Opinion
B223122
01-12-2012
In re Marriage of LAURA and SAMUEL FRANKLIN COY. LAURA LYNN COY, Petitioner and Appellant, v. SAMUEL FRANKLIN COY, Respondent and Respondent.
Law Office of Mark J. Leonardo, Mark J. Leonardo for Petitioner and Appellant. Samuel F. Coy, Respondent and Respondent, in propria persona.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BD421213)
APPEAL from an order of the Superior Court of Los Angeles County, Scott M. Gordon, Judge. Affirmed in part, reversed in part, and remanded.
Law Office of Mark J. Leonardo, Mark J. Leonardo for Petitioner and Appellant.
Samuel F. Coy, Respondent and Respondent, in propria persona.
INTRODUCTION
Petitioner and appellant Laura Lynn Coy (Laura) appeals from an order entered in marital dissolution proceedings between her and her former husband, respondent and respondent Samuel F. Coy (Samuel). Laura contends that the trial court erred in issuing an order decreasing Samuel's child and spousal support obligations because Samuel failed to produce certain financial documents in support of Samuel's order to show cause, the trial court disregarded the parties' intent as expressed in the Stipulated Judgment and essentially vacated it, the reduction in Samuels' support obligations was not warranted, the trial court improperly disregarded Laura's evidentiary objections, and the trial court failed to rule on Laura's request for a child support security deposit. We reverse the portion of the order terminating Samuel's obligation to pay for the cost of Laura's health insurance until dissolution of the marriage, and remand to the trial court to issue a ruling on Laura's request for a child support security deposit. We otherwise affirm the order.
We refer to the parties by their first names not out of disrespect, but for ease of identification. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
Laura and Samuel were married on October 16, 1989, and separated 12 years and 2 months later. Laura and Samuel had twin children born in July 1995.
On April 12, 2002, the parties entered into a marital settlement agreement. On May 31, 2002, a legal separation judgment was entered, attaching a copy of the marital settlement agreement (Stipulated Judgment). The Stipulated Judgment provided inter alia for the division of property, payment of existing debts and obligations, spousal support, custody, support, and visitation of the children, preparation income tax returns and payment of tax liability for the prior and current years, payment of attorney fees, and numerous general provisions, such as representations of full disclosure and exchange of information, categorizing earnings post-Stipulated Judgment as separate property, waiver of certain rights, and mutual release of claims. The Stipulated Judgment also provided that Samuel's gross monthly income was $10,000.
The Stipulated Judgment provided that for child support, Samuel was obligated to pay (i) $2,500 each month; (ii) an additional sum amounting to 25 percent of Samuel's income exceeding $10,000 per month; (iii) all of the costs of (a) health insurance; (b) braces; and (c) extracurricular activities; and (iv) one-half of any medical, dental, optical or psychological expenses not covered by insurance. Samuel was also obligated to obtain the maximum available amount of medical insurance coverage available to him through his employer or union.
The Stipulated Judgment provided that for spousal support, Samuel was obligated to pay (i) $2,500 each month payable until death or by order of the court but until the minor children reach the age of 18; (ii) an additional sum amounting to 25 percent of Samuel's income exceeding $10,000 per month; (iii) "for any braces or orthodontic work necessary for [Laura] and to pay all health insurance premiums for her until age 65;" and (iv) 50 percent of (a) presently existing life insurance for the benefit of Laura; and (b) presently existing car insurance. Samuel was also obligated to co-sign for the purchase of a new home by Laura.
On February 16, 2005, the trial court's civil case summary indicates that Laura filed a petition, and Laura represents that it was a petition for dissolution. On November 21, 2005, Samuel filed an order to show cause, and Laura represents that it was an order to show cause for modification of support (first OSC to modify support). On November 10, 2008, approximately three years after Samuel filed his first OSC to modify support, the trial court filed an amended findings and order denying the OSC because Samuel had not presented evidence that a change of circumstances had occurred warranting a modification of the parties' judgment. The trial court found that Samuel earned the following average monthly amounts: 2002 - $15,625; 2003 - $16,497; 2004 - $15,889; 2005 - $7,197; 2006 - $10,083, for an average monthly earning over the five year period of $13,060. The average monthly amount of $15,889 for 2004 included $66,793 received from Samuel's girlfriend and employer at Show Low Pontiac dealership, Rhonda Herzog, claimed by Samuel to be a loan.
