Marriage of Damlakyan and Papazian

Filed 8/19/08 Marriage of Damlakyan and Papazian CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Robert P. Applegate, Judge. Affirmed.

Garo Papazian, in pro. per., for Appellant.

Law Offices of Diana P. Zitser, Diana P. Zitser and Leydi Palma, for Respondent.

_______________________

Garo Papazian asserts a variety of errors in child support orders made by the trial court in the marital dissolution action to which he is a party. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

While the petition does not appear in the record on appeal, the parties agree the issues on appeal arise from proceedings on a petition for dissolution of the marriage of Tagui Tina Damlakyan and Garo Papazian in the Los Angeles Superior Court. From the limited record provided on appeal, this court has discerned the following facts:

On December 14, 2005, Papazian filed an order to show cause seeking modification of a variety of orders, including the order for child support. That hearing was set for January 25, 2006. The record does not contain any indication that the hearing was conducted that day, or that it was continued, but the parties appear to agree that a document in the clerks transcript dated April 12, 2006 and entitled, Order After Hearing is the order resulting from the order to show cause filed in December 2005. In that order, the trial court established a visitation plan and ordered Papazian to pay Damlakyan $1,180 per month as calculated by the DissoMaster system.

Papazian filed another order to show cause seeking modification of various orders, again including visitation and child support, on June 5, 2006. In this motion, he asserted that the courts earlier estimation of his earnings was too high and requested that the court recalculate his payments under the statewide uniform child support guideline (Fam. Code,  4050 et seq.) based on his statement of his income. The hearing on that motion was set for July 20, 2006, but was continued to August 3, 2006. Again, it is not clear from the record what transpired thereafter, but the parties agree that the courts order of October 16, 2006 is the courts determination of the June 5, 2006 order to show cause. In the order, the court modified the visitation order to award additional custodial time to Papazian and to clarify custody on two weekends in late 2006. The court also modified the child support order to require Papazian to pay Damlakyan $789 per month, again pursuant to DissoMaster calculations.

On October 25, 2006, Papazian moved for reconsideration of the courts October 16, 2006 order under Code of Civil Procedure section 1008. As grounds for the reconsideration request with regard to child support, Papazian asserted by declaration that the trial court had made an inadvertent error and/or typo . . . in calculating the custodial time the children spend with him. He claimed that his percentage of custodial time should have been 33 percent rather than the 23 percent used by the court in the DissoMaster program and sought a reduction of his child support payment to $428 monthly. He claimed a further error in the DissoMaster calculation with respect to his monthly interest deduction.

Although this fact cannot be confirmed from the record filed on appeal, the parties agree that the reconsideration motion was twice continued and then heard either in late March or early April 2007 along with an order to show cause filed by Damlakyan. The parties also agree that an April 3, 2007 document entitled, Findings and Order After Hearing corresponds to this hearing. In this order, the trial court again revisited the child support award. The court used a figure of 33 percent of custodial time for Papazian in the DissoMaster and lowered the child support amount to $502 monthly, retroactive to March 1, 2007. No specific references were made in these orders to Papazians reconsideration motion.

On May 2, 2007, Papazian filed a notice of appeal that specified that he was appealing from the March 3, 2007 order of the court, without further description of the ruling in question.

DISCUSSION

I. Adequacy of Notice of Appeal

As an initial matter, Damlakyan contends that the entire appeal should be dismissed due to a defect in the notice of appeal. She observes that the notice of appeal specifies that Papazian intends to appeal from a judgment entered on March 3, 2007, when in fact the order was entered on April 3, 2007. Damlakyan asserts no prejudice from this error. While the notice of appeal is in error, we do not believe that the error is fatal to the appeal. Notices of appeal are to be liberally construed in favor of their sufficiency, and errors are overlooked so long as it is reasonably clear what appellant was trying to appeal from, and the respondent could not possibly have been misled or prejudiced by the error. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.)

In Holden v. California Emp. etc. Com. (1950) 101 Cal.App.2d 427, 430, the court had before it a notice of appeal that, like the one here, mischaracterized an order as a judgment and listed the date incorrectly. The court concluded that it was clear what the appellant was appealing, that the notice of appeal was timely and addressed to the appropriate parties, and that there was no prejudice to respondents, so the notice of appeal should be treated as being from the appealable order even if the notice incorrectly designates the order as a judgment, and erroneously gives the date of the entry of the judgment rather than that of the order. It is therefore held that the notice of appeal is effective as to all respondents. (Id. at p. 431.) We believe the same result should be reached here. The docket submitted in the clerks transcript indicates no hearing was held and no documents were filed on March 3, 2007, so there was no potential confusion between this order from April 3 and another order of March 3. Papazian designated the record for the appeal on May 21 or 22, 2007, three weeks after filing the notice of appeal, and in the designation of record he listed the proper date of the order appealed from, so from that point on respondent was on notice of the actual date of the order on appeal. Damlakyan did not argue that she was prejudiced by the error, and no prejudice appears to have resulted from the error in the notice of appeal. (DAvola v. Anderson (1996) 47 Cal.App.4th 358, 362-363 [proper to consider the designation of the record in evaluating whether an error in the notice of appeal prejudiced the respondent].)

