Marriage J.K. v. M.H.

HALLER, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DN175191) APPEAL from orders of the Superior Court of San Diego County, Michael D. Washington and James A. Mangione, Judges. Affirmed. M. H., in pro. per., for Appellant. J. K., in pro. per., for Respondent. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for Intervener and Respondent.

This is the second appeal by M.H. (Father) regarding postdissolution child support orders in favor of J.K. (Mother) for their son J. (Son). In February 2016, the trial court found Father was in arrears on his child support obligations. The court determined arrears only through September 2015, reserving jurisdiction over the period October 1, 2015 onward pending the results of a vocational evaluation the court had ordered due to credibility concerns over Father's income documentation. Father never submitted to the vocational evaluation. At a November 2016 hearing, the court found Father was about $8,400 in arrears, and reserved jurisdiction to establish a repayment plan at a continued hearing. At the continued hearing, the court put Father on a $500-per-month payment plan.

Father, appearing in pro. per., appeals only the order setting the payment plan. However, we have discerned from his (at times, highly confusing) briefing that he is actually challenging the court's earlier order determining that he owed arrears. For reasons we will explain, we conclude we have jurisdiction to address Father's challenge, and find it lacks merit. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND Family Background

Father and Mother were married in 2002, had Son in 2003, and divorced in Michigan in 2007. A Michigan court ordered Father to pay monthly child support. That court granted Mother's request for a move-away order, and she and Son relocated to California in 2013. Father followed suit. With all the parties residing in California, the California family court assumed jurisdiction over child support matters and, in July 2013, ordered Father to pay child support of $572 per month.

The Underlying Requests for Orders (RFO's)

In July 2015, Mother filed an RFO seeking a determination of child support arrears. She calculated the arrears at $12,361, including interest.

In October 2015, Father filed an RFO seeking (1) modification of his child support obligation, (2) a court order that Son remain in private school, and (3) that Father's payment of Son's private school tuition be credited against Father's child support arrears. The court had previously found Father had monthly self-employment income of $1,334, plus monthly unearned income of $5,558 in the form of recurring gifts from his fiancée. Father argued that because he and his fiancée had married that month, the court could no longer consider her gifts when determining Father's child support obligation.

The court rejected Father's claim the recurring gifts were "loans."

Mother opposed Father's RFO. She argued he had been underemployed since moving to California, and had "consistently hidden his income." Noting that Michigan court records indicated Father had earning capacity of $100,000 per year, Mother requested that the court order Father to undergo a vocational evaluation to determine his current earning capacity.

February 3, 2016 Hearing

The court (Judge Michael D. Washington) heard Mother's RFO on February 3, 2016. Mother requested that the arrears be calculated through September 2015, with "a stay of a determination of support from October 1, 2015" onward so that the court could determine the appropriate amount of support in light of Father's remarriage and the requested vocational evaluation. Mother emphasized the need for a vocational evaluation in light of apparent discrepancies in Father's court filings regarding the nature of his income. For example, Mother asserted Father's income and expense declarations indicated he was self-employed, yet his 2014 tax return indicated he was a "W2 employee."

Father argued against a vocational evaluation, explaining his earnings declined when he moved to California due to differing regulations in his line of work (billboard advertising). He had since passed the real estate broker's licensing exam and was awaiting receipt of his broker's license. He maintained he had been working in good faith to increase his income.

The court reduced Father's child support obligation to $547 per month, and determined he owed child support arrears through September 2015 in the amount Mother requested ($12,198). The court found Father progressed from a 38 percent timeshare in 2013 to 50 percent in 2015. The court put Father on an arrears repayment plan of $200 per month.

Based on concerns the court had regarding Father's income documentation, the court explained it would await the results of a vocational evaluation before determining Father's support obligation from October 1, 2015 onward:

"My background was accounting before I got into law. So I have a special . . . affinity about accounting and numbers and budgets and tax returns. . . . [¶] And so I'm curious at the documents that have been filed by [Father]. I'm not making any findings about their credibility today, but they seem inconsistent with documents that he's previously filed with the Court. I don't know the rationale for that . . . . [¶] . . . [¶]
"But again, . . . . [m]y concern [with Father's tax return is] it's just inconsistent with everything that [Father] has told me about who he is. So I don't know if he's prepared an accurate tax return or he's provided inconsistent information to the Court, but they don't reconcile themselves.
"And so for those reasons, I don't feel comfortable making support orders starting October of 2015 going forward because I'm not sure I have accurate information. I'll be candid. I'm not sure that I'll ever get accurate information. [¶] . . . [¶]
"So for those reasons, I think it's appropriate for the parties to get a vocational evaluation to give the Court more information that will hopefully give me some guidance on what numbers are appropriate."
"It might be, [Father], that I will come back and I will make support orders consistent with the figures that your attorney gave me today, but it's also possible that, based on [the vocational evaluator]'s report, she will be recommending that I use a different amount to consider in calculating support." [¶] . . . [¶]
"[A]t some point, we are going to revisit all of this."

Accordingly, the court ordered that Father undergo a vocational evaluation, with Mother advancing the cost. The court ordered that all prior orders not in conflict with the present orders "shall remain in full force and effect."

August 1, 2016 Hearing

On August 1, 2016, the court (Judge Washington) heard Father's RFO regarding modification of child support and Son's schooling and tuition. Mother filed a declaration in advance of the hearing stating she had paid a retainer to the vocational evaluator, but Father had failed to arrange for an evaluation. Father confirmed at the hearing he had not contacted the evaluator, explaining, "I don't want to right now. I want to take this up with federal court." Due to Father's failure to undergo the court-ordered vocational evaluation, the court took his RFO to modify child support off calendar.

