Opinion
D072219
08-23-2018
In re the Marriage of JEANNE F. JONES and DAVID K. JONES. JEANNE F. JONES, Appellant, v. DAVID K. JONES, Respondent.
Patrick L. McCrary for Appellant. Stephen Temko for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN74747) APPEAL from a judgment of the Superior Court of San Diego County, Pamela M. Parker, Judge. Affirmed. Patrick L. McCrary for Appellant. Stephen Temko for Respondent.
Twenty years after the dissolution of her marriage, appellant Jeanne F. Jones petitioned for payment of arrearages stretching back over the prior two decades. The trial court dismissed the petition with prejudice because Jeanne could not credibly show any amounts due that were not paid. We affirm.
STATEMENT OF CASE
Jeanne F. Jones and David K. Jones married in December 1973, had four children, and divorced in 1995. Two of their children were still minors at the time of the divorce. The parties entered into a Marital Settlement Agreement (MSA) that was incorporated into their Judgment for Dissolution, entered on September 15, 1995. David was to pay child support for the two minor children to Jeanne in the amount of $839 per month, for spousal support in the amount of $66 per month, and some additional expenses.
Because the parties share the same last name, we refer to each by their first names for the sake of clarity. No disrespect is intended.
We will refer to the children with the years of their birth as follows: Daughter 1, 1975; Daughter 2, 1976; Daughter 3, 1982; Daughter 4, 1985.
Twenty years later, on August 5, 2015, Jeanne filed a Request for Order to Set Arrearages and Order Payment (RFO). By this time, both parties lived in Utah. Jeanne claimed a total of $59,098 in arrearages for child support, spousal support, wedding expenses, taxes from 1996 through 1998, health insurance, and costs arising from a daughter's accident, all with interest added. David responded, contending that the RFO was not supported by adequate documentation, and that he had paid more than was due to Jeanne.
There is no statute of limitations or laches defense regarding support arrears or other money judgments in family law. (Fam. Code, § 291.) Further statutory references are to the Family Code unless otherwise specified.
At a hearing on April 29, 2016, Jeanne presented her case with no supporting documentation. Her attorney stated that the amount owed for child support would change. Jeanne admitted that David made some of the payments. The court described Jeanne's testimony as follows: "[T]his case was very poorly put together, and Ms. Jones changed her mind, could not come up with a single solid number, and changed her mind multiple times, seemed to remember some numbers but not others." Jeanne admitted that David had paid most of the bills. The trial court "had absolutely no clue what she claimed was owed. No clue whatsoever." The trial court gave her until the next hearing to correct the deficiencies in her RFO.
The next hearing was on November 3, 2016. Neither Jeanne nor her attorney of record appeared. A different attorney appeared specially for Jeanne, but did not file a substitution of attorney until January 4, 2017. The attorney requested a continuance on behalf of Jeanne, which the trial court denied. The case had been pending for over a year, Jeanne had yet to file the required information and documentation of arrearages, and counsel who appeared could not "provide an adequate explanation of the need for a continuance." A continuance would prejudice David, as it would require him to spend additional attorney fees, and it unduly disrupted the court proceedings.
Also at the November hearing, the court entertained David's motion to dismiss the case because Jeanne had presented all her testimony on issues other than child support at the April hearing. The court dismissed with prejudice Jeanne's requests for Daughter 1's college expenses because there was insufficient documentation of the amount owed; Daughter 4's health insurance costs because there was no obligation to pay after Daughter 4 turned 18; reimbursement for Daughter 1's accident because there was no evidence of that debt; and attorney fees because Jeanne did not provide the required supporting documentation.
The trial court dismissed without prejudice Jeanne's request for child support and spousal support arrearages because Jeanne had not filed mandatory information and had "no firm numbers" of the amount owed. The court granted Jeanne more time to correct her request, and heard David's testimony on the remaining issue of child support, so that the support arrearage claims could be resolved at a future hearing. David testified that he had paid Jeanne a total of $98,904, more than the total sum of $92,472 that he owed her. He asserted he had satisfied his obligations in full.
The court continued the hearing until January 4, 2017, and gave Jeanne permission to correct the deficiencies in her RFO with support for its claims. Jeanne could then cross-examine David, so the support arrearages could be decided. The parties were to meet and confer to clarify what was at issue regarding support, wedding expenses, and tax reimbursements.
Jeanne filed a renewed RFO for the support arrearages less than a week before the continued hearing date of January 4, 2018. Jeanne cross-examined David at the January hearing. David testified that he had owed a total of about $92,000 to Jeanne, but that he had paid her more than that amount over the prior 20 years.
