Opinion
H050263 H050437
01-29-2024
In re the Marriage of W.Z. and C.M. v. C.M., Appellant. WZ, Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 20FL001352)
Greenwood, P. J.
In this dissolution of marriage action, husband, C.M., appeals from two interim orders: (1) a domestic violence restraining order entered after hearing (DVRO) pursuant to the Domestic Violence Prevention Act (DVPA, Fam. Code, § 6200, et seq.), in favor of wife, W.Z. (appeal No. H050263), and (2) an order modifying temporary child and spousal support based on C.M.'s request to modify support orders (appeal No. H050437). C.M. contends the trial court violated his due process rights because the hearing on W.Z.'s DVRO request was delayed for two years. He claims the trial court abused its discretion in issuing the DVRO because the trial court relied on hearsay, allowed W.Z. to testify on matters not stated in her DVRO request, and because there was no evidence of apprehension of future abuse. As to the support orders, C.M. claims the trial court erred by not including his healthcare payments in the calculation for support, by not making the modified orders retroactive to a date prior to the filing of his request to modify support, and by not crediting or offsetting his support obligations with other funds received by W.Z. Representing herself in this appeal, W.Z. argues the trial court properly issued the DVRO based on her testimony and evidence provided at the hearing. As to the support orders, W.Z. contends the issues were subsequently resolved at a subsequent hearing after C.M. filed his appeal. Nevertheless, both parties continue to claim in this appeal that the other owes money, either for underpayment or overpayment of support. For the reasons we discuss below, we affirm both orders.
Because this case involves proceedings under the DVPA, we refer to the parties by their initials to protect the privacy interests of protected persons. (Cal. Rules of Court, rule 8.90(b)(1), (11).) Unless otherwise specified, all undesignated statutory references are to the Family Code.
On our own motion, we ordered C.M.'s two appeals to be considered together for briefing, oral argument and disposition.
I. Factual and Procedural Background
Electing to proceed with an appendix pursuant to California Rules of Court, rule 8.124, C.M. provided a limited record on appeal. According to the register of actions, there were numerous documents filed and minute orders entered related to the DVRO and the support orders at issue in these appeals. However, we were not provided with most of those records. C.M. also elected to proceed without a record of the oral proceedings from either hearing. There was no court reporter at the DVRO hearing. We do not know if a court reporter was present at the support modification hearing because the minute order for that hearing was not included in the record on appeal. C.M. also did not provide a settled statement in lieu of a transcript of the hearings. (Cal. Rules of Court, rule 8.137.) After the oral argument in this appeal, W.Z. submitted additional documents for our consideration. We deny her request as untimely. (Cal. Rules of Court, rule 8.124(e)(3) [respondent's appendix must be served and filed with respondent's brief].)
A. W.Z.'s Request for Domestic Violence Restraining Orders
C.M. and W.Z. were married in 2004 and separated in 2020. They have three minor children, whose ages were 5, 9, and 13 at the time of the parties' separation.
In May 2020, shortly after filing her petition for divorce, W.Z. filed an ex parte application requesting domestic violence restraining orders to protect herself and the parties' children from C.M., and to seek temporary sole legal and physical custody of the children pending the noticed hearing. W.Z. stated in her declaration that C.M. engaged in physical abuse towards the children by throwing them in hot and cold showers fully clothed, and by pushing, shoving and forcibly lifting them on multiple occasions when C.M. became enraged. W.Z. included photographs of what she claimed to be red marks left on their son's body following one of the physical altercations between C.M. and the children. W.Z. claimed on two occasions their eldest son was so afraid of C.M. that he called the police, and Child Protective Services was also involved with the family. W.Z. alleged C.M. also engaged in mental abuse against her and the children by making repeated threats to leave them without financial support, threats to kill their oldest son, and threats to make false claims to the police that W.Z. committed incest with their children.
Based on W.Z.'s ex parte application, the trial court issued temporary restraining orders against C.M. pending a noticed hearing, including orders that C.M. move out of the marital residence and pay the rent and utilities for the residence. The trial court also granted temporary sole legal and physical custody of the children to W.Z. with supervised visitation for C.M.
