Opinion
A151418
07-24-2018
In re the Marriage of YASMIN K. and RENATO A. GLORIA II. YASMIN K. ROSALES, Respondent, v. RENATO A. GLORIA II, Appellant; SAN MATEO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0110382)
Renato A. Gloria II appeals an April 2017 child support order. The trial court denied a petition to reduce his child support payments based on a claim of reduced income and instead found Gloria was voluntarily underemployed. The court denied earlier granted hardship deductions and recalculated his child support obligation under the statewide guideline, yielding a higher monthly payment. We affirm.
I. BACKGROUND
Gloria's marriage to Yasmin K. Rosales was dissolved effective 2011. Their two sons were ages 7 and 15 in April 2017.
On November 30, 2016, the court ordered Gloria to pay Rosales $786 a month, consisting of $721 in child support and $65 for child care. As relevant here, the amount was based on Gloria's monthly gross income of $3,874, Rosales's monthly gross income of $4,288, Gloria's 15.6 percent timeshare, and hardship deductions allowed for Gloria's two younger children from his current marriage. Gloria appealed the November 2016 child support order, but the appeal was dismissed in April 2017 because he failed to procure the appellate record.
Respondent San Mateo County Department of Child Support Services (DCSS) is providing child support services and appeared on behalf of Rosales at the hearing. (See Fam. Code, §§ 17000, subd. (h), 17400, subd. (a).) Further undesignated statutory references are to the Family Code.
The November 2016 order was based on Gloria's $22 per hour income as an employee of a Wells Fargo bank branch in San Carlos. In late 2016, the branch closed. Gloria, who lived in Daly City, declined an offer of a job at another Wells Fargo branch in San Francisco, and instead accepted a job working as a valet parking attendant in Redwood City that paid $14 per hour.
In February 2017, Gloria requested modification of the November 2016 child support order based on a new reported income of $2,240 a month. In response, Rosales filed an income and expense declaration reporting $3,500 in average monthly income for herself and estimating Gloria's monthly gross income at $2,464. DCSS opposed the modification request "unless [Gloria] can demonstrate that he is not voluntarily underemployed."
At an April 26, 2017 hearing before Court Commissioner Rachel Holt, Gloria testified he declined the Wells Fargo job and took the parking attendant job because (1) he was skeptical the San Francisco job would be permanent because of Wells Fargo's "bad reputation" and that branch already had an employee performing his former job; (2) his transportation and parking costs would be high if he worked in San Francisco, whereas parking was free at his parking attendant job; and (3) his hours were flexible in the parking attendant position, allowing him to work early morning hours and watch his two young children while his current wife worked evening hours. Rosales told the court she had informed Gloria of another job that paid $22 per hour but Gloria did not pursue it.
The court found Gloria was "underemployed by choice in light of his decision not to seek out the transfer job in San Francisco and . . . choosing a job that pays him less . . . largely to care for his two younger children." Addressing Gloria, the court said: "I understand . . . you have two very young children with your new wife, and . . . working close to home[, w]orking flexible hours allows you to be there for them, avoid significant child care costs . . . [¶] . . . [and] share in the parenting. . . . But the bottom line is you have two older children that you are also required to provide for equally." The court recalculated Gloria's child support obligation using a monthly gross income for Gloria of $2,426, a monthly gross income for Rosales of $3,500, a 15.6 percent timeshare for Gloria, and no hardship deductions for Gloria's two younger children. It ordered Gloria to pay $858 per month, consisting of $793 in child support and $65 for child care.
On May 1, 2017, Gloria filed a "Notice of Objection to the Previous Hearing of April 26, 2017 with Request for Trial by Regular Judge." He objected that a commissioner presided over the hearing and requested a new trial by a judge. Gloria also filed an "Ex-Parte Motion to Review Commissioner's Decision of April 26, 2017 hearing by a Regular Judge and Suspension of Order," which repeated his objection to the commissioner and argued the commissioner's decision was erroneous. No court action was taken on the "Notice" and the ex parte motion was denied without a hearing. On May 19, Gloria appealed the April 26, 2017 child support order.
II. DISCUSSION
All of Gloria's arguments have been forfeited because his appellate brief does not conform to the California Rules of Court. Rule 8.204 requires appellants to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" and to limit factual assertions "to matters in the record." (Rule 8.204(a)(1)(C), (a)(2)(C).) Gloria provides no citations to support references to the record anywhere in his brief, and he discusses in great detail a document (his February 2017 income and expense declaration) that is not included in the appellate record. Rule 8.204 also requires appellants to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." (Rule 8.204(a)(1)(B).) "This is not a mere technical requirement; it is 'designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [not the appellate courts' role to " 'extricate [arguments] from the mass' " of verbiage in a disorganized brief].) Gloria provides legal authority as to only a few assertions of error and those legal citations appear in his statement of facts, not in the appropriate legal discussion section of his brief. He includes several headings in his statement of facts, but no headings setting forth his legal arguments in the discussion section, nor does he support his claims of error with argument applying legal principles to the facts of his case. We do not consider loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)
All rule references are to the California Rules of Court.
Gloria has consequently forfeited his arguments on appeal. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may treat as waived any factual contentions not supported by a citation to the record and any claims unsupported by legal argument]; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524-525 [pro se litigant abandons claims unsupported by coherent legal arguments].) Gloria is not exempt from the rules because he represents himself on appeal. Pro se litigants must comply with the same procedural rules as attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) We would, in any event, reject Gloria's arguments on the merits.
