>Marriage of
Warkentin





















Filed
6/20/12 Marriage of Warkentin CA5

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

In re the Marriage of LARRY G. and JEANNINE Y. WARKENTIN.
LARRY G. WARKENTIN, Petitioner and Appellant, v. JEANNINE Y. WARKENTIN, Defendant and Respondent.	F060699 (Super. Ct. No. R-1502-FL-5260) >OPINION

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. John D. Oglesby, Judge.

Larry G.
Warkentin, in pro. per., for Petitioner and Appellant.

Roger I.
Stein for Defendant and Respondent.

-ooOoo-

This is an
appeal from the denial of a motion for reconsideration of an order setting
support for the adult disabled son of the parties to this href="http://www.mcmillanlaw.com/">dissolution proceeding. Appellant has not demonstrated any error, and
we affirm.





>FACTUAL AND PROCEDURAL BACKGROUND

On December
5, 2007, mother filed a motion seeking an award of support for the parties’
adult disabled son, Robert Allen (Allen), of whom she was the legal
guardian. At that time, mother was
living in Idaho with Allen. She was
being paid by the State of Idaho to care for Allen full time. Allen was receiving Supplemental Security
Income (SSI) payments for his support.
Father was living in California with the parties’ five minor children,
of whom he had legal and physical custody. Father had been ordered to pay spousal
support to mother, and mother had been ordered to pay child support to father
for the minor children. After multiple
hearings, on May 5, 2008, the trial court (Judge Purcell) issued an order
awarding spousal support and child support for the minor children, but denying
support for Allen.

On February
19, 2009, a different judge (Judge Oglesby) modified the support orders and
ordered father to pay $1,319 for Allen’s support. Father filed a motion for reconsideration of
that order, which was denied. Mother
again moved to modify child and spousal support, and father opposed. On October 28, 2009, the trial court entered
an order reducing Allen’s support to $250, finding good cause to depart from
the DissoMasterhref="#_ftn1" name="_ftnref1"
title="">^[1] guidelines, which called for an award of
$667. Mother filed a motion for
reconsideration of the October 28, 2009, order.
On February 8, 2010, the trial court apparently granted the motion and
increased the support for Allen to $667.href="#_ftn2" name="_ftnref2" title="">^[2] On February 24, 2010, father filed a motion
for reconsideration of the February 8, 2010, order. He argued that the award of support for Allen
was improper because Allen was not “without sufficient means,” which is a
prerequisite to an award of support for an adult disabled child under Family
Code section 3910, subdivision (a).
Father asserted the increased support payment would result in
elimination of Allen’s SSI benefits; under Idaho law, he contended, Allen would
then be ineligible to have a state-paid caretaker, and mother’s income from
caring for Allen would be eliminated, leaving the entire family in worse
financial condition.

On March
23, 2010, the trial court issued an order denying father’s motion for
reconsideration, finding father had presented no new facts, circumstances, or
law in support of the motion. It left
Allen’s support at $667. Father now
appeals from the March 23, 2010, order.
He argues the May 5, 2008, order denying support for Allen was final and
should not have been modified by the trial court; in subsequent orders, the
trial court applied the law incorrectly because Allen was not “without
sufficient means” (Fam. Code, § 3910, subd. (a)); and the trial court failed to
require both parents to support Allen.

>DISCUSSION

>I. Appealability
of March 23, 2010, Order

Code of
Civil Procedure section 1008 authorizes a party to file a motion to reconsider
an order, made as a result of another party’s motion, under certain
circumstances. (Code Civ. Proc, § 1008,
subd. (a).) At the time father filed his
appeal from the order denying his motion for reconsideration, the prevailing
view was that an order denying a motion for reconsideration is not an
appealable order. (Association for Los Angeles Deputy
Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th
1625, 1633.)href="#_ftn3" name="_ftnref3"
title="">^[3] This rule applied in order “‘to eliminate the
possibilities that (1) a nonappealable order or judgment would be made
appealable, (2) a party would have two appeals from the same decision, and (3)
a party would obtain an unwarranted extension of time to appeal. [Citations.]’” (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459.) Code of Civil Procedure section 904.1 does
not authorize appeals from orders denying motions for reconsideration, “‘and to
hold otherwise would permit, in effect, two appeals for every appealable
decision and promote the manipulation of the time allowed for an appeal.’” (Annette
F., at p. 1459.) Father’s notice of
appeal specified he was appealing from the nonappealable March 23, 2010 order
denying his motion for reconsideration.

