Marriage of Magruder

Filed 2/22/08 Marriage of Magruder CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Claudia Silbar, Judge. Affirmed.

Mark Magruder, in pro. per., for Appellant.

Terence W. Roberts, for Respondent.

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Mark Magruder appeals from a judgment of the trial court following the dissolution of his marriage to Jill Magruder.[1] The parties divorced in September 2004, but the trial court reserved jurisdiction on several issues including child and spousal support and division of community property. Mark contends the trial court misallocated numerous expenses to him in the period immediately after the couple separated, and shorted him on vacation pay and potential credits on accrued child and spousal support. He also argues the trial court erred in imputing income to him, but not Jill, and in making its final support order retroactive. For the reasons that follow, none of these contentions has merit, and we therefore affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

The facts pertinent to the issues on appeal are few, and we therefore limit our background recitation accordingly. Mark and Jill married in 1983 and separated 19 years later, in June 2002. They had three daughters, two of whom were minors in their late teens by the date of separation. On June 27, 2002, the trial court entered a stipulated order in which Mark and Jill agreed that, [p]ending further hearing, [Jill] shall have exclusive use and possession of the home located [in] Yorba Linda . . . . They also agreed upon conjoint counseling in which Jill may select the psychologist, [Mark] shall bear the costs of the sessions. They further stipulated: [Mark] shall continue to pay the household expenses and mortgage[,] including utilities. [Mark] shall pay the [car] payment, insurance and gas expenses on [Jill]s auto. [Mark] shall transfer to [Jill]s bank account $1,000.

On September 16, 2002, the trial court set Marks monthly child support obligation at $1,713, plus $780 per month for spousal support. The trial court made the order retroactive to the date Jill filed her motion for support, August 15, 2002. In September 2003, Mark was laid off from his job at Hewlett Packard, where he had worked for 20 years in various technical positions and, for the last six years, in sales. After his severance package ended in November 2003, he filed a motion in December 2003 to modify his support obligations accordingly. On January 8, 2004, the parties filed a stipulation in which they agreed that child support and spousal support are suspended pending further hearing. The issue of retroactivity is reserved.

The parties relations soured considerably. Over the next 18 months, they sold their home, continued to wrangle in court, Mark failed to find another job, and Jill continued working her part-time job while pursuing a masters degree in education. After a multitude of hearings, they finally concluded matters in June 2005. The trial court entered a minute order resetting Marks monthly spousal support at $500 and child support at $792 per month for the lone minor daughter residing with Jill. The court made the amounts retroactive to March 1, 2004. After a lengthy delay before the court entered a final judgment prepared by Jills attorney in August 2006, Mark now appeals.

II

DISCUSSION

A. Postseparation Expenses and Income

Mark contends the trial court erred in relying on a forensic accounting report submitted by Cathleen Collingsworth. Pursuant to the parties stipulation, the court appointed Collingsworth to assist . . . in determining reimbursement and equalization of support and community assets and debts. Mark claims the accountant misallocated certain classes of expenses to him in the postseparation period and, even assuming the expenses were his responsibility, he challenges the sufficiency of the evidence to support the sums tallied by the accountant. We are unable to review these claims because Mark has failed to provide a complete appellate record including the accountants report, her itemization of expenses, or her declaration or any supporting materials. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [party challenging a judgment has the burden of showing reversible error by an adequate record].) Whatever merits Marks claims may seem to have, we cannot reach them on the record before us.

Specifically, Mark contends the accountants report erroneously assigned him medical and counseling expenses incurred by his daughters after they turned 18. He also argues the accountant mistakenly charged him for expenses Jill incurred between June 27, 2002, and the day the court established Marks initial support obligation, i.e., September 16, 2002. The record shows Mark and Jill entered a stipulated agreement on June 27th for Mark to pay for conjoint counseling sessions, and they further agreed that, pending the hearing which eventually took place in September: [Mark] shall continue to pay the household expenses and mortgage[,] including utilities. [Mark] shall pay the payment, insurance and gas expenses on [Jill]s auto.

Handicapped by Marks failure to furnish the accountants report on appeal, it is impossible for us to determine whether the expense allocations Mark complains of in the report fall within a reasonable interpretation of the parties June 27th stipulation, subsequent amendments, or later agreements or orders. Without her report, we simply do not know what the accountant did or did not do or how she itemized any particular bill incurred by each party and, contrary to Marks invitation, we may not accept the losing partys mere say-so in briefing on appeal. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [burden rests on appellant to ensure complete record].) In sum, without the report, there is no way for us to determine whether one partisan in this bitter contest has accurately assigned error to any of the accountants actions.

