Marriage of
Mundkowsky
Filed 2/15/13 Marriage of Mundkowsky CA2/3
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
In re the Marriage of ROBERT
and HYEONJOO MUNDKOWSKY.
B235517
(Los
Angeles County
Super.
Ct. No. PD041594)
ROBERT MUNDKOWSKY,
Respondent,
v.
HYEONJOO MUNDKOWSKY,
Appellant.
APPEAL
from orders of the Superior Court of
County, Patricia M. Ito, Judge Pro Tem.
Affirmed.
Hyeonjoo
Mundkowsky, in pro. per., for Appellant.
Robert
Mundkowsky, in pro. per., for Respondent.
_________________________
INTRODUCTION
This
is a marital dissolution case between appellant Hyeonjoo Mundkowsky (wife) and
respondent Robert Mundkowsky (husband).
Although the trial court entered a comprehensive judgment in 2008, the
couple has continuously litigated many issues, including child custody and
child support, since then. In this
appeal, wife contends the trial court made numerous reversible errors in orders
it entered on June 28, 2011
and August 22, 2011. We shall conclude that wife did not meet her
burden of showing the trial court committed a reversible error.
FACTUAL
AND PROCEDURAL BACKGROUND
In
order to understand the June 28 and August
22, 2011, orders, we must briefly review the previous litigation
between wife and husband. Unfortunately,
wife, who is in propria persona (pro. per.), did not set forth a coherent
statement of the necessary background facts in her brief.
the facts found in our previous two unpublished opinions in this action, Case
No. B215472, dated August 20, 2010
(Mundkowsky I) and Case No. B228423,
dated December 9, 2011 (
facts from the record in this appeal.
Our opinion in this case does not rely on any facts we cannot verify from
the current record.
1. Facts
from the Mundkowsky I Opinion
This litigation began in 2006 or
2007 when husband filed a petition for dissolution. The trial court entered judgments dated July 17, 2008 and January 14, 2009 (Second
Judgment). Under these judgments, wife
was awarded sole legal and physical
custody of the couple’s daughter, Elizabeth,
was given the right to move back with Elizabeth
to her native country, South Korea,
and wife was awarded child and spousal support.
The
Second Judgment further provided that wife was required to post a $50,000 bond
before removing Elizabeth from the
States. It also stated if
Elizabeth’s residence changed to South Korea, each party shall pay one-half of
all travel expenses and one-half of the expense of husband’s psychological
evaluations related to husband’s visitations.
Wife appealed the Second Judgment.
This appeal was adjudicated in Mundkowsky
I, which we shall discuss post.
2. Facts
from the Mundkowsky II Opinion
In
2009 and 2010, wife and husband filed numerous papers requesting, inter alia,
modifications to the trial court’s custody and child support orders. The parties also litigated wife’s claims for
reimbursement of medical
expenses incurred by Elizabeth
and wife’s alleged home schooling of Elizabeth. The trial court periodically issued orders
adjudicating these disputes.
One
such order, dated July 29, 2010,
stated that husband had overpaid child support in the amount of $2,656.73, and
that wife was required to repay husband $50 per month until the balance was
paid. The order further stated that the
court found wife was willfully remaining unemployed, and thus the court imputed
income to her in the amount of a full-time minimum-wage salary. Additionally, the order denied in part and
granted in part wife’s request for reimbursement of certain medical expenses.
On
August 26, 2010, wife filed
an Order to Show Cause (OSC) to set aside various aspects of the trial court’s
order dated July 29, 2010. She argued, inter alia, that (1) the court’s
imputation of income to her was an abuse of discretion, (2) the calculation of
child support was erroneous and based on fraud and mistake, (3) the court
abused its discretion in requiring wife to reimburse husband for overpaid child
support.
On
September 13, 2010, the
trial court issued an order denying the August
26, 2010, OSC, with one exception not relevant here. Wife appealed the September 13, 2010, order. This appeal was adjudicated in
3. Mundkowsky
I
In
the meantime, on August 20, 2010,
we filed the opinion in Mundkowsky I. We held that the Second Judgment was reversed
with respect to the requirement that wife post a $50,000 bond and the
requirement that wife pay for one-half of husband’s costs relating to
psychological evaluations and travel.