"California has a strong public policy in favor of adequate child support. [Citations.] That policy is expressed in statutes embodying the statewide uniform child support guideline. (See . . . §§ 4050-4076.) 'The guideline seeks to place the interests of children as the state's top priority.' (§ 4053, subd. (e).) In setting guideline support, the courts are required to adhere to certain principles, including these: 'A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.' (§ 4053, subd. (a).) 'Each parent should pay for the support of the children according to his or her ability.' (§ 4053, subd. (d).) . . . [¶] To implement these policies, courts are required to calculate child support in accordance with the mathematical formula set forth in the statute. (See § 4055; [citations].) . . . [A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes. (§§ 4052, 4053, subd. (k); [citation].)" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283-284.) "[C]hild support awards are reviewed for abuse of discretion. [Citations.] . . . [However,] 'determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]' [Citation.] In short, the trial court's discretion is not so broad that it 'may ignore or contravene the purposes of the law regarding . . . child support.' " (Cheriton, at pp. 282-283.) A. Unjust and Inappropriate Guideline Amount; Hardship Deductions
The primary issue presented to the trial court was whether the reduction in Gloria's income warranted a reduction in child support. The trial court recalculated child support using Gloria's new income but found he was voluntarily underemployed, and because of Gloria's availability for childcare the two hardship deductions were removed from the calculation—resulting in a higher monthly child support obligation. Gloria makes two arguments related to this discretionary determination by the trial court. First, he implies the court erred by removing the hardship deductions for his two younger children. (See § 4071, subd. (a)(2).) Second, he argues the court erred by failing to depart from the guideline amount because it was unjust and inappropriate in his particular case. (See § 4057, subd. (b)(5).) Gloria fails to demonstrate the court abused its discretion.
Gloria erroneously cites section 4057, subdivision (b)(3).
Ordinarily, if a court finds a parent is voluntarily underemployed or unemployed, it will impute a higher income to the parent and calculate child support obligations based on the higher income. Section 4058 authorizes this practice: it permits a court, "in its discretion, [to] consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (§ 4058, subd. (b).) Reliance on earning capacity is appropriate when a parent is able to work for higher pay and such a job opportunity is available, but the parent is unwilling to take the job. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218.) "A parent's motivation for reducing available income is irrelevant" (ibid.), and bad faith is not required (id. at p. 1217). The court did not, however, impute additional income to Gloria.
The court also has discretion to grant or deny certain deductions to a parent to adjust the child support calculation. (§§ 4059, subd. (g), 4070-4073.) Permissible grounds for deduction include "extreme financial hardship" (§ 4070), such as the burden of paying the "minimum basic living expenses of . . . children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent" (§ 4071, subd. (a)(2)). A court must make specific findings in support of making deductions "to ensure that the trial court does not abuse its power to act only in the exceptional case." (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 217-218, italics added.) Stated differently, the trial court's exercise of discretion in granting such deductions is constrained by the findings requirement.
The trial court here removed hardship deductions previously granted to Gloria. It reasoned the deductions were no longer warranted because, by declining more lucrative work, Gloria could provide childcare to his younger children, making them "less of a financial hardship." Impliedly, Gloria also improperly privileged his obligations to his younger children over his obligation to support his children with Rosales, contrary to public policy. (See In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382 [one's "responsibility as a parent 'was not to seek to provide less for some of his children because he had others, but to provide adequately for all of them' "].) Gloria does not argue the court was required to make additional specific findings to remove deductions previously granted. Nor does he cite legal authority that it was improper to remove the hardship deduction in lieu of imputing a higher income for Gloria after finding he voluntarily declined higher-paying work. The court did not contravene any statute in removing the hardship deductions—which are to be granted only in the exceptional case in any event—and removal of the deductions is consistent with public policies underlying both sections 4058 and 4071. Gloria has not shown that the court abused its discretion. B. Other Arguments
Gloria argues the trial court erred by failing to use a previously-imputed higher income for Rosales ($4,289 vs. $3,500 per month); overestimating his monthly income ($2,426 vs. $2,240 per month), and apparently relying on Rosales's April 3, 2017 income and expense declaration as evidence even though it was not served on him as required by rule 5.260(a). Because Gloria raised none of these arguments in the trial court, the arguments are forfeited. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742 [arguments raised for the first time on appeal not ordinarily considered unless they raise pure questions of law].)
Gloria also complains Rosales's April 2017 income and expense declaration was not supported with paystubs. He did not raise this argument until he filed his posthearing motion in May. The argument is forfeited because the time to argue admissibility and reliability of evidence was during the hearing when the court was making its factual findings. (See Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260-1261 [evidentiary objection must be raised at trial].)
Finally, Gloria argues it was error for a commissioner to preside over the child support modification hearing. However, Gloria himself cites section 4252, which authorizes appointment of child support commissioners to perform the duties specified in section 4251. (§ 4252, subd. (a).) Section 4251 provides that "proceedings filed by a party other than the local child support agency to modify . . . a [child] support order established by the local child support agency or for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances, as prescribed by the Judicial Council pursuant to paragraph (7) of subdivision (b) of Section 4252." (§ 4251, subd. (a), italics added.). As noted ante, DCSS represents that it is providing services in this matter pursuant to section 17400, and Gloria has not shown any exceptional circumstances applied to his case. He therefore fails to establish error.
III. DISPOSITION
The April 26, 2017 child support order is affirmed. Costs on appeal are awarded to respondent DCSS.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.