Marriage of Riley

Filed 2/13/08 Marriage of Riley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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The trial court ordered appellant Jerry Riley (husband) to pay Kellie Thompson Adair (wife) $762 per month for guideline child support for their two children, $469 per month for their daycare costs, and $60 per month for their lunches, for a total sum of $1,291 per month. Husband did not appeal the order, but subsequently filed a motion for modification of the order, contending it was unjust and inappropriate because it left him with a negative balance after paying his rent and income tax obligation, that it was based on numerous errors in computation, and that the parties circumstances had changed because he was no longer earning overtime wages and wife no longer needed daycare. After hearing husbands motion on February 5, 2007, the trial court refigured child support based on husband having the children 28 percent of the time, resulting in a reduction of guideline support from $762 to $658 per month, but otherwise continued the existing order. The trial court ordered husband to pay $3,500 in attorney fees to wife. Husband appeals the trial courts order of February 5, 2007.^[1]

On appeal, husband claims (1) the trial court abused its discretion in ordering him to pay daycare costs, (2) the reduced order of child support still leaves him with so little disposable income as to be unjust and inappropriate, (3) the trial court erred by failing to deduct his disability insurance expense, his health insurance expense, and by failing to give him a full hardship credit for the child living exclusively with him, and (4) the trial court abused its discretion in ordering him to pay attorney fees when he brought the motion for modification in good faith. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Husband has filed an appellants appendix in lieu of a clerks transcript on appeal. (Cal. Rules of Court, rule 8.124.)^[2] Such appendix contains husbands motion to modify the existing child support order filed on November 22, 2006, along with his supporting declarations, wifes responsive declarations to the motion, husbands reply to wifes declarations, the trial courts minute order dated February 5, 2007, and husbands notice of appeal. Although husband requested a reporters transcript of the hearing held on February 5, 2007 in the trial court, the supervisor of the court reporters for Sacramento County filed a declaration indicating such hearing was not reported. Husband has not substituted either an agreed statement or a settled statement reflecting the oral proceedings at that hearing as allowed in these circumstances by rule 8.130(g). We briefly summarize the facts apparent from this limited record.

In September 2006, the trial court entered an order regarding child support to be paid by husband to wife for the support of their two school-age children, Maddison and Alexcia. The trial court ordered husband to pay $762 per month in guideline child support calculated based on husband having the children 20 percent of the time. Husband was ordered to pay half of the childrens after-school daycare costs in the amount of $469 per month. Husband was also ordered to pay $60 per month for one-half the childrens school lunch costs. Husbands motion for reconsideration of the order was denied.

In November 2006, husband filed the motion for modification of the order that is the subject of this appeal. Husband contended, numerous errors were made when computing [his] child support and child care responsibilities. Husband listed these errors as (a) calculating his time with the children at 20 percent, instead of 28 percent; (b) calculating wifes monthly earnings at $700, instead of imputing income to her of $2,453; (c) failing to include in the calculation of support husbands monthly child support expense of $64 for a child from a previous relationship; (d) failing to take into account husbands existing medical expenses totaling $3,004; (e) failing to include in the calculation husbands monthly disability insurance payment of $125; (f) failing to take into account husbands monthly healthcare expenses of $125; (g) failing to consider husbands monthly expense of $83 for traveling to the place where wife and he exchanged the children; and (h) failing to award husband a full hardship deduction, instead of a one-half deduction.

Husband also claimed he was no longer earning overtime in his job as a custodian, resulting in a $150 reduction of his monthly income. Husbands income and expense declaration (I & E declaration) filed with his motion on November 22, 2006, indicates he works about 40 hours per week, for which he is paid $15.53 per hour. Such a work schedule would work out to approximately $2,600 of earnings per month, but husband declared his average monthly income was $2,400 and that his average monthly overtime wages were $80. Husband did not check the box on his I & E declaration for a change in income. Husband argued the September support order left him with a negative balance of $37 when his monthly income tax burden of $320 and monthly rent of $825 were deducted from his current monthly earnings of $2,400, making the child support order unjust and inappropriate.