On January 29, 2009, Samuel filed another order to show cause to modify child and spousal support (second OSC to modify support), which is the subject of this appeal. In support of this OSC, Samuel declared that he had been employed in the automobile sales industry since the mid-1990's, he did not have any post-high school education or a college degree, and he was not trained for any profession other than being employed in the automobile sales industry. Commencing on September 1, 2007, Samuel experienced changes in employers, positions, and compensation because his employers were experiencing financial hardships, and he was faced with actual or potential layoffs. By mid-summer of 2007, Samuel's income decreased to about $8,000 per month, and his average earnings in 2007 and 2008 was $8,295 per month. Commencing in November 2008, he was being compensated exclusively on a commission basis.
Laura, acting in propria persona, filed lengthy declarations and exhibits in opposition to the second OSC to modify support. Laura argued, inter alia, that Samuel had never fully reported all of his income and Samuel's income had not been reduced. A hearing on the second OSC to modify support was held on June 24 and 25, 2009, during which the parties presented evidence and argued the merits of that OSC.
On September 8, 2009, the trial court issued a Statement of Decision granting the second OSC to modify support. On September 17, 2009, Mark J. Leonardo filed a substitution of attorney as counsel for Laura. On March 2, 2010, the trial court issued "Findings and Order After Hearing on [Samuel's] Order to Show Cause Re Modification of Child and Spousal Support," (findings) following a hearing on objections to the Statement of Decision filed by Laura and Samuel.
The findings provided that Samuel "earned at least $10,000 per month at or near the time of the entry of the Stipulated Judgment in 2002, and further that the parties at that time contemplated that [Samuel's] income was in excess of the $10,000 per month of base income indicated in the Stipulated Judgment. The Court further finds that . . . [Samuel's] earnings have decreased to an average of $8,295 per month." Another finding was, "With reference to Family Code section 4320(l) for purposes of spousal support, the Court finds that it has considered the goal that a supported party shall be self-supporting within a reasonable period of time."
As a result of the findings, the trial court modified Samuel's child support obligations set forth in the Stipulated Judgment, and provided that (i) the base amount of monthly child support was $1,907 instead of $2,500; (ii) the obligation to pay the additional sum of child support was a percentage—to be determined by a DissoMaster Bonus Chart—of Samuel's income exceeding $8,295, instead of 25 percent of Samuel's income exceeding $10,000 per month; (iii) the obligation to obtain the maximum available amount of medical insurance coverage available to Samuel through his employer was modified to obtain reasonable medical insurance coverage available to him through his employer; (iv) Laura was to be solely responsible to pay any unreimbursed out of network costs incurred for the minor children; (v) although Samuel continued to be obligated to pay all the costs for braces, Samuel and Laura must first agree on those expenses; (v) except for payment of unreimbursed out of network costs and expenses for braces, referred to above, Samuel continued to be obligated to pay for one-half of any medical, dental, optical or psychological expenses not covered by insurance; (vi) the obligation to pay all the costs for extracurricular activities was reduced to one-half of the costs, and Laura was required to first obtain Samuel written consent; and Samuel was obligated to maintain a $500,000 life insurance policy for the benefit of the minor children.
The DissoMaster Bonus Chart is not included in the record.
The trial court also modified Samuel's spousal support obligations, and provided that the obligation to (i) pay the base amount of monthly spousal support was $1,100 instead of $2,500; (ii) pay the additional sum of spousal support was 15 percent of Samuel's monthly income exceeding $8,295, instead of 25 percent of Samuel's monthly income exceeding $10,000; (iii) pay for the cost of braces was eliminated; (iv) pay for the cost of health insurance terminated upon dissolution of the marriage instead of until upon Laura becoming 65 years old; (v) pay 50 percent of the cost of presently existing car insurance was eliminated; (vi) pay 50 percent of the cost of presently existing life insurance for the benefit of Laura was eliminated; and (vii) co-sign for the purchase of a new home by Laura was eliminated.
DISCUSSION
A. General Principals and Standard of Review
A party may seek modification of a family law order or judgment by filing an order to show cause. (In re Marriage of Acosta (1977) 67 Cal.App.3d 899; Fam. Code, § 215.) Child and spousal support orders are reviewed under an abuse of discretion standard. (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1046-1047; In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) "An abuse of discretion occurs 'where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.' [Citation.]" (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 7.) The reviewing court "'must accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn. 5.) We do not substitute our judgment for that of the trial court. (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128.) In reviewing a child support order, "however, we are mindful that 'determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule.' [Citation.]" (In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1047.)
All statutory references are to the Family Code, unless stated otherwise.
