Opinion
NOT TO BE PUBLISHED
APPEAL from a post judgment order of the Superior Court of San Diego County No. D344759, Gonzalo Curiel, Judge.
O'ROURKE, J.
Appellant Bradley Mells (father), who is self-represented, appeals from a July 17, 2009 order that he pay his former spouse, respondent Lorie McGlashan (mother), $64,664.85 in child support arrearages as well as $7,500 in attorney fees and $2,778.24 in special master fees. On appeal, he contends the trial court erred in numerous respects, including by misapplying Family Code section 4063; denying him due process by refusing to extend time, grant continuances or give him the right to an attorney; ordering him to pay attorney fees and special master fees to mother; misinterpreting and altering the provisions of prior orders; failing to correctly account for interest; vacating his order to show cause (OSC) for libel on its own motion; and making certain factual findings. He further contends the family court's ruling is not supported by substantial evidence primarily based on its failure to authenticate or erroneous authentication of certain documents, refusal to recognize other admissible evidence, and reliance on inadmissible hearsay. Father asks that this court review the matter de novo on the admissible evidence.
All statutory references are to the Family Code unless otherwise indicated.
Though we affirm the order as to father's child support arrearages, we reverse that portion of the order awarding mother fees and costs and remand the matter for the family court to reevaluate mother's request for attorney fees, special master fees and costs considering evidence of the parties' respective income, assets and abilities, including investment and income-producing properties.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1993, the parties entered into a marital settlement agreement (MSA) in connection with the dissolution of their five-year marriage. The agreement provided for joint legal custody of the parties' two minor children (Brandon, born August 24, 1988 and Ryan, born June 20, 1990) with mother having physical custody. Father agreed to pay $300 per month in child support effective February 1, 1993, as well as one-half the cost of health insurance and any uninsured medical, dental, orthodontia, psychological or vision care costs. Father agreed he owed $5,500 in child and spousal support arrearages though January 31, 1993, which would bear interest at 10 percent per annum. The MSA contained an attorney fees clause.
On January 31, 2000, the court modified child support to $1000 per month effective February 1, 2000, and set arrears at $7500 through January 21, 2000, payable at $100 per month. Father was ordered to maintain the children's health insurance if it was available to him. Child support was again modified to $359 per month effective December 1, 2004. By that time, mother had moved to Colorado, each party had physical custody of one child, and the parties were ordered to equally share in the transportation costs for the children.
In September 2006, the family court entered an order on the parties' July 21, 2006 stipulation providing that they would share joint legal custody of the children, who would now both be in mother's physical custody in Colorado. Father stipulated, among other things, that decisions regarding Ryan's ongoing medical and psychological care for substance abuse treatment would be "at the discretion of his Mother."
In October 2008, mother filed an OSC for child support arrears of $85,846.04 as well as attorney fees and costs. In an accompanying declaration, she asserted father had failed to pay his share of child support and additional support, and had concealed his true income and its sources. She explained that while father and his parents had paid some of the support arrearages, despite her efforts, she had been unable to obtain reimbursement from him for other child care and uninsured medical expenses. She lodged summaries of the child care expenses, uninsured medical expenses she had incurred through January 31, 2000, and travel expenses she had incurred since they were ordered to be equally shared in May 2005.
In January 2009, father filed an OSC for contempt and thereafter a responsive declaration declining to consent to mother's requested order. In his responsive declaration, father asserted in part that mother had not correctly accounted for his funds and failed to acknowledge large sums of money received from himself and his parents. He also claimed that many of the unpaid medical expenses were incurred without his knowledge or consent or incurred in violation of existing court orders. He asked for "declaratory relief" as to the issue of whether certain medical and rehabilitation expenses were due and payable.
On January 27, 2009, the date of hearing on mother's OSC, father filed a pleading entitled "Notice of Motion to Strike Answer to Cross-Complaint" in which he declared under penalty of perjury, among other things, that mother had admitted receiving some of the funds at issue. At the OSC hearing, the family court appointed a special master to make a recommendation as to the parties' various claims, ordering mother to advance the special master's costs. The court continued mother's OSC to March 2009, which was the date set for arraignment on father's contempt proceeding. It acknowledged father's pleading, but explained it was untimely filed. Mother's counsel advised the court he was unsure of the purpose of father's motion, as mother had not filed any complaints or cross-complaints. The court stated it would review the pleading before the next hearing to determine whether or not it had any application or warranted any ruling.