Husband also learned that wife did not have classes scheduled at the University of California at Berkeley on Mondays and Fridays during the fall term of 2006 and that the university did not have records of scheduled classes for wife during the following term as of January 16, 2007. Wifes two-year-old twins from her subsequent marriage were not enrolled at the daycare center Maddison and Alexcia attended. Husband claimed wifes daycare needs were, therefore, misrepresented at the September 2006 hearing or had changed since that time.

In response, wife declared she was currently enrolled as a full-time student at the University of California at Berkeley receiving a monthly scholarship amount of $790. As with all students, her class schedule changes each semester. Her classes require research and study time in addition to the hours spent in class. Her I & E declaration stated wife has childcare costs of $900 per month for Maddison and Alexcia, as well as approximately $1,600 for her two other children. Her younger children are not attending the after-school program with Maddison and Alexcia because they are only two years old. Wife claimed husbands income was still over $2,600 per month based on the hourly pay reflected in his I & E declaration, as it had been when the support order was calculated, and that no overtime had been used in that calculation. Wife requested an order requiring husband to pay her attorney fees in the amount of $5,000 based on husbands redundant and unnecessary filings that attempted to relitigate the same issues.

The trial courts minute order reflects the trial court re-figured guideline child support based on husband having Maddison and Alexcia 28 percent of the time and made the new child support amount retroactive to the September 2006 date of the earlier child support order. With respect to daycare costs, the trial court continued the existing order. The trial court ordered husband to pay wifes attorney fees of $3,500 at the rate of $100 per month.

DISCUSSION

I.

Preliminary Matters

Wife claims husband is disqualified from obtaining appellate review on two grounds.

First, relying on the general rule that a party cannot accept the benefits of a judgment and then attack it on appeal (McConaghy v. McConaghy (1966) 239 Cal.App.2d 601, 604; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 212, p. 268), wife claims husband cannot pursue this appeal because he does not expressly deny paying the reduced amount of guideline child support determined by the trial court when it accepted his claim of an increased percentage of time with the children. Wife claims husband should have continued to make payments at the higher rate in order to preserve his appellate claims. We are not persuaded.

There is no disagreement on appeal relating to the percentage of time husband spends with the children. Therefore, there is no appellate issue relating to the trial courts re-calculation of guideline child support based on husbands percentage of time with the children. Such issue is independent and severable from husbands claims on appeal that he is entitled to much more than this reduction. Where the judgment contains distinct and severable provisions on independent issues . . . , and a reversal on one will not disturb the determination of others, it is proper to accept the benefits of the determination on one issue and appeal from another severable part of the judgment. (9 Witkin, Cal. Procedure, supra, Appeal, 217, p. 273.)

Second, wife claims husband should be disqualified from pursuing this appeal because of his chronic contempt status[.] (Capitalization omitted.) Specifically, wife complains husband has never been current on his child support or child care obligations since they separated in 2000. In support of her claim, wife requested and obtained an order augmenting the record on appeal to include (1) a minute order of June 4, 2007, finding of child support arrearages through February 28, 2007, in the amount of $27,896.65; (2) husbands notice of motion and motion to vacate such order; and (3) wifes responsive declaration in opposition to husbands motion.

It is true this court has discretion to stay or dismiss an appeal when the appellant has contumaciously defied the orders of the trial court. (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1682.) A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.] (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [flagrant disobedience and contempt]; accord Travis v. Travis (1948) 89 Cal.App.2d 292, 294-295 [deliberate and willful evasion of obligations when at all times husband had sufficient income to make payments].) A formal finding of contempt is not necessary. (Alioto Fish Co. v. Alioto, supra, at p. 1683.) However, we will not exercise our discretion to dismiss this appeal as the record on appeal does not reflect husbands failure to pay all of his ordered support obligations was in willful defiance of such orders when he had an ability to pay. We turn to the merits of husbands claims on appeal.

II.

Husband Has Not Shown The Trial Court Abused Its Discretion In Ordering Him To Pay Daycare Costs

Husband claims the trial court abused its discretion in refusing to modify the child support order requiring him to pay $469 monthly for one-half of wifes daycare costs for their children. Husband contends the order improperly requires him to pay for child care on Mondays and Fridays when wife does not attend university classes according to her fall 2006 schedule. Husband also claims child care for their two children cannot be necessary when wife provides home care for her other two children. We conclude no abuse of discretion appears on the record before us.

