S.G. v. K.H.

Filed 7/1/09 S.G. v. K.H. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mark A. Juhas, Judge. Affirmed.

Kolodny & Anteau, Stephen A. Kolodny, Heidi L. Mazdar and James L. Keane for Plaintiff and Appellant.

Law Offices of Philip Kaufler and Philip Kaufler for Defendant and Respondent.

_________________________

Appellant S.G. (father) filed a petition to establish parentage (petition) as to two children he had with respondent K.H. (mother). Father challenges the ensuing award of retroactive child support payments.

We affirm.

FACTS

Father filed his petition on May 12, 2006. At trial, father testified that he was paying $8,400^[1]a month rent for mothers house. Subsequently, the family court issued a tentative statement of decision that proposed to award mother $12,500 a month for housing expenses and $10,000 a month in general expenses for the children. Further, the family court indicated that father was paying for, and would be ordered to continue paying for, such things as school tuition, health care insurance, therapy and counseling costs, and any expenses he agreed to in writing. Also, he would be ordered to pay $15,000 a year for travel expenses. Mother was awarded $50,000 in pendente lite attorney fees.

Father appealed the pendente lite attorney fee award, claiming that it was improper. Mother cross-appealed and claimed that she should have been awarded $250,000 in attorney fees instead of $50,000.

Subsequently, the family court issued a statement of decision regarding child support, among other things, and stated: The order for child support shall be retroactive to November 1, 2006. Judgment was entered on February 11, 2008, and contained attachment pages with orders, including an order providing that father would receive credit for all sums expended on the childrens behalf from November 1, 2006, to October 31, 2007. Specifically, father was given a credit for any amounts paid to [mother] for the children, including car payments, rent on the house, nannies, food, insurance or any other bill.

The present appeal followed.

On June 17, 2009, we affirmed the award of $50,000 in pendente lite attorney fees. (S.G. v. K.H. (June 17, 2009) B204623 [nonpub. opn.].)

DISCUSSION

We are asked to review a child support award. A trial courts award concerning child support is reviewed for abuse of discretion. [Citations.] (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555 (Leonard).)

Father contends that the family court abused its discretion when it made the housing allowance retroactive because he paid all of mothers housing expenses on a voluntary basis. The result, father tells us, was a $50,000 windfall award to mother that impermissibly contravened the purposes of the child support laws.^[2] (Leonard, supra, 119 Cal.App.4th at p. 555.)

Mother argues that father waived his arguments.

We turn to the issues.

1. Waiver.

Father did not object to the statement of decision. Citing Tusher v. Gabrielson (1998) 68 Cal.App.4th 131 (Tusher), mother contends that father waived his objection to the retroactive award. We disagree.

The question in Tusher was whether the appellate court should accept a document entitled statement of decision as an indication of the trial courts reasoning. (Tusher, supra, 68 Cal.App.4th at pp. 139140.) The court answered in the negative because a statement of decision was not timely requested. This meant that the judgment had to be presumed correct.^[3] Even if the statement of decision was considered valid and timely, the court concluded that the appellants waived the right to assert any deficiencies. (Id. at p. 140.) Under [Code of Civil Procedure] section 634, a party must raise any objection to the statement of decision in order to avoid an implied finding on appeal in favor of the prevailing party. (Ibid.)

Tusher establishes that in the absence of objection by father to any deficiencies in the family courts statement of decision, we can and must apply the doctrine of implied findings. This does not mean, however, that father waived his challenge to the retroactive award of child support. Mother does not assert any other grounds upon which we should find a waiver.

2. Child support law.

Child support is largely a creature of statute. [Citation.] (Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407, 1415 (Asfaw).) The amount of child support is determined by a formula set forth in the uniform guideline. (Fam. Code, 4055; Asfaw, supra, 147 Cal.App.4th at p. 1415.) When implementing the uniform guideline, a family court must apply a variety of principles, one of which is that [c]hildren should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. (Fam. Code,  4053, subd. (f).) Any order must be framed to assure . . . that the [noncustodial parents] wealth flows to the child, and not to the custodial parent. (In re Marriage of Hubner (1988) 205 Cal.App.3d 660, 667.)

3. The retroactive award was not an abuse of discretion.

Family code section 4009 provides that a child support award may be made retroactive to the date of filing the petition. In exercising its discretion concerning retroactivity, a family court must analyze the childrens past needs. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 300.)

The statement of decision did not include a finding that the children had unmet housing needs from November 1, 2006, to October 31, 2007. But that finding is implied. We must uphold that implied finding if it is supported by substantial evidence. (People v. Abilez (2007) 41 Cal.4th 472, 507.) Father ignores this issue. Arguments not made are deemed waived or abandoned. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) By default, we must presume the judgment was correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In so doing, we adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

Moreover, though father complains that the family court gave mother a $50,000 gift, the parties postjudgment stipulation was not before the family court, and father has not elucidated the evidence that was presented below. By failing to reconstruct the evidentiary landscape, father has consequently failed to demonstrate that a retroactive award was unnecessary to remedy any past inequities. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1169 [a retroactive child support award is appropriate when the custodial parent paid for a majority of care expenses and the noncustodial parent earned more money].)

Father repeatedly tells us that he paid 100 percent of the housing expenses for mother and the children. But that does not mean he paid 100 percent of what the children were entitled to receive. He points out that mother selected the house that she and the children lived in. Impliedly, he suggests that mother is estopped from claiming that the children had greater needs. He cites no law for this. It is not our responsibility to develop an appellants argument. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)

Father has not shown an abuse of discretion. The family court found that $12,500 a month for housing was appropriate. And father does not suggest that the prospective housing allowance was improper. It was reasonable for that award, with appropriate credits, to be made retroactive.

Our analysis need not go any further.

DISPOSITION

The judgment is affirmed.

Mother shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

ASHMANN-GERST

We concur:

_________________________, Acting P. J.

DOI TODD

________________________, J.

CHAVEZ

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^[1] In his appellate briefs, father informs us that the rent was initially $8,000 but increased to $8,400.

^[2] After judgment, the parties signed a stipulation which provided: For the period of retroactivity, father was ordered to pay amounts equaling $150,000 for housing and $120,000 for general expenses. He paid portions of those amounts and, pursuant to the judgment, was entitled to a credit. The parties agreed that, in the absence of an order by the Appellate Court regarding the retroactive application of the housing portion of the child support award, [father] owes the additional sum of $50,000 for [h]ousing and $46,292.16 for [g]eneral [e]xpenses.

^[3] The Tusher court applied Code of Civil Procedure section 634, which provides: When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.