The trial court dismissed the claim for support arrearages with prejudice. Due to the length of time that Jeanne delayed in bringing her claim, and the resulting scant documentation, the decision was based on who was more credible. The court found David credible and Jeanne not. The trial court found that "Wife was not able to even make a credible prima facie showing of what actually was owed and paid (or not paid) to her." Jeanne frequently changed the amount of arrearages due, and even in her closing argument she could not specify the amount owed. Her request stated that $4,536 was due for child support, but at the April hearing counsel said that mistakes had been made and the amount due would change, perhaps up to more than $100,000. At the January 2017 hearing, Jeanne said that child support arrearages were $4,273 plus interest of more than $7,200. But in her written closing argument, she said it was either $4,273 plus interest of more than $7,200, or $1,463 plus interest, if David missed those payments. The trial court found that Jeanne's recollection of the amounts paid was "highly questionable." By the close of the hearing, Jeanne had submitted no evidence that "conclusively establish[ed]" the amounts that she claimed were overdue. On the contrary, Jeanne agreed that David had made most of the payments that he claimed on his schedule of payments.
The trial court found that David, on the other hand, provided consistent, credible testimony and documentation that his payments over time exceeded the total that he owed under the MSA. Jeanne "never persuasively refuted" this defense. The court denied Jeanne's request for support arrearages with prejudice because Jeanne failed to meet her burden of proof.
The trial court also denied with prejudice Jeanne's request for wedding expenses and for tax reimbursements because Jeanne did not meet her burden of proof on these claims. The court found that Jeanne's request for arrearages "was insufficiently pled and haphazardly prosecuted." Jeanne did not credibly explain why she waited 20 years to seek arrearages. The delay was harmful to both parties because of the difficulty in documenting payment or lack of payment from so long ago. Jeanne could not settle on an amount owed to her. The trial court found Jeanne not credible. Jeanne's original request was technically deficient, and she did not correct this for over a year. She failed to appear at the November hearing without adequate justification. Jeanne did not comply with the court's orders to meet and confer with David to ascertain and narrow the claims. In her written closing argument, she sought reconsideration of the claims that had been dismissed with prejudice and added entirely new claims. The court found, in sum, that Jeanne's actions and inactions "unnecessarily prolonged and increased the cost of these proceedings, and failed to promote settlement."
David filed a request for attorney fees as sanctions under section 271, or in the alternative under Code of Civil Procedure 128.7. The trial court granted David's request under section 271 and denied the Code of Civil Procedure 128.7 request. Taking into consideration Jeanne's Income and Expense Declaration, which showed that Jeanne had about $300 of discretionary income per month, the trial court ordered Jeanne to pay $7,500 to David's attorneys at the rate of $100 per month.
DISCUSSION
I. Standard of Review
The judgment or order of the lower court is presumed correct on appellate review. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 483 (Marshall); In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 822 (Falcone).) The record is viewed in the light most favorable to the judgment. (Marshall, at p. 483; Falcone, at p. 822.) We do not reweigh findings of the credibility of witnesses. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).) To overcome the presumption that the judgment is correct, an appellant challenging a judgment or order must affirmatively demonstrate both error and injury caused by the error. (Ibid.)
A trial court has broad discretion to determine the appropriate means of enforcing a judgment for child support, and in exercising that discretion, the trial court can and should take the equities of the situation into account. (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 861.) Because of the broad discretion entrusted to the trial courts, we employ the deferential abuse of discretion standard of review on the trial court's ruling. (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1162-1163 (Heidi S.).) "The trial judge, having heard the evidence, observed the witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass upon and determine the factual issues presented by their testimony." (In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 1492 (Lewin).) An abuse of discretion occurs only when the trial court's decision exceeds the bounds of reason. We uphold the trial court's determination so long as it is reasonable, even if we would have reached another decision in the first instance. "We do not reverse unless a trial court's determination is arbitrary, capricious, or patently absurd." (Heidi S., at p. 1163.)
Because the appellant has the burden of demonstrating prejudicial error on appeal, the appellant must set forth a fair and adequate statement of the evidence that supports his claim. " ' "He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect." ' " (Marshall, supra, 23 Cal.App.5th at p. 487.) Assertions of fact set forth in an appellate brief must be supported by a citation to the part of the record where that fact appears. (Sky River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 740-741 (Sky River); Cal. Rules of Court, rule 8.204(a)(1)(C).) This rule applies to matters referenced at any point in the brief, not just the brief's statement of facts. (Sky River, at p. 741.) We may deem an argument waived if the appellant has not supported his claim with the necessary citations to the record. (Ibid.)
All further references to rules are to the California Rules of Court.