Laura contends that we must conduct a de novo review and interpret certain statutes and a local trial court rule to determine whether Samuel was obligated to produce his income tax returns in connection with his second OSC to modify support. "[W]here the issue is one of statutory construction . . ., and the evidence is not in dispute, the de novo standard of review applies (People v. American Bankers Ins. Co. (1992) 4 Cal.App.4th 348, 350 )." (County of Los Angeles v. American Contractors Indemnity Co. (2011) 198 Cal.App.4th 175, 178.)
B. Laura's Motion to Strike
On appeal, Laura filed an unopposed motion requesting that we strike an income and expense declaration, dated June 21, 2011, purportedly filed with this court by Samuel on or about June 22, 2011, because it is new evidence not included in the record. An income and expense declaration dated June 21, 2011, however, has not been filed with this court, it is not part of the record, and Samuel has not requested that we receive it as additional evidence for the record. We therefore deny the motion requesting that we strike the declaration.
Laura's motion also requests that we strike a passage in the respondent's brief on the ground it is not based on evidence that is in the record. The objected-to passage states, "Notwithstanding these claims, she is the CEO and founder of M.A.W.M.I. held by H.A.A.N.D.S., Inc., a non-profit corporation, a readily understandable and perceived time consuming venture." Because it does not appear that the stated fact finds support in the record on appeal, we grant Laura's motion to strike the passage in the respondent's brief. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6 [factual assertions outside the record are disregarded]); C.J.A. Corp. v. Trans-Action Fin. Corp. (2001) 86 Cal.App.4th 664, 673 [granting motion to strike portions of appellants' opening brief on the ground that "the citations find no support in the record on appeal"].)
C. Procedural Defects in the Respondent's Brief
Laura contends in her reply brief that the passage contained in the respondent's brief, "Notwithstanding these claims, she is the CEO and founder of M.A.W.M.I. held by H.A.A.N.D.S., Inc., a non-profit corporation, a readily understandable and perceived time consuming venture," should be disregarded because it is not based on evidence that in the record. As discussed above regarding Laura's motion to strike, we strike that passage.
Laura also argues that the respondent's brief is procedurally defective because Samuel failed to serve it on our Supreme Court, as required by California Rules of Court, rule 8.212, subdivision (c) (2), and the stated facts are not supported with record citations, as required by California Rules of Court, rule 8.204, subdivision (a) (1)(C). Laura, however, does not request any particular relief. Even if Laura requested that we disregard the respondent's brief in its totality, or portions thereof, we decline to do so. We overlook Samuel's failure to comply with these appellate rules. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1025.)
D. Financial Documents
Laura contends that the trial court erred in modifying Samuel's support obligations because Samuel's income and expense declaration was not current at the time trial court issued its order on the second OSC to modify support, and Samuel failed to produce his income tax returns at the hearing.
i. Background
On May 18, 2009, Samuel filed an income and expense declaration in support of the second OSC to modify support. The hearing on the OSC occurred approximately five weeks later, on June 24 and 25, 2009.
On April 27, 2009, counsel for the Los Angeles County Department of Child Support Services (Department) filed a responsive declaration to Samuel's second OSC to modify support stating inter alia that Samuel was required to take a copy of [his] latest tax return to the court hearing, and requesting that no hearing occur without full compliance with rule 14.9. On June 5, 2009, Laura filed an opposition to the second OSC to modify support, arguing that Samuel's second OSC to modify support should be denied because Samuel failed to provide her with his income tax returns when he filed the OSC. On September 28, 2009, Laura filed objections to the September 8, 2009, Statement of Decision, stating Samuel's "Order to Show Cause should be denied in its entirety for his failure to comply with Los Angeles Superior Court Rule 14.9 because he did not produce any tax returns as required by the rule at either hearing regarding this Order to Show Cause." At the November 11, 2009, hearing on the objections to the Statement of Decision, Laura again asserted that the second OSC to modify support should be denied because Samuel failed to produce his tax returns. Samuel's counsel stated at the hearing that Samuel brought the tax returns with him to the hearing on the second OSC to modify support, but Laura did not ask for them or otherwise object that Samuel had not produced them at the hearing.
Section 17406, subdivision (a) provides in relevant part, "In all actions involving paternity or support . . . the local child support agency . . . represent the public interest in establishing, modifying, and enforcing support obligations." The Department is the local child support agency. (§ 17000, subd. (h).)
ii. Discussion
Laura contends that the trial court erred in modifying Samuel's support obligations because Samuel did not file an Income and Expense Declaration in support of his second OSC to modify support within three months of trial court's issuance of its September 2, 2010, Statement of Decision, or its March 2, 2010 findings. "A current Income and Expense Declaration . . . must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant." (Cal. Rules of Court, rule 5.128, subd. (a).) "The burden of showing a material change of circumstances necessitates comparing financial information on which the original support order was based with the most recent financial information relevant to a new order. In this regard, the power to modify a support order must be limited to the conditions and circumstances existing at the time the order is made. (See In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 633, 639 .)" In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576.) Laura argues that because Samuel filed his income and expense declaration in support of the second OSC to modify support three and one-half months prior to the trial court's Statement of Decision, and nine and one half months prior to the trial court's findings, it was not "current." We disagree.
