Opinion
G058545
06-14-2021
In re Marriage of DENISE and DARIN PETERSON. DENISE PETERSON, Appellant, v. DARIN PETERSON, Respondent.
Brown & Stedman and Edwin B. Brown for Appellant. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 15D007581 Erick L. Larsh, Judge. Affirmed in part and reversed in part.
Brown & Stedman and Edwin B. Brown for Appellant.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
OPINION
MOORE, J.
Denise and Darin Peterson were married with five children. Denise was a stay-at-home mother. Darin operated the family's businesses. During their marriage, the Petersons bought 95 acres of Tennessee farmland for nearly $2 million. In 2015, Denise filed for divorce. In 2016, the family court ordered Darin to pay $73,500 toward Denise's attorney fees. She would eventually be represented by four different attorneys.
As his customary in family law matters, we will generally refer to the parties by their first names, although in some direct quotes the parties will be referred to by their trial court designations: Petitioner (Denise) and Respondent (Darin).
In 2018, Denise was to represent herself on the first day of trial. Denise did not appear in court, but she sent a letter from a doctor. The letter said Denise should be released from all court appearances for three months, but the doctor said she could continue with all other activities in her life. The court gave notice to Denise to be in court the next day to explain her medical condition and/or request for accommodations, but she again failed to appear. The court found Denise had voluntarily absented herself from the proceedings and conducted an uncontested trial.
Denise argues the trial court erred because it: failed to order Darin to pay additional attorney fees; denied Denise's joinder motion (to join Darin's father and his company SHOIT, Inc. (SHOIT) to the dissolution proceedings); excluded Denise's forensic accountant from testifying at a pretrial hearing; admitted Denise's prior misdemeanor domestic violence plea into evidence; conducted the prove-up hearing (trial) without Denise being present; allowed Darin to “steal” the Tennessee farmland; and ordered inadequate support. Darin argues Denise's arguments on the issues of attorney fees and joinder should be dismissed as untimely.
We find the trial court's valuation of the Tennessee farmland at $1 million to be arbitrary and not supported by substantial evidence. Thus, we reverse the valuation and division of that portion of the Peterson's community property. In all other respects, the judgment is affirmed.
I
STATEMENT OF FACTS AND THE CASE
In 1999, Denise and Darrin were married. Over the next several years they had five children (currently ages six through 17). Denise was a stay-at-home mother. Darin ran the family's pharmacy businesses.
In 2006, the Petersons sold their first pharmacy business. The Petersons bought farmland in Tennessee for about $2 million, which produced modest rental income. The Petersons then started another pharmacy business, CareMeds Pharmacy, Inc. (CareMeds), which fills prescriptions for patients. Their second business, TechMeds, Inc. (TechMeds), supports an app that alerts CareMeds patients as to when to take their medications.
Court Proceedings (2015)
In August 2015, Denise filed a petition for the dissolution of marriage. After serving Darin with divorce papers, the couple continued to live together in their leased home for about six months. When the lease expired, Denise and Darin moved into separate homes.
In October, Darin filed a motion for joint custody and visitation. Darin was represented by Daniel C. Hunter, who remained Darin's attorney throughout the next four years of dissolution proceedings.
Numerous custody and visitation issues were raised in the trial court, but those issues have not been challenged on appeal and therefore they will not be further summarized or addressed in this opinion. The document Darin filed was a Request for Order (RFO), but we will refer to RFOs as “motions” throughout this opinion.
In November, Denise filed motions for child support, spousal support, pendente lite attorney fees, and forensic accounting fees. Denise was initially represented by the law firm of Hughes and Hughes, LLP.
Court Proceedings (2016)
In March 2016, the parties filed a stipulation and order: “For the purposes of determining temporary support, Respondent's income is $17,700 [per month] non-taxable by virtue of an existing Non Operating Loss per month.”
In April, the court filed a notice of entry of judgment (dissolution of marriage status only). All other issues were reserved.
In May, the trial court ordered Darin to pay Denise $10,530 per month in support ($6,988 in child support and $3,542 in spousal support). The court ordered Darin to pay $63,750 in attorney fees (in addition to $10,000 previously paid). The court further ordered Darin to pay $6,566.25 to Denise's forensic accounting firm (in addition to $7,500 previously paid).
In July, Denise filed a substitution of attorney form (Suanne I. Honey).
In August, attorney Jason Blonska filed a notice of limited scope representation of Denise (attorney fees). Blonska filed a motion on Denise's behalf for additional attorney fees.
In September, Denise filed a substitution of attorney form (in propria persona).
Court Proceedings (2017)
In July 2017, Darin filed a motion for modification (lowering) of the $10,530 support order. Darin averred: “My income has been significantly reduced since the entry of the Order and a modification is warranted.”
In November, Denise filed a substitution of attorney form (John A. Bledsoe, who represented Denise until the first day of trial in 2018).
In December, Denise filed an order to show cause for a finding that Darin was in contempt of court; Denise generally alleged Darin had underpaid 17 support payments from July 2016 through November 2017 ($81,510 short).
Court Proceedings (Pretrial 2018)
In April 2018, the trial court conducted a hearing on the 17 alleged contempt charges. After Denise testified, Darin moved to dismiss under Penal Code section 1118 (entry of judgment of acquittal). The court's prior written support order (by a different judge) stated the beginning date was “‘reserved'”; therefore, Darin argued it was not an order in which he “can be cited for contempt.” The court granted Darin's motion for acquittal: “I think that [there were] procedural mistakes made.” The court's minute order stated: “The issue of nunc pro tunc the spousal support order to 05/27/16 will be addressed at the next hearing.”
To support a finding of contempt, a written “order must be clear, specific, and unequivocal.” (In re Marcus (2006) 138 Cal.App.4th 1009, 1014-1015.)