II. No Abuse of Discretion in Denying Continuance
Neither Jeanne nor her attorney of record appeared at the scheduled November 3 hearing. Another attorney had been called late on the previous day, and specially appeared on behalf of Jeanne. The attorney requested a continuance on behalf of Jeanne, explaining that Jeanne had a conflict of interest with her prior attorney. The court denied the request. This was not an abuse of discretion.
A. Background
David submitted a declaration in opposition to the continuance stating that Jeanne had first asked him on October 25 for a stipulated continuance due to counsel unavailability. David did not agree to a continuance. David said that Jeanne was in San Diego for several days before October 31 and had an appointment to meet with her attorney on that day. She drove back to Utah after the meeting, but at the same time asserted that she would be ill on November 3. Jeanne never asked the court for a ruling on the continuance in advance of the hearing. David and his counsel felt obliged to continue preparing for the November hearing, as they did not know if the court would agree to a continuance. Preparing for trial was especially difficult because of Jeanne's scattered and ever-changing statements of the amount owed. A further continuance would cause undue expense to David for additional attorney fees.
The trial court found no excuse for Jeanne's absence. David, having prepared for the hearing, would be prejudiced by a continuance. The judicial proceeding would be disrupted by a continuance, as the judge had no time available for another hearing before she left the Family Department. If the judge granted a continuance without all the evidence having been taken, she would have to declare a mistrial, which would cause "extreme prejudice" to David and waste judicial resources. The court decided to hear David's testimony and to continue the hearing on child and spousal support arrearages until another day. David presented his testimony and exhibits in his defense. The court continued the case until January 4, 2017, to permit Jeanne to cross-examine David.
B. Discussion
"Continuances are granted only on an affirmative showing of good cause requiring a continuance. [Citation.] Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing. [Citation.]" (Falcone, supra, 164 Cal.App.4th at p. 823; rule 3.1332.)
Rule 3.1332 provides in part:
"(b) Motion or application[.] A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.
"(c) Grounds for continuance[.] Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
[¶] . . . [¶]
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
[¶] . . . [¶]
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
[¶] . . . [¶]
"(d) Other factors to be considered[.] In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance
[¶] . . . [¶]
(7) The court's calendar and the impact of granting a continuance on other pending trials;
[¶] . . . [¶]
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
We find no abuse of discretion in the court's denial of the request for continuance. Jeanne waited until the day of trial to request a continuance, even though she knew more than a week earlier that she was not prepared to further litigate the case. (Rule 3.1332(c)(2), (d)(1).) Jeanne did not make an affirmative showing of good cause. Her preplanned illness was not credible, and the trial court found her not credible in general. She never explained why substitution of her attorney was necessary, or why she had not hired a different attorney. (Rule 3.1332(c)(4).) The entire case was long and drawn-out because of Jeanne's delay at every point, from the filing of the request after 20 years had passed, to her failure to provide the necessary information until a year and a half after filing her original request. (Rule 3.1332(d)(2).) The trial court mitigated any harm to Jeanne by permitting her to cross-examine David at a future hearing. (Rule 3.1332(d)(4).) David, on the other hand, would suffer extreme prejudice by continuing the hearing, as he would incur more attorney fees preparing for another hearing. Also, the prospect of a mistrial and relitigation from the beginning was very harmful to David. (Rule 3.1332(d)(5).) The court's calendar did not permit a continued hearing. (Rule 3.1332(d)(7).) David did not agree to a continuance due to the amount of time and expense he had already put into the case. (Rule 3.1332(d)(9).) The trial court served the interests of justice by permitting the case to go forward and by giving Jeanne an opportunity to cross-examine David at a later hearing. (Rule 3.1332(d)(10).)
The facts of this case are similar to the facts in Falcone, supra, 164 Cal.App.4th 814. In that case, the wife made an oral request for continuance on the day of the hearing. The appellate court affirmed the trial court's denial of the request, concluding that a continuance would be unfair to the husband because he had no prior notice. The court held that the wife could not demonstrate good cause because her motion had been pending for over seven months and, although she had known for over a month she might not have an attorney at the hearing, she waited until the morning of the hearing to request the continuance. (Id. at p. 823.) Jeanne had ample time to prepare her case between April and November, but failed to do so. Jeanne waited until the morning of trial to request a continuance, was not credible in claiming illness, and gave no reason why she had not hired another attorney earlier. Further, the court could not fit another hearing into its schedule, and would have had to grant a mistrial, sending the parties back to square one. While not a determining factor, it is also a truism that a continuance would be costly to David, as well as keeping the uncertainties of this case hanging over his head.
We find that the trial court properly exercised its discretion within the applicable guidelines. Jeanne did not make an affirmative showing of good cause for the continuance, and a continuance would have been impossible due to the court's schedule. No error occurred.