In In re Marriage of Tydlaska, supra, 114 Cal.App.4th 572, the supporting husband filed an order to show cause seeking to modify child and spousal support, and attached an income and expense declaration. (Id. at p. 574.) The hearing on the order to show cause occurred approximately eight months later, and the father had not filed an income and expense declaration since the filing of the OSC. The trial court denied the OSC on the ground that the income and expense declaration was not "current," and on appeal the father contended that he was required to file an income and expense declaration current at the time the OSC was filed, but not at the time the matter was heard. (Ibid.) In affirming the trial court's denial of the OSC, the court stated that the financial information must reflect "the conditions and circumstances existing at the time the order is made." (Id. at p. 576). Relying on San Diego County Superior Court Local Rules, rule 5.47, applicable in that case, the court however explained that the trial court must have "current"' information, described as "an income and expense declaration 'executed within 60 days of the hearing. ([San Diego County Superior Court Local] Rule 5.47.)" (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 576; italics added.) The court continued, "However, [the father] produced no evidence at the hearing, specifically a current income and expense declaration, to prove he was entitled to a modified support order." (Ibid; italics added.)
The trial court must have current financial information at the time of the hearing— not when the order is issued—to determine if the moving party is entitled to modify an existing support order. Here, an income and expense declaration is "current" if completed within three months of the hearing. (Cal. Rules of Court, rule 5.128, subd. (a).) Samuel filed and served his income and expense declaration on May 18, 2009, within three months of the hearing on June 24 and 25, 2009. Samuel's income and expense declaration was therefore current.
Laura also contends that sections 3552 and 3665, and Los Angeles County Superior Court Local Rules, rule 14.9, effective at the time of the OSC hearings in this matter, compelled Samuel to produce his tax returns at the hearing. Laura argues that the trial court erred in modifying Samuel's support obligations because Samuel did not produce them.
All rule references are to the Los Angeles County Superior Court Local Rules, unless otherwise specified.
On June 5, 2009, Laura filed an opposition to the second OSC to modify support arguing that Samuel's second OSC to modify support should be denied because Samuel failed to provide her with his income tax returns when he filed the OSC. In Laura's September 28, 2009, objections to the September 8, 2009 Statement of Decision, she raised for the first time her contention on appeal that Samuel was required to produce the tax returns at the hearing held on June 24 and 25, 2009. We asked the parties to brief whether Laura forfeited the issue on appeal.
Laura contends that there was no forfeiture because she objected to Samuel's failure to produce his tax returns in her opposition to the second OSC to modify support. This objection, however, is premised on the contention that Samuel was required to produce his income tax returns when he filed the OSC. Laura did not raise until after the hearing occurred her contention on appeal that Samuel was obligated to produce the tax returns at the hearing, when she filed her objections to the September 8, 2009 Statement of Decision.
"The main purpose of an objection to a proposed statement of decision is not to reargue the merits, but to bring to the court's attention inconsistencies between the court's ruling and the document that is supposed to embody and explain that ruling. (Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292.) Objecting to the Statement of Decision that Samuel's "Order to Show Cause should be denied in its entirety" because he did not produce tax returns at a hearing that already occurred is, in effect, an attempt to reargue the merits. The objection therefore can be disregarded.
Laura also relies on the April 27, 2009, responsive declaration filed by the Department in support of her contention that an objection was raised that the second OSC to modify support should have denied because Samuel did not produce his income tax returns at the hearing. The Department's objection, however, was merely that Samuel was required to take a copy of his tax return to the court hearing, not that Samuel was required to unilaterally produce it. In addition, the Department is not a party to this appeal, and Laura's reliance on its objection is misplaced. We conclude the contention was forfeited.
