Opinion
B158099.
7-11-2003
MICHAEL E. ROSADO, SR., Plaintiff and Appellant, v. MAIRA REGALADO, Defendant and Respondent.
Michael Rosado, in pro. per., for Plaintiff and Appellant. Law Offices of Ricardo A. Figueroa and Ricardo A. Figueroa, for Defendant and Respondent.
Father has failed to establish that he has timely appealed from an appealable order. Accordingly, we dismiss his appeal.
As best we can tell from the record, father had a one-time sexual encounter with the childs mother, an employee of his business. He now believes she was already pregnant at the time, but was led to believe the child was his. During a hearing on November 2, 1999, father (represented by counsel) admitted paternity and said he had been voluntarily sending mother $ 500 per week for child support. The trial court entered a temporary support order in that amount.
The trial court granted father three hours of weekly monitored visitation and ordered him to pay for the monitor. It also ordered him to pay $ 1,500 to mothers lawyer. Fathers motion for a new trial was denied on December 13, 1999.
Apparently mother was on welfare, which brought the district attorneys office into the picture. Father claims that mother was committing welfare fraud and had embezzled $ 25,000 from his business. Nonetheless, says father, the District Attorney caused him to lose his business. Father was suffering from some sort of disability and was now unable to earn any income. The trial court refused to grant him any relief.
Fathers appellate briefing accuses the various jurists who have handled his case of numerous acts of malfeasance and bias against him. He claims these acts have cost him the following amounts of money:
$ 25,500 to one attorney.
$ 18,000 to another attorney.
$ 43,000 to a third attorney.
$ 11,000 to a fourth attorney.
$ 950 in paralegal expenses.
$ 250 for parenting classes.
$ 750 for anger management classes.
$ 600 for therapy.
$ 700 for therapy.
$ 75,000 directly to mother.
$ 15,000 for gasoline.
$ 5,000 to a fifth attorney.
$ 275,000 for his lost business investment.
$ 2,500 in costs for representing himself.
$ 50,000 for the loss of his contractors license.
$ 130,000 for the loss of his business.
Father says these expenses continue to mount due to mothers actions and the misconduct of the various judges. He asks us to undo all the orders and send the matter back to be heard by an unbiased judge. He complains that the support order (which he characterizes as palimony instead of child support) was entered without reference to the appropriate guidelines.
DISCUSSION
I
We must dismiss this appeal. The appellate record is anything but clear and contains no judgment. Neither side discussed timeliness in the appellate briefs. We have managed to cobble together a chronology indicating that the appeal is untimely. We requested supplemental briefing on the issue of timeliness. We have considered those papers.
As noted, the November and December 1999 hearings resulted in temporary orders for child support. The record contains no subsequent judgment. A responsive declaration filed by the Los Angeles County Child Support Services Department for a May 23, 2002, hearing declares that the judgment was dated November 1, 2000, and ordered father to pay $ 250 per month in child support. Father acknowledges this in his papers filed for a subsequent order to show cause. The appellate briefing from both sides focuses exclusively on the November and December 1999 hearings.
In a case information statement filed here, defendant says he is appealing from judgments or orders of November 1, 2000, and an unspecified September date in 2001. The notice of appeal was filed on April 24, 2002. On its face, the appeal is untimely, leaving us with no jurisdiction other than to dismiss.
II
Nonetheless, we feel compelled to note that the November and December 1999 hearings, at which temporary support was initiated and continued, utterly failed to comply with the statutory requirements for such orders. We cannot know whether those temporary orders somehow infected subsequent hearings.
In setting child support, a trial court may not deviate from the established guidelines without first establishing the guideline amount and then justifying the deviation. "For better or worse, California child support law now resembles determinate sentencing in the criminal law: The actual calculation required of the trial judge has been made . . . complicated . . . . [P] . . . [P] . . . Certain sections of the Family Code are now redolent of the flavor of the Internal Revenue Code, complete with definitions of income and allowances for deductions. [Citation.] In light of such determinism, ascertaining the correct uniform guideline becomes extraordinarily important, because the trial court may only depart from that guideline by specifying (either in writing or on the record) three things — the guideline amount, the reason why the amount ordered differs, and the reason the different amount is consistent with the best interests of the child. [Citation.] Obviously that means, at a minimum, a correct calculation of the guideline amount." (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144.)