A trial court has statutory authority to modify an order of child support when modification is necessary. (Fam. Code,  3651, subd. (a).)^[3] Ordinarily, modification is not necessary unless a material change in circumstances has occurred. (In re Marriage of Brinkman, supra, 111 Cal.App.4th 1281, 1288; Petersen v. Petersen (1972) 24 Cal.App.3d 201, 206-207; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) 17:25, p. 17-10.) The supporting spouse bears the burden of proof to establish that changed circumstances warrant a downward adjustment in the ordered child support. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.) On appeal, we review the trial courts determination to grant or deny a modification of child support for abuse of discretion. Reversal will be ordered only if prejudicial error appears on an examination of the record of the proceedings below. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150-1151.)

Our record of the proceedings below is limited to the appellants appendix, triggering the application of a number of rules on appeal. Specifically, because the record lacks either a reporters transcript or a settled statement of the hearing on husbands motion to modify the order of child support, this is functionally a judgment roll appeal. (Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 296.) The following rules apply: Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation]. (Ford v. State of California (1981) 116 Cal.App.3d 507, 514, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 177-179; accord National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; rule 8.163.)

Here, the order requiring husband to pay $469 in child care costs was originally entered in September 2006. Husband did not appeal such order and now, attacks on such order are untimely. We can review only whether, on its face, the record before us demonstrates that a change of circumstance occurred since the entry of the September 2006 order such that denial of a downward modification was an abuse of discretion. The record on appeal, however, does not establish such a change of circumstance. Wifes declaration in response to husbands motion states she is still a full-time university student whose class schedule changes each semester.^[4] The trial court was well within its discretion in accepting wifes claim that her classes require research and study time in addition to the actual hours spent in class. Thus, even if wifes fall 2006 schedule of classes for three days a week was a change from the situation present when the September 2006 order was entered, it was still reasonable for the trial court to find wife needed to continue Maddisons and Alexcias enrollment in after-school child care for all five days in order to accommodate wifes study needs and ongoing changes to her class schedule for new semesters. Similarly, the record does not demonstrate wife no longer needed such after-school child care because she was able to provide home care to her two younger children. The affidavit submitted by husband to support this claim only established the two younger children were not enrolled in the same after-school care as Maddison and Alexcia, not that they were being cared for at home by wife. In fact, wifes I & E declaration affirmatively states she is paying over $1,600 in daycare costs for her two other children. These children are not enrolled in the same after-school program as Maddison and Alexcia because they are not yet school age.

The trial court did not abuse its discretion in continuing the existing order requiring husband to pay one-half of wifes daycare costs for their children. ( 4061, subd. (a); 4062, subd. (a)(1).)

III.

Husband Has Not Shown The Trial Court Abused Its Discretion In Requiring Husband To Pay A Total Of $1,291 In Monthly Child Support

In related claims, husband claims (a) the reduced order of child support in the amount of $1,291 still leaves him with so little disposable income as to be unjust and inappropriate, and (b) that the trial court erred in calculating the ordered child support by failing to deduct his disability insurance expense, his health insurance expense, and by failing to give him a full hardship credit for the child living exclusively with him.

Husbands claims essentially challenge the trial courts September 2006 order of child support. Such order is not before this court since husband did not appeal that order. Issues relating to such order may no longer be reviewed.

To the extent husband contends these issues relate to the February 2007 order, husband has completely failed in his brief to provide adequate argument, with citations to the record and supporting authorities (rule 8.204(a)(1)(B) & (C)) connecting his claims to any change in circumstance since the entry of the September 2006 order. Husbands figures for his income do appear to be premised on his claim below that he was no longer earning overtime at his job, but given the inconsistencies in his I & E declaration (he claimed he worked 40 hours at $15.53, which would equate to over $2,600 in monthly wages, but then stated his average monthly income was $2,400, plus $80 in overtime wages and he failed to check the box indicating any change in income) the trial court could reasonably have concluded there was no significant change in his income since the earlier order.