Even if the contention was not forfeited, it is not meritorious. Laura contends that our review of sections 3552 and 3665, and rule 14.9, is a matter of statutory interpretation governed by the de novo standard of review. "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.]" (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) Defendant contends, "This appeal is . . . about a clear and unambiguous statute." "'The best indicator of legislative intent is the plain meaning of the statutory language, when clear and unambiguous. [Citations.] [T]he statute should be interpreted consistently with its intended purpose, and harmonized within the statutory framework as a whole. (DuBois [v. Workers' Comp. Appeals Bd. (1993)] 5 Cal.4th [382,] 388.)' [Citations.]" (Alvarez v. Workers' Comp. Appeals Bd. (2010) 187 Cal.App.4th 575, 585.) "The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) "[E]ach sentence must be read not in isolation but in the light of the statutory scheme [citation] . . . ." (Ibid.) The traditional rules of statutory construction are applicable to the interpretation of the California Rules of Court and local rules. (The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 403; Hogoboom v. Superior Court (1996) 51 Cal.App.4th 653, 669.)
Rule 14.9, effective at the time of the OSC hearing in this matter, provided in relevant part, "In addition to the schedules and pay stubs required to be attached to the Income and Expense Declaration, parties will bring copies of State and Federal Income Tax Returns (including all supporting schedules) . . . for the last two years." The form Income and Expense Declaration directs the declarant, in bold font, to "[t]ake a copy of your latest federal tax return to the court hearing."
Section 3552 provides, "(a) In a proceeding involving child, family, or spousal support, no party to the proceeding may refuse to submit copies of the party's state and federal income tax returns to the court, whether individual or joint. [¶] (b) The tax returns may be examined by the other party and are discoverable by the other party. A party also may be examined by the other party as to the contents of a tax return submitted pursuant to this section."
Pursuant to rule 14.9, and as directed in the form Income and Expense Declaration, Samuel was required to "bring" with him to the hearing on the second OSC to modify support copies of his income tax returns. He was not required unilaterally to produce them to Laura at the hearing. And, although section 3552, subdivision (b) provides that Laura "may" examine the tax returns, and "may" examine Samuel as to their contents, Laura did not make such a request to do so at the hearing. At the subsequent November 11, 2009, hearing on the objections to the Statement of Decision, Samuel's counsel advised the trial court that Samuel brought the tax returns with him to the hearing on the second OSC to modify support, but Laura had not asked for them.
Samuel had the burden of showing a material change of circumstances since the last support order was made. (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 575). Samuel ran the risk of failing to carry that burden by not lodging the tax returns with the trial court, but he was not required to do so. Although Samuel may not refuse to submit the tax returns to the trial court (§ 3552, subd. (a)), the trial court never requested that he submit them.
Laura also relies on section 3665 which provides in relevant part, "(a) A copy of the prior year's federal and state personal income tax returns shall be attached to the income and expense declaration of each party." However, section 3665 concerns a request by a party for the production of an income and expense declaration pursuant to section 3664. Section 3665 does not concern what is required of the moving party seeking to modify a support order or judgment.
Laura contends that even if Samuel was not required to produce his tax returns at the OSC hearing, but only bring them with him, there is no evidence he did so. Laura argues that the representations made by Samuel's counsel at the subsequent November 11, 2009, hearing that Samuel brought the tax returns with him to the OSC hearing is not evidence. Laura, however, did not object at the OSC hearing that Samuel did not bring the tax returns with him. We therefore asked the parties to brief whether Laura forfeited the issue.
Laura contends that she did not forfeit the issue that there was no evidence that Samuel "brought" his tax returns with him to the hearing because, as discussed above, she objected in her opposition to the Second OSC to modify support to Samuel's failure to "produce" them. This objection, however, was only in the context of what Samuel should have done at the time he filed the OSC, not at the time of the hearing. It was also regarding Samuel's failure to produce the tax returns, which he was not required to do.
Laura also contends that she did not forfeit the issue because, as is also discussed above, the Department filed a responsive declaration in opposition to the OSC stating that Samuel was required to take a copy of his latest tax return to the court hearing, and requesting that no hearing occur without full compliance with rule 14.9. Even if Laura could rely on the responsive declaration of an entity not a party to this appeal, the Department's responsive declaration is not an objection that Samuel did not bring his tax returns to the hearing. Laura forfeited the issue.
E. Material Change in Circumstances
Laura contends that the trial court abused its discretion in reducing Samuel's support payments because there was no material change in circumstances warranting such a reduction. We disagree.
"Modification of a spousal support order may be made only on a showing of a material change in circumstances after the last order. [Citations.] Consequently, 'a modification order must be based on current facts and circumstances.' [Citation.] The moving party has the burden of showing a material change of circumstances since the last order was made. [Citation.]" (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 575.) A "'change of circumstance' means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all of the factors affecting need and the ability to pay." (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) "The trial court has broad discretion to decide whether to modify a spousal support order." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.) In considering a request to modify or terminate a spousal support order, "the court considers the same criteria set forth in section 4320 as it considered when making the initial order . . . . [Citation.]" (Ibid.) Further, in considering these factors, the trial court must keep in mind "[t]he goal that the supported party shall be self-supporting within a reasonable period of time." (§ 4320, subd. (1).)