Absent the report, the standard of review requires that we presume the trial courts reliance on the report was proper. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics [A judgment or order of the lower court is presumed correct[ ] and [a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent].) Marks claims, including his contention the accountants calculations shorted him on vacation pay and potential retroactivity offsets for his June-September 2002 obligation, therefore fail.

Mark contends the trial court erred by discounting the testimony of his father, a real estate agent, concerning the fair market rental value of the community home. Mark sought to show the homes rental value exceeded the mortgage payment, property taxes, and other costs of ownership, and that he was entitled to half this difference as a credit towards his support obligation during the months Jill and the children lived in the house before it sold. (See In re Marriage of Watts (1985) 171 Cal.App.3d 366.) The trial court denied the credit because, among other reasons, Marks father admitted he may have included a filter in his computerized listings search to exclude rentals below a certain value.

The trial court did not err. The probative value of a search that displays listings only over a targeted level of, say, the ownership cost of the home, is obviously suspect. As the sole judge of witness credibility and the weight of the evidence presented, the trial court was well within its discretion in finding the testimony insufficient to support any particular rental value. Appellate courts do not reweigh the evidence or reassess the credibility of witnesses. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 (Balcof).) Marks suggestion that we should reevaluate and reject the trial courts assessment of his fathers testimony is therefore without merit.

B. Spousal Support, Imputed Income

Mark argues the trial court abused its discretion by establishing his spousal support obligation at $500 per month. He recites a litany of circumstances the court was aware of but chose to ignore in setting what he claims was an erroneous figure. For instance, he claims the trial court deliberately chose to ignore and did not consider the separate property cash resources available to Jill, including more than $200,000 in proceeds from the sale of the community home. But since Mark paid little or no child or spousal support pursuant to stipulation after January 8, 2004, and the court later concluded in June 2005 that Mark was underemployed because he had failed to make reasonable efforts to find a job, the court could reasonably conclude any separate assets Jill had were fast dwindling as she tried to support herself and the children. The fundamental difficulty with Marks attack on appeal, moreover, is that in acknowledging the court was aware of the circumstances he cites, he implicitly concedes the court did not ignore them, but rather decided they did not weigh in his favor or he was not credible in characterizing the circumstances. As noted, we do not reweigh the evidence or redetermine credibility. (Balcof, supra, 141 Cal.App.4th at p. 1531.) Simply put, there has already been one trial, and neither party is entitled to a second one on appeal. (Ibid.)

In any event, the gist of Marks argument is that the trial court erred by imputing income to him and not to Jill. Substantial evidence supports the courts decision. Mark, by his own admission, made as much as $90,000 a year working for Hewlett Packard in technical sales before he was laid off in September 2003. After he failed to secure work over a period of several months, the trial court eventually ordered him to submit applications for eight jobs a week. By June 2005, he had submitted far less than half the required applications. Instead, he devoted himself to setting up a consulting business and, to the extent he worked at all, he did so far outside his field as a plumbers assistant for a family friend. He spoke of starting a plumbing venture with his friend or pursuing his real estate license but, after he failed to undertake either and his consulting business failed to get off the ground, the trial court ordered him to see a vocational consultant.

The vocational expert determined based on Marks 20 years of experience working for Hewlett Packard, the last six in sales, that he was eligible for existing job openings for sales reps and account executives in the technology field. Jobs in this category paid a midrange of $4,100 per month, and could pay up to $5,000 monthly. Mark admitted to the expert he devoted half his time each week to litigation with Jill rather than looking for work. The court could reasonably conclude at least some portion of the hours upon hours Mark spent on self-representation served neither his interests nor his childrens need for support very well. The expert recommended that Mark rewrite his resum, spend more time networking and less on daytime internet job searches, and that he devote the evening or non-core work hours submitting letters of interest or applications through online services. No evidence suggests Mark acted on this advice.

