Opinion
H040842
10-25-2017
In re the Marriage of JONATHAN SCHAFER and JENNIFER KAY BLOMQUIST JONATHAN SCHAFER, Respondent, v. JENNIFER KAY BLOMQUIST, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 198-FL077887)
I. INTRODUCTION
In a 1998 marital settlement agreement, Jonathan Schafer (Father) promised to pay Jennifer Kay Weltlich (now Blomquist; "Mother") monthly support of $1,599 for their first child. Mother now appeals from a court order establishing the support arrearage owed by Father for that child. On appeal, Mother, in pro. per., asks this court to order a wide range of relief on issues not determined by or even presented to the trial court. She also disputes two of the trial court's determinations: (1) Father did not owe her child support payments for 24 months between 1999 and 2001 because he was then supporting the family during reconciliation attempts; and (2) almost all Father's payments to Mother were credited as support for their first child, and not as support for their second child or as repayments of an alleged loan from Mother to Father. Because Mother has identified no prejudicial error, we will affirm the court's orders.
On May 23, 2016, this court denied Father's motion to dismiss this appeal, deeming the appeal to be "taken from the date of entry of final determination of child support arrears on May 9, 2014." Mother's notice of appeal, filed on March 14, 2014, was from an earlier order filed on January 13, 2014 that reflected some preliminary findings about calculating the arrearage made at a hearing on November 1, 2013.
II. LEGAL PROCEEDINGS
A. The Marital Settlement and Reconciliation
In July 1998, Father and Mother executed a marital settlement agreement (MSA) which included the following terms. Father and Mother had a daughter born in January 1996, married on December 28, 1996, and separated on July 13, 1998. They agreed on a division of the community property and obligations. Both spouses waived spousal support. Mother was to have physical custody of their daughter and Father was to pay $1,599.00 monthly child support beginning on August 1, 1998. "22. Reconciliation. In the event of reconciliation, this Agreement shall remain in full force and effect, unless expressly terminated, canceled, waived or dismissed in writing by the parties or by order of a court."
A judgment approving the MSA was filed on July 22, 1998, declaring the marriage dissolved as of January 13, 1999. In July 1998, Mother moved to Germany. In May 1999, intending a reconciliation, Mother returned to California and moved back into the family residence with Father. In mid-2000, Father and Mother moved to Texas and had a second daughter in November 2000. Their final separation was in July of 2001 when Father moved to South Dakota to attend medical school. B. Arrearage and Support Proceedings
On January 23, 2013, the Santa Clara County Department of Child Support Services (the Department) filed a first supplemental complaint in the dissolution action seeking a determination of arrears owed for the first daughter and also a support order for the second daughter.
1. The November 2013 Hearing and Resulting Order
On November 1, 2013, Mother and Father attended a hearing on the Department's complaint. The Department provided declarations by Mother and Father regarding his child support payment history between August 1998 and September 2012. The Department also provided a table listing Father's canceled checks. Mother did not dispute receiving the payments listed on the table.
Mother's declaration, dated October 4, 2012, did not account for the last three months of 2012. Father's declaration, dated December 26, 2012, included payments for the last three months of 2012. "Unreimbursed medical expenses" were not listed on the same forms, though they could have been.
To limit the issues for trial, the Department explained that Father claimed on his payment history that he did not pay child support between May 1999 and March 2000 and between June of 2000 and 2001 because they were reconciled and cohabiting when their second daughter was conceived and born. Father's position was that any payments by him to Mother should be credited first against his support obligation. Mother disputed the length of their reconciliation and contended that any payment Father made that exceeded his monthly obligation for the first daughter was intended as support for their second daughter and not to satisfy any arrearage.
A. Testimony
Mother and Father each testified about the length of their reconciliation and about some of Father's payments to Mother. We need not detail testimonial conflicts about the length of their reconciliation, as Mother expressly waives that issue on appeal.
Regarding their reconciliation, Mother acknowledged that she moved back into their marital residence in May 1999 after returning from Germany with the intent to reconcile, but testified that she did not consider them reconciled after the first month, though they lived together until the end of 1999, conceived a child in February 2000, moved to Houston, Texas together in October 2002, and she gave birth to their second daughter in November 2002.
Additional details about their periods of reconciliation are stated in part IV, post, where relevant.
Regarding Father's payments to Mother, Mother testified that in July 2001 he began making monthly payments of $2,500 instead of $1,599 pursuant to an unwritten agreement to pay extra support for their second daughter. Also, two of the 2004 checks listed in his payment history, one for $4,000 and the other for $10,000, were repayments of an undocumented $40,000 loan Mother had made to Father in June 2002, a loan Father acknowledged in an e-mail dated March 9, 2011.