No such procedure was followed here. At the hearing on the order to show cause for temporary orders in November of 1999, the trial court ascertained that father had been voluntarily sending $ 500 per week and summarily imposed that figure, which has since been continued in effect. The court acknowledged that father was "asking for guideline child support." After a short colloquy, the court ruled: "On [fathers] representation that he is sending $ 500 a week, that is to continue."
Six weeks later, fathers new counsel (via a motion for a new trial) complained that there was nothing in the record showing "an income and expense declaration[,]" and that "there was no finding by the court." The trial court replied, "He gave the court all the financial information the court needed." Counsel pointed out that the court had failed to make specific findings as statutorily required. The court ruled: "Your client in open court represented he was making payments of $ 2,000 a month and had the financial ability to make those payments and money was not the issue. The motion is denied."
The trial courts memory was faulty. Nowhere in the previous hearing had father or his counsel represented that money was not an issue. Indeed, when the trial court ordered father to pay for the court monitor, father said it was "not fair for me to pay for this." Father stated that he was "struggling to make child support for all my children."
Father received nothing remotely resembling a hearing on the issue of child support nor did the trial court make even the smallest effort to comply with statutory requirements. Indeed, at the December 1999 hearing, the trial court refused to consider financial information submitted by father. It commented that father was coming up with new allegations "that I dont need to get into."
Father was entitled to a real hearing on the child support issue with the court fully complying with all requirements and fully justifying any deviation from the guideline amount. If fathers financial circumstances had deteriorated from the time he began voluntary child support payments, the court should have taken those circumstances into account. Instead, the court conducted proceedings that did not rise to the level of "summary."
Mothers appellate counsel attempts to justify the trial courts failure by claiming that father was a high income earner. Mother relies on Estevez v. Superior Court (1994) 22 Cal.App.4th 423, in which the appellate court concluded that the guidelines could be ignored because the father had "an annual income of not less than $ 1.4 million . . ., and can pay any reasonable amount of child support." (Id. at p. 429.) "Application of the guideline to Estevezs stipulated annual income of $ 1.4 million would result in a child support amount of approximately $ 14,500 per month. In addition, Estevez has stipulated that he can pay any reasonable child support award, thereby removing the issue of his ability to pay [citation], and indicating he will accede to any order the court may make, even one in excess of the amount called for by the guideline formula . . . ." (Id. at pp. 430-431, fn. omitted.)
Our case bears not the slightest resemblance to Estevez. Nothing in the record demonstrates that father is "an extraordinarily high earner[,]" as is Estevez. (Estevez v. Superior Court, supra, 22 Cal.App.4th at p. 431.)
Nor does our case bear any resemblance to White v. Marciano (1987) 190 Cal. App. 3d 1026, 235 Cal. Rptr. 779, in which "the respondent stipulated that he had an annual income of $ 1 million; that he lived a lifestyle commensurate with that income; and that he could pay any reasonable amount of child support. [Citation.]" (Estevez v. Superior Court, supra, 22 Cal.App.4th at p. 429.)
We have no way of knowing whether the guidelines were ever considered after the initial two hearings. If not, somewhere down the line the trial court should have done so and properly justified any deviation. Future child support orders shall be made only after the appropriate procedures are followed.
III
The record contains an unsigned proposed order for a hearing held on April 10 and 11, 2003, during the pendency of this appeal. The order contains many details surrounding custody, visitation, and restraining orders. The order contains a provision in which the trial court concludes it has no jurisdiction over child support while the appeal is pending. We do not know whether the trial court ever signed this order. If it did, and if ours is the pending appeal noted, we trust the child support issue will be timely handled as soon as our remittitur issues.
DISPOSITION
The appeal is dismissed. Each party to bear its own costs.
We concur: SPENCER, P.J., and VOGEL (Miriam A.), J.