Mark quarrels with the scope of the vocational experts assistance, arguing he was entitled to retraining or other assistance in finding a job outside his field of work during the marriage because the technical services he sold had transferred overseas, and his job in selling such services was therefore no longer available. Alternatively, he argues his layoff proves he was not very accomplished at sales and the expert therefore should have aided him in finding a different type of job. But the trial court could reasonably conclude Mark devoted himself to sales during the marriage, that he experienced some success, and that any change in the market or lack of proficiency was accounted for in the expert locating related jobs that paid less than he made before but were currently available. Mark disputed the jobs were available, noting he did not obtain any he applied for, but the trial court could reasonably conclude Marks lack of diligence contributed significantly to the problem. In sum, the trial court was entitled to believe the vocational expert rather than Mark on the issue of job availability and suitability, and we may not second-guess the courts factual and credibility determinations. (Balcof, supra, 141 Cal.App.4th at p. 1531.) Consequently, the trial court did not err by basing Marks monthly support obligation on $4,100 per month in imputed income.

Mark contends the trial court erred by failing to impute income to Jill, who worked parttime at a community college as a recreational therapist for adults while she pursued a masters degree in education. She planned to teach high school fulltime once she obtained her degree. Jill presented evidence the community college would not hire her fulltime for recreational therapy, but Mark contended other such jobs must be available, citing Bureau of Labor statistics that the field was a growing one. He presented no evidence of any job openings in the area, however, and the trial court could therefore reasonably deny his request to impute income to Jill because the evidentiary burden is on the moving party.

Mark asserts the trial court was biased against him because the court afforded the vocational expert months to locate suitable jobs for Mark, but the court allowed him only a few minutes to present his evidence on potential jobs for Jill. Mark ignores, however, that he had the same period of time as the vocational expert to find jobs for Jill, yet he made no offer of proof that he found any. Marks bias claim is therefore unfounded. Mark cites the courts repeated findings against him as evidence of bias but, again, the trial courts role is to make factual determinations and credibility assessments, which we will not revisit. (Balcof, supra, 141 Cal.App.4th at p. 1531; see James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 [The Court of Appeal is not a second trier of fact].)

Mark complains Jill knew there were no fulltime positions in recreational therapy at the community college when she began working there 15 years ago, and he therefore asserts he should not be prevented from imputing income to her based on the absence of a fulltime position there. But the trial court could reasonably conclude the parties arranged their relationship in such a way that Mark obtained both an education and a job that would support the community during the marriage and, with reasonable diligence, himself afterwards, but that the arrangement provided Jill no similar opportunity for reasonable self-support once their marriage dissolved. In other words, Jill worked parttime and in that manner supported Mark and the marital community they jointly desired by devoting more time to the children and as a homemaker but this arrangement, agreed-upon by both parties, did not serve to provide her, on the evidence presented, an adequate means of support by the time of the courts June 2005 ruling. The trial court could reasonably conclude Jills failure to decline the community college position and foresee 15 years earlier that the marriage would fail did not require imputing income to her as Mark now argues. The trial court therefore properly denied Marks imputation claim.

C. Retroactive Modification

Mark contends the trial court erred by making his child support obligation retroactive to March 1, 2004, and his spousal support obligation retroactive to January 1, 2004. The record is not particularly clear, but it appears the trial court selected different dates because Mark had made a few interim payments that could be credited towards child support, but none towards spousal support. In any event, Mark argues no retroactivity was permitted absent the requisite notice concerning modification of his support obligation. He correctly cites the statutory provisions and case law that prohibit retroactive modification of support obligations accruing before the date a party files notice of his or her motion to modify or terminate support. (Fam. Code,  3603; 3651, subd. (c)(1); 3653, subd. (a); In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1169.) We recently affirmed precisely this conclusion In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 626.)

Here, Mark overlooks that he filed the requisite motion in December 2003, seeking to modify the courts existing child and spousal support orders because his severance pay from Hewlett Packard had ceased. Following Marks motion, the parties consented to entry of an order in January 2004 under which they stipulate[d] that child support and spousal support are suspended pending further hearing. The issue of retroactivity is reserved. (Italics added.) In other words, the parties agreed to suspend Marks support obligation, but they did not rule out the possibility the court would establish retroactive support. Because the requisite notice of a potential modification was in place by virtue of Marks own motion to modify support in December 2003, his retroactivity challenge is without merit.

III

DISPOSITION

The judgment is affirmed. Respondent is entitled to her costs on appeal. (Cal. Rules of Court, rule 8.276.)

ARONSON, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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[1] We shall refer to the parties by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)