The trial court later filed an order stating it would “Nunc Pro Tunc” the May 2016 support order, and the prior “order of $10,530 is contemptable as of today's date.” The court found Darin in arrears of “$105,720.00 as of today's date.”
In May, the trial court conducted a hearing on the parties' outstanding motions (support modification and attorney fees). Darin's forensic accountant, Randy Orr, prepared a written report and testified as to Darin's income and the value of the community businesses. Orr testified there were only two sources of income available for support: income from CareMeds, and rental income from the Tennessee farm. Orr said the 2017 income was $85,239 from CareMeds, which included personal expenses paid for by the business. Orr testified the 2017 income from the Tennessee farm was $4,993.
Orr testified CareMeds had gross receipts of about $18.5 million in 2015, $17.7 million in 2016, and over $19 million in 2017. However, the cost of goods sold is about 94 percent of sales. Orr testified CareMeds was “insolvent. It cannot meet its current liabilities. It has a negative net book value, meaning liabilities are greater than assets....” Orr said the business had a net loss of $250,000 in 2014, a net profit of $93,000 in 2015, a net loss of $390,000 in 2016, and a net loss of $163,000 in 2017. Orr testified TechMeds is a holding company that produces no income. Orr testified Darin's father began loaning money to Darin starting in February 2016. Orr said there were 20 loans at an interest rate of 3.5 percent. Orr testified “there were 20 separate promissory notes. So based on those criteria, I did not include loans from Mr. Peterson's father as income for support.”
From July through October 2018, the trial court held over 20 further hearings on the parties' various pretrial motions (support modification, attorney fees, and joinder). The details of those hearings will be reviewed more thoroughly in the discussion section of this opinion.
Court Proceedings (Trial and Posttrial 2018)
On November 14, 2018, the matter was set for trial. Denise did not appear. Attorney Byron B. Mauss appeared as a friend of the court to present a note from a doctor. The court trailed the matter to the following day “to allow [Denise] an opportunity to be heard and advise the Court if she is going to be present for the trial.” At 6:40 p.m., a substitution of attorney form was electronically filed (self-representation to replace attorney Bledsoe).
On November 15, the matter was set for trial. Denise did not appear. The court reviewed the doctor's note that had been submitted the prior day. The court found Denise “voluntarily absented herself from today's trial and hearing will go forward.” The court heard testimony from Darin and his forensic accountant Orr.
On December 21, the court filed a statement of decision regarding Denise's motions for attorney fees. Darin filed a proof of service.
Court Proceedings (2019)
On February 13, Bledsoe filed a notice of a real property lien on the Tennessee property. Bledsoe attached a letter from a local broker regarding the property. The broker described the Tennessee property as 95.77 acres of agricultural property (zoned general commercial). The broker opined the “valuation range” of the property was from $1,436,550 to $1,915,400.
On August 26, Darin filed a notice of findings and order after hearing (addressing attorney fees).
On August 26, Darin filed a judgment on dissolution of reserved issues (child custody, visitation, child support, spousal support, property division, and attorney fees and costs).
On September 9, 2019, the court filed a notice of entry of judgment. The court found Darin's income available for support to be $7,311 per month. The court ordered Darin to pay $3,643 per month in support ($3,083 in child support and $560 per month in spousal support). The court found Darin was owed a credit of $13,004 for overpayment of support. The court ordered that each year in which support was still at issue Darin was to serve Denise with a “complete and accurate Income & Expense Declaration.”
The court awarded CareMeds and TechMeds to Darin at no value. The court awarded the Tennessee property to Darin subject to terms and conditions. The court found the property to be worth $1 million and the net equity to be $550,000. The court ordered a trust deed issued to Denise for $275,000, giving Darin five years to pay it off. If not, Denise can foreclose on the property. If the property is sold prior to the five years, Denise was to have the first $1 up to $275,000 to pay off the trust deed. The net monthly income on the property was to be divided equally between the parties.
On November 7, Denise filed a notice of appeal from the orders entered on August 26, 2019 (attorney fees) and September 9, 2019 (reserved issues).
II
DISCUSSION
Denise contends the trial court erred because it: A) denied Denise's motions for additional attorney fees; B) denied Denise's joinder motion (Darin's father and SHOIT); C) excluded Denise's forensic accountant White from testifying; D) admitted into evidence Denise's misdemeanor domestic violence plea; E) conducted the prove-up hearing (trial) without Denise being present; F) allowed Darin to “steal” ownership of the Tennessee farmland; and G) set inadequate support.
A “trial court has wide discretion in the conduct of a trial and unless it can be shown that there was an abuse of discretion, an appellate court will not interfere” with the judgment. (Kraft v. Nemeth (1952) 115 Cal.App.2d 50, 52.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Under this standard, we will reverse only if the court's “decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
“Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357-358.) “Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom.” (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.)
In addition to establishing error, an appellant must also demonstrate prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) “‘The burden is on the appellant in every case to show that the claimed error... has resulted in a miscarriage of justice.'” (Ibid.) A miscarriage of justice occurs when “it is reasonably probable that the trial court would have reached a result more favorable to the appellant absent the error.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999.)
A. Denial of Denise's Motions for Additional Attorney Fees
Denise contends: “The court abused its discretion... by failing to order Darin to pay Denise's attorney's fees and costs.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
Before addressing the merits of Denise's argument, we will first address Darin's contention that this portion of Denise's appeal is untimely and should be dismissed because Denise did not file the notice of appeal within 180 days of the trial court's statement of decision on attorney fees.
Usually, “a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1).)
“The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits. [Citations.] But a statement of decision is not treated as appealable when a formal order or judgment does follow, as in this case.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 (Alan), italics added.)