"Statutory procedures for modification of child support 'require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.' [Citations.] The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse. [Citation.] [¶] 'Ordinarily, a factual change of circumstances is required [for an order modifying support] (e.g., increase or decrease in either party's income available to pay child support).' [Citation.]" (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.) "'There are no rigid guidelines for judging whether circumstances have sufficiently changed to warrant a child support modification. So long as the statewide statutory formula support requirements are met (Fam. [Code,] § 4050 et seq.), the determination is made on a case-by-case basis and may properly rest on fluctuations in need or ability to pay.' [Citations.]" (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556.) "The amount of child support normally payable is calculated based on a complicated algebraic formula found at . . . section 4055." (In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1047, fn. omitted.) "The statutory scheme is unquestionably complex and convoluted, and the formula cannot be calculated without a computer and specially designed software . . . . [Citations.]" (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1013, fn. omitted.) "[T]he only discretion a trial court possesses is the discretion provided by statute or rule." (In re Marriage of Butler & Gill (1997) 53 Cal.App.4th 462, 465; accord Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407, 1415.)
Laura does not contend specifically that the trial court erred by not considering section 4320 in modifying Samuel's spousal support obligations, or section 4050 et seq. in modifying Samuel's child support obligations. "A reviewing court must start with the presumption that the record contains evidence to support every finding of fact; the burden is on the party attacking a finding of fact for lack of evidentiary support to demonstrate that there is no substantial evidence to support the challenged finding . . . ." (Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758.)
Based on the trial court's ruling regarding the first OSC to modify support, and Samuel's testimony in support of his second OSC to modify support that his average earnings in 2007 and 2008 was $8,295 per month, Laura argues that Samuel's average monthly earnings for the five year period of 2004-2008 was $11,112. Laura contends that the trial court erred in reducing his child and spousal support obligations because this five year average is not a change in circumstances justifying a reduction in support because it was more than the monthly average earning amount of $10,000 agreed to in the Stipulated Judgment upon which the support was then based.
Laura, however, provides no authority to support her contention that the trial court erred by averaging the income for the two full years prior to the filing of the request to modify support, instead of five full years. It was appropriate for the trial court to average Samuel's earnings for 2007 and 2008 because by mid-summer of 2007, Samuel's income decreased to about $8,000 per month, and commencing on September 1, 2007, Samuel experienced a change in employers, positions and compensation. There was sufficient evidence of a material change in circumstances warranting a reduction in Samuel's support payments because Samuel's average monthly gross income of $10,000 set forth in the Stipulated Judgment has since been reduced to $8,295.
Laura also contends that the trial court erred in reducing the child support because her financial condition had not changed. The trial court did not abuse its discretion in modifying child support obligations based on a reduction of monthly gross earnings by the supporting parent despite the financial condition of the non-supporting parent not having changed.
Laura also contends that the trial court erred in reducing the child support because although the trial court had the discretion to impute Samuel's earning capacity in lieu of his actual income, it did not do so. Section 4058, subsection (b) provides that, "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." The trial court did not abuse its discretion by not imputing Samuel's earning capacity in lieu of his actual earning income in connection with the modification of child support. There is substantial evidence in the record that Samuel's reduction in income to $8,295 was a result of fiscal concerns outside of his control, and Laura does not cite to any evidence in the record that Samuel presently has an earning capacity in excess of that amount.
F. Vacating the Stipulated Judgment and Disregarding the Parties' Intent
Laura contends that the trial court erred in modifying Samuel's support obligations because the trial court essentially vacated the Stipulated Judgment, and disregarded the parties' intent as expressed in it. Laura argues that the trial court's findings vacated the Stipulated Judgment and it can only be vacated based on fraud, perjury, or lack of notice, none of which were asserted by Samuel. However, the Stipulated Judgment was modified, not vacated. The trial court's findings did not make invalid numerous provisions in the Stipulated Judgment including custody and visitation of the children, categorizing earnings post-Stipulated Judgment as separate property, waiver of certain rights, and mutual release of claims. In addition, the trial court's findings modified, but did not invalidate, numerous child and spousal support obligations.