The matter was remanded to the trial court to consider whether a bond
should be required and, if so, the amount of the bond. The Second Judgment was otherwise affirmed. It appears, based on the record in this case,
wife never moved to South Korea
with Elizabeth.
4.
On
April 1, 2011, the trial court held a hearing on (1) husband’s OSC for
modification of custody, (2) husband’s OSC for modification of child support,
(3) wife’s motion for modification of custody, (4) wife’s motions for
modification of child support, and (5) wife’s motion for sanctions. Wife and husband appeared in pro. per. Elizabeth was represented by attorney Kenneth
P. Sherman. The trial court took the
matter under submission.
5. May
19, 2011, Minute Order or “Rulingâ€
On
May 19, 2011, the court issued a minute order, entitled “RULING ON SUBMITTED
MATTER,†which adjudicated the matters submitted on April 1, 2011. The court denied husband’s OSC for
modification of custody but granted husband’s OSC for modification of child
support. Husband was ordered to pay wife
$1,504 per month in child support.
Additionally, for the reasons stated in its July 29, 2010, ruling, the
court imputed full-time minimum wage income to wife. Husband was awarded a credit of $874 for
overpaid child support.
The
court granted wife’s motion for modification of custody in part and denied it
in part. Husband and wife retained joint
legal custody. Husband was permitted to
obtain access to Elizabeth’s medical and educational records.
The
court denied wife’s motions for modification of child support. With respect to these motions, the ruling
stated: “[Wife] is seeking to relitigate
matters previously ruled upon. The
evidence presented now was either presented previously or could have been
presented previously. The motions are
untimely motions for reconsideration.â€
The
court also denied wife’s motion for sanctions.
The ruling stated that the court “does not find [husband’s] conduct to
be frivolous or in bad faith.â€
The
ruling required attorney Sherman to prepare and lodge a proposed order within
two weeks. Mr. Sherman lodged a proposed
order on June 2, 2011.
6. Wife’s
Motion to Set Aside the May 19, 2011, Ruling and Motion to Seal Part
of the Record
On
June 13, 2011, before the trial court signed and entered Mr. Sherman’s proposed
order, wife filed two motions. The first
motion was to set aside the May 19, 2011, ruling. In addition to attacking the May 19, 2011,
ruling, wife sought modification of child custody, child support, spousal
support and an award of attorney fees and costs. This motion was supported by wife’s
declaration.
The
second motion requested that the court seal Exhibit C to wife’s declaration,
which was a transcript of Mr. Sherman’s March 22, 2011, interview of
Elizabeth. This motion was based on,
inter alia, wife’s allegation that “[t]here exists a conspiracy reported to
FBI†to take Elizabeth away from her.
A
hearing on both motions was held on July 21, 2011. At the hearing the court heard
and wife regarding a wide variety of issues the parties were disputing.
One
issue was the amount, if any, husband paid for Elizabeth’s medical insurance.
With respect to this issue, husband
stated: “I have had medical insurance
for Elizabeth for a long period of time, except recently while I was a
contractor. I didn’t have the benefit. It was too expensive to pay for that. But for that short period of time, I did not
have medical insurance for her. I did
pay for dental insurance. But, we now, I
have insurance for one.â€
7. June
28, 2011, Order
On
June 28, 2011, the trial court entered an order prepared by Mr. Sherman
regarding the five matters addressed at the April 1, 2011, hearing. The order essentially repeated the findings
and statements of the May 19, 2011, ruling.
It did not address wife’s motion to set aside the May 19, 2011, ruling.
8. August
22, 2011, Order
On
August 22, 2011, the trial court entered an order adjudicating wife’s motion to
seal and motion to set aside the May 19, 2011, ruling. The court construed the motion to set aside
as challenging both the May 19, 2011, ruling and the June 28, 2011, order.
The
court denied wife’s motion to seal on the ground that there was “no credible
evidence to support [wife’s] contention that there is a conspiracy which has
been reported to the FBI, that her safety is in danger, that the Court is
conspiring against her and failing to protect the best interests of Elizabeth
and that her ‘overriding First Amendment right to speak anonymously supports
sealing the record.’ â€
The
court also denied wife’s motion to set aside the May 19, 2011, ruling for two
reasons. First, the court stated that is
lacked jurisdiction with respect to the July 29, 2010 and September 13, 2010,
orders (2010 Orders) because those orders, and the issues raised in them, were
pending before the Court of Appeal in Mundkowsky
II.