On December 21, 2018, the trial court filed a statement of decision on Denise's multiple motions for additional attorney fees, which we arguably could have treated as an appealable order within our discretion. (See Alan, supra, 40 Cal.4th at p. 901) However, the statement of decision was followed by a formal order (a notice of findings and order) filed on August 26, 2019. Therefore, the holding of Alan does not apply. Indeed, Darin did not treat the statement of decision as a final ruling because he subsequently served Denise with the formal notice.
In short, Denise filed the notice of appeal from the trial court's denial of her request for attorney fees within 180 days of the notice of findings and order. (See Cal. Rules of Court, rule 8.104(a)(1).) Thus, this court does have jurisdiction to consider the issue of additional attorney fees, which we will now address on the merits.
The purpose of a pendente lite attorney fee award is so that both sides can retain counsel. (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252.) “In a proceeding for dissolution of marriage, ... the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party... to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (Fam. Code, § 2030, subd. (a)(1).)
Further undesignated statutory references are to the Family Code.
An application for need-based fees under section 2030 “‘is addressed to the sound discretion of the trial court.'” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) Therefore, we review a denial for an order of pendente lite attorney fees for an abuse of discretion, while we review the court's underlying factual findings for substantial evidence in the light most favorable to the judgment. (See In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 34.)
When considering an award of pendente lite attorney fees, the court must evaluate the respective incomes and needs of the parties, and any factors affecting the parties' respective abilities to pay. (§ 2030, subd. (a)(2).) Additionally, the court must consider whether “the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate....” (§ 2030, subd. (a)(2).)
In August 2015, Denise filed for dissolution of the marriage. In January 2016, Darin made a $17,500 contribution towards Denise's attorney fees and expert fees. In July 2016, the trial court ordered Darin to pay an additional $63,750 in attorney fees to Denise's first attorney, Hughes and Hughes.
In August 2016, Denise filed a motion for additional attorney fees (by attorney Blonska). In July 2018, Denise filed a motion to encumber the Tennessee property for additional attorney fees (by attorney Bledsoe). In October 2018, Denise filed a motion to allow her to borrow money against the Tennessee property for additional attorney fees (by attorney Bledsoe). The court conducted numerous hearings on Denise's multiple motions for additional attorney fees (and other interrelated matters) from April 24, 2018, to October 23, 2018.
On December 21, 2018, the trial court filed a statement of decision. The court made specific findings as to whether an award of attorney fees would be appropriate under sections 2030 and 2032. The court found Darin's total income to be about $7,629 per month: $6,000 in salary from CareMeds, $853 in payments from the business (perquisites), and $416 in rental income from the Tennessee farmland. Based on this, the court ordered Darin to make total support payments of $3,420 per month: $2,900 in child support and $520 in spousal support.
The trial court found: “After taking into consideration spousal support and child support, Respondent's income is about income is only approximately $429.00 more per month than” Denise's income from support. “Moreover, child support is non-taxable....” The court found: “There is no evidence of any separate property owned by either party. The assets and obligations, if community, shall be equally divided. Evidence shows that CareMeds owes approximately $1.6 Million to vendors. The Tennessee property is likely the most valuable asset of the parties but it is not liquid and already encumbered with no source of revenue or income that would support further encumbrance.”
The trial court found: “Both parties, according to the Income and Expense Declarations apparently owe their current counsel over $100,000 each.” The court stated: “Based on the above, the Court also finds there is no disparity in access to funds. There is no greater ability on the part of Respondent to pay for Petitioner's attorneys' fees than Petitioner has herself to pay her own attorneys' fees.” The trial court ruled: “In light of the above, the Court: [¶] DENIES Petitioner's request for further contribution toward her attorneys' fees in any amount payable by Respondent; and [¶] DENIES Petitioner's request to liquidate any personal property or real property for purposes of obtaining attorneys' fees; and [¶] DENIES Petitioner's request to further encumber any real property for purposes of obtaining attorneys' fees.”
The trial court's underlying factual findings are supported by witness testimony and other evidence in the appellate record. Given this substantial evidence, which was developed over the course of several evidentiary hearings, we cannot say that the trial court's ruling “exceeded the bounds of reason.” (Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479.) We also cannot say that the court's decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) Thus, we find the trial court did not abuse its discretion when it denied Denise's multiple motions for additional attorney fees.
Denise argues the trial court erred by not treating the loans from Darin's father as income available for attorney fees. We disagree.
Income is broadly defined in the Family Code. (§ 4058, subd. (a)(1) [“commissions, salaries, royalties, wages, bonuses, rents, dividends”].) The “sources of income in section 4058, all represent a form of income where there is no expectation of repayment or reimbursement.” (In re Marriage of Rocha (1998) 68 Cal.App.4th 514, 516-517.) Therefore, recurring gifts from a spouse's parent are considered income. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 731-733.) However, loans with an expectation of repayment are not considered income available for support (or attorney fees). (See In re Marriage of Rocha, at pp. 517-518.) Whether money from a parent is really a gift disguised as a loan is a factual determination by the court, which is reviewed under a sufficiency of the evidence standard. (Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.)
Here, both Darin and his forensic accountant Orr testified the monies from Darin's father were loans secured by promissory notes. Denise presented no evidence to the contrary (beyond mere speculation). As the trial court noted: “The Parties have had ten days to present evidence as to income available for support and attorneys' fees and evidence of any other source available for attorneys' fees. The Court inquired as to what additional testimony or evidence Petitioner desired to present on the issue of attorneys' fees not already considered by the Court and Petitioner's counsel stated ‘I don't have any.'” The court ultimately ruled: “The court doesn't find there's enough information to which the court can determine it's an Alter situation and would not apply the Marriage of Alter.” Based on the record before us, we find the trial court's factual ruling to be supported by substantial evidence.
