From Casetext: Smarter Legal Research

Wilson v. Bomani

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 25, 2012
B227347 (Cal. Ct. App. Jan. 25, 2012)

Opinion

B227347

01-25-2012

In re Marriage of STEPHANIE M. WILSON and HASHIM M. BOMANI. STEPHANIE M. WILSON et al., Respondents, v. HASHIM M. BOMANI, Appellant.

Hashim M. Bomani, in pro. per., for Appellant. Stephanie M. Wilson, in pro. per.; and Armando Villegas & Associates and Jose Armando Villegas for Respondents. Fesia Davenport and Richard H. Kim for Respondent County of Los Angeles Child Support Services Department.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VD065587)

APPEAL from judgment of dissolution of marriage and related orders of the Superior Court of Los Angeles County. Richard Montes, Judge. Affirmed. Hashim M. Bomani, in pro. per., for Appellant.

Stephanie M. Wilson, in pro. per.; and Armando Villegas & Associates and Jose Armando Villegas for Respondents.

Fesia Davenport and Richard H. Kim for Respondent County of Los Angeles Child Support Services Department.

BACKGROUND

Stephanie Wilson and Hashim Bomani were married (for the second time) for approximately six months in 2007. They have a son and daughter who were born in 1997 and 2007, respectively. Ms. Wilson filed for dissolution on November 8, 2007.

In contentious dissolution proceedings before Commissioner Robert B. Axel in Norwalk in 2008, Mr. Bomani filed several facially and evidentially deficient motions and sought custody of the children, a significant award of community property, and a contempt order against Ms. Wilson. After ruling that much of his documentary evidence was inadmissible for lack of foundation, the court dismissed contempt proceedings against Ms. Wilson, awarded Mr. Bomani a miniscule share of Ms. Wilson's pension benefits, held there were no community assets or debts to be divided, awarded sole legal and physical custody of the children to Ms. Wilson, and continued its previous orders of child support, child care, and monitored visitation by Mr. Bomani. The court held that Mr. Bomani was entitled to no spousal support and owed unpaid child support and child care payments totaling $4,635, which it ordered paid over time. The court ordered Mr. Bomani to pay $1,500 toward Ms. Wilson's attorney fees and entered judgment of dissolution. Mr. Bomani appealed the judgment. In June 2010, we affirmed the judgment in an unpublished opinion. (In re Bomani (June 29, 2010, B217535) .)

In October 2009, the County of Los Angeles Child Support Services Department (CSSD) moved for modification of child support. The motion was heard by Commissioner Anthony B. Drewry, to whom Mr. Bomani objected as an acting temporary judge. Mr. Bomani contended Ms. Wilson understated her income but admitted she had 100% primary physical responsibility for the children and he had not visited them in more than two years. Commissioner Drewry issued findings of fact and a recommended order that Mr. Bomani pay child support in the sum of $1,520 per month.

Child support cases are heard by commissioners who act as temporary judges unless a party objects. (Fam. Code, § 4251, subds. (a) & (b).) If a party objects, the commissioner may nevertheless hear the matter and make findings of fact and a recommended order. (Id. at § 4251, subd. (c).) If a party objects to the recommended order within 10 days, "the judge shall issue a temporary order and schedule a hearing de novo . . . ." (Ibid.)

Mr. Bomani timely objected to the findings and recommended order, and the matter was set for trial de novo. At the de novo hearing on March 10, 2010, Mr. Bomani argued Ms. Wilson was "in control of $1,135,722.00 in contested community assets, and earns significantly more per month than respondent. Until community assets have been divided, [Ms. Wilson] will pay all child-care costs." (Uppercase omitted except for initial capitals.) The court found Ms. Wilson obtained no net income from rental property she owned and Mr. Bomani did not dispute the amount of child support she sought. The court ordered Mr. Bomani to pay child support in the amount of $1,321 per month.

Mr. Bomani then filed three motions in Central Civil West (CCW). On March 15, 2010, he filed a motion for modification of child support. On April 19 he filed a motion for modification of child custody orders made by Commissioner Axel in Norwalk, arguing that as a Jehovah's Witness, Ms. Wilson was a member of a cult religious organization that engages in child molestation and pedophilia and "indoctrinates its members in an apocoliptic [sic] doctrine of end times, which is harmful to the self-esteem and psychological stability of the children in these matters." (Uppercase omitted.) On May 5, Mr. Bomani filed a second motion for modification of child support. In it, he objected to the trial court's support order of March 10, 2011, arguing Ms. Wilson had failed to provide tax statements with her income and expense declaration, which statements would have shown significant income from rental property. Mr. Bomani accused Ms. Wilson and CSSD of collusion and fraud and asked that both be sanctioned.