In March 2009, after mother pleaded not guilty and waived her speedy trial rights, the court set the contempt matter for trial on May 8, 2009, and set her OSC for a status on April 14, 2009. Thereafter, father filed an amended OSC for contempt and an OSC seeking restitution of $56,494 for overpayment of medical expense reimbursement as well as "pecuniary and exemplary damages" for mother's "fraudulent concealment of facts" pertaining to arrears and the children's location and schooling.
On April 14, 2009, father sought a court ruling that mother was in default for failing to file a response to his OSC seeking restitution, which had been filed eight calendar days (five court days) earlier. The court explained to father that it had not issued an order shortening time for any response, as father had thought. The court found mother was not in default. It set the contempt matter for arraignment on May 8, 2009, and set the arrears issues for June 25, 2009. The family court denied father's renewed request to order mother to pay for him to retain an attorney, explaining it could not order the payment of money in advance for attorney fees to which he may or may not be entitled; that he would be required to pay up front for an attorney and seek reimbursement.
On May 8, 2009, mother pleaded not guilty to father's amended contempt OSC. At that hearing, father again asked the family court for an order that mother pay for him to hire an attorney. The court explained that it did not have the power to appoint him an attorney; that father would have to hire an attorney and then request reimbursement under section 2030.
Mother filed a response to father's companion OSC on June 10, 2009.
On June 12, 2009, the special master filed its first report. It found the total amount due from father to mother was $59,193.85; that the court should deny mother's request to enforce the $5,500 arrearage; and that father's claims of alleged fraud and perjury were not supported by any evidence.
On June 18, 2009, father filed a response to the special master's report as well as an OSC for "libel, " seeking $250,000 in general damages and "exemplary and punitive damages" against mother.
On June 20, 2009, the special master issued a supplemental report acknowledging mother's provision of additional evidence of the children's health insurance coverage and recommending that $65,264.85 was the total amount due in child support arrears and interest.
On June 25, 2009, the family court denied father's request to continue the OSC so that he could have retained counsel present. On father's ensuing request, it dismissed his contempt proceeding without prejudice. After considering father's lengthy arguments on the arrearages and disagreements with the special master's report, as well as father's claim that mother had falsified certain certified mail receipts, the family court entered a judgment that father pay mother $64,664.85 in child support arrearages as well as $7,500 in attorney fees and $2,778.24 in special master fees. It found (1) mother acted reasonably in an effort to provide notice of the child support owed by father; (2) the evidence was insufficient to conclude the receipts of certified mail to mother were improperly manufactured by mother; (3) any delay in providing notice of particular amounts incurred did not constitute a waiver of mother's right to collect them from father; and (4) the child support arrearages reflected a $600 offset for three $200 payments not included by the special master for 2000 and 2001.
Father filed the present appeal.
DISCUSSION
I. Principles of Appellate Review
We begin by setting forth fundamental principals of appellate review. We are required to presume the trial court's judgment is correct and must draw all inferences in favor of the trial court's decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) "Thus, even if there is no indication of the trial court's rationale for [its ruling], the court's decision will be upheld on appeal if reasonable justification for it can be found. 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." ' " (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 710.)
An appellant's brief should set out a careful assertion of legal error with meaningful argument and discussion of authorities. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 193, fn 3.) And " 'error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Further, we will not presume prejudice from an error. It is an appellant's burden to persuade us that the court erred in ways that result in a miscarriage of justice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.)
Our review is governed by the appellate record; with rare exceptions, we are not permitted to consider new evidence and will not consider facts or contentions not supported by citations to the record. (In re Zeth S. (2003) 31 Cal.4th 396, 405, clarified in In re Josiah Z. (2005) 36 Cal.4th 664, 676; In re S.C. (2006) 138 Cal.App.4th 396, 406-407 [appellate court can deem a contention unsupported by a record citation to be without foundation and thus forfeited]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207; Cal. Rules of Court, rule 8.204(a)(1)(C) ["Each brief must... [¶]... [¶]... support any reference to a matter in the record by a citation to the record"].) On appeal, as in the superior court, unsworn statements or argument by counsel or a pro per litigant are not evidence. (See In re Zeth S., at p. 414, fn. 11.)
Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830.) " 'When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.... Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.' " (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
Because father did not request a statement of decision, we must assume that the trial court made all findings necessary to sustain the judgment. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645; In re Marriage of Cairo (1988) 204 Cal.App.3d 1255, 1261.) Each such implied finding must be upheld if supported by substantial evidence, viewing the evidence in the light most favorable to the prevailing party and " ' "discard[ing contrary evidence] as not having sufficient verity to be accepted by the trier of fact." ' " (In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182.)
II. Application of Section 4063 and Propriety of Accounting
Father appears to challenge the family court's accounting, as well as its application of section 4063 and reliance on In re Marriage of Rothrock (2008) 159 Cal.App.4th 223. As best we discern, father first argues he apparently satisfied some unspecified amount of an unspecified order, which "established [his] rights in equity." He then asserts there is "no time limit to enforce the right to equitable relief." He argues the family court erred by not recognizing that sections 4055 and 4063 fall under the purview of the statewide uniform guidelines. He finally asserts he "has paid some or all of the court-ordered additional child support and is entitled to relief from overpayment" and that he "objected to any hearsay evidence that does not consider actual proof-of-payment with respect to actual expenses incurred." He argues such hearsay evidence (which he neither identifies nor provides us with record citations) is inadmissible.
These arguments fail for the absence of any specificity or reasoned argument that accounts for the applicable standard of review. Father does not explain in any reasonable detail how the trial court erred in adopting the special master's report, or how the family court's assumed errors in its application of sections 4063 and 4052 impacted the special master's calculations. To the extent father contends he made overpayments, it was for him to demonstrate those overpayments to the special master, and on appeal point out how the special master's factual conclusions to the contrary - which the family court adopted - are not supported by substantial evidence. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906 [family court's child support order is reviewed under the abuse of discretion standard of review, and findings of fact in connection with such an order under the substantial evidence standard of review].) Nor has father shown any basis for us to conclude the family court's ruling on the challenged evidence, if there is one in the record, was an abuse of its broad discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264 [appellate review of a trial court's evidentiary rulings is under the abuse of discretion standard as trial courts are vested with broad discretion in deciding the relevance and the admissibility of proffered evidence]; Denham, supra, 2 Cal.3d at p. 566 [" 'Discretion is abused whenever... the court exceeds the bounds of reason, all of the circumstances before it being considered' "].) " 'A trial court's exercise of discretion will be upheld if it is based on a "reasoned judgment" and complies with the "... legal principles and policies appropriate to the particular matter at issue." ' " (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94.) In short, as to these claims, father has not affirmatively demonstrated any error, and thus has not overcome the presumption of correctness we must apply to the family court's order. (Arceneaux, supra, 51 Cal.3d at p. 1133; Denham, supra, 2 Cal.3d at p. 564.)
Section 4063, subdivision (b) requires a parent to provide the other parent with an itemized statement of costs not more than 30 days after the costs are accrued. The provision, however, "does not prohibit a party from seeking reimbursement in case of a failure to timely present an itemization of costs. Rather, section 4063, subdivision (c) allows the court to award filing costs and reasonable attorney fees 'if it finds that either party acted without reasonable cause.' " (In re Marriage of Rothrock, supra, 159 Cal.App.4th at pp. 236-237.) At the June 25, 2009 OSC hearing, father sought to argue that the family court was bound to adhere to the statement uniform guideline for support and may depart from it only in specified special circumstances. The family court advised father that guideline support was entirely separate from mandatory add-ons for such things as medical expenses under section 4063, a point with which father continued to disagree. Father maintained he had not received adequate or timely notice of some of his son's rehabilitation expenses, and that mother waived her right to reimbursement of those expenses under section 4063. As stated above, the family court ruled, however, that mother acted reasonably in an effort to provide notice of the child support owed by father and any delay in providing notice of particular amounts incurred did not constitute a waiver of mother's right to collect them from father. Father does not provide us with any reasoned basis to disturb those findings or disregard Rothrock, supra, 159 Cal.App.4th 223.