II. April 12, 2006 Order

Although Papazian asserts in his opening brief that he is appealing only from the April 3, 2007 order of the court, Papazian asserts two errors in the support and visitation modification order made on April 12, 2006 (which he refers to as the March 2006 order). First, he claims that the trial court erroneously calculated the percentage of time that the children were in his custody; second, he claims that the trial court should have made an order that the support payment automatically decrease as of June 2006, when his visitation was due to increase under the courts order. A direct appeal lies from support orders made in the process of dissolution litigation (In reMarriage of Skelley (1976) 18 Cal.3d 365, 368-369), and if a party fails to appeal in a timely manner from such orders, it cannot later be reviewed in appeals of other appealable orders or from the final judgment on reserved issues. (In reMarriage of Padilla (1995) 38 Cal.App.4th 1212, 1216; Code Civ. Proc.,  906.) The time for appeal of the April 12, 2006 order has long since passed. (Cal. Rules of Court, fmr. Rule 2, now rule 8.104(a).) Accordingly, not only is this order not encompassed within the scope of the issues on appeal as defined by Papazian, appeals from this order are untimely and we lack jurisdiction to review the order. (Code Civ. Proc.,  906; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454.)

III. October 16, 2006 Order

Papazian claims that when the court modified the child support order on October 16, 2006, it erred by using 23 percent as the percentage of Papazians custodial time when the correct number should have been 33 percent. This order was entered by the court and served by the clerk on October 16, 2006. Papazian filed a motion for reconsideration on October 26, 2006. The effect of the motion for reconsideration was to extend the time to appeal from the order until the earliest of: [] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [] (2) 90 days after the first motion to reconsider is filed; or [] (3) 180 days after entry of the appealable order. (Cal. Rules of Court, fmr. Rule 3, now rule 8.108(e).) In this case, the earliest of those three dates is (2), 90 days after the first motion to reconsider is filed. Here, the ninetieth day after the filing of the motion to reconsider passed in January 2007, and the notice of appeal was not filed until May 2007. Accordingly, the time to appeal this order has long passed and we cannot directly review the alleged error in the October 16, 2006 child support order. Of course, Papazian purports to appeal this order via his appeal of the courts ruling on his motion for reconsideration. The effect of the reconsideration motion on the justiciability of issues relating to this motion is addressed below.

IV. The Order on Appeal: the April 3, 2007 Order

According to Papazian, the trial court should have granted his motion for reconsideration and made an order recalculating his child support retroactively to June 5, 2006. Papazian claims that June 5 is the appropriate date because this was when he filed the order to show cause requesting a modification of his child support payment that led to the decision on October 16, 2006, which was the subject of his reconsideration motion decided on April 3, 2007. There is a split of authority as to whether the denial of a motion for reconsideration is appealable. (Annette F. v. Sharon S., supra, 130 Cal.App.4th at pp. 1458-1459.) Even if we assume for the sake of argument that the denial of the reconsideration motion is appealable and that it permits us to review the underlying order, we must affirm here.

Papazian has not identified any request in the record for a statement of decision with request to the modification request that was the subject of the motion for rehearing. Under Family Code section 3654, Papazian was entitled to a statement of decision upon request when he sought modification of the temporary child support award. As he did not ask for a statement of decision and the trial court did not elect to issue one, we have no factual findings or explanation of why the court declined to make its modification order retroactive. We therefore presume on appeal that the trial court made all findings necessary to support the order for which there is substantial evidence, and our review is limited to examining the record for any substantial evidence that will support the courts implied findings and determination. (In reMarriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)

This leads us to a second problem: the inadequacy of the record submitted on appeal. We lack a complete record to examine for substantial evidence. Papazian designated on appeal only some orders to show cause, some orders after hearing, a notice of continuance, and a motion, and checked the box on the designation form to include all exhibits. Missing from the record on appeal are, inter alia, the responsive documents filed by Damlakyan in opposition to Papazians modification request, the documents filed by Damlakyan in opposition to the reconsideration motion, the evidentiary objections that appear to have been submitted by both parties, and reporters transcripts from the modification and reconsideration hearings. The party seeking to challenge an order on appeal has the burden of providing an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Where an appealing party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. (Ibid.) As the California Supreme Court has said, It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. [Citations.] Defendants contention herein requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.. . . .  A recitation of only defendants evidence is not the demonstration contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived. (Italics added.) [Citations.] (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) As Papazian has failed to provide an adequate record for reviewing his claims of error, his arguments must be rejected.

DISPOSITION

The judgment is affirmed. Respondent shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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