The hearing on the DVRO request was initially scheduled in June 2020, but the hearing did not occur until June 2022, over two years later. Based on the register of actions, it appears the trial court continued the DVRO hearing multiple times at the request of one or both parties or pursuant to the parties' stipulations. An executed stipulation filed in September 2020 states, in part, "[t]he parties agree to be referred to SOC [settlement officer conference] for the purposes of discussing settlement of the DVRO and financial matter." According to the register of actions, multiple orders and minute orders were entered between 2020 and 2022 to continue the DVRO hearing, and it appears the parties also filed responsive pleadings and trial briefs for the hearing. None of those documents were provided by C.M. in this appeal.
The Judicial Council of California adopted the form DV-116 order on request to continue court hearing for mandatory use when issuing orders to continue a hearing under the DVPA. The register of actions in the underlying case shows several DV-116 "DV Continuance" orders filed with the trial court between 2020 and 2022.
The hearing on the requested restraining order was held on June 7, 2022, with C.M. represented by counsel, and W.Z. without counsel. The minute order states "[C.M.'s counsel] presents motions in limine[,]" and "court denies motion to dismiss[.]" However, we have no information regarding such motions because they are not in the record on appeal. According to the minute order, each party testified. No other witnesses were called. C.M.'s counsel cross-examined W.Z. Each party provided an opening statement, closing arguments, and thereafter submitted the matter. At the conclusion of the hearing, the trial court granted the DVRO against C.M. for a period of two years, with the parties' three minor children as additional protected persons. C.M. timely filed an appeal from the issuance of the DVRO.
B. C.M.'s Request to Modify Child and Spousal Support
The trial court entered initial orders for child and spousal support at a hearing in July 2020. The initial support order was based on C.M.'s base income at $19,742 per month, and W.Z.'s base income at $4,200 per month. The trial court ordered C.M. to pay, commencing July 15, 2020, $4,179 per month for guideline child support, and $2,179 per month for temporary spousal support. The court entered a mutual Ostler/Smith order for any additional support owed beyond each party's base income, and it reserved retroactivity of child and spousal support to May 11, 2020. A year later, in July 2021, W.Z. filed a request for order for attorney fees and a true-up to determine additional support owed by C.M. for income he received above his base pay. Based on the parties' agreement, at the hearing on that request, the trial court ordered C.M. to pay additional support arrearages based on the Ostler/Smith calculations for additional income he received between May 11, 2020, and April 30, 2021.
The term Ostler/Smith refers to support calculations established in In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 41-42. "An Ostler & Smith percentage is assessed 'over and above guideline support' for 'any discretionary bonus actually received.' [Citation.] It was originally justified on the ground that future bonuses are not guaranteed, and it would be unfair to require the obligor to file motions for modification every time a bonus is reduced." (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 27, citing Ostler, at pp. 41-42.)
In March 2022, C.M. filed a request for order seeking various relief, including a request to modify child and spousal support and for credits for overpayment of support. The record on appeal does not include C.M.'s request for order, W.Z.'s responsive declaration to that request for order, or either party's income and expense declaration, but only C.M.'s reply brief filed in support of his modification request. According to that reply brief, C.M. requested a downward modification of support on the basis that his income decreased due to COVID-19, and the prior support order was based on a miscalculation of his income. C.M. stated that the trial court "must take his true income and rerun" the calculations for support, with any overpayment of support credited towards his future support obligations retroactive to the filing date of the petition for dissolution of marriage. Further, C.M. alleged W.Z. took $140,000 of community funds, and that such amount must also be applied as a credit toward his support obligations.
On this appeal, C.M. now claims the amount that W.Z. allegedly took from the community to be $100,000, not $140,000.
In June 2022, after a hearing and based on the findings and order prepared by C.M.'s counsel, the trial court modified C.M.'s child support obligations to $2,906 per month and his spousal support obligations to $1,082 per month, retroactive to the date he filed his request for order in March 2022. C.M. timely appealed the June 2022 order.