III. Due Process Claims
Father contends the family court "erred in the application of due process" in various matters, which we address seriatim. First, he argues the court abused its discretion by effectively granting mother an extension of time on April 14, 2009, when it found mother was not in default in not filing a response to father's "companion" OSC filed on April 6, 2009. He argues the extension deviated from rules 5.1.1 and 5.5.6. of the Superior Court of San Diego County Local Rules.
All rule references are to the Superior Court of San Diego County Local Rules unless otherwise indicated. Rule 5.5.1 relates to the form of papers presented for filing, stating they must comply with the California Rules of Court, rules 2.100 et seq. and 3.10. Rule 5.5.6 relates to companion matters, and provides: "A party may file a companion matter only if reasonably related to the issues raised by the original OSC or motion. The companion matter must be filed and personally served by 10:00 a.m. five court days before the hearing. A response to a companion matter must be filed and personally served by 10:00 a.m. two court days before the hearing. No written replies are permitted. [¶] Ex parte leave of court must be obtained prior to filing a companion matter to a hearing that has been specially set by the court."
Father has not shown a due process violation. As mother points out, father's contention confuses the OSC/motion process, in which the family court has discretion to either refuse to consider an untimely-filed pleading or grant a continuance (rule 5.5.3), with the procedure by which defaults are entered against parties who fail to respond to a complaint. Father's argument additionally misunderstands the OSC procedure and the circumstances of the parties' hearings. The April 14, 2009 hearing was merely a status hearing on the special master's progress, not the hearing date for mother's OSC. At that hearing, the family court set the OSC matter for June 25, 2009. When father pressed the issue at a later hearing, the court expressly found there was no extension of time granted to mother, and that father's companion motion (which had not been filed with ex parte leave of court) was filed with insufficient notice to mother so that it required a continuance of the hearing itself. Father does not address the latter rulings on appeal. In short, father has not shown the family court prejudicially erred or violated his due process rights in declining to find mother in "default."
Second, father argues the family court erred by "denying [him] the right to an attorney" under section 2030, subdivision (a). He maintains under that statute, the family court was required at father's May 8, 2009 request to order mother to "advance funds" so that he could hire an attorney in a timely manner before the proceedings went forward.
Section 2030 directs that in a proceeding for dissolution of marriage "the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, ... to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a).) It further provides: "A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward." (§ 2030, subd. (a)(2).)
"The purpose of an award of future attorney fees in a dissolution proceeding is to provide the party to whom the award is made an adequate amount to properly litigate the action. [Citation.] '[T]he [trial] court has broad discretion in awarding attorney fees and costs in dissolution proceedings. Its determination will not be disturbed on appeal absent a clear showing of an abuse of discretion.' " (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167.) The decision to award attorney fees "shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." (§ 2030, subd. (a)(2).)
The family court here was under the misapprehension that it had no power to order mother to pay father funds to allow him to retain an attorney. It thus erred by failing to actually exercise its discretion and consider the statutory factors in exercising such discretion. (See In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) However, it is not enough for father to demonstrate an error; he must make a reasonably specific articulated showing that the error is reversible, i.e., it resulted in a miscarriage of justice. (In re Marriage of Dellaria, supra, 172 Cal.App.4th at pp. 204-205.) He has not done so. Father did not provide the court with any evidence that would have permitted the court to consider the parties' respective incomes and needs, nor did father address any other factor affecting his and mother's respective financial resources or abilities to pay, such as investment or income-producing properties. (See § 2030, subd. (b); In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630.) He merely told the court that an attorney fee order was justified because "[mother] can afford to pay for legal representation, and my testimony [is] that I cannot afford to pay for such legal representation...." Thus, had the family court appreciated it had the discretion to order future attorney fees, father did not present sufficient information to permit it to make such an award in his favor. Under the circumstances, we cannot say the family court's error resulted in a miscarriage of justice.
Third, father argues the court abused its discretion by not granting him a continuance after he advised it he had hired an attorney, a decision he asserts is "inconsistent" with rule 5.5.6., requiring contempt matters to proceed first. Father's arguments are advanced without any meaningful legal argument or supporting case authority, and on that ground alone, we could disregard the contention. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at p. 366, fn. 2.)