“The notice
of appeal must be liberally construed.”
(Cal. Rules of Court, rule 8.100(a)(2).)
If the notice of appeal specifies that the appeal is from a nonappealable
order, “‘the notice can be interpreted to apply to an existing appealable order
or judgment, if no prejudice would accrue to the respondent’” and if it is
reasonably clear the appellant intended to appeal from the appealable order or
judgment. (Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20, 22.)
Although the notice indicated father was appealing from the March 23,
2010, order, both parties’ briefs address the propriety of the underlying
February 8, 2010, support order.
Consequently, both parties apparently understood that father intended to
appeal the underlying support order, and no prejudice would accrue to either
party if we were to construe the notice of appeal as encompassing the February
8, 2010, order, and to review both the denial of reconsideration and the
support order.

>II. Motion
for Reconsideration

Code of Civil Procedure section
1008 provides, in pertinent part:

“When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or granted
conditionally, or on terms, any party affected by the order may, within 10 days
after service upon the party of written notice of entry of the order and based
upon new or different facts, circumstances, or law, make application to the
same judge or court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order. The
party making the application shall state by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new
or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

“Section 1008 allows the trial
court to reconsider and modify, amend or revoke its prior order when the moving
party shows a different state of facts exists.…
‘[T]he party seeking reconsideration must provide not only new evidence
but also a satisfactory explanation for the failure to produce that evidence at
an earlier time.’ [Citation.]” (Mink
v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) This diligence requirement is also applicable
when the motion for reconsideration is based on different law. (Baldwin
v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1200 (>Baldwin).) Thus, if the motion is based on different
law, the moving party must provide a satisfactory explanation for failing to
cite that law in arguing the first motion.
A contrary rule would “remove all incentive for parties to expeditiously
marshall the law in support of their case.
If counsel need not explain the failure to earlier produce pertinent
legal authority that was available, the ability of a party to obtain
reconsideration would expand in inverse relationship to the competence of
counsel. Without a diligence requirement
the number of times a court could be required to reconsider its prior
orders would be limited only by the ability of counsel to belatedly conjure a
legal theory different from those previously rejected, which is not much of a
limitation.” (Id. at p. 1199.)

Father’s motion for reconsideration
noted that the trial court, in making its February 8, 2010, ruling, relied on
two cases, Chun v. Chun (1987)
190 Cal.App.3d 589 and In re Marriage of Drake (1997) 53 Cal.App.4th 1139, which
were not cited by the parties in their argument. He discussed those cases in the declaration
supporting his motion. No other new or
different facts, circumstances or law were identified in father’s motion for
reconsideration. In Baldwin, the court concluded the requirements for a motion for
reconsideration were not met where the motion was based on a case not
previously cited, but not newly decided, and was supported by a declaration
that merely stated the case was found after the adverse order was made. (Baldwin,
supra, 59 Cal.App.4th at pp. 1200-1201.)
Father’s declaration did not include any explanation for the failure to
present and discuss those cases in connection with either the motion that
resulted in the October 28, 2009, order or mother’s motion for reconsideration
that resulted in the February 8, 2010, order challenged by father’s
motion. We note that the >Chun case was cited by the court in its
May 13, 2009 order, in which the court denied father’s motion for
reconsideration of the order setting support for Allen at $1,319. Because father’s motion did not present new
or different facts, circumstances, or law and a satisfactory explanation for
the failure to present them earlier, it did not meet the requirements for a motion
for reconsideration under section 1008, subdivision (a).

“A trial court’s ruling on a motion for reconsideration is reviewed under
the abuse of discretion standard.” (>Glade v. Glade (1995) 38
Cal.App.4th 1441, 1457.) “‘An abuse of
discretion occurs if, in light of the applicable law and considering all of the
relevant circumstances, the court’s decision exceeds the bounds of reason and
results in a miscarriage of justice.
[Citations.] The abuse of
discretion standard affords considerable deference to the trial court, provided
that the court acted in accordance with the governing rules of
law.’” (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470,
1474-1475.) “‘“The burden is on the
party complaining to establish an abuse of discretion .…”’ [Citation.]”
(Blank v. Kirwan (1985) 39
Cal.3d 311, 331.) The trial court’s
decision was in accordance with the legal requirements for a motion for
reconsideration. Father has not
established that the decision was beyond the bounds of reason. We find no abuse of discretion in the denial
of father’s motion for reconsideration.

>III. February
8, 2010, Support Order

Father argues the May 5, 2008,
support order “was clearly intended to be a final decision,” and implies that
it therefore should not have been modified.
The portion of the transcript of the May 5, 2008, hearing that he cites,
however, indicates the trial court intended to make a temporary order. After awarding child and spousal support in
accordance with the DissoMaster amounts, the court stated:

“If you move your case on to trial, then the Court can
consider other factors. And it’s a more
lengthy hearing about what support should be.
And it is not guided by the DissoMaster at all. [¶]
The DissoMaster is for a temporary basis. If you move your case to trial -- which you
really should, because you have been here lingering for a while. That’s when you are going to get the orders
that best fit your needs.”