According to Father, they lived together attempting to reconcile after divorce from May 1999 through June 2001, except for separating for April and May 2000 after Mother became pregnant with their second daughter. While living together Father paid all the expenses for them and their daughters. He paid the rent on two apartments in Texas, one of which he used as a law office and not a place to sleep. In 2004, he wrote Mother a check for $4,000 in January and a check for $10,000 in February. The Department pointed out that those payments were listed in its table.
In evidence at the hearing were Father's tax returns for 1999 and 2000, on which he claimed the children as dependents as head of the household, and also 117 pages of Father's check registers, checks, and bank statements. Though the check registers were undated, Father was able to correlate some recorded payments with dated checks. The Department's table of his checks was not introduced into evidence.
B. The Court's Order
After hearing the testimony of Father and Mother, on November 1, 2013 a commissioner (the court) made oral findings that were reflected in an order filed January 13, 2014. In making its findings, the court observed orally that the issues of support for the second daughter and the existence of a $40,000 loan and any repayment were not before the court.
The court found: "The parents were reconciled during the period May, 1999 thru March, 2000 and June, 2000 thru June, 2001. Petitioner/father fully supported the minor child . . . during these time periods and receives equitable credit for that direct support pursuant to In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072. The periods of reconciliation would include satisfaction of the support obligation for [the first daughter] up to the court ordered amount of $1,599.00 per month." (Capitalization omitted, italic added.)
"All payments made to respondent/mother from petitioner/father while there was an outstanding support obligation or arrearage shall be credited against the support owed in accordance with Family Code section 4011. Credit for payments will be subject to proof of payment (in the form of cancelled checks or other documentation) provided by petitioner/father). However, the court specifically finds that the respondent/mother received direct payments of $4,000.00 for the month of January, 2004 and $10,000.00 for the month of February, 2004." (Capitalization omitted.)
The court further found that paragraph 22 of the MSA did not obligate Father to pay child support during reconciliation in addition to direct support. The court ordered the Department to provide an accounting of Father's payments and scheduled a hearing to determine the total arrearage for March 14, 2014.
2. Hearings and Ruling on Mother's Motion for Reconsideration
On January 24, 2014, Mother, in pro. per., filed a motion objecting to a hearing by a commissioner and asking for reconsideration of the order made on November 1, 2013. Her written motion asserted that she was not given the same opportunity to speak at the prior hearing as Father's counsel. "When Blomquist attempted to speak Commissioner McCarthy held up her hand or would place her index finger on her mo[u]th for Blomquist to stop." Father "did not provide any compelling evidence of said support." "Blomquist intends to re-open the MSA not only for duress in her waiving spousal support $3096 per month and her share of the equity (appx $40,000), but from Schafer's 2000 tax returns it is clear that he hid at least $300,000 in stock options."
On March 14, 2014, the court heard Mother's motion for reconsideration after determining that Mother had not objected in time to a commissioner hearing the matter. In response to the court's questions, Mother disagreed with the court's findings about the periods of reconciliation, reasserting that she never lived with Father after January 2000. She also disagreed with the court's ruling that Father's support obligation was discharged during reconciliation by his provision of direct support. "I believe that he's still responsible for the 1599 a month even when I was living with him in the year of 1999." Mother said it "doesn't seem to be equitable" to credit checks designated as loan repayments against child support. According to Mother, six checks on a new table compiled by the Department reflected Father's payments totaling $18,000 for medical treatment for their first daughter's leukemia and not support for that daughter and two other checks after February 2011, each for $1,500, were labeled as for "loan repayment."
Mother testified that Father wrote the following checks for their daughter's medical treatment: two each for $2,500 in November 2005, one for $2,000 in August 2006, one for $4,000 in February 2007, and two in 2008, one for $4,000 in February and the other for $3,000 in October.
The Department pointed out that, pursuant to the court's order, it had compiled a new table of payments for the parties to review at a scheduled hearing on the arrearage. Of all the checks reviewed by the Department, one check for $2,099.59 in October 2012 was not listed as child support because it bore a notation on the memo line that it was for medical expenses.
After hearing argument, the court entered into evidence a number of documents from Mother that she claimed she had been prevented from producing at the hearing on November 1, 2013.
The court admitted into evidence Mother's tax returns for 1999 and 2000, her check registers from January and February 2000, retirement bank statements from December 2000 and 2001, Father's 35-page November 2005 bankruptcy petition, copies of five checks, and an e-mail purporting to be from Father to Mother dated March 9, 2011. The e-mail stated in part that he would need more time to be able to pay "back support." "I can at least start paying you some on the other money I owe you ($40,000), until I can get the other figured out."
Counsel for Father and the Department argued that Mother had not justified reconsideration based on new facts or law under Code of Civil Procedure section 1008. The court took Mother's motion under submission in order to carefully review the transcript of the November 1st hearing to determine whether Mother had been prevented from introducing evidence at that hearing.