The contention is unavailing in any event. "There is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, the granting of continuances is not favored and the party seeking a continuance must make a proper showing of good cause." (Foster v. Civil Service Com.(1983) 142 Cal.App.3d 444, 448.) This is true in family law matters. (Rule 5.5.8. (C) ["Continuances are disfavored and no continuance, even a stipulated continuance will be automatically granted.... Continuances requested at the hearing will only be granted for good cause"].) "The granting or denying of a continuance is a matter within the court's discretion, which cannot be disturbed 'on appeal except upon a clear showing of an abuse of discretion.' " (Foster v. Civil Service Com., at p. 448; accord, Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.) The court abuses its discretion when "it 'has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.' " (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 301.)
Where a party both delays in seeking a continuance and then offers no good cause for the continuance, a trial court acts well within its discretion in denying the request. (See Mahoney v. Southland Medical Health Associates Medical Group (1990) 223 Cal.App.3d 167, 173 [denial of continuance motion not an abuse of discretion when counsel failed to submit a declaration in support of request, give prior notice, make request promptly or show good cause].) Similarly, good cause for a continuance does not exist where the request was made merely " 'to allow the appellant time to properly analyze the full administrative record....' " (Foster v. Civil Service Com., supra, 142 Cal.App.3d at pp. 448-449; see also Maynard v. Bullis (1950) 99 Cal.App.2d 805, 807 [no good cause to continue the trial where the plaintiff's attorney withdrew three months before trial and the plaintiff had difficulty securing new counsel, but the plaintiff had received written and oral notice of the trial date more than two months before trial and did nothing until the day before trial was set to begin].)
Here, we conclude the family court acted well within its discretion by concluding father had failed to establish good cause for a continuance. For the first time on the day of the OSC hearing, father sought a continuance to allow new counsel, Gordon Cruse, to appear and assist him in the matter. Counsel appearing for father on the contempt matter represented to the court that attorney Cruse, however, could not be at the hearing. The court later explained to father that he had shown no justification for any continuance: "Ultimately, you have asked for the continuance. And at this point, the court has concluded that... at least eight months has lapsed between the date of the filing and today's hearing. The fact [is] that we appointed a special master months ago. The special master's report has been filed now - the original now, at least more than a week ago. That if you disagreed with the special master's report and were prepared to hire Mr. Cruse, then that was the appropriate time to do so, if not months before that. But at a minimum, at least after the special master's report was issued. And then for Mr. Cruse to come to this court, enter his general appearance and then request for the court to continue the matter." In response, father complained he had no time to immediately hire an attorney after he had received the special master's report because he had other matters to address.
On appeal, father does not explain at all his delays in retaining counsel or in seeking a continuance. Under the circumstances, there was no abuse of discretion, let alone denial of due process, by the court's decision to deny father's request for a continuance.
IV. Award of Attorney and Special Master Fees
Mother requested, and the family court ordered, father to pay attorney and special master fees under section 3557. In doing so, the family court made the following finding: "[T]hat this proceeding was necessitated by the need to obtain reimbursement for court-ordered child support add-ons, and that due to the purpose for the need for the motion, the court will find that reasonable attorneys' fees in this matter are $7500." The court held each party responsible for one-half of the special master fees.
Father contends the family court abused its discretion by awarding mother attorney fees and special master fees; he maintains as to both fee awards the family court failed to consider the parties' respective incomes and needs, and as to attorney fees was without authority under sections 3557, 4063, subdivision (c) or 271, subdivision (a) to order him to pay such fees without a finding of his ability to pay or a finding that he acted unreasonably. He additionally maintains the court did not meet its obligation to ensure he had access to legal representation, a claim we have addressed in connection with his due process arguments.
In response, mother asserts the family court properly considered the parties respective incomes, needs and ability to pay before making its order. For that proposition, she cites to the July 17, 2000 findings and order after hearing, as well as the portion of the reporter's transcript reflecting the trial court's findings set forth above. She maintains it is "noteworthy [father] elected not to include in the record on appeal the parties' income and expense declarations and the pleadings filed by [mother] which presented evidence of [father's] true earning potential and a basis for imputation of income." She further points out the family court did not make its award under section 4063 or 271.