Second,
the court stated: “As to matters over
which this Court does possess jurisdiction, [wife’s] motion to set aside the
May 19, 2011 ruling is essentially a motion for reconsideration of the issues
of legal custody, child support and sanctions.
It is denied on the grounds that the evidence presented in support was
presented or could have been presented previously. For example, [wife] referred to her testimony
and pleadings to having submitted evidence many times, including in support of
the hearings ruling in the 2010 Orders and May 19, 2011 ruling. The pending motion would be [wife’s] third
bite at the apple (or 4th if the pending appeal is included): the hearings resulting in the 2010 Orders,
the hearing resulting in the May 19, 2011 ruing declining to reconsider the
2010 Orders and the pending motion.
[Wife] has a history of seeking to re-litigate matters which she feels
were determined adversely against her.â€
Additionally,
the court denied wife’s request for modification of child custody on the ground
that it found no significant change of circumstances. The court further stated: “The award of joint legal custody was and
still is based on [wife’s] decision to withhold the minor from school in
violation of California law and [wife’s] history of [erroneously] ascribing
illnesses to the minor.â€
The
court granted wife’s request for modification of child support in part. It increased child support from $1,504
to $1,636 per month. The court, however,
rejected wife’s contention that husband owed previously due child support other
than $264 arising from the increase in child support as of July 1, 2011. The court found that wife’s argument that
husband was wrongfully awarded $2,656.73 in overpayment of child support was
pending on appeal.
The
court denied wife’s request for attorney fees and costs on, among other grounds,
that (1) wife did not file a declaration pursuant to In re Marriage of Keech (1999) 75 Cal.App.4th 860 (
the filing date of the request to which she refers.†The court noted that the case file was six
volumes and approximately 14 inches high.
9. Notice
of Appeal
On
August 25, 2011, wife filed a timely appeal of the trial court’s orders dated
June 28, 2011 and August 22, 2011.
10. Mundkowsky
II
On
December 9, 2011, we filed the opinion in Mundkowsky
II. In that opinion, we addressed
wife’s arguments that the trial court abused its discretion by (1) ordering her
to sign an Internal Revenue Service form with respect to husband’s 2009 tax
returns, (2) imputing income to her, (3) issuing the July 29, 2010 order
requiring her to reimburse husband $2,656.73 for overpaid child support (4)
finding insufficient proof of $564.53 in uninsured medical expenses, (5)
denying her childcare expenses, (6) deducting husband’s travel expenses from
child care support, and (7) denying wife’s request for reimbursement of
moving expenses. We rejected each of
wife’s arguments for a variety of reasons, including wife’s failure to provide
an adequate record and failure to present comprehensible legal arguments. We thus affirmed the order dated September
13, 2010.
11. Juvenile
Dependency Case
On
our own motion, we take judicial notice
of the records in In re Elizabeth M.,
Case No. B245227, which is currently pending in Division 5 of the Court of
Appeal, Second Appellate District (the Dependency Case). (Evid Code, § 452, subd. (d), § 459, subd.
(a).) These records indicate that DCFS
has filed a juvenile dependency petition with respect to Elizabeth. They also indicate that as of October 30, 2012,
Elizabeth was a dependent child of the juvenile court under Welfare and
Institutions Code section 300, subdivisions (b) and (c), Elizabeth was placed
in the home of husband under the supervision of the DCFS, mother was granted
certain visitation rights, the DCFS was required to provide wife with family
reunification services and husband with family maintenance services, and wife
was prohibited from speaking with Elizabeth regarding any health issues.
CONTENTIONS
Wife argues that the trial court
erroneously (1) ordered husband to pay an insufficient amount of child support,
(2) refused to consider wife’s challenge to the court’s July 29, 2010 order
requiring her to repay husband $2,656.73 in child support, (3) awarded
husband an $874 credit for overpaid child support in its May 19, 2011 ruling
and June 28, 2011 order, (4) “quot[ed]†Keech
in denying her request for attorney fees, (5) denied her sanctions against
husband, and (6) awarded husband joint legal custody of Elizabeth.