At a hearing on May 9, 2014, the court denied Mother's motion for reconsideration. The court explained, "I am confident at this time in my mind that with respect to the specific issues that were actually decided at the hearing on November 1st, 2013, that all parties had adequate opportunity to present the information that they needed to and present it with respect to those particular issues." "I will indicate for the record that I believe with respect to all of the issues decided that there was no new and unavailable evidence presented nor was there any change in the law that would change my decision."
The court further explained that one of the issues at the last hearing was for what periods Father and Mother had reconciled. Mother's motion did not present any "new and unavailable information" on that issue. A second issue resolved was the meaning of the MSA provision requiring any modification to be in writing.
A third issue was whether payments designated by Father as for other obligations such as loan repayments or the first daughter's medical bills should be credited against child support. The court observed that there had not yet been a judicial determination that Mother had made Father a $40,000 loan. The daughter's medical treatment for leukemia was not in evidence prior to the motion for reconsideration. The MSA did not provide for uncovered medical costs. "[W]here there is no identifiable legal obligation that was established to assist me in the characterization of those payments, that leaves me—unless I—unless I simply become arbitrary in terms of characterizing payments, that leaves me with Family Code Section 4011, which is what I fell back on and relied upon in my decision in November." As long as the MSA support obligation of $1,599 continues, "all payments that are proved to have occurred will be credited against child support, and I don't intend at this time to make any exceptions to that based on either of the two other obligations which is the obligations for payback with respect to medical costs or any obligation that is related to a loan that has not yet been established as a loan under the law[.] [T]here are possibly courts that could assist in that but this is the child support court and the payments that are proved will be credited against the outstanding child support."
Regarding the arrearage for support of the first daughter, the court determined that Father owed a total of $99,577.68 as of January 31, 2013, including principal of $59,366,15 and interest of $40,211.53. These totals were based on a four-page payment history dated February 21, 2014 compiled by the Department. The court ordered Father to pay $250 monthly towards the arrearage.
According to Father's brief, his monthly payment of arrears was ordered increased to $1,500 on December 9, 2015, and to $3,000 on July 14, 2016. Mother has not filed a reply brief.
When the court's focus turned to the Department's claim for support of the second daughter, Mother asked on the record that the Department close that case and dismiss its supplemental complaint, even though the court was authorized by that complaint to award support retroactive to February 2013. Mother expressed the belief that she was entitled to retroactive support for the second daughter long before 2013. The court granted the Department's motion to dismiss its supplemental complaint without prejudice.
III. THE SCOPE OF REVIEW
General observations about the scope of appellate review are particularly apt in this case. "It is axiomatic that an appellate court is merely a court of review and that it can not determine issues which were not offered or heard in the trial court." (Py v. Pleitner (1945) 70 Cal.App.2d 576, 580.) "It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal." (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
Mother's status as representing herself does not exempt her from the rules of judicial procedure applicable to all parties. (Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-209; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1226-1247.)
IV. ISSUES COGNIZABLE ON APPEAL
Relying on In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072 (Trainotti), the trial court determined that Father was entitled to credit against his court-ordered child support obligation for 24 months during which he supported Mother and their first daughter while he and Mother attempted to reconcile after their divorce. About a year after the trial court's credit award, Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 723-726 (Helgestad), cited by Father, explained that Trainotti was one case in a line establishing that a court-ordered child support obligation may be discharged by providing direct support to the supported child rather than making a payment to the other spouse during periods when the child (and sometimes the supported spouse) are cohabiting with the supporting spouse. Awarding such credit does not violate the prohibition against retroactively modifying a support order.
On appeal Mother argues that Trainotti applies only when the "non-custodial parent obtains sole custody of child." Helgestad, supra, 231 Cal.App.4th 719 demonstrated that the equitable principle is not that narrow by applying it to reconciliation and resumed cohabitation by an unmarried couple. (Id. at p. 721.) Mother also argues that no case has allowed support credits 12 years after the fact. We see no reason for an automatic time bar to giving credit whenever the issue is first presented in court, so long as the supporting spouse carries his or her "burden of showing the provision of actual in-kind or in-the-home support." (Id. at p. 735.)
Mother also contends that Father "did not provide proof of direct support." This court has explained, "We determine 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order." (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) Here Father testified that he paid all the living expenses during their reconciliation. Even Mother acknowledged at the November 1, 2013 hearing that he paid: the mortgage on their California residence during their reconciliation; the expenses of moving to Texas; the rent on the Texas apartment where she resided and some of the living expenses. This amounts to substantial evidence that he provided direct support for their first daughter.