Section 270 generally applies to attorney's fees or costs awarded under the Family Code: "If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay." (§ 270, emphasis added.) Section 270 applies to the award for fees under section 3557. Section 3557, subdivision (a)(1)(A) authorizes an award of attorney fees to a custodial parent who has to bring an action to enforce an existing child support order. It provides: "Notwithstanding any other provision of law, and absent good cause to the contrary, the court, upon (1) determining ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, shall award reasonable attorney fees to... [¶] [a] custodial parent... in any action to enforce... [a]n existing order for child support."
"[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court, " and will not be disturbed on appeal "[i]n the absence of a clear showing of abuse...." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; see also In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) Such abuse will be established, " 'only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' " (Sullivan, at p. 769.) It is well established that while the family court has "considerable discretion in fashioning a need-based fee award, the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion." (In re Marriage of Braud, supra, 45 Cal.App.4th at p. 827;see Cheriton, at p. 315; In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219.)
Here, we are compelled to reverse the attorney fee and special master fee awards as lacking evidentiary support in the record. In its ruling, the family court did not address the parties' needs or father's ability to pay such an award, and it did not make an express finding on those matters. Normally, the absence of such a finding is not fatal to an award, as long as we are able to imply findings to support the order. (Arceneaux, supra, 51 Cal.3d at p. 1133; In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1292.) However, such implicit findings must be supported by evidence in the record. (Cohn, at p. 928; see In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480 ["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"].) Despite mother's assertions to the contrary, we have not found anything in the record indicating the family court considered evidence of the parties' current financial circumstances or earning capacity in issuing its order. There are no income and expense declarations for either party in the record. Court rules require that income and expense declarations be filed when the trial court is awarding attorney fees. (Rule 5.6.2 [requiring income and expense declaration executed within 90 days of hearing involving financial issues such as support, attorney's fees and costs]; Cal. Rules of Court, rule 5.128 [requiring current income and expense declaration, including attorney fees information, when relevant to issues].)
The 1993 MSA provides that father's gross monthly income was $1000, and mother's gross monthly income was $922. The family court's May 2005 order states that father's gross monthly income was $2804 based on his ability to pay expenses, and mother's gross monthly income was $1474. Neither of these are sufficient evidence of the parties' current financial circumstances or needs to calculate an attorney fee award in 2009. (See rule 5.6.2.)
In her OSC for child support arrears, mother stated: "[Father] is a well educated and talented electrical engineer and physicist who was [sic] been awarded several patents for his work on semi-conductor lasers. As a result, [father] has the ability to earn a sizable income. Throughout the past 15 years, [father] has elected to live off the goodwill of others and has remained primarily self-employed. [Father] has also concealed his true income and the sources of same. Between March 1993 and December 1999, [father] failed to make a single payment of child support and I was unable to garnish his wages because he was living off an 'allowance' provided by his parents." In her reply declaration, mother pointed out that father's income and expense declaration stated that he had income of less than $650 per month, with his monthly expenses exceeding $2600. She asserted that he lived at his parent's home and did not pay rent. Father acknowledged in his January 27, 2009 motion to strike that on January 13, 2009, he had filed an income and expense declaration asserting he actually paid only $100 in rent but otherwise not addressing his income.
We acknowledge that in making a needs-based attorney fee award, "the trial court is not restricted in its assessment of ability to pay to a consideration of salary alone, but may consider all the evidence concerning the parties' income, assets and abilities." (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768.) "In assessing one party's relative 'need' and the other party's ability to pay, the court may consider all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) Further, the court may base its decision on a party's ability to earn, rather than current earnings. (In re Marriage of Sullivan, at p. 769.) Here, however, for purposes of our review, the record is not sufficient to permit a reasonable, non-speculative, inference as to the parties' relative present financial circumstances so as to assess whether father had sufficient ability, and mother had sufficient need, to make an attorney fees and costs award under section 3557.
Because there are indications the parties did put income and expense declarations before the court, we remand the matter for the family court to reevaluate mother's request for attorney fees, considering the evidence of the parties' income, assets and abilities, including investment and income-producing properties.