In modifying the support obligations, however, the trial court must not disregard the parties' intent as expressed in the Stipulated Judgment. "[I]n determining what constitutes a change in circumstances the trial court is bound to give effect to the intent and reasonable expectations of the parties as expressed in the agreement. [Citations.] [¶] Thus, the trial court's discretion to modify the spousal support order is constrained by the terms of the marital settlement agreement. The court may not simply reevaluate the spousal support award. In Modglin [v. Modglin (1966)] 246 Cal.App.2d [411] at page 415, the court explained: 'We have no right to assume that the parties when they made their stipulation for alimony . . . did not know precisely what they were doing. We have no way of knowing what multitude of factors, or even what single consideration, entered into those stipulations. There is no suggestion, even remote, that any of them were illegally induced.'" (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.)
Here, on the basis of Samuel's stipulated gross monthly income of $10,000, the Stipulated Judgment specified Samuel's child and spousal support obligations, including monthly payments to the children and Laura, payments of insurance premiums, payments for the costs of medical and dental treatment, payments for the costs of the children's extracurricular activities, and co-signing a loan for Laura's purchase of a new home. The trial court did not abuse its discretion in reducing or eliminating the amount of those support payments, and eliminating his obligation to co-signing a loan for Laura's purchase of a new home, because they were directly related to Samuel's income, and the Stipulated Judgment did not consider how they would be calculated or affected in the event Samuel's gross monthly income was less than $10,000. The trial court did not disregard the intent and reasonable expectations of the parties as expressed in the agreement with regard to those support obligations. (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 238.)
The Stipulated Judgment also provided that Samuel was obligated to pay for the cost of Laura's health insurance until Laura became 65 years old. Here, the trial court did err in reducing the duration of that obligation and ordering that the obligation be terminated upon the dissolution of the marriage. The trial court, by not ending the obligation apparently did not consider a change of circumstance to bear on the obligation. There is no relationship between this obligation and the change of circumstance. Under the facts presented, reducing the duration of the obligation is contrary to the parties' intent set forth in the Stipulated Judgment and should not be modified. Accordingly, the trial court erred in modifying the duration of the insurance payments.
G. Evidentiary Objections
Laura contends that the trial court erred in modifying Samuel's support obligations because the trial court improperly disregarded Laura's evidentiary objections. We disagree.
i. Background
On June 24, 2009, Laura filed evidentiary objections to Samuel's declaration in support of his second OSC to modify support, entitled "Petitioner's Opposition to Evidentiary Objections Made by Respondent to Petitioner's Declaration." The objections requested that the trial court rule on each of the objections.
At the June 24, 2009, hearing on Samuel's second OSC to modify support the trial court refused to consider Laura's evidentiary objections to Samuel's declaration stating. "I've been handed a document entitled 'Petitioner's Opposition to Evidentiary Objections Made by Respondent to Petitioner's Declaration' that appear to be numerous evidentiary objections. They're filed in violation of 14.8 and 1005. They're not timely. . . . They were filed today at 1:43 [p.m.] today for a 1:30 [p.m. hearing]. They're not timely. They're not considered."
On June 25, 2009, the second day of the hearing on Samuel's second OSC to modify support, Laura re-argued the trial court's refusal to consider her evidentiary objections. In response, the trial court stated that the objections needed to be filed "not . . . less than two days before the hearing."
ii. Discussion
Rule 14.8, effective at the time of the OSC hearings in this matter, provided in relevant part that, "evidentiary objections to any declaration submitted in support or opposition of . . . [an] order to show cause, to which specific individual court rulings are requested, must be in writing and served and filed within the same time periods provided by Section 1005 of the Code of Civil Procedure, at least nine (9) days before the hearing for objections to the moving declarations . . . . Objections to any reply declaration shall be served and filed at least two (2) days before the hearing. . . . [¶] Evidentiary objections to any declaration submitted in . . . opposition to . . . [an] order to show cause, oral or written, including objections on the grounds of inadmissible hearsay, conclusion and lack of foundation, for which specific individual rulings are not requested or not required may be considered by the court at any time prior to or during the hearing thereon." Code of Civil Procedure section 1005, subdivision (b) provides in pertinent part, "All papers opposing a motion . . . shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing."
Laura contends that the trial court abused its discretion in refusing to consider her objections because rule 14.8, specifically provides that the trial court "may" consider them "at any time prior to or during the hearing." This provision, however, is limited to objections "for which specific individual rulings are not requested or not required." It is not applicable because Laura's evidentiary objections requested that the trial court make specific individual rulings on each of the objections.
