Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KD065590, Rocky L. Crabb, Commissioner.
Law Offices of Pittullo, Howington, Barker & Abernathy and Joseph W. Howington for Appellant.
Gassner & Gassner and Lawrence M. Gassner for Respondent.
MANELLA, J.
Appellant Laura Serio challenges a judgment of the family court ordering respondent Donald L. Serio to pay $3,396 per month in child support. We affirm.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
The partial record before us establishes the following facts: On July 13, 2001, Laura and Donald executed a pre-marital agreement regarding their rights to property and entitlement to spousal support in the case of a separation or divorce. They married on July 18, 2001, and a son, Patrick Blaze Serio, was born in February 2004. After they separated in August 2005, Laura filed a petition for dissolution of marriage on September 13, 2005.
At the inception of the dissolution proceedings, the family court issued interim orders directing Donald to pay monthly spousal and child support payments of, respectively, $10,000 and $9,786. In January 2007, the family court filed a judgment of dissolution with respect to status only. On December 10, 2007, following a trial, the family court found that under the pre-marital agreement Donald was obliged to pay no more than an additional $120,000 in spousal support. On December 17, 2007, pursuant to a settlement agreement, the family court awarded the parties joint legal custody and equal physical custody of Patrick.
On December 27, 2007, Laura asked the family court to establish Donald’s permanent child support obligation as approximately $12,450 per month. She contended that Donald’s income from July 2006 to June 2007 was $1,737,725. Accompanying the request was an income and expense declaration from Laura dated November 30, 2007, which stated that she had no income, assets totaling $325,900, and average monthly expenses amounting to $37,786. According to Laura, she had received $80,000 in spousal support in 2006, but her spousal support ended in April 2007. She was taking general education classes and intended to enter college. On January 31, 2008, Laura filed a second income and expense declaration that asserted she had no income, assets totaling $460,000, and average monthly expenses of $37,986. The declaration asserted that Laura lived on Donald’s child support payments.
Donald’s income and expense declaration, filed February 7, 2008, stated that he worked as an engineer for Serco Mold, Inc. (Serco), in which he also participated as a shareholder. According to the declaration, Donald’s average monthly income was $101,311.58, based on $3,100 in salary and “corporate perquisites,” $71,300 in dividends, $26,000 in rental income, and $911.58 in interest. His assets totaled $4,445,000 and his average monthly expenses were $5,800. Donald also submitted a declaration from Allyn C. Cutler, Serco’s accountant, who stated that Donald’s total income for 2007 was $1,248,962.
On June 13, 2008, Donald submitted an additional declaration regarding his child support obligations. He stated that he owned 46 percent of the shares in Serco, which makes plastic parts for residential irrigation systems and other products. More than 75 percent of Serco’s sales were to Rainbird, which markets residential irrigation systems. As new home construction had diminished during the prior two years, Serco’s revenue from Rainbird -- and thus, Donald’s income from Serco -- had also decreased.
On June 12, 2008, Laura filed an income and expense declaration that characterized her financial situation as materially unchanged from January 2008.
According to Donald, his income had four components, three of which were “nearly constant,” namely, his salary, rental income, and interest income. In contrast, the fourth component -- that is, his shareholder distribution -- was variable. Donald asserted: “Shareholder distributions have shown a sharp decline over the eight quarters, as the market for Serco’s products has been going down. This is reverse from the three previous years, whe[n] the production and profit levels were increasing dramatically following the housing/sub-prime bubble.” His fractional share of the distribution was automatically charged to him, and he “ha[d] no control over what this number is.” Donald further asserted that Patrick had no special needs, and that nothing prevented Laura from finding employment, as she had worked as a line foreman at Serco.
Donald also submitted an income and expense declaration stating that his average monthly income totaled $46,106.41: $3,841 in salary and corporate perquisites, $15,267 in dividends, $26,000 in rental income, and $998.41 in interest. He had $3,302,000 in assets and his average monthly expenses were $5,800. Attached to the income and expense declaration was a declaration from Cutler, who stated that Donald’s total income from June 1, 2007 to May 31, 2008 was $584,896.