III. No Prima Facie Showing of Arrears
The trial court found that Jeanne did not make a credible prima facie showing of what was owed and unpaid. Nor has she made a credible prima facie showing of what was owed and unpaid on appeal. Jeanne failed to set forth a fair and adequate statement of her claim and the evidence supporting it. She relies on her testimony below, but the trial court found her not credible. (Marshall, supra, 23 Cal.App.5th at p. 1492.) Instead, she cites to 45 pages of her allegations of the support that she claims was owed to her. She acknowledges that these allegations were "presented in a small font that takes some time to read and determine exact payments amounts and balances." She also asserts that her oral testimony in general and the Declaration of Payment History that she filed on December 29, 2016, each proved the arrears. However, her oral testimony was scattered and confusing, and the trial court found her not credible. (Lewin, at p. 1492.) Her last- minute Declaration of Payment History included costs already dismissed with prejudice by the court and new claims not previously asserted, but no new evidence. We are not " ' "required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect." ' " (Marshall, at p. 487.) A moving party should have her facts clearly identified and supported by the time of filing a motion, and certainly on appeal.
Jeanne complains that "[t]he trial court clearly held Jeanne to a standard higher than is required and held her to a higher standard tha[n it] held David." The trial court did indeed hold Jeanne to a higher standard than it held David, because Jeanne, as the moving party, had the burden of proving that David had not paid all amounts due. " '[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.' " (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1267, quoting Evid. Code, §§ 500 & 550, subd. (b).) The difficulty in proving what was paid or not paid was due to Jeanne's lengthy, unexplained delay in waiting until 2015 to file her request for arrearages. Some of her claims originated in 1995. Even after that length of time, Jeanne had not compiled clear evidence demonstrating failures to pay. Her request was deficient and not corrected until the end of the case, when she filed a History of Payment (FL-421) on December 29, 2016, less than a week before the final hearing. Even that, however, was not supported by credible evidence.
Evidence Code section 500 provides, "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."
Evidence Code section 550, subdivision (b) provides, "The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact."
The trial court found that Jeanne frequently changed the amount of arrearages due to her, and even in her closing argument she could not specify the amount owed to her. It found that Jeanne provided no credible evidence to support her allegations and her recollection was "highly questionable." By the close of the hearing, Jeanne had submitted no evidence that "conclusively establish[ed]" the amounts that she claimed were overdue. On the contrary, Jeanne agreed that David had made most of the payments that he claimed on his schedule of payments.
The trial court found that David, on the other hand, provided consistent, credible testimony and documentation. David testified that he had overpaid Jeanne over time and Jeanne "never persuasively refuted" this defense. The court found David more credible than Jeanne, and denied Jeanne's request for support arrearages with prejudice because she failed to meet her burden of proof.
Jeanne contends that she is entitled to interest on past due support, but there is no past support that is due. If she is seeking interest to the extent that David admitted that some payments were not timely, she did not raise that issue below and cannot raise it for the first time on appeal. Also, she has not identified the amounts owed or cited to any facts in the record supporting her claim. (Sky River, supra, 214 Cal.App.4th at p. 740; rule 8.204(a)(1)(C).) It is not our responsibility to independently cull through the record to support her claim. (Marshall, supra, 23 Cal.App.5th at p. 487.)
We are bound by the trial court's finding that David was more credible than Jeanne. (Thompson, supra, 6 Cal.App.5th at p. 981; Lewin, supra, 186 Cal.App.3d at p. 1492.) Substantial evidence supports the trial court's finding that Jeanne did not present a prima facie case of arrearages due to her. The trial court did not abuse its discretion.
IV. No Procedural Ambiguity
There is no confusion or ambiguity about the procedural posture of this case, as Jeanne contends. The trial court definitively denied with prejudice all pending claims, including those included in Jeanne's December 2016 RFO.
In November, the trial court dismissed with prejudice Jeanne's claims for wedding expenses, health insurance, and accident reimbursement. The court took testimony on the support issues from David so that the support issues could be adjudicated if Jeanne conformed her RFO to the rules of pleading. This did not permit Jeanne to file brand new claims for more arrears in this proceeding. Nonetheless, on December 29, 2016, three court days before the final hearing, Jeanne filed an RFO that included new claims and claims that had been denied with prejudice, as well as correcting the deficiencies in her claim for child and spousal support.
The renewed RFO was not a motion for reconsideration and contained no new facts. The trial court addressed Jeanne's claims nonetheless and denied the purported motion for reconsideration because Jeanne presented no new, credible admissible evidence. There are no remaining issues to be decided.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
BENKE, J. WE CONCUR: MCCONNELL, P. J. O'ROURKE, J.