Husband has not shown the trial court abused its discretion in requiring him to pay $1,291 in monthly child support.

IV.

Husband Has Not Shown The Trial Court Abused Its Discretion In Ordering Him To Pay $3,500 Of Wifes Attorney Fees

In her responsive declaration in opposition to husbands motion, wife requested husband pay her attorney fees in the amount of $5,000. Wife explained she was asking for these fees for having to respond to [husbands] redundant, unnecessary filings and having to appear in Court repeatedly on the same issues. The trial court ordered husband to pay wife $3,500 of her attorney fees. Husband claims on appeal the trial court abused its discretion in awarding wife her attorney fees when he brought his motion for modification in good faith.

First, in arguing the trial court was precluded from making an award of attorney fees in this action if he brought the motion in good faith, husbands brief is completely devoid of any discussion of the applicable law regarding the award of attorney fees in this matter and we could reject his claim on such basis. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673, fn. 3 [reviewing court need not consider issue advanced without legal analysis or citation to supporting authority].)

Second, it is disputed whether husband brought this motion in good faith. Wife sought her attorney fees because the motion was an attempt to relitigate the courts earlier support order. Indeed, the bulk of husbands motion was directed at errors he alleged in the trial courts September calculation and order of support. The trial court could have viewed husbands weak claims of change in circumstances as evidence that he was simply using the motion as a procedural means of rearguing his earlier claims.

Finally, husband did not request a statement of decision regarding the trial courts order as he could have done pursuant to section 3654. Without a statement of decision and on this record, we presume the trial court properly considered all factors relevant to assess whether an award of fees was appropriate in this case. ( 213, 271; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177-178.)

Husband has not shown an abuse of discretion in the trial courts award of attorney fees.

V.

Sanctions On Appeal

Asserting this appeal is patently frivolous, wife argues this court should impose a significant monetary sanction pursuant to Code of Civil Procedure section 907, as well as rule 8.276.

If a reasonable attorney would have known that an appeal is utterly without merit, or if it was apparently undertaken solely to harass the opposing party or to delay the execution of judgment, sanctions for a frivolous appeal may be imposed. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; rule 8.276(a)(1); Code Civ. Proc.,  907.) However, the power to impose sanctions must be used sparingly to deter only the most egregious conduct. (In re Marriage of Flaherty, supra, at p. 651.)

Accordingly, an appeal may not be considered frivolous simply because it lacks merit. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) To support an award of sanctions, it must appear that the appeal is indisputably without merit, i.e., any reasonable attorney would agree that the appeal is totally and completely without merit. (Ibid.)

Although husbands appeal was unsuccessful, we decline in light of all the circumstances, to sanction husband at this time.

DISPOSITION

The February 5, 2007, order modifying child support is affirmed. Wife is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1][A]n appeal, other than in a limited civil case, may be taken from any of the following: [] . . . [] (10) From an order made appealable by the provisions of the Probate Code or the Family Code. (Code Civ. Proc.,  904.1, subd. (a).) Family Code section 3554 allows an appeal to be taken from an order or judgment under this division as in other civil actions. This division refers to division 9 in which appears section 3651, authorizing modification of a support order, including a child support order. (See In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287.)

^[2]Further undesignated rule references are to the California Rules of Court.

^[3]Further undesignated statutory references are to the Family Code.

^[4]Husband submitted to the trial court an affidavit from the custodian of records for the University of California at Berkeley dated January 16, 2007, which showed wifes fall semester 2006 classes. Husband argued the lack of records for the spring 2007 semester evidenced wife was not enrolled for that semester. It is not clear to us the affidavit addresses wifes spring enrollment, but in any event, wifes declaration contradicted this claim by stating she was a full-time student. Further, wife may well have explained her enrollment status or submitted further evidence and testimony regarding her current enrollment at the hearing held on February 5, 2007. On this judgment roll appeal, we are required to presume a condition of facts consistent with the validity of the judgment since no error appears on the face of the record. Sufficiency of the evidence is not open to review. (Ford v. State of California, supra, 116 Cal.App.3d at p. 514.)