II. Discussion
A. Appellate Record and Principles of Appellate Review
We commence by discussing some basic principles governing our review. It is ". . .well established that 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' [Citation.]" (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 383, quoting Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Under the California Rules of Court, all appellate briefs must "[s]upport any reference to a matter in the record by a citation to the . . . record...." (Rule 8.204(a)(1).) Both parties assert facts and procedural history without citation to the record. Both parties refer to facts outside of the record. Where the assertions in the parties' briefings are not supported by citation to the record on appeal, we will disregard them. (Martinez, supra, at p. 383.)
We are required to presume that the order on appeal is correct. The appellant-in this case, C.M.-bears the burden of affirmatively showing an error based on the record presented to the trial court. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) It is the appellant's burden to provide this court with an adequate record on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) The failure to do so requires this court to resolve the issue against the appellant. (Jameson, at p. 609.) Without a record, either by transcript or settled statement, we must make all presumptions in favor of the trial court's actions. (Ibid.) Further, "[t]he absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion." (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259; see also Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [failure to provide an adequate record requires the issue to be resolved against the appellant].)" 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation 'is furnished on a particular point, the court may treat it as waived.' [Citation.]" (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Finally, "[w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
C.M. elected to proceed without a record of the oral proceedings, failing to provide either a reporter's transcript or settled statement from the DVRO and support hearings. C.M. provided a few documents and orders from the trial court, but we do not have a complete record of the arguments and testimony before the trial court from either of the two hearings, or a complete record of the pleadings filed for those hearings. We thus have no basis to determine what the parties asserted in the trial court or why the trial court ruled as it did. As we explain below, the absence of a record affects our consideration of C.M.'s arguments.
B. The June 2022 DVRO Entered Against C.M.
The purpose of the DVPA "is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220.) The "trial court has broad discretion" in its decision to grant or deny a request for a restraining order under the DVPA. (In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 702 (Fregoso).) The court may issue protective orders upon a showing "to the satisfaction of the court, reasonable proof of a past act or acts of abuse[,]" even if such proof is "based solely on the affidavit or testimony of the person requesting the restraining order." (§ 6300.)
We review an order granting a protective order under the DVPA for abuse of discretion. (Fregoso, supra, 5 Cal.App.5th at p. 702.) As this court has explained," '[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citation.]" (In re Marriage of Walker (2012) 203 Cal.App.4th 137, 146.)
C.M. first claims his due process rights were violated because the trial court delayed the DVRO hearing for over two years while the temporary restraining orders remained in effect throughout the entire period. The limited record on appeal, and the register of actions, however, show that C.M. stipulated to multiple continuances in an effort to attempt settlement with W.Z. of contested issues. C.M. cannot now fault the trial court for granting the requests for continuances of the DVRO hearing simply because the settlement efforts were unsuccessful. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685 [appellant waives the right to attack error by agreeing to the ruling or procedure objected to on appeal].)
Citing to sections 242, subdivision (a), 244 and 245, C.M. next argues the trial court failed to comply with the statutes requiring priority for cases brought under the DVPA and failed to hold the DVRO hearing within the 25-day period from W.Z.'s initial ex parte application. However, section 242, subdivision (b) states "[i]f a hearing is not held within the time provided in subdivision (a), the court may nonetheless hear the matter, but the temporary restraining order shall no longer be enforceable unless it is extended under Section 245." Section 245 then provides that, other than the respondent's right to one continuance as a matter of course, "[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause.... The court may also grant a continuance on its own motion. [ ¶ If the court grants a continuance, any temporary restraining order that has been issued shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court. In granting a continuance, the court may modify or terminate a temporary restraining order." Accordingly, the law allows the trial court to continue the DVRO hearing beyond the 25-day period and to extend, modify or terminate any temporary restraining orders pending the continued hearing date.
Nothing in the record provided by C.M. shows any error by the trial court in granting the continuances, or that the trial court lacked good cause to do so. Further, we review the trial court's grant of a continuance request for abuse of discretion. (Bussard v. Dept. of Motor Vehicles (2008) 164 Cal.App.4th 858, 863, fn. 1 ["However, it is much more difficult to demonstrate an abuse of discretion when a continuance is granted."] (Original italics.).) Without a record reflecting the court's reasoning, we have no basis to conclude that the trial court acted outside its discretion and are compelled to defer to the decision of the court below. (Jameson, supra, 5 Cal.5th at p. 609.)