Denise also argues the court erred because it did not order the sale of the Tennessee farm and/or allowed Denise to borrow funds against it. We disagree.
Generally, “either spouse has the management and control of the community real property, ... but both spouses... are required to join in executing an instrument by which that community real property or an interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered.” (§ 1102, subd. (a), italics added.) “This section does not preclude either spouse from encumbering that spouse's interest in community real property, as provided in Section 2033, to pay reasonable attorney's fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage....” (§ 1102, subd. (e), italics added.)
Here, throughout the lengthy pretrial proceedings the trial court repeatedly inquired as to the progress of the sale of the Tennessee property, but noted: “There has been no evidence produced, other than by offer of proof, of the value and encumbrances of the Tennessee property.” Indeed, at one point, Denise's counsel argued against selling the Tennessee farmland as suggested by the court. As far as borrowing against the real property, the court noted: “Petitioner proffers no writing setting forth the proposed terms of any proposed loan(s). Without any proposed writing there would be nothing for which this Court could hold any proposed lender accountable. The witness stand is not a venue to negotiate loans between any party or parties and a proposed lender.” On the issue of a sale or encumbrance of the Tennessee property to fund attorney fees, we find no abuse of discretion.
Finally, Denise argues the “court was aware that Darin was hiding money through [Darin's father] and SHOIT.” (Underlining, capitalization, and boldfacing omitted.) We summarily reject this argument as it is both unsupported and disrespectful. To reiterate, we affirm the court's denial of Denise's multiple motions for additional attorney fees.
We advise Denise's appellate counsel that ad hominem attacks against a trial court judge (or anyone for that matter) have no place in an appellate brief and are potentially sanctionable behavior. “Sanctions are warranted for a party's unreasonable violations of the rules of appellate procedure.” (See Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 165; Cal. Rules of Court, rule 8.276(a)(4).)
B. Denial of Denise's Joinder Motion
Denise contends: “The court abused its discretion by denying Denise's request to join [Darin's father] and SHOIT.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
Denise's joinder motion was intertwined with the reserved dissolution issues (e.g., support). Thus, we reject Darin's argument that Denise's notice of appeal from the trial court's ruling on joinder was not timely filed. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216-1217 [for purposes of appealability, “a judgment [or order] is final ‘“‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined'”'”].)
A third party may be joined to a family law action under the provisions of the Family Code: “the court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council....” (§ 2021, subd. (a).) “The petitioner or the respondent may apply to the court for an order joining a person as a party to the case... who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.” (Cal. Rules of Court, rule 5.24(c)(1).)
A ruling on a motion for joinder is reviewed for an abuse of discretion. (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 759-760 [“joinder of a third party to a family law proceeding is compelled only in the rarest of circumstances”].) “The court may order that a person be joined as a party to the proceeding if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.” (Cal. Rules of Court, rule 5.24(e)(2).)
“In deciding whether it is appropriate to determine the particular issue in the proceeding, the court must consider its effect upon the proceeding, including: [¶] (A) Whether resolving that issue will unduly delay the disposition of the proceeding; [¶] (B) Whether other parties would need to be joined to make an effective judgment between the parties; [¶] (C) Whether resolving that issue will confuse other issues in the proceeding; and [¶] (D) Whether the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding.” (Cal. Rules of Court, rule 5.24(e)(2).)
The trial court announced its findings and ruling concerning joinder as follows: “In this case, Petitioner suspects that Respondent has improperly ‘gifted' the community intellectual property to his father in an attempt wrest it from the community. [¶] Respondent and his father deny this, and argue that SHOIT is not a viable business, and though it appears that their declarations lack veracity, after ten days of hearings, there was no evidence that community property was ‘gifted' to SHOIT or that the intellectual property was given to SHOIT other than what is explained below.”
After pointing out discrepancies in Darin's and his father's declarations, the trial court stated: “With the above concerns in mind, this Court does not find that there is presently any evidence that the actions of Respondent in relation to SHOIT produced income or deprived the community business of income. The Court does not find that the joining of SHOIT is indispensable for the Court to make an order about any issue in the case before it or that the joining of SHOIT is necessary to the enforcement of any judgment rendered. Further, there has not been a showing that discovery procedures available to the Petitioner throughout these proceedings could not have produced the evidence sought.”
The trial court additionally found, “the current matter will be unduly delayed. The present matter was set for trial several days before we concluded the Respondent's RFO [motion] on support and the Petitioners RFO [motion] on attorney fees. Discovery had been reopened to allow for Petitioner's current counsel the opportunity to pursue any matter to prepare for Respondent's hearing on the Request to modify support. [¶] The Court can find no basis at this time to believe it could not make an effective judgment in this case if SHOIT was not joined.”
We find the court's denial of Denise's motion to join Darin's father and SHOIT to be supported by substantial evidence, especially in the absence of any contrary evidence. We find that the court considered the appropriate legal authorities. We do not find the court's denials of Denise's joinder motion to be arbitrary, capricious, or beyond the bounds of reason. Thus, we find no abuse of the court's discretion.
C. Exclusion of Denise's Forensic Accountant From Testifying
Denise contends: “The court abused its discretion by excluding Denise's forensic accountant from testifying.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
California trial courts have broad inherent powers over their own procedures. (In re Reno (2012) 55 Cal.4th 428, 521-522.) “‘It is... well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them.'” (Ibid.) “‘“In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.”'” (Ibid.)
Generally, “[t]he trial court is empowered to determine motions upon affidavits, and has the discretion to refuse oral testimony.'” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499-1500 [“trial court was not required to allow oral testimony” at proceeding for application of a restraining order].)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the [appellate] court... is of the opinion that the error or errors complained of resulted in a miscarriage of justice....” (Evid. Code, § 354.) “Where the trial court... has made a ruling that certain evidence is inadmissible, the party offering the evidence may make an ‘offer of proof' to explain its ‘substance, purpose, and relevance.'” (In re A.G. (2020) 58 Cal.App.5th 973, 996) “A ‘vague or nebulous' offer of proof as to what testimony would be elicited from the witness is not sufficient.” (Id. at pp. 996-997.)