DISCUSSION
1.
We
review orders regarding child support, child custody, monetary sanctions and
attorney fees for abuse of discretion. (
Cal.App.4th 124, 128 [child support]; In
re Marriage of Adams (2012) 209 Cal.App.4th 1543, 1565 [child custody];
Cal.App.4th 1470, 1478 [sanctions and attorney fees].) “The court abuses its discretion only if its
ruling is arbitrary, capricious or patently absurd.†(Faigin
v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 748.)
We
review the trial court’s factual findings under the substantial evidence
test. (In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 128.)
In so doing, we make all reasonable inferences in support of the findings
and cannot reweigh the evidence or second-guess the trial court’s credibility
determinations. (Kern County Dept. of Child Support Services v. Camacho (2012) 209
Cal.App.4th 1028, 1036.) If substantial
evidence is found to support the trial court’s findings, “it is of no
consequence that the trial court believing other evidence, or drawing other
reasonable inferences, might have reached a contrary conclusion.†(Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.)
We
must presume that the record contains evidence to support every finding of fact
of the trial court unless the appellant proves otherwise. (Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737 (Schmidlin).) “A party who
challenges the sufficiency of the evidence to support a finding must set forth,
discuss, and analyze all the evidence on that point, both favorable and
unfavorable.†(Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218 (Doe).) Further, a party who challenges the sufficiency
of the evidence must present the facts in a light most favorable to the
prevailing party. (Schmidlin, at pp. 737-738.)
The
appellant must also provide a summary of the significant facts in the record
and provide references to the record to support his or her claims regarding the
evidence. (Cal. Rules of Court, rule
8.204(a)(1)(C) & (a)(2)(C).) It is
not up to the court to search the record to determine whether the appellant’s
assertions about the evidence are true.
(Schmidlin,
evidence with specific citations to the record, or only presents facts and
inferences favorable to his or her position, the contention that the findings
are not supported by substantial evidence is deemed forfeited. (See id.
at pp. 737-738; Doe,
We
presume an order of the trial court is correct and make all inferences in favor
of the order. (Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787.) On matters as to which the record is
silent, it is the appellant’s burden to affirmatively show error. (Ibid.)
Additionally,
it is the appellant’s burden to provide a coherent legal argument, with
citations to legal authority and the record and factual analysis on each point
made. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655 (
Cal.App.4th 1146, 1161-1162 (Salehi).) It is also the appellant’s burden to provide
a record on appeal sufficient for us to determine whether the trial court
erred. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th
362, 364.) If the appellant does not
satisfy these basic requirements, the appellant forfeits his or her arguments
on appeal. (Keyes, at
p. 655; Salehi, at p. 1162;
Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)
Finally,
even assuming the trial court erred, we cannot reverse its order unless the
appellant meets his or her burden of showing that the error resulted in a
miscarriage of justice. (Cal. Const.,
art. VI, § 13; Code Civ. Proc., § 475; In
re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
2. Wife
Failed to Meet Her Burden of Showing That the Trial Court Committed a Reversible Error
a. The
Amount of Child Support Husband Was Required to Pay
Wife’s
first argument is that the trial court abused its discretion by ordering
husband to pay an insufficient amount of child support. This argument is based on wife’s assertion
that the trial court erroneously found that husband paid $446 a month for
medical insurance. We reject this
argument.
Wife’s
argument is based on citations to two portions of the record. The first is a “DissoMasterâ€
incurred a $446 monthly expense for health insurance. The record does not, however, indicate any
context for this document. It is
unclear, for example, whether this document was attached to some sort of
declaration filed by husband or wife or presented to a witness at a hearing,
when, if ever, it was filed or lodged in the trial court, and whether it was
accepted into evidence by the court.
The
second item of “evidence†wife relies upon is husband’s testimony regarding
medical insurance at the July 21, 2011, hearing. Wife contends this testimony supports her
claim that husband did not have medical insurance from August 2010 to April
2011. It does not. Husband merely stated that he did not have
medical insurance for Elizabeth for a “short period of time[.]†He further stated that he had medical
insurance for Elizabeth at the time of the July 21, 2011, hearing.