In supplemental declarations filed August 8 and August 11, 2008, Donald asserted that Serco’s income had fallen sharply in parallel with the construction industry. He provided a table of his monthly dividend income from July 2007 to July 2008 showing that he had been charged with shareholder losses (rather than profits) in several months, and that his average monthly income relative to each month (as determined by the preceding 12-month period) had fallen from $102,491 in July 2007 to $14,349 in July 2008. Regarding Rainbird, Donald stated: “[T]hey have now permanently relocated production to China and Mexico; it is anticipated that the business from that customer will not be replaced ever and will continue to decline.”
Accompanying the supplemental declarations was an income and expense declaration stating that Donald’s average monthly income consisted of $4,309 in salary and corporate perquisites, $14,324 in dividends, $26,000 in rental income, and $1,087 in interest; that his assets totaled $3,214,000; and that his average monthly expenses were $5,800. On September 25, 2008, Donald filed an income and expense declaration that closely resembled his prior income and expense declaration, but stated his assets as $3,220,000 and his average monthly expenses as $4,800. Shortly thereafter, on September 29, 2008, Laura filed an income and expense declaration that represented her financial situation as largely unchanged from her previous income and expense declaration, aside from a reduction in the value of her total assets from $460,000 to 251,500.
On October 20, 2008, Donald filed an income and expense declaration stating that his average monthly income was $47,655, comprised of $5,003 in salary and corporate perquisites, $15,484 in dividends, $26,000 in rental income, and $1,168 in interest. The declaration valued his assets at $2,687,000 and his average monthly expenses at $4,800. A supporting declaration from Cutler stated that Donald’s total income from October 1, 2007 to September 30, 2008 was $567,395.
Laura’s income and expense declaration, filed October 21, 2008, stated her average monthly income was negligible, her assets totaled $241,500, and her average monthly expenses amounted to $19,117. She asked the family court to impose a child support obligation on Donald that exceeded the amount determined by the statutory guideline formula (Fam. Code, § 4055). In support of the request, she submitted an analysis of Donald’s financial situation by accountant Gregory L. Wiebe, who opined that Donald’s average monthly income as of May 2008 was 113,000, based on his income for the 41 preceding months, and that Laura and Patrick required $17,400 per month to sustain their standard of living.
All further statutory citations are to the Family Code.
On October 24, 2008, Laura submitted an amended income and expense declaration that materially resembled her previous declaration.
In late October and early November 2008, the family court conducted a four-day trial on Donald’s child support obligation. Following the trial, the family court found that Donald’s gross average monthly income was $47,283, based on income of $567,395 during the 12-month period from October 1, 2007 to September 30, 2008. In selecting this period, the family court noted that Serco’s income had fluctuated since 2002, and had fallen sharply after 2006. The family court stated: “The business of [Serco] has declined recently, dropping from 30 production lines in 2007[] to 3 production lines at the present time. The drop in business and therefore income is the result of the econom[ic] downturn.” Applying the guideline formula, the family court determined that Donald’s child support obligation was $3,396 per month.
The family court also concluded that there was no basis for an “upward deviation” from the guideline formula. The family court found that Patrick resided with each parent for equal periods, and shared in their activities and lifestyle, which the family court characterized as not “opulent.” The principal differences between Laura’s and Donald’s lifestyles were that Donald resided in a 2,800 square foot house while Laura lived in a condominium, and Donald owned a yacht. The family court stated: “The one extravagance that Patrick may enjoy with [Donald] are the occasional rides on the 62[-]foot yacht.” Regarding this difference, the family court concluded that “there is no need for [Laura] to match this extravagance[] with her own yacht or a similar vehicle.” The family court rejected Laura’s suggestion that Patrick would eventually need flying lessons, and declined to credit Wiebe’s opinion that Patrick required funds for other special activities.
On January 29, 2009, the family court entered a final partial judgment regarding child support in accordance with its findings after trial. This appeal followed.
DISCUSSION
Laura challenges the family court’s rulings regarding Donald’s child support obligations. She argues that the family court erred in determining Donald’s average monthly income and in rejecting her request for an “upward modification” of the support obligation established by the guideline formula. As explained below, she has failed to establish error in the judgment.
Section 4055 states the guideline formula, which determines the amount of a party’s child support obligation on the basis of several factors, including the “high earner’s net monthly disposable income.” Under the applicable statutes, “[t]he amount of child support established by the [guideline] formula... is presumed to be [] correct” (§ 4057, subd. (a)), although the presumption may be rebutted if the trial court finds by admissible evidence that the amount so determined is “unjust or inappropriate due to special circumstances in the particular case.” (§ 4057, subd. (b)(5).)