Mr. Bomani filed a third motion for modification of Commissioner Axel's child custody order on May 11, 2010, in Norwalk.

Ms. Wilson opposed the May 5, 2010 motion for modification of child support, including in her response an income and expense declaration but no tax documents. CSSD also opposed the motion and requested affirmative relief in the form of increased child support pursuant to the statewide child support guideline formula.

On June 21, 2010, Commissioner Drewry heard the three motions, Mr. Bomani again objecting to the commissioner acting as judge. Commissioner Drewry found Mr. Bomani's current share of visitation with the children was zero and recommended that he pay child support in the amount of $518 per month. He recommended that Mr. Bomani's duplicative motion for modification of child support be denied without prejudice and that his motion for modification of child custody be taken off calendar because it had been filed in the wrong court. On June 28, 2010, Mr. Bomani objected to Commissioner Drewry's findings and recommendations, and a hearing was set for trial de novo.

On August 30, 2010, the trial court held a de novo hearing on the motions filed in CCW. Mr. Bomani declined to attend, sending instead a letter to the trial court, which read: "'I have received the Child Support Services Department's responsive declaration. I have come to the realization that I am up against a formidable foe. Ma'am, I do not have the resources to secure an attorney. Therefore, I will bow out until I have secured representation. Please note, I filed a payment declaration, which shows I have overpaid Mrs. - Ms. Wilson exactly $12,272.37. Ms. Wilson and her cronies at the Child Support Services Department are trying to save face and, therefore, want to sweep the issue under the rug or have these issues heard before Commissioner Robert B. Ax[el], where there is bad blood. I humbly submit and beg of your forgiveness and respectfully bow out.'"

The trial court took Mr. Bomani's motions off calendar and proceeded with the trial de novo of CSSD's request for increased child support. It heard testimony from Ms. Wilson regarding her earnings and child care expenses and considered her income and expense declaration, which indicated she had a monthly salary of $7,200. Regarding Mr. Bomani's earnings, the court considered a letter from the Employment Development Department (indicating Mr. Bomani received $1,949 per month in unemployment benefits), a military leave and earnings statement showing a gross income of $717 per month, and his income and expense declaration.

Using the DissoMaster program to assist in its calculations, the trial court ordered Mr. Bomani to pay child support in the amount of $1,165 per month commencing retroactively as of April 1, 2010. The court also overruled specific objections Mr. Bomani had filed on June 23, 2010, that his custody motions had not been considered, that Ms. Wilson knowingly concealed her income and was a member of a religious cult, and that prior support orders were unsupported by substantial evidence. The court found Mr. Bomani's motions for changes in custody and visitation should have been filed before Commissioner Axel and no evidence suggested Ms. Wilson concealed income or belonged to a cult.

Mr. Bomani appeals the August 30, 2010 order.

DISCUSSION

Mr. Bomani contends Ms. Wilson understated her income, thus skewing the child support calculation. The issue properly on appeal is thus whether substantial evidence supported the trial court's August 30, 2010 order changing child support from $1,321 to $1,165 per month. Mr. Bomani also asks that his "past, present and future child support obligation be set to zero," and that he be awarded $417,361.00 as his share of community property.

A. Child Support Calculations

Strong public policy, as expressed in statutes setting forth the uniform child support guideline, favors adequate child support. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283; Fam. Code, §§ 4050- 4076.) The child support guideline "seeks to place the interests of children as the state's top priority." (§ 4053, subd. (e).) In determining child support under the guideline, the courts must adhere to certain principles. "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).) "Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children." (§ 4053, subd. (f).) To implement these policies, courts must calculate child support in accordance with the mathematical formula set forth in the guideline. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 284.) The trial court may not depart from the guideline except in special circumstances. (Ibid.)