Wife
did not meet her burden of showing that the trial court abused its discretion
with respect to calculating the amount of child support husband was obligated
to pay her.
b. Credits
for Overpayment of Child Support
Wife’s
second and third arguments relate to credits in the amount of $2,656.73 and
$874 the trial court gave husband in overpaid child support.
awarded to July of 2010—the trial court correctly determined that it had no
jurisdiction over the issue because the matter was the subject of a pending
appeal, namely Mundkowsky II. (Young
v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 41.) In any case, we rejected wife’s arguments
relating the $2,656.73 credit in Mundkowsky
II on the ground that wife failed to meet her burden of showing the trial
court erred.
We
again reject wife’s argument on this issue.
Although wife concedes “there was [an] overpayment of $2,409†by husband
in 2007, she contends the trial court overlooked the “short payments†husband
made in 2008, 2009, 2010 and 2011. The
only citation wife provides to support this argument, however, is a reference
to her memorandum of point and authorities to support her March 1, 2011, motion
for child support. The document wife
relied upon is argument, not evidence.
Wife therefore failed to meet her burden of showing that the trial court
abused its discretion in rejecting her renewed attack on the trial court’s July
2010, award of a credit of $2,656.73 to husband.
As
to the trial court’s June 28, 2011, award of an $874 credit, wife makes no
coherent legal argument, and fails to provide relevant cite citations to the
record or a factual analysis. We
therefore deem her argument forfeited.
c. Attorney
Fees
Wife
contends the trial court erred by “quoting†Keech
because that case is not applicable to her claim for attorney fees. Whether the trial court correctly cited
incorrect reliance on a published case is not, by itself, ground for
reversal. Because we review the correctness of the ruling, and
not the court’s reasons, we must affirm the ruling if it can be supported on any
legal theory, even if the trial court misapplied or misunderstood the law. (Hoover
v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1201.)
Apart
from attacking the trial court’s reliance on Keech, wife provides no explanation as to why the trial court’s
ruling with respect to her request for attorney fees was an abuse of
discretion. Indeed, like the trial
court, we cannot determine which particular attorney fees request wife contends
should have been granted. Wife therefore
did not meet her burden of showing the trial court abused its discretion with
respect to denying wife an award of attorney fees.
d. Sanctions
Wife
contends the trial court erroneously denied her request for monetary sanctions
against husband for his alleged bad faith litigation tactics. Her request was apparently based on the trial
court’s denial of husband’s motion to modify a previous custody order. However, apart from making the conclusionary
assertion that husband’s request was “frivolous,†wife fails to set forth a
coherent legal argument or factual analysis of the matter. We thus hold that wife forfeited the
argument.
e. Custody
of Elizabeth
At
the time the trial court issued its orders dated June 28, 2011 and August 22,
2011, wife and husband had joint legal custody of Elizabeth. Wife argues that the trial court’s order
denying her request for sole legal custody of Elizabeth was an abuse of
discretion and a violation of due process because husband used the trial court’s
order to accuse wife of Munchausen syndrome by proxy in the juvenile court.
Preliminarily,
we note that wife’s argument appears to be moot in light of the developments in
the Dependency Case. Assuming wife’s
argument is not moot, we nonetheless reject it.
We
presume there was substantial evidence to support the trial court’s factual
findings that wife withheld Elizabeth from school in violation of California
law and has a history of (erroneously) ascribing illnesses to Elizabeth. Wife, however, has not met her burden
overcoming this presumption. This is
because she did not meet her obligation to set forth, discuss, and analyze all the relevant
evidence, both favorable and unfavorable.
Instead, she only cited and discussed evidence that purportedly shows
Elizabeth had serious health problems and husband had serious mental health
problems. Because wife did not meet her
obligations in connection with a substantial evidence challenge to the trial
court’s findings, she has forfeited her challenge to those findings on appeal.
DISPOSITION
The
orders dated June 28, 2011 and August 22, 2011 are affirmed. Respondent Robert Mundkowsky is awarded costs
on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH,
J.
per. litigants are held to the same standards as attorneys.†(Kobayashi
v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
some point, husband and wife were granted joint legal custody. Later, as we shall explain
Angeles County Department of Children and Family Services (DCFS), the juvenile
court declared Elizabeth a dependent child of the court.
