither Nguyen nor DCSS appear in this appeal.
I. Factual and Procedural Background
This case has a long history, some of which is detailed in our unpublished opinions in Van's prior appeals, including Nguyen & Van. We incorporate by reference the factual and procedural background from Nguyen & Van and recite only those facts necessary to resolve the issues presented in this appeal.
Nguyen and Van married in 2007 and have two minor children, ages 10 and 15. Nguyen filed her petition for dissolution of marriage in 2014. The trial court entered a status only judgment to terminate the parties' marital status, but a final judgment to resolve all issues has not yet been entered.
In 2015, the trial court ordered Van to pay child and spousal support. Subsequent attempts by Van to modify the support orders and to waive his support arrears became the subject of multiple unsuccessful appeals in this court by Van. (In re Marriage of Nguyen &Van (May 28, 2021, H044902, H045159) [nonpub. opn.] (Nguyen &Van); appeal No. H050159 [dismissed by order as premature and/or nonappealable].)
In 2022, the trial court ordered the parties' marital home sold and the sale proceeds held in the client trust account of Nguyen's attorney. Van also appealed those orders, which we dismissed by order as premature and/or nonappealable. (Appeal Nos. H050100, H050111, H050255.)
In April 2022, DCSS filed a request to modify support and to determine arrears, which the trial court set for a long cause hearing in September 2022. Following the hearing, the trial court entered orders modifying child support payable by Van, and giving him a credit of $163 per month for his visitation travel expenses (September 2022 order). The trial court also determined that, as of March 31, 2022, Van owed $217,535.35 for child support arrears and $73,523.71 for spousal support arrears which was to be paid in installments of $100 per month. Van appeals from the September 2022 order.
Spousal support terminated in 2017 due to Nguyen's remarriage.
In 2017 (and after remand in 2021), Nguyen was allowed to relocate the children's residence to New Jersey. (In re Marriage of Nguyen & Van (Nov. 22, 2019, H045348, H046071, H046644) [nonpub. opn.]; In re Marriage of Nguyen & Van (Apr. 25, 2023, H049612) [nonpub. opn.].)
II. Discussion
Van raises several arguments on appeal, some related to prior orders and appeals. We will address his claims only as they relate to the September 2022 order on appeal here. Van claims the trial court erred because Nguyen made false statements regarding the payments she received for support. Van also contends the trial court abused its discretion because he was not given more time to provide evidence of his past support payments.
Van's other arguments are summarized as follows: Van again alleges the trial court erred by refusing to make the support orders retroactive to 2017 and refusing to waive his prior support arrears. We addressed this issue in Nguyen & Van (May 28, 2021, H044902, H045159) [nonpub. opn.]. Van also claims the trial court failed to assist him in custody and visitation issues, which we addressed in the unpublished opinions on custody issues. (See fn. 4, ante.) Finally, Van contends DCSS violated his constitutional rights by garnishing his COVID-19 relief stimulus checks. Van also alleges the trial court erred by denying his request for exemptions in November of 2021. Van's time to appeal this order, which was filed by the trial court on November 29, 2021, has already expired. We are without jurisdiction to consider any appeal from it. (Cal. Rules of Court, rule 8.104(a)(1) [notice of appeal must be filed within 60 days after the order]; Bourhis v. Lord (2013) 56 Cal.4th 320, 324-325 [filing a timely notice of appeal is a jurisdictional requirement].)
A. Van failed to demonstrate error on appeal.
Van claims Nguyen committed perjury in her statements regarding the amount of support she received from him.
On appeal, Van requests "restorative justice" for Nguyen's alleged false statements regarding the payments he made towards support. We construe Van's argument as a challenge to the evidence considered by the trial court in determining the arrears.
"[A] trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) Where the appellant fails to do so, a reviewing court is required to resolve the matter against the appellant. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Accordingly, we are not permitted to speculate as to the contents of missing portions of the record or issues appellant may have raised below. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051-1052.) Instead, our review is limited to the record before this court. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
Van cites to several documents included in his appendix that do not appear to have been admitted, filed or introduced in the underlying action. It is ". . .well established that 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' [Citation.]" (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 383, quoting Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Therefore, we must disregard those portions of the record and any arguments in the briefs relying on these documents. (Cal. Rules of Court, rule 8.204(a)(1).)
Subsequent undesignated references to rules of court are to the California Rules of Court.
Van also has not provided a court reporter's transcript or settled statement of the September 2022 hearing. (Rule 8.137.) These record limitations make it impossible for us to determine the nature of any alleged error, including what statements from Nguyen, if any, the trial court relied upon in its decision. The failure to provide an adequate record requires this court to resolve the issue against the appellant. (Jameson, supra, 5 Cal.5th at p. 609.) Without a record, either by transcript or settled statement, we must make all presumptions in favor of the trial court's actions. (Ibid.)
We are mindful of the fact that Van is self-represented, but this does not exempt him from compliance with the general rules set forth above. We must treat a party who acts as his own attorney like any other party and hold him to the rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) We thus find no error in the trial court's September 2022 support order.
B. The trial court did not abuse its discretion in denying Van a continuance.
In the middle of the September 2022 hearing on arrears, Van requested that the court continue the case so he could submit more documents to prove additional payments he claims Nguyen and DCSS did not include in their accounting of the arrears. The trial court denied his request. We conclude the trial court acted within its discretion to deny Van's request for a continuance.
"Continuances are granted only on an affirmative showing of good cause requiring a continuance. [Citations.] Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing." (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 823.)" '" 'The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking....' [Fn. omitted.]" [Citations.] "The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason." [Citations.]' [Citation.]" (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)
According to the register of actions, DCSS filed its motion to determine arrears in April 2022, and the hearing was thereafter continued multiple times. At one of the continued hearings in June 2022, the trial court ordered Van to file the proofs of his prior support payments by August 2022. The trial court specifically ordered the parties to file all documents they wanted considered at the September 2022 hearing by that August date. The trial court also notified the parties that any documents not timely submitted by the August 2022 due date would not be considered by the court. After allowing Van six months to prepare for the support hearing, the trial court did not exceed the bounds of reason when it declined to grant Van more time to gather evidence.
III. Disposition
The September 1, 2022 order on arrears is affirmed.
In the interests of justice, no costs are awarded because Nguyen and DCSS did not file any respondent's briefs. (Rule 8.278(a)(5).)
WE CONCUR: Bamattre-Manoukian, J. Wilson, J.