On July 23, 2018, the court filed an order stating “if any further testimony will be done by experts, they are to meet and confer regarding their report before the hearing. [¶] Counsel to exchange any documents that will be presented to the Court at least 5 days before the hearing.”
On October 16, Denise sought to admit the testimony of her forensic accountant White. Darin's counsel objected because “there's been no meet and confer, no exchange of an exhibit or a report.” The trial court asked Denise's counsel, “Has there been a meet and confer?” Denise's counsel responded, “I'll let Mr. White answer that. I don't know. I think he's tried -- his testimony would be he attempted to meet and confer and it didn't happen.” The court said, “you [may] want to take the time and have them meet this afternoon, I'm happy to do that.” Denise's counsel then disclosed White had prepared a report, but it had not been done in writing.
The trial court asked for an offer of proof. Denise's counsel said White's “opinion does not differ that much from Mr. Orr's opinion” but the principal difference “is the classification of the loans as income.” The court asked, “Is there any piece of evidence that Mr. White will rely upon that you have not yet shown to me? Because what you've said is that he'll say the loans are more of an Alter, gifts. That's a legal conclusion.” The court later said, “I made an order. I expect it to be followed. It was not.” After further discussion, the court said, “I extended discovery 45 days, I continued at your request to do exactly what I asked. It wasn't done. Denied. Next witness.”
In re Marriage of Alter, supra, 171 Cal.App.4th at pages 731-732.
Here, the court's order for a “meet and confer” in advance of the expert's testimony was reasonable and within its inherent authority. Further, the accounting expert White had not prepared a written report in further violation of the court's order. Moreover, Denise's offer of proof as to White's proposed testimony was vague and insufficient. In sum, we find no abuse of the trial court's discretion.
In any event, Denise has not established on appeal how she was harmed by the alleged error. (Evid. Code, § 354.) We agree with the trial court that in the absence of evidence to impeach Darin's testimony, the classification of the father's cash advances to Darin as loans rather than gifts was essentially a legal conclusion. Therefore, it is highly unlikely that White's testimony would have affected or changed the outcome of the proceeding (the motions for support modification, attorney fees, and/or joinder).
D. Admission of Misdemeanor Domestic Violence Plea
Denise contends: “The court committed prejudicial error by admitting Denise's five-year-old misdemeanor plea into evidence.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
Factors relevant to an award of spousal support are mandatory. (§ 4320.) One of those factors is: “All documented history of any history of domestic violence... between the parties....” (§ 4320, subd. (i), italics added.)
Here, during one of the pretrial hearings, Darin's counsel asked Denise, “Have you pled guilty or no contest to a domestic violence action wherein you were accused of perpetrating domestic violence on the Respondent?” Denise responded, “I don't know the answer to that question.” The court advised Denise: “Think it through because this is a credibility matter for me.” The court then told Denise, “I want to make sure that you're answering truthfully and intelligently, so I'll give you time to talk to Mr. Bledsoe at lunch.” After lunch, the question was repeated by the court reporter. Denise responded, “I pled plea [sic] in advance for misdemeanor assault which is part of the domestic violence family.”
Among the other spousal support factors, the trial court noted in its final ruling after trial: “Petitioner/Mother admitted to pleading guilty to domestic violence/simple assault against Respondent/Father in 2010.” Since all prior domestic violence incidents are relevant when determining spousal support under section 4320, we do not find the court's admission into evidence of Denise's misdemeanor domestic violence plea to arguably constitute a prejudicial error.
Denise argues: “Family Code § 4324.5 requires that the domestic abuse conviction be a felony.” Not so. Section 4324.5 provides: “In any proceeding for dissolution of marriage where there is a criminal conviction for a... domestic violence felony perpetrated by one spouse against the other spouse and the petition for dissolution is filed before five years following the conviction..., the following shall apply: [¶] (1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.” That is, while section 4324.5 prohibits spousal support to the convicted spouse when there has been a felony domestic violence conviction within five years of the filing for dissolution, it does not prohibit the court from considering a spouse's misdemeanor domestic violence conviction under section 4320.
Denise also argues: “No facts were introduced that Denise was convicted of any domestic violence offense....” Not so. Denise testified she pleaded guilty to a misdemeanor domestic violence offense.
In her reply brief, Denise also argued: “The Respondent stated that the court's erroneous ruling did not prejudice Denise. However, the court stated, ‘Having been charged with a criminal matter, what happened causes me to question your credibility today.'” But Denise misquotes the court's statement and takes it out of context.
When asked about her prior domestic violence conviction, Denise initially responded, “I don't know the answer to that question.” At that point, the court said, “Let me take a short recess because it goes to credibility. And if you don't know having been charged with a criminal matter what happened, it causes me to question your credibility today. Let me give you a recess. Talk to Mr. Bledsoe about it. We'll break now. Back at 1:30. We'll re-ask that question and that way you can take a look at it. I don't want you to say something that is not true, but I don't want you to have the appearance that you're avoiding telling me the truth.” (Italics added.)
What caused the trial court to have some concerns about Denise's credibility was not the misdemeanor domestic violence conviction itself, but rather Denise's initial answer indicating that she did not know about the conviction. In sum, there is no indication the trial court used Denise's misdemeanor domestic violence conviction in any improper or prejudicial manner as Denise suggests.