C.M. argues the trial court improperly allowed W.Z. to provide hearsay testimony at the DVRO hearing about what was said by the children and third parties, and to make allegations not previously stated in her DVRO pleadings. Without a record from the hearing, we are unable to determine what testimony or evidence was adduced at trial. If the record on appeal does not contain all the testimony and other evidence presented during trial, a reviewing court will decline to find error on a silent record, and thus infer substantial evidence supports the trial court's findings. (Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977 (Gonzalez).)
C.M. also claims the trial court failed to make the required findings under section 3044, subdivision (b). When a trial court finds a parent has committed domestic violence, "there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child...." (§ 3044, subd. (a).) That presumption, however, may be rebutted. If the trial court finds it has been rebutted and awards sole or joint custody to the perpetrator of domestic violence, the trial court is required to state its findings. (Id., subd. (b).) Here, having found C.M. to be the perpetrator of domestic violence, the trial court awarded sole legal and sole physical custody of the children to W.Z. The trial court did not award either sole or joint legal custody of the children to C.M., and thus, it was not required to state any findings under section 3044, subdivision (b).
Finally, C.M. claims there was no evidence to support a "reasonable apprehension of future abuse" because, by the time of the DVRO hearing, he had complied with the temporary restraining order and there were no new acts of abuse since the issuance of the temporary order. Absent evidence of fear of future abuse, C.M. argues the trial court abused its discretion in issuing the DVRO. We note that nothing in the record before us corroborates C.M.'s claims regarding his alleged compliance and whether further acts of abuse occurred during the pendency of the DVRO hearing. More significantly, C.M. cites to legal authorities pertaining to the renewal of a DVRO under section 6345 which requires a different showing than that required for the issuance of the DVRO in the first instance, which is what the trial court ordered here. The requirement that the petitioner show a "reasonable apprehension of future abuse" for the renewal of a DVRO is not applicable to the initial issuance of a DVRO under section 6300, which only requires reasonable proof of a past act or acts of abuse. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 783.)
For the reasons stated above, we conclude that the trial court did not err when it issued the DVRO against C.M.
C. The June 2022 Support Order Modifications
The purpose of temporary support is to maintain the living conditions and standards of the parties and their children as closely as possible to the status quo pending a final support determination. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637; see also § 3600.) Temporary support orders are directly appealable and are reviewed for abuse of discretion. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368; In re Marriage of Lim &Carrasco (2013) 214 Cal.App.4th 768, 773.)
C.M. requests we direct the trial court to recalculate his support obligations to include his healthcare payments and to make the orders retroactive to May 2020, when W.Z. filed the petition for dissolution of marriage. C.M. claims the trial court also erred because he did not receive credits or offsets for the $100,000 that W.Z. purportedly took from community funds and used for her living expenses, and he did not receive credit toward his support obligations for his payment of W.Z.'s rent and utilities, which he was ordered to make under the temporary DVRO. W.Z. claims the issues have been resolved and that, based on her calculations, C.M. owes her monies for underpayment of support.
We do not consider W.Z.'s request for relief in this appeal for alleged underpayments of support as those issues are not properly before us and W.Z. did not separately appeal those orders.
As discussed above, C.M has not provided this court with an adequate record on what was presented, argued or decided at the June 2022 hearing on support. We decline to find error on a silent record. (Gonzalez, supra, 226 Cal.App.4th at p. 977.) C.M. also cites legal authorities concerning the division of community property, which are not applicable to support. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [conclusory arguments not supported by pertinent legal authority will be disregarded on appeal]; Williams v. Williams (1970) 8 Cal.App.3d 636, 639 ["Considering defendant's contention that his alimony obligation may be set off against plaintiff's indebtedness to him, we observe that it is well settled in this state that there can be no such offset."].) Based on the foregoing, C.M. has not met his burden of demonstrating that the trial court erred when it issued the child and spousal support orders on June 2, 2022.
III. Disposition
The June 7, 2022 restraining order after hearing is affirmed. The June 2, 2022 child and spousal support orders are affirmed.
Respondent W.Z. is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) and (a)(2).)
WE CONCUR: Bamattre-Manoukian, J., Wilson, J.