The guideline formula is as follows: “CS = K [HN - (H%) (TN)].” (Fam. Code, § 4055, subd. (a).) The variables here are defined as follows:
“A child support order is reviewed for an abuse of discretion. [Citations.] We determine ‘whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’ [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order.” (In re Marriage of Schafly (2007) 149 Cal.App.4th 747, 753, quoting In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.)
Here, Laura challenges the family court’s determination of Donald’s child support obligation on several grounds. She contends that in determining Donald’s average monthly income, the family court improperly relied on Cutler’s supporting declaration to Donald’s October 20, 2008 income and expense declaration, rather than on Wiebe’s financial analysis. On this matter, she argues that the family court erroneously admitted Cutler’s declaration over a hearsay objection, and that Wiebe’s analysis conclusively established Donald’s income and expenses. Laura also contends that the family court erred in finding no special circumstances warranting a departure from the guideline formula.
The record that Laura has provided is inadequate to show error in the family court’s rulings. “A fundamental rule of appellate review is that ‘“[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’ [Citations.]” (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.) To overcome this presumption, appellants must provide an adequate record that demonstrates error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
Here, the family court made detailed findings regarding the amount of Donald’s average monthly income and the absence of factors warranting a deviation from the guideline formula. Although the family court conducted a four-day trial on Donald’s child support obligation, Laura has provided the reporter’s transcript of only the first day of testimony, during which Laura presented a portion of her case-in-chief. The record before us discloses no hearsay objection to Cutler’s declaration, and omits much of the evidence upon which the family court based its determinations. In the absence of the full reporter’s transcript, we must presume that the evidence supports the family court’s rulings unless error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522; Ehrler v. Ehrler (1981)126 Cal.App.3d 147, 154.) Rule 8.163 of the California Rules of Court (rule 8.163) provides: “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.” No such error is presented here.
Laura contends that under rule 8.163 we must presume that the record “includes matters material to deciding the issues raised,” that is, that the errors she asserts were not cured or nullified by proceedings omitted from her record. She suggests that the second sentence of rule 8.163 is inapplicable to the instant appeal because she has provided a partial reporter’s transcript. She also argues that Donald was required to provide the remaining portions of the reporter’s transcript if he believed that they contained evidence pertinent to our review. We disagree.
The courts have long interpreted rule 8.163 to mean that an appellant who proceeds on a partial record must provide a record that is capable of establishing the kind of error the appellant asserts. As the court explained in Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806-807, since the adoption of rule 8.163, “if an error appears on the face of a judgment roll or other partial transcript it is not to be presumed on appeal that the error was cured by some proceeding not appearing in the transcript [citations][,] but it is still incumbent on an appellant to present a transcript which affirmatively shows on its face that an error occurred [citations].” (Italics added.)
Generally, “[t]he judgment roll consists of the pleadings and certain other formal papers filed with the clerk of the trial court.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 667, p. 738.)
In the case of challenges to the sufficiency of the evidence, error cannot be shown in the absence of the full evidentiary record. (In re Silva (1931) 213 Cal. 446, 448 [“Without the benefit of the entire record we cannot say that the evidence is insufficient to support the finding....”]; Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412 [“[I]n all cases, the determination whether there was substantial evidence to support a finding or judgment must be based on the whole record.”].) This is because on review for substantial evidence, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination [of the trier of fact].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)
Here, the crux of Laura’s contentions is that there is insufficient evidence to support the family court’s findings regarding Donald’s income and the absence of special circumstances warranting a departure from the guideline formula. However, the record contains only Laura’s case-in-chief, and omits Donald’s defense. As the partial record manifestly precludes review for the existence of substantial evidence, we cannot presume that it “includes all matters material to deciding the issues raised” (rule 8.163). (See Haskins v. Crumley (1957) 152 Cal.App.2d 64, 65-66 [despite appellants’ avowals that their partial reporter’s transcript was adequate to show insufficiency of evidence, appellate court ordered appeal dismissed unless appellants provided full reporter’s transcript].)