E. Conducting the Prove-Up Hearing (Trial) Without Denise
Denise contends: “The court abused its discretion by forcing a prove-up hearing without Denise.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
In this part of the discussion, we will: 1) review general principles of law concerning the absence of a party at trial; 2) quote at length from the trial court's findings as to what occurred; and 3) analyze and apply to the law to the facts.
1. General Principles of Law
“In superior courts either party may bring an issue to trial or to a hearing..., in the absence of the adverse party, unless the court, for good cause, otherwise directs....” (Code Civ. Proc., § 594, subd. (a).) The unavailability of a party because of illness or other excusable circumstances may indicate good cause for granting a continuance. (Cal. Rules of Court, rule 3.1332(c)(2).) Therefore, a party who is unavoidably absent from a hearing may move the court for a continuance on a showing of good cause. (Young v. Redman (1976) 55 Cal.App.3d 827.)
“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a).) Continuances cannot be used for purposes of delay; motions to continue a firm trial date are generally disfavored. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17.) “A party seeking a continuance of the date set for trial..., must make the request... by a noticed motion or an ex parte application..., with supporting declarations.” (Cal. Rules of Court, rule 3.1332(b).)
“[T]he mere absence of a party standing alone is insufficient to compel a court to grant a continuance. Even the alleged illness and inability of the defendants to attend the trial has been held insufficient grounds for reversal where the trial court denied a request for a continuance in the absence of supporting affidavits.” (Young v. Redman, supra, 55 Cal.App.3d at p. 831; compare In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1274 [trial court erred when it denied wife's request for a reasonable accommodation (a continuance) under the Americans with Disabilities Act (ADA) based on her known medical conditions].)
2. The Trial Court's Findings
“On November 14, 2018, this matter came on for trial at 8:30 a.m. as lawfully noticed. Neither Petitioner nor Mr. Bledsoe appeared. Instead, Byron Mauss, as a friend of the Court, provided the Court with a letter, apparently at Ms. Peterson's behest, which was purportedly from a doctor charged with her care. Based on the letter and Petitioner's nonappearance, the Court trailed trial to November 15, 2018 and requested counsel for Respondent to serve Petitioner with notice of the fact that trial was trailed to November 15, 2018, as well as notice of this Court's order that Petitioner must personally appear... and provide any reason why she cannot proceed with trial, including but not limited to any medical condition(s) that would be cause for a continuance.
“Counsel for Respondent prepared the Notice of Trial and order for Petitioner to personally appear on November 15, 2018 before this Court at 8:30 a.m. as described above and proof of personal service on Petitioner of the same was filed with this Court on November 14, 2018.
“On November 15, 2018, this matter came on for trial as lawfully noticed. The Court received information from Byron Mauss, as a friend of the Court, that Petitioner was, at that time, being driven to an emergency room apparently due to anxiety. The Court has reviewed the letter..., which states: ‘To whom it may concern: I have had an opportunity to do an initial comprehensive evaluation of Ms. Peterson... and it's this doctor's opinion that she should be relieved of additional [court] appearances for approximately three months.' The letter goes on to state: ‘In my professional opinion, she's [, Ms. Peterson, ] capable and able to resume all other activities in her life.' The Court finds that the letter does not tell the Court what's going on. The Court does not find the letter to be a valid explanation as to why Petitioner is not present nor does it excuse her absence because it states that Petitioner is ‘able to resume all other activities in her life' but for trial.
“The Court finds that Petitioner and her counsel of record, John Bledsoe, had lawful notice of trial set for November 14, 2018.... The Court also finds that Petitioner had lawful notice of trial set for November 15, 2018....
“The Court has considered [In re Marriage of James & Christine C., supra, 158 Cal.App.4th at p. 1274] and finds that it is not applicable to this matter. There has been no A.D.A. request for accommodation in this case. Moreover, there is no ‘known condition' in this case. The Court further finds that this case just recently completed ten or more days of hearings on the issues of support and attorneys' fees and Ms. Peterson was here every day and actively involved in and participated in the hearings. The Court previously continued the prior hearings then in progress and even re-opened discovery at Petitioner's request and for her benefit to allow her to pursue her theories of the case in discovery until one week before trial. The hearings on support and attorneys' fees were concluded after both parties presented their cases. The Court noted in the prior hearings with Mr. Bledsoe that he was the fourth attorney. The Court previously indicated to Mr. Bledsoe and Petitioner that the case had gone on for approximately three years and that it needed to be concluded. Petitioner has brought at least two prior motions seeking a continuance of trial which were denied. The Court finds the doctor's note is disingenuous in that Petitioner can do everything in her life but come to court. The statement is rather enlightening on the purpose of why Petitioner is not here. She just does not want to go forward.
“The Court waited approximately one hour after initially calling the case and then called this matter again. The Court noted that Byron Mauss, the individual who acted as a friend of the Court..., was making notes of the things the Court previously stated about the Court's belief that Ms. Peterson purposefully failed to appear and given that Mr. Mauss, is an attorney himself, the Court believes that he relayed them to Ms. Peterson. Nonetheless, the Court did not receive any telephone calls from Ms. Peterson nor did Ms. Peterson personally appear.
“In light of the above, the Court finds that Petitioner has intentionally absented herself from the proceedings. The Court further finds that there is no good cause to continue the matter. At some point, the Court must proceed to trial. The matter then proceeded uncontested.”
3. Analysis and Application
Denise does not claim lack of notice of the trial dates. Therefore, our review is limited to whether the court abused its discretion when it found there was not good cause to grant Denise's implied request to continue for three months. While we recognize other trial courts may have come to a different decision, Denise has not established the court acted in an arbitrary or capricious manner. Indeed, the court thoroughly summarized the relevant facts, the appropriate case law, and then applied the facts to the law in reaching its decision. In short, we find the court did not abuse its discretion by proceeding with the prove-up hearing (trial) without Denise being present.