Undesignated statutory references are to the Family Code.
--------

An award or modification of child support rests in the trial court's sound discretion and will not be overturned absent a showing of a clear abuse of discretion resulting in material error. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) We review the record of the proceedings below for substantial evidence, examining the evidence in the light most favorable to the prevailing party and giving that party the benefit of every reasonable inference. We neither reweigh evidence nor reconsider the trial court's credibility determinations. (Ibid.; In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.) We do not substitute our own judgment, but interfere "'only if no judge could reasonably have made the modification order under the circumstances.'" (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 184.)

The formula for determining child support is CS = K[HN - (H%)(TN)], where CS is the child support amount, H% is the percentage of time during which the high earning parent will have primary responsibility for the child, TN is the total net monthly disposable income of both parties, K is the amount of both parents' income to be allocated for child support, calculated as a function of TN and H% (see below), and HN is the high earner's net monthly disposable income. (§ 4055, subds. (a) & (b).)

Pursuant to subdivision (b)(3) of section 4055, K, the amount of both parents' income to be allocated for child support, equals "one plus H% (if H% is less than or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction:

+-------------------------------------+ ¦Total Net Disposable¦ ¦ ¦ ¦K ¦ ¦Income Per Month ¦ ¦ +--------------------+----------------¦ ¦$0-800 ¦0.20 + TN/16,000¦ +--------------------+----------------¦ ¦$801-6,666 ¦0.25 ¦ +--------------------+----------------¦ ¦$6,667-10,000 ¦0.10 + 1000/TN ¦ +--------------------+----------------¦ ¦Over $10,000 ¦0.12 + 800/TN" ¦ +-------------------------------------+

When as here there are two children, CS is multiplied by 1.6. (§ 4055, subd. (b)(4).) If CS is a positive number, the higher earner shall pay that amount to the lower earner. If negative, the lower earner shall pay the absolute value of CS to the higher earner. (Id. at subd. (b)(5).) In a proceeding where a party fails to appear after being duly noticed, H% shall be set at 100% if the custodial parent is the higher earner and no evidence demonstrates what percentage of time the noncustodial parent has primary physical responsibility for the children. (Id. at subd. (b)(6).)

In cases where the "net disposable income per month of the obligor is less than one thousand dollars ($1,000), there shall be a rebuttable presumption that the obligor is entitled to a low-income adjustment. The presumption may be rebutted by evidence showing that the application of the low-income adjustment would be unjust and inappropriate in the particular case. In determining whether the presumption is rebutted, the court shall consider the principles provided in Section 4053, and the impact of the contemplated adjustment on the respective net incomes of the obligor and the obligee. The low-income adjustment shall reduce the child support amount otherwise determined under this section by an amount that is no greater than the amount calculated by multiplying the child support amount otherwise determined under this section by a fraction, the numerator of which is 1,000 minus the obligor's net disposable income per month, and the denominator of which is 1,000." (§ 4055, subd. (b)(7).)

"Unless the court orders otherwise, the order for child support shall allocate the support amount so that the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest child is the difference between that amount and the amount for two children . . . ." (§ 4055, subd. (b)(8).)

B. Application

Here, substantial evidence supported the trial court's child support order. The court heard testimony from Ms. Wilson regarding her earnings and child care expenses and considered her income and expense declaration and documents submitted by Mr. Bomani that reflected his income. Mr. Bomani declined to attend the hearing and offered no evidence to refute the evidence.

The trial court applied the guideline formula mandated by section 4055 and ordered Mr. Bomani to pay child support in the amount of $1,165 per month, commencing retroactively as of April 1, 2010.

This formula support amount is "presumptively correct in all cases" (§ 4053, subd. (k); see § 4057, subd. (a)), but "may be rebutted by 'admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053 . . . .' [Citation.]" (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359.) Award of retroactive child support is authorized by section 4009.

Given the lack of contrary evidence and the trial court's compliance with section 4055, there is substantial evidence to support the court's order.

C. Ms. Wilson's Income and Expense Declaration

Mr. Bomani does not suggest the court's calculations were incorrect. He argues instead that Ms. Wilson "knowingly concealed and understated her income and assets on financial statements submitted to the court," in part by filing financial declarations that contradicted her prior income and expense declarations. He encourages us to use our "ALL SEEING EYE" to detect the flaws in her various financial statements.

We decline to do so. The appellate court may review only the sufficiency of evidence, not its credibility, challenges to which must be presented to the trial court. Any deficiency in evidence or error in computing child support not brought to the trial court's attention, where it may be expeditiously corrected, is waived. (See In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144.) Because Mr. Bomani declined to appear at the support modification proceedings or challenge Ms. Wilson's income and expense declaration, the issue of the credibility of her financial statements has been waived. Further, by his failure to appear, Mr. Bomani left this court with no evidence to consider to rebut the presumption.