Mother correctly contends that the trial court erred in relying on Family Code section 4011 as directing it how to categorize payments by a supporting spouse to the custodial spouse. That statute states, "Payment of child support ordered by the court shall be made by the person owing the support payment before payment of any debts owed to creditors." On appeal Father concedes that this statute did not clearly require the trial court to classify all interspousal payments as support for the first child. We question Father's claim that section Code of Civil Procedure section 695.221 does support such a payment classification. We understand that statute to account for the disposition of a payment after a court determines that the payment was in satisfaction of a support obligation. It does not instruct a trial court how to determine whether a payment was so intended.
Code of Civil Procedure section 695.221 provides in part: "Satisfaction of a money judgment for support shall be credited as follows:
"(a) The money shall first be credited against the current month's support.
"(b) Any remaining money shall next be credited against the principal amount of the judgment remaining unsatisfied. If the judgment is payable in installments, the remaining money shall be credited against the matured installments in the order in which they matured.
"(c) Any remaining money shall be credited against the accrued interest that remains unsatisfied."
In the absence of statutory guidance, whether parties intended a check from one to the other to be in full satisfaction of an outstanding obligation is primarily a factual question for the fact-finder. (Lapp-Gifford Co. v. Muscoy Water Co. (1913) 166 Cal. 25, 27; BII Finance Co. v. U-States Forwarding Services Corp. (2002) 95 Cal.App.4th 111, 126.) This is also true when the question is whether a father's regular child support overpayments should be classified as gifts or advance support payments. (In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980.) Language written on a check or in a writing accompanying a check can be evidence of the parties' intent (Civ. Code, § 1526; Com. Code, § 3311, subd. (b)), but in this case the Department identified only one check as designated on its face for a purpose other than support, namely medical expenses.
Mother contended that Father intended some checks as loan repayments, more than one check as medical expenses, and parts of other checks as support for their second daughter after her birth in November 2000, but she offered no persuasive documentary corroboration. The trial court was not required to believe her statements about Father's intentions.
As this court has explained, " 'It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.' " (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 822; cf. Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Mother's brief does not mention "prejudice" or explain how she was prejudiced by the trial court misplacing reliance on Family Code section 4011. She does assert that the trial court's orders have effectively "clawed back" repayments by Father in full of a loan for $40,000.00. We note that the trial court did not make a finding about the existence of a loan from Mother to Father. To the extent that the court has characterized as child support a payment that Mother previously treated as a loan repayment, that payment should no longer be considered a loan repayment. What Father may yet owe Mother on a 2002 loan was not an issue decided by the trial court and is not an issue in this appeal. We do not understand how the trial court's calculation of Father's arrearage for child support owed their first daughter has prejudiced any efforts by Mother to collect on other obligations owed by Father.
VI. ISSUES WAIVED AND FORFEITED
We understand Mother to have waived any contention that evidentiary support is lacking for the trial court's findings about the time periods involved in reconciliation attempts. Her brief "agrees to forfeit appeal for [Father's] exaggerated and false periods of reconciliation, but [Mother] does not forfeit appeal for alleged and misapplied Trainotti credits issued during time of appeal."
Mother's brief attempts to raise a number of issues not presented to or determined by the trial court, even including a section headed "ISSUES FIRST RAISED ON APPEAL." Her requests for relief (which we number for convenience) are summarized in the brief's "CONCLUSION" section. She (1) "respectfully requests that this esteemed Panel set aside [the] MSA" apart from the agreement on $1,599 monthly child support for their first daughter. What she would like as new MSA terms include (2) "spousal support of $3096 for time of marriage and reconciliation," (3) $900 monthly child support for their second daughter dating back to their final separation in June 2001, (4) "mandatory child support add-ons . . . for both daughters," (5) reimbursement of half of documented costs of medical treatment for their first daughter's leukemia, and (6) recharacterization of $40,000 payments currently credited as child support as being full repayment of a loan.
What Mother needs to understand is that " ' " ' "[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court." Thus, "we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]" ' " [Citation.]' " (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.)
Apart from the sixth issue listed above, the remainder of the issues were not presented to or determined by the trial court. In fact, the Department's complaint did seek support for their second child retroactive to February 2013, but this complaint was dismissed without prejudice based on Mother's on-the-record request at the hearing on May 9, 2014. Mother waived spousal support in the MSA. While her motion for reconsideration mentioned her intent to challenge the validity of the MSA, we see no hearing on or judicial determination of the MSA's validity in the record on appeal.
This court is not a trial court. We are not equipped to hear or try new factual allegations. Many of Mother's contentions on appeal fall into this category. Without expressing any opinion on the validity of these claims, we are unable to consider them in this appeal.
V. DISPOSITION
The orders of November 1, 2013 and May 9, 2014 are affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.