We also reject Laura’s contention that Donald was required to provide the portions of the reporter’s transcript that her record omits. Generally, appellants must provide the reporter’s transcript when necessary for their appeal. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) As Laura failed to provide the reporter’s transcript needed for her appeal, Donald was not obliged to cure the defect in the record. (See Haskins v. Crumley, supra, 152 Cal.App.2d at pp. 65-66.)
Laura’s reliance on Hillman v. Leland E. Burns, Inc. (1989) 209 Cal.App.3d 860 is misplaced. There, the appellant contended that the trial court had misinterpreted the plain language of a contract. (Id. at p. 865.) To establish the contention, the appellant provided a record that omitted the reporter’s transcript of the underlying trial. (Id. at pp. 862-863.) The respondent argued that the partial record was insufficient because the trial court had relied on extrinsic evidence in interpreting the contract. (Id. at p. 864.) The appellate court concluded that the burden had shifted to the respondent to augment the record, as the appellant’s partial record was sufficient to establish the error the appellant had asserted. (Ibid.) In contrast, because Laura’s partial record does not demonstrate the errors she has urged, Donald had no obligation to augment the record.
Laura’s reply brief asks this court for leave to augment the record if the court determines that it is inadequate. As a party seeking augmentation must proceed by formal noticed motion (Cal. Rules of Court, rules 8.54 & 8.155(a)(1); Ct.App. Second Dist., Local Rules of Ct., rule 2(b)), we deny the request.
Laura contends that the family court erred as a matter of law in determining Donald’s average monthly income on the basis of his income for the 12-month period preceding the trial, rather than the 41-month period ending in May 2008, which Wiebe relied upon in his analysis. She is mistaken. In In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1083, the court explained that the child support statutes institute a presumption regarding the appropriate period for determining income: “Since [the statutes] are framed in discretionary terms, it would be outside the proper province of an appellate court to prescribe a bright-line rule for the precise parameters of a proper sample.... [¶]... However, as regard[s] support, we may say that the statutes appear to create a presumption that the most recent 12 months is certainly an appropriate period in most cases.” (Italics deleted.) Here, the family court, in relying on the presumptively correct period, noted that Serco’s production activities and income had fallen sharply in 2007 due to the “econom[ic] slowdown.” We see no abuse of discretion in the family court’s conclusion that the slowdown was likely to determine Serco’s performance -- and Donald’s income -- for the foreseeable future.
Pointing to In re Marriage of Hubner (1988) 205 Cal.App.3d 660 (Hubner) and McGinley v. Herman (1996) 50 Cal.App.4th 936 (McGinley), Laura also suggests that the family court erred as a matter of law in rejecting her request for an upward deviation from the guideline formula. She argues that the family court disregarded a principle that courts are required by statute to honor in applying the guideline formula, namely, that “[][c]hildren should share in the standard of living of both parents.” (§ 4053, subd. (f).) This contention fails on the record before us.
Under the child support statutes, minor children “should share in the standard of living of both parents and the amount of support may appropriately ‘improve the standard of living of the custodial household to improve the lives of the children.’ [Citations.]” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1329.) Here, following a detailed examination of Patrick’s needs and his parents’ lifestyles, the family court concluded that the child support determined by the guideline formula allowed Patrick to share in Donald’s standard of living. In view of Laura’s failure to provide a full evidentiary record, we discern no abuse of discretion in this determination.
Hubner and McGinley are inapposite. As Hubner predates the guideline formula, it provides no guidance regarding the application of the formula to the facts, as determined by the family court. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1159.) In McGinley, the family court declined to apply the guideline formula to determine the support obligation of a wealthy father, but made no findings regarding the obligation that it ordered. (McGinley, supra, 50 Cal.App.4th at pp. 939-940.) The appellate court concluded that the failure to make pertinent findings constituted an abuse of discretion. (Id. at pp. 945-946.) No such failure appears here. In sum, Laura has failed to demonstrate that the family court erred in determining Donald’s child support obligation.
DISPOSITION
The judgment is affirmed. Donald is awarded his costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
“(A) CS = child support amount.
“(B) K = amount of both parents’ income to be allocated for child support....
“(C) HN = high earner’s net monthly disposable income.
“(D) H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent....
“(E) TN = total net monthly disposable income of both parties.” (Fam. Code, § 4055, subd. (b)(1).)