Denise argues: “The court should have received the news about [her] with compassion.” We find nothing in the record to demonstrate a lack of compassion on the part of the trial court. On November 14, the court continued the matter to the following day, allowing an opportunity for Denise to explain the nature of her alleged medical condition, or to explain any accommodations she may be seeking. However, Denise again failed to appear without responding to the court's notice, nor did she provide a declaration seeking a continuance. Thus, the court understandably proceeded with the prove-up hearing (trial) after about three years of litigation.
Denise also argues: “The court was advised that Hughes was considering coming into the case to represent Denise [citation]. The court did not care. It stated that, unless Denise appeared in an hour, he was going to hold a prove-up hearing with Darin [citation].” Putting aside Denise's further ad hominem attack against the trial court, we find no error.
On November 14, after attorney Mauss provided the doctor's note to the court, he said, “Ms. Peterson is consulting with Ms. Hughes -- Lisa Hughes who has expressed an interest on coming back on the case.” The court told Mauss that Hughes had “struggled to get her fees on the lien and has had Mr. Peterson in here three times the last couple months on debtor exams. So the court's opinion is that this is a delay tactic which I won't allow with all respect to you.” We find the information provided to the court regarding Hughes' purported potential representation to be highly speculative. Indeed, had Hughes actually committed to representing Denise once again, the attorney presumably could have made an appearance the following day and requested a continuance (or filed a declaration with a substitution form).
Denise also argues the court violated its “promises” to Denise. She is mistaken. The court had earlier said to Denise: “If you need more time, for good cause, I'll continue it.” (Italics added.) But the court did not interpret the doctor's letter as a sufficient showing of good cause. Thus, the court did not violate its “promises.” In sum, we find no abuse of the court's discretion.
F. “Theft” of Tennessee Farmland
Denise contends: “The court's order allowing Darin to steal Denise's 50% ownership of the multi-million dollar Tennessee farm was not supported by substantial evidence and was an abuse of discretion.” (Underlining, capitalization, and boldfacing omitted.) While we summarily reject Denise's offensive notion that the trial court somehow allowed Darin to “steal” property from Denise, we agree the court's valuation of the Tennessee farmland was not supported by substantial evidence.
In this part of the discussion, we will: 1) state the general principles of law concerning the valuation of community property; 2) note the relevant proceedings from the record below; and 3) analyze and apply the law to the facts.
1. General Principles of Law
“Family law court is a court of equity.” (In re Marriage of Schu (2014) 231 Cal.App.4th 394, 401.) In dividing a community estate, the trial court has “the responsibility to fix the value of assets and liabilities in order to accomplish an equal division.” (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631-632.) “‘The valuation of a particular asset is a factual question for the trial court, and its determination will be upheld on appeal if supported by substantial evidence in the record.'” (In re Marriage of Iredale & Cates (2004) 121 Cal.App.4th 321, 329.)
“‘Substantial evidence' means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (People v. Conner (1983) 34 Cal.3d 141, 149.) In a substantial evidence review, “[t]he focus is on the quality, rather than the quantity, of the evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
2. Relevant Proceedings
On November 15, 2018, the trial court conducted the prove-up hearing (trial) without Denise being present. Darin was the sole witness who testified to the value of the Tennessee property as follows:
“[Darin's counsel:] Mr. Peterson, do you have an opinion as to what the value of the Tennessee property is?
“[Darin:] Yes.
“[Counsel:] What is that?
“[Darin:] A million dollars.
“[Counsel:] What do you base that on?
“[Darin:] I just -- my experience with property since we acquired it several years ago.
“[The Court]: Mr. Peterson, you paid two million for the property?
“[Darin]: Yes. Less than that, but we had some fees -- attorney fees, planning fees. Something like 1.8 at the time, but we overpaid.”
The direct examination continued:
“[Counsel:] Mr. Peterson, do you know what the -- is there an S.B.A. loan against the property?
“[Darin:] Yes.
“[Counsel:] How much is that approximately as you sit here today?
“[Darin:] About $290,000.
“[Counsel:] And there are also some notes that have been recorded against the property?
“[Darin:] Yes.
“[Counsel:] And what's that amount?
“[Darin:] That would be about $170,000.
“[Counsel:] Okay. And there are additional liens that you believe are recorded against the property by Hughes & Hughes for $75,000 plus; is that correct?
“[Darin:] Yes.
“[Counsel:] You're not asking the court to include that in the calculation of the fair market value of the property; correct?
“[Darin:] Correct.
“[Counsel:] Okay. And you have received one offer in the several years that the property has been listed; is that accurate?
“[Darin:] Yes.
“[Counsel:] Do you have an understanding as to what that offer was?
“[Darin:] $150,000
“[Counsel:] How much?
“[Darin:] $150,000.
“[Counsel:] Okay. But you believe that the fair market value is a million dollars?
“[Darin:] Yes.
“[Counsel:] Okay.
“[Counsel:] Your Honor, we would ask the court that it find that the Tennessee property is worth one million dollars subject to the liens my client testified to leaving a net equity of $550,000. Ms. Peterson's community share of that would be $275,000. We would ask that the court issue or order a trust deed issued to the petitioner in the amount of $275,000; that my client have five years to pay that off.
If he doesn't, she can foreclose on the property to collect her $275,000. In the event that the property is sold prior to the trust deed being paid off, that the first net dollar of net proceeds available to the seller, that that would go to the petitioner, Denise Peterson, up to the amount of $275,000 to pay off that trust deed.
“[The Court]: Granted.”