In any
event, with some exceptions not applicable here, “a support order may be
modified or terminated at any time as the court determines to be
necessary.” (Fam. Code, § 3651, subd.
(a).) Under this section, all child
support orders, even those based on an agreement of the parties that includes
an agreement that such support will not be modified, are modifiable prospectively. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 727 (>Alter), minor children; >In re Marriage of Lambe & Meehan
(1995) 37 Cal.App.4th 388, 391-393, adult disabled child.) Thus, the May 5, 2008, order denying support
for Allen was not final in the sense that it could not be modified
subsequently, under appropriate circumstances.
The May 5, 2008, order was, in fact, superseded by the February 19,
2009, order and the October 28, 2009, order, prior to entry of the February 8,
2010, order that father sought to have reconsidered. Father did not appeal the February 19, 2009,
or October 28, 2009, order and those orders are not reviewable in this appeal.

“We review a child support order for
abuse of discretion. [Citation.] In so doing, we determine ‘“whether the
court’s factual determinations are supported by substantial evidence and
whether the court acted reasonably in exercising its discretion.” [Citation.]
We do not substitute our own judgment for that of the trial court, but
determine only if any judge reasonably could have made such an order.’ [Citation.]”
(Alter, supra, 171 Cal.App.4th
at pp. 730-731.) We are hampered in our
review of the February 8, 2010, order by the absence from the record of the
complete order. The substance of the
order is reflected only in the subsequent March 23, 2010, order, which
states: “The court’s previous ruling of
February 8, 2010 stands: child support
for the adult disabled son remains in the amount of $667 (retroactive to
November 1, 2009). This is the amount
contained in the DissoMaster attached to the ruling of this court of Oct. 28,
2009.” (Capitalization omitted.)

Father contends an award of support for Allen was improper because the
statutory requirements for such an award were not met. “The father and mother have an equal
responsibility to maintain, to the extent of their ability, a child of whatever
age who is incapacitated from earning a living and without sufficient
means.” (Fam. Code, § 3910, subd.
(a).) Father asserts that Allen was not
“without sufficient means,” because the SSI payments he received were adequate
to meet his needs. Father cites no
evidence in the record demonstrating what expenses Allen incurred monthly, that
they were met solely through SSI, or that mother did not contribute at all to
his support out of her income.

Father argues at length that he should not be required to pay any support
to Allen because, if Allen receives child support, his SSI will be reduced
dollar for dollar, and this will have an adverse impact on the financial
condition of the family as a whole. The
Family Code, however, expresses a preference for private support. “In implementing the statewide uniform
guideline, the courts shall adhere to the following principles: [¶] … [¶] (h) The financial needs of the
children should be met through private financial resources as much as
possible.” (Fam. Code, § 4053, subd.
(h).) Father’s argument assumes instead
a preference for public support of a disabled adult child. Father cites no authority permitting the
trial court to reduce a parent’s contribution to an adult disabled child based
on fear that an award of support will reduce the public support the disabled
adult receives. (See >Elsenheimer v. Elsenheimer (2004)
124 Cal.App.4th 1532, 1540, refusing to consider SSI received by the mother in
determining support to be paid by the father, because it would “transfer a
significant portion of father’s burden of meeting the children’s needs to the
government,” contrary to the intent expressed in Family Code, sections 3900 and
4053, subdivision (h).)

Additionally, “[t]he guideline is intended to be presumptively correct in
all cases, and only under special circumstances should child support orders
fall below the child support mandated by the guideline formula.” (Fam. Code, § 4053, subd. (k).) Father has cited no evidence in the record of
special circumstances justifying deviation from the guideline amounts, other
than his claim that awarding child support will reduce the amount of SSI Allen
receives. Father makes no showing that
the DissoMaster calculation followed by the trial court failed to properly
apply the guideline formula. The
calculation took into account all of the dependent children. The trial court ordered support in accordance
with those calculations.

On appeal, the order or judgment of the trial court is presumed correct;
error must be affirmatively demonstrated by the appellant. (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547,
556-557.) The appellant must present an
adequate record and adequate argument, supported by citations to appropriate
authorities and to relevant portions of the record, to establish the claimed
error. (Id. at p. 557.) Father has
not established that the trial court abused its discretion when it ordered that
father pay child support for his disabled adult son in accordance with the
DissoMaster calculations. We find no
error in the order.



>DISPOSITION

The order
is affirmed. Mother is entitled to her
costs on appeal.





_____________________

HILL, P. J.

WE CONCUR:





_____________________

CORNELL, J.





_____________________

POOCHIGIAN, J.