V. Interpretation of Prior Orders and Calculation of Interest
Father contends the family court "altered the provisions of prior orders" by misinterpreting them. He first maintains that under the January 31 2000 order, "the amount [he] was ordered to pay did not exceed one-half of the employee contribution to the cost of insurance provided by his employer." However, father's contention fails to acknowledge that the January 31, 2000 order states: "Any uncovered medical, dental, orthodontic, and optical expense [is] to be shared equally between the custodial and non-custodial parents." The provision concerning mother's obligation to obtain health insurance was crossed out and initialed by the family court. It is of no effect.
Father next contends the court erred by interpreting a December 14, 2004 order in which the family court continued a hearing on some unspecified motion filed by father. Father apparently maintains this order did not continue the order to share uncovered medical expenses. Father, however, is simply incorrect. The December 14, 2004 order provides that "All orders previously made in this action shall remain in full force and effect except as specifically modified herein." Otherwise, father's assertions seem to support the family court's power to order one-half the children's travel expenses and additional child support. We discern no error.
Finally, father contends the family court erred by failing to correctly account for interest. His arguments and assertions, however, are devoid of record citations. For example, father argues "the court failed to properly account for the payment of several years interest" on a $600 amount subtracted by the court as not counted by the special master. He contends the court "refused to consider actual proof-of-payment from before 2000 [and thus] there was no basis for any determination of interest or arrears." Father otherwise provides no explanation or specifics, and he does not demonstrate how the special master's or trial court's calculations are in error by any particular amount. Because father has not meaningfully challenged the sufficiency of the evidence supporting the special master's findings (see section VI, post), we shall not revisit those findings, which determine the amount father owes to mother in child support arrearages.
VI. Sufficiency of the Evidence/Evidentiary Contentions
Father contends the family court's ruling "fails under the substantial evidence standard." He proceeds not to assess the evidence supporting the family court's support ruling, but instead challenges the court's purported rulings on various items of evidence, which we review for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900 [appellate court applies abuse of discretion standard of review to trial court rulings on the admissibility of evidence].)
First, father contends the family court erred by failing to "authenticate" exhibit I, which consists of e-mail communications between him and mother. Though it is not clear, he apparently believes the family court erred by disregarding this evidence, which he contends constitutes evidence that mother refused to provide father with information as to his son Ryan's whereabouts. Father provides no record citation for a ruling, if any, excluding such evidence, nor does he point to any record reference showing the court ignored the evidence. He does not explain how the circumstances of his son's whereabouts impacts his obligation to pay the support at issue. Father had not shown any prejudicial abuse of discretion on the part of the family court with respect to this evidence.
To the extent father is challenging a ruling admitting exhibit I as unauthenticated and thus without foundation, as mother points out there is no indication - and father points to no place in the record - where father asserted a timely or specific objection to the family court's consideration of exhibit I on grounds it was not properly authenticated. As a consequence, he has forfeited any such contention on appeal. (Evid. Code, § 353 ["A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶]... [t]here appears of record an objection to or a motion to exclude or strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"]; Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260-1261.)
Father next contends the family court erred by failing to authenticate exhibit 1, which was apparently intended to refute the evidence contained in exhibit JJ, reflecting mother's mailings to father regarding outstanding medical and other payments and his share, as well as copies of certified mail receipts reflecting delivery or father's refusal to claim the mail. Characterizing exhibit 1 as "written by and within the scope of the duty of the Postmaster, " father points to no record citation reflecting exhibit 1, the family court's ruling on that exhibit, or any arguments he made to the family court in favor of its admissibility. He merely states "the court reviewed the original Exhibit 1 but erroneously failed to recognize its authenticity." He does not explain the grounds for the trial court's ruling, or why the ruling, if any, is an abuse of discretion. These circumstances permit us to disregard father's contention.
In any event, father has not shown error. In the face of father's efforts to assert fraud or forgery by mother in her notices to him of arrearages, the family court specifically ruled "the evidence is insufficient to conclude the receipts of certified mail to [father] were improperly manufactured by [mother]...." Father does not address the family court's finding, or explain in any way why that finding is not supported by substantial evidence. Indeed, he ignores the fact that at the hearing, he conceded he would require an expert to prove the asserted fraudulent nature of mother's mail receipts, but did not have one. The family court gave him the opportunity to secure an expert opinion on the matter and present it to the court via a reconsideration motion. Father has not shown he took such opportunity or moved for reconsideration on such grounds. He provides no basis to reverse the judgment.
