Marriage of McMeekin





Filed 1/18/11 Marriage of McMeekin CA2/7



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of LINDA JO and DANIEL G. MC MEEKIN.	B219779 (Los Angeles County Super. Ct. No. BD426248)
LINDA JO MC MEEKIN, Respondent, v. DANIEL G. MC MEEKIN, Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Frederick C. Shaller, Judge. Affirmed.
Jones & Brayton and Thomas C. Brayton for Respondent and Appellant.
Brian Alan Baker APLC and Brian Alan Baker for Petitioner and Respondent.



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Daniel G. McMeekin appeals from the denial of his request to modify his spousal support obligation to Linda Jo McMeekin. He asserts the trial court erred in finding no material change in circumstances and no basis for a reduction in the stipulated support. Finding no abuse of discretion by the trial court, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY
The 20-year marriage of Daniel and Linda McMeekin [1]was dissolved and spousal support settled on May 14, 2007. Daniel filed an Order to Show Cause to modify the support in January 2008, which the court denied. The court entered judgment on March 4, 2008.
The current attempt to modify began on December 24, 2008, when Daniel filed a new Order to Show Cause. The court denied the modification on February 9, 2009. Daniel moved for reconsideration on February 19, 2009, and filed a notice of intention to move for a new trial on February 23, 2009. On April 1, 2009, the court denied the motion for reconsideration, and granted the motion for new trial. After the parties submitted further documentation to the court, the matter was heard on August 18, 2009. The Court again denied the requested relief, finding no material change of circumstances and no basis under Family Code section 4320 to grant relief. At Daniel’s request, the Court prepared a statement of decision. Daniel timely appealed.
In the spousal support agreement, Daniel had agreed to pay Linda $1,800 per month beginning on June 1, 2007, stepping down to $1,500 per month on June 1, 2010. The agreed-to order did not permit either party to maintain the marital standard of living, and was based on income and expense declarations filed by each party at the time of the mandatory settlement conference. Daniel asserts that at that time, his income was $8,477 per month, with expenses of $5,499 per month; Linda’s income was $2,624 per month, with expenses of $5,096. By August 2009, according to Daniel, his income decreased to $6,470 per month, and his expenses to $4,741, while Linda’s income had increased to $2,805 and her expenses had increased to $6031. Daniel argues that the trial court erred in denying his motion by: adding back depreciation in determining his income; finding that necessary documents were not in the record; analyzing the Family Code section 4320 factors incorrectly; and failing to respond to Daniel’s objections to the statement of decision. We find no abuse of discretion by the trial court in its ruling.

DISCUSSION
Standard of Review
In considering a determination of spousal support, we review the decision of the trial court for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 825.) “Appellate review of orders modifying spousal support is governed by an abuse of discretion standard, and such an abuse occurs when a court modifies a support order without substantial evidence of a material change of circumstances.” (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982-983;see In re Marriage of West, (2007) 152 Cal.App.4th 240, 246 [“A spousal support order is modifiable only upon a material change of circumstances since the last order” and “[w]here there is no substantial evidence of a material change of circumstances, an order modifying a support order will be overturned for abuse of discretion”]; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480 [“Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order”].) “‘So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it.’” (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.)

The Court Did Not Abuse its Discretion
Where, as here, there is a marital settlement agreement, the court must consider the intent and reasonable expectations of the parties, as demonstrated by the agreement. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398.) It must first determine whether there has been a material change of circumstances, and, if there has been such a change, it must consider the factors set forth in Family Code section 4320. (Id. at p. 401.) Here, the court found no material change, a finding Daniel disputes.

A. The Depreciation Calculation Was Not an Abuse of Discretion
Daniel asserts that the court erred in adding back to his income the depreciation he claimed for a business purpose. In 2008, according to Daniel’s filings, he purchased telephone and computer equipment for $4,066, and deducted this sum as depreciation on his tax return. The court added back that amount in determining his income for purposes of the Order to Show Cause, indicating that to do otherwise would be “double-counting” the same amount. While this shorthand may not be clear, its effect is accurate. A spousal support order is essentially predictive in nature, and attempts to arrive at a stable number for future income. Where income fluctuates, the court properly considers whether the income or expenses at issue are likely to recur. (See, e.g. County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, 1396.) The depreciation deduction at issue here is not likely to recur, and thus, while it was appropriately deducted for tax purposes, it is not predictive of ongoing income. The court properly declined to reduce Daniel’s income by that amount.

B. The Court Did Not Abuse its Discretion With Respect to Daniel’s
Evidentiary Showing
The court concluded that Daniel had failed to provide admissible evidence of the documentation relied on by the parties when they settled the spousal support issue in 2007. The court nonetheless considered the amounts argued by counsel in determining whether there had been a material change of circumstances.
Daniel is correct that the Income and Expense Declaration he prepared in May 2007 was submitted to the court in connection with the proceedings at issue. The documents were filed with his reply papers in August 2009, five days before the hearing, although they were not identified as the Mandatory Settlement Conference documents. As such, they were not properly submitted to the court in connection with the Order to Show Cause as proof of income at the time of the stipulation. Nonetheless, the court considered the 25 percent reduction in income argued by Daniel’s counsel, and compared the income and expenses of the parties, in making its determination. “Notwithstanding the lack of evidence, however, both parties argued that the income of the Respondent at the time of the prior order was higher than at present and that the income of the Petitioner was higher than it was at the time of the prior hearing. Accepting these arguments . . . for purposes of discussion, it is still also clear . . . that Respondent’s expenses are much lower than they were previously and the Petitioner’s expenses are more or less the same in total amount. Reviewing the evidence before the court, there is at most a net difference of several hundred dollars in the ability of Respondent to pay support and the need of the Petitioner for an order of support. In other words, the evidence argued by the parties does not lead the court to conclude that any material change in circumstance has occurred.”
On the record before us, it appears that Daniel is incorrect in his assertion that the court failed to consider what his income and expenses had been at the time of the stipulation in determining whether there had been a material change of circumstances. There is no abuse of discretion.[2]

C. No Error was Demonstrated with Respect to the Statement of Decision Daniel finally asserts that the court’s failure to rule on his objections to the Statement of Decision requires reversal. His argument is unsupported by any authority.[3] “We need not address points in appellate briefs that are unsupported by adequate factual or legal analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.) “If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. (People v. Stanley (1995) 10 Cal.4th 764, 793.) This latter rule is founded on the principle that an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness. [Citation.]” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.) Appellant has not met the burden of demonstrating error, and we find none.

DISPOSITION
The judgment of the trial court is affirmed. Respondent is to recover her costs on appeal.


ZELON, J.
We concur:


PERLUSS, P. J.


WOODS, J.

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