Mr. Bomani complains Ms. Wilson failed to comply with Superior Court of Los Angeles County Local Rules, rule 14.9, which requires a party to produce state and federal income tax returns and supporting schedules to aid in calculating child support. Citing several monetary amounts she declared as income and expenses—e.g., $341 in property tax paid, mortgage interest in the amount of $1,424, and $0.00 collected in rent—he argues she provided "arbitrary" information that would have been falsified by her 2009 and 2010 returns. The argument is meritless.

Subdivision (a) of section 3664 permits a party, without leave of court, to request that the other party produce a current income and expense declaration. A copy of the prior year's federal and state personal income tax returns must be attached to the income and expense declaration. (§ 3665, subd. (a).) "The underlying idea is obviously to expedite the basic information necessary to the calculation of statewide uniform guideline amounts for purposes of modification orders." (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 330.) If a party fails to produce the requested documents, the requesting party may compel production in the manner specified in the Civil Discovery Act, i.e., by moving to compel production and seeking monetary, evidentiary or issue sanctions. (§ 3666; see Code Civ. Proc., §§ 2031.300 [motion to compel response], 2031.310, subds. (a), (h) & (i) [motion to compel further response; sanctions.)

Ms. Wilson failed to attach tax returns to the income and expense declaration filed in opposition to Mr. Bomani's motion of May 5, 2010. But that does not mean there was insufficient evidence from which to calculate child support. Tax returns serve to verify information contained in an income and expense declaration. Lack of verification goes to the credibility of the declaration, not its sufficiency. The trial court impliedly credited Ms. Wilson's declaration even though it lacked verification, as it was free to do. (In re Marriage of Dandona & Araluce, supra, 91 Cal.App.4th at p. 1126 [appellate court will not reweigh evidence or revisit credibility determinations made at trial].) Mr. Bomani could have brought a motion to compel production of Ms. Wilson's income tax returns and, if she continued to refuse to produce them, obtained a sanctions order. His failure to take advantage of available remedies does not render the evidence insufficient.

Mr. Bomani "encourages" us to take judicial notice that Ms. Wilson's noncompliance with rule 14.9 constitutes contempt of court pursuant to Code of Civil Procedure section 1209, subdivision (a)(5). We decline to do so. First, we may take judicial notice only of matters listed in sections 451 and 452 of the Evidence Code. (Evid. Code, § 450.) The legal effect of violation of a court rule is not listed. Second, violation of a local court rule does not constitute contempt. (Cf. Code Civ. Proc., § 1209 [setting forth acts or omissions constituting contempt].) We do take judicial notice, however, that after the proceedings here at issue, on December 3, 2010, Commissioner Axel found Ms. Wilson complied with rule 14.9. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of court records].)

D. Other Issues

Mr. Bomani raises several ancillary issues that are not properly before us. He argues the various trial courts that have been involved in his dissolution, custody and support proceedings violated his rights of due process and equal protection by failing to protect his right to the companionship, care, custody and management of the children; improperly terminating his parental rights; failing to invoke the disentitlement doctrine (a party in contempt cannot seek court assistance) to provide redress for Ms. Wilson's violations of unspecified visitation orders; failing to make changes in custody orders on the ground that Ms. Wilson is a Jehovah's Witness; and failing to recognize that California is a community property state. Mr. Bomani charges the trial courts with cowardice and contends Ms. Wilson, as an employee of Los Angeles County, enjoys influence that permits her to manipulate them.

None of these issues are properly before us. Matters of fact must be litigated in the trial court. Only after this has been done may we step in to remedy abuses of discretion and determine issues of law, which we may do only once for any given dispute.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J. We concur:

MALLANO, P. J.

JOHNSON, J.


Summaries of

Wilson v. Bomani

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 25, 2012
B227347 (Cal. Ct. App. Jan. 25, 2012)
Case details for

Wilson v. Bomani

Case Details

Full title:In re Marriage of STEPHANIE M. WILSON and HASHIM M. BOMANI. STEPHANIE M…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Jan 25, 2012

Citations

B227347 (Cal. Ct. App. Jan. 25, 2012)