Father next contends the family court erred by "failing [to] recognize the authenticity of Exhibit C." He argues, "Equitable adjudication of this case requires the authentication of Exhibit C and its proper admission into evidence. Said Exhibit C establishes certain rights of the parties under Family Code section 4063[, subdivision] (b). The preponderance of authentic evidence herein shows that itemized statements of costs were sporadic and rarely consistent with the notice obligations set forth therein." If by these arguments, father seeks to argue he should not reimburse mother for medical and other expenses for which she did not provide notice, he ignores In re Marriage of Rothrock, supra, 159 Cal.App.4th 223 (see footnote 3, ante), and the family court's findings that mother acted reasonably in an effort to provide him with notice and did not waive her right to collect arrearages by any delayed notice. Even assuming the family court erred by failing to consider the cited evidence, it is apparent from father's arguments that the evidence would go only to show that mother did not consistently meet her notice obligations, which the family court found under Rothrock did not impact mother's ability to receive reimbursement. In short, father's claimed error, if any, did not result in prejudice to him.
Finally, father contends the family court erred by relying on inadmissible hearsay. He does not detail the evidence or explain how it constitutes hearsay. More fatally, father does not show he in fact objected to the family court's consideration of evidence on hearsay grounds. His record citations reflect no hearsay objections by father, only assertions by him that the evidence did not show he was "in hiding, " concealing his correct residence address, or waived his right to notice. Father has not shown prejudicial error.
VII. Other Claimed Errors
Father contends the court made a host of other errors, namely, by finding that mother acted reasonably, by "ignoring" evidence of "extrinsic fraud" and his declaration of arrears, and by denying his due process rights by failing to enter mother's default on April 14, 2009.
We are unable to discern from all of these somewhat repetitive points and father's briefing a coherent legal argument that would justify reversing the family court's judgment. Many of father's claims relate to mother's conduct in assertedly "concealing" his younger son's medical or mental health conditions, as well as his older son's admission to high school in Colorado. However, the family court implicitly rejected father's evidence. For father to successfully challenge the family court's factual findings, he must demonstrate they are not supported by substantial evidence. (See In re Marriage of Rothrock, supra, 159 Cal.App.4th at p. 230). He does not undertake any such analysis. Nor does father engage in any analysis explaining how mother's purported misconduct (or any of his other claims) impacts the family court's ruling on the support arrearages. We shall not reverse the judgment absent a showing of error resulting in a miscarriage of justice. Father makes no such showing here.
In assessing a claim directed to the family court's factual findings, "we are bound by the familiar and highly deferential substantial evidence standard of review. This standard calls for review of the entire record to determine whether there is any substantial evidence, contradicted or not contradicted, to support the findings below. We view the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences and resolving all conflicts in its favor." (People ex rel. Brown v. Tri-Union Seafoods LLC (2009) 171 Cal.App.4th 1549, 1567, citing Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on another point in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) We begin a substantial evidence review with the presumption that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) To develop a claim challenging the court's factual finding father must "set forth in his or her brief a summary of the material evidence upon that issue, and, if that is not done, the error is waived." (In re Marriage of Rothrock, supra, 159 Cal.App.4th at p. 230.)
VIII. Order Vacating OSC for Libel
Father contends the family court erred by dismissing his OSC for libel on its own motion. We disregard this contention for father's failure to separately appeal from the family court's July 22, 2009 order, which vacated the OSC and directed father to file the motion in civil court. A sufficient notice of appeal is a prerequisite to our appellate jurisdiction to review that order. (See Beets v. Chart (1889) 79 Cal. 185; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) Absent a notice of appeal, we have no power to review the trial court's order vacating father's OSC.
DISPOSITION
The order as to father's child support arrearages is affirmed. The order awarding attorney fees and costs is reversed and the matter remanded for the trial court to reconsider mother's request for attorney fees, special master fees and costs and in doing so, consider the parties' respective incomes, assets and abilities, including investment and income-producing properties. Mother shall recover costs on appeal.
WE CONCUR: McCONNELL, P. J., AARON, J.