3. Analysis and Application
Ordinarily, a trial court's valuation of a particular asset is informed and guided by expert opinions. (See, e.g., In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 752-753 [differences between the experts as to the valuation of an asset go to the weight of the evidence].) “The value of property may be shown only by the opinions of any of the following:... Witnesses qualified to express such opinions.” (Evid. Code, § 813, subd. (a)(1).) “‘The trier of fact may accept the evidence of any one expert or choose a figure between them based on all of the evidence.'” (San Diego Metropolitan Transit Development Bd. v. Cushman (1997) 53 Cal.App.4th 918, 931.)
Here, the Tennessee property was the focal point of numerous hearings preceding the trial date. For good reason: the Tennessee property was recognized as the only community asset of significant value. At various stages in the proceedings, the court considered appointing a special master and/or a receiver to assist the court in its valuation and division of the Tennessee property. At one point the court said, “I need to have probably some appraisals on the Tennessee property.” However, on the day of the uncontested trial, the court simply accepted Darin's seemingly arbitrary valuation of the Tennessee property at the precise amount of $1 million.
A Tennessee broker opined in a letter that the “valuation range” of the property was from $1,436,550 to $1,915,400. But it does not appear that the letter was filed with court until about three months after the trial.
In California, an owner may offer his opinion of the value of the property in issue. (Evid. Code, § 813, subd. (a)(2).) This “rule was originally predicated on the theory that the owner who resided on and owned property for a period of years would be presumed to acquire sufficient knowledge of the property and of the value of the land in that neighborhood to be able to give an intelligent estimate as to the value of his own property.” (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 411.)
Generally, in the valuation of real property, a trial court receives appraisals, which typically include information about the local market, the permitted land uses, and comparable sales and listings (comps). (See, e.g., Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 189.) Here, none of that occurred: no comps, no reports, no experts. Darin is a California businessperson who had no apparent qualifications to offer an educated appraisal of nearly 100 acres of farmland located across the country. Further, Darin had little contact with the property, there was scant basis provided for his opinion, and his $1 million valuation was radically different from the only expert appraisal in the record (from $1.4 to $1.9 million). Darin's valuation, like any expert opinion, is only as good as the information upon which it was based. Darin was competent to offer his opinion, but it was essentially worthless. (See Evid. Code, § 813, subd. (a)(2).)
Again, it is true that an owner's valuation of his own property is admissible. (Evid. Code, § 813, subd. (a)(2).) And it is also true that under the substantial evidence standard, “the testimony of a single witness, even the party himself may be sufficient [to constitute substantial evidence].” (Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97.) But there are limits to the scope of this appellate rule. (See People v. Young (2005) 34 Cal.4th 1149, 1181, italics added [“unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient”].) “Inherently improbable... means that the challenged evidence is ‘unbelievable per se,' such that ‘the things testified to would not seem possible.' [Citation.] The determination of inherent improbability must be made without resort to inference or deduction, and thus cannot be established by comparing the challenged testimony to other evidence in the case.” (People v. Ennis (2010) 190 Cal.App.4th 721, 725.)
Without regard to any other inferences in the record, the appraisal of 95.77 acres of real property at the arbitrarily precise amount of $1 million does “‘not seem possible'” on its face. (See People v. Ennis, supra, 190 Cal.App.4th at p. 725.) There is evidence, but it does not amount to substantial evidence. Darin gave his opinion, but he plucked the value out of thin air, having no knowledge of it. Accordingly, we find Darin's unfounded opinion to be inherently improbable, such that it does not constitute sufficient evidence. Thus, we reverse the trial court's valuation of the Tennessee property at $1 million and the court's resulting division of that property.
We are not going to direct the trial court on remand as to how to fairly value and divide the real property. However, we take note of the court's inventive ideas it considered during the pretrial hearings (e.g., appointing a receiver, appointing a special master, etc.).
Darin argues this issue has not been properly preserved for review under principles of forfeiture: “Where Denise did not show up for trial, and did not present evidence regarding the Tennessee property, she cannot be heard to complain about the trial court's rulings.” This argument would ordinarily be highly persuasive and dispositive, but family law courts are courts of equity. That is, it is part of a family court's duty to protect the rights of the respective parties. (Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 296 [“in exercising its equitable powers, a trial court must consider the equities on both sides of a dispute”].)
Considering the totality of these unique circumstances, we choose not to apply the doctrine of appellate forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”].)
G. Amount of Support
Denise contends: “The court's support orders were abuses of discretion.” (Underlining, capitalization, and boldfacing omitted.) We disagree.
“California has a strong public policy in favor of adequate child support.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) As to the amount, the statewide uniform guideline formula is presumed to be correct. (§ 4057, subd. (a).) The presumption may be rebutted with evidence showing “application of the formula would be unjust or inappropriate.” (§ 4057, subd. (b).)
Here, after restating the trial court's child support order ($2,902.00 per month), Denise argues: “These sums are woefully short of what is needed to care for the Parties' five children. The court closed its eyes and refused to see that Darin was receiving far more than $7,000 in monthly income.” (Italics added.)
We reject this argument because it is not sufficiently developed or supported. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Denise's briefing: 1) omits key information (e.g., Darin's income statement is to be provided annually); 2) fails to quote the applicable statutes; 3) fails to cite a leading case on the issue of child support; 4) fails to explain or argue how the child support order is inadequate under the applicable statutes or case law; and 5) includes yet another ad hominem attack on the trial court judge.
As an appellate court, it “is not our responsibility to develop an appellant's argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) Nor is it our responsibility to “construct a theory supportive of” an appellant's claims. (People v. Stanley (1995) 10 Cal.4th 764, 793.) In an appeal, one cannot-as Denise does here-“simply say the court erred, and leave it up to the appellate court to figure out why.” (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 367-368.)
III
DISPOSITION
The trial court's valuation and division of the Tennessee real property is reversed. In all other respects, the judgment is affirmed. In the interests of justice, each party is ordered to pay their own costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J.THOMPSON, J.