Laura also contends that the trial court stated that the objections needed to be filed "not . . . less than two days before the hearing," and the trial court erred because this is an incorrect statement of rule 14.8. Laura argues that it is a requirement imposed on objections to reply declarations, not to declarations submitted in support of an order to show cause. However, an appealed judgment or order correct on any theory will be affirmed, even when the trial court's reasoning may have been erroneous. (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 663-664.) Laura's objections were not timely pursuant to rule 14.8, and Code of Civil Procedure section 1005, because she was required to file the objections at least nine court days before the hearing. The trial court did not err in refusing to consider the objections.
H. Request for Security Deposit
Laura contends that the trial court erred because it failed to rule on her request for a child support security deposit. We agree.
i. Background
On June 5, 2009, Laura filed a responsive declaration to the second OSC to modify support that stated she does not consent to it, and requested that Samuel "be ordered to provide a child support security deposit for an amount equal to the total sum he is ordered to pay for one year . . . pursuant to California Family Code section 4560 et seq." On June 5, 2009, Laura also filed an opposition to the second OSC to modify support. In the opposition Laura requested that Samuel be ordered to post a child support deposit.
On September 8, 2009, the trial court issued a Statement of Decision granting the OSC, but the Statement of Decision did not contain a specific ruling on Laura's request for a child support security deposit. The parties filed objections to the trial court's Statement of Decision, and at the November 12, 2009 hearing, Laura, through her recently designated counsel, advised the trial court, "In [Laura's] opposition to the OSC, she requested a security deposit ruling on that. And you never gave a ruling—"The trial court responded, "I think there was. But I'll go through and look at that."
On January 14, 2009, Laura filed a supplemental objection to a proposed order modifying support submitted by Samuel, stating that it was incomplete because it did not contain a ruling on Laura's request for a child support security deposit. Also on January 14, 2010, Laura filed a request for ruling on motion which sought a ruling by the trial court on her request for a child support security deposit.
Samuel's proposed order is not included in the record.
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ii. Discussion
Section 213, subdivision (a) provides in pertinent part, "In a hearing on an order to show cause . . . the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration . . . ." Subdivision (b) provides, "This section applies in any of the following proceedings: [¶] . . . [¶] (3) Any . . . proceeding in which there is at issue the visitation, custody, or support of a child." Section 4560, subsection (a) provides that "every order or judgment to pay child support may . . . require the payment by the child support obligor of up to one year's child support . . . ." Section 4560, subsection (b) permits the trial court to order the establishment of a child support trust account, but it may decline to establish it for several reasons, including "upon its finding that . . . the child support obligor has provided adequate alternative security which is equivalent to the child support security deposit . . . ."
In opposing the second OSC to modify support, Laura sought affirmative relief—a child support security deposit pursuant to section 4560. The trial court's September 8, 2009, Statement of Decision granted the OSC, but it did not rule on Laura's request for a child support security deposit.
Samuel contends that at the hearing on Samuel's second OSC to modify support Laura did not raise the issue of her request for a child support security deposit made in her responsive declaration to the OSC. To the extent this is an argument that Laura forfeited the issue, there is no requirement that she raise at the hearing the request for affirmative relief that she properly made in writing when she opposed the second OSC to modify support. (Cf. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 [written evidentiary objections made before the hearing are deemed made at the hearing, which avoids waiver].) Laura did not forfeit this issue.
Samuel points out that Laura's written objections to the trial court's Statement of Decision did not object specifically to that statement on the basis that it did not contain a ruling on Laura's written request for a child support security deposit. Nevertheless, at the November 12, 2009, hearing on the matter, Laura's counsel advised the trial court that it did not rule on the request. Laura filed a supplemental objection to a proposed order modifying support purportedly submitted by Samuel, stating that it was incomplete because it did not contain a ruling on Laura's request for a child support security deposit. Laura also filed a request for ruling on motion which sought a ruling by the trial court on her request for a child support security deposit. The record, including the trial court's March 2, 2010, findings, however does not contain a ruling by the trial court on Laura's request. The matter is therefore remanded to the trial court to specifically issue a ruling on Laura's request for a child support security deposit.
I. Attorney Fees
Laura contends that she should be awarded the amount of her attorney fees on appeal because "[t]he main reason this appeal is brought is because [Samuel] failed to produce his tax returns." Because we concluded ante that Samuel was not obligated to produce his tax returns, we reject Laura's request for an award of her attorney fees on appeal.
DISPOSITION
The portion of the order terminating Samuel's obligation to pay for the cost of Laura's health insurance upon the dissolution of the marriage is reversed. The matter is remanded to the trial court to issue a ruling on Laura's request for a child support security deposit. The order is affirmed in all other respects. Each party is to bear his or her own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.