Father filed a federal lawsuit against his former counsel and numerous government entities and officials (including Judge Washington, the State of Michigan and its governor, the Michigan family court judge, the State Bar of Michigan, the State of California and its governor, various elected federal officials, the Department of Health and Human Services, and the American Bar Association). (See Hucul v. Mathew-Burwell (S.D. Cal. Feb. 6, 2017, No. 16-CV-1244 JLS (DHB)) 2017 WL 476547, The federal court granted these defendants' motions to dismiss on federal abstention grounds (id. at *3-*6) and, "more fundamentally," because Father's complaint "fail[ed] to comply with the basic" pleading requirements (id. at *3).

The court heard the remainder of Father's RFO regarding Son's private schooling and tuition, and denied the request. Father previously appealed, and we affirmed. (See In re Marriage of Hucul (Sept. 12, 2017, D070951) [nonpub. opn.].)

November 8, 2016 Hearing

In November 2016, Mother requested a determination of child support arrears for the period of October 1, 2015 through November 2016, plus attorney fees. She calculated the arrears at $8,423.80, including interest. Custody of Son was still split 50/50.

Father opposed the request. He asserted the family court had stated during the February 3, 2016 hearing that there were "no 'support orders starting October 2015 and going forward.' " Thus, Father contended there was no support obligation on which to accumulate arrears.

At a November 8, 2016 hearing, the court (Judge Washington) rejected Father's assertion, and explained in a colloquy with Father why the court's original child support order remained in effect:

Father, who had previously been represented by three separate attorneys, represented himself at the hearing.

"[FATHER]: I feel as though you made an order of the Court, and it's very clear that you are not making support orders starting October of 2015 going forward. [¶] . . . . If you hadn't ordered the child support to be paid, then they can't all of a sudden arbitrarily come in and say we are going to refer back to an interim order that was ordered in November of 2013."
"THE COURT: Well, do you agree that prior to me making that statement, there was an order in place?"
"[FATHER]: An interim order. Yes.
"THE COURT: Okay. And so there's an order in place, and there's a request for me to make a new order, and I'm saying I'm not making a new order.
"[FATHER]: No. You said you are not making any child supports going forward from October.
"THE COURT: Right. I'm not making an order. There is already an order in place. [¶] . . . [¶] I didn't say I terminated child support, [Father]. I don't have any authority to terminate child support."

The court awarded child support arrears in the amount Mother requested ($8,423.80), and reiterated to Father why the court's prior child support order remained in effect:

"I'll state for the record that nothing in my comments . . . was designed to say that you were absolved of the responsibility to provide child support. My comments merely were designed to indicate that I was not making any changes to the existing orders for child support at that time. And in fact, I made no new child support orders. But that did not mean and does not mean that the previous orders were terminated. And I stated nothing on the record that suggested that those previous orders were terminated."

Father then asked the court under what authority the court could "issue a child support order to parents who have joint physical, joint legal custody." The court responded, "The law governing child support is covered under the Family Code for the State of California."

The court reserved jurisdiction to order a repayment plan on the arrears and Mother's request for attorney fees, setting both matters for hearing on April 3, 2017.

The court formalized its rulings in an order filed on March 13, 2017.

Local Agency Intervention

Before the court heard the continued matter, the County of San Diego Department of Child Support Services (DCSS) filed a notice in the family court proceeding identifying itself as the "local child support agency"; stating it is providing services regarding current support, support arrears, and medical support; and substituting itself as the payee on Father's support obligations to Mother. (See Judicial Council Forms, form FL-632 ["NOTICE REGARDING PAYMENT OF SUPPORT"].)

As discussed below, we grant Father's motion to augment the record to include DCSS's notice.

April 3, 2017 Hearing

At the April 3, 2017 hearing, Mother asked for an arrears repayment plan of $700 per month and, because Father continued to question the court's authority to order child support, "confirmation" that Father's $547 monthly child support obligation remained in effect. The court (Judge James A. Mangione) responded, "Why would I have to confirm that if that's already been adjudicated?" Mother agreed there was no need and that "it's not technically before the Court."

The court acknowledged Judge Washington had already determined an arrearage of $8,424, and set a payment plan of $500 per month. "In terms of confirming child support" going forward, the court stated "that will be as part of the previous order." The court denied Mother's attorney fee request without prejudice.

Father requested a stay of the order pending appeal, which the court denied. Father timely filed a notice of appeal identifying only the court's April 3, 2017 order.

DISCUSSION

Although Father's briefing on appeal is unclear, and although he only appealed from the April 3, 2017 order fixing a repayment plan on arrears, it appears his primary contention is that the family court erred in finding during the November 8, 2016 hearing that Father owed child support arrears. He bases this contention on his assertions that (1) Mother is judicially estopped from seeking support after October 1, 2015 because she asked the family court at the February 3, 2016 hearing for "a stay of a determination of support from October 1, 2015"; and (2) the family court acted in excess of its jurisdiction because (a) Mother did not request an order modifying the court's order absolving Father of his child support obligations from October 1, 2015 on, and (b) no law authorizes an award of child support when the parents have joint custody. Father's challenge lacks merit.

I. Scope of Issues on Appeal

Mother contends that because Father's notice of appeal identifies only the April 3, 2017 order, our appellate jurisdiction is limited to the issues expressly addressed by that order—the terms of the arrears repayment plan, denial of Mother's request for attorney fees, and denial of Father's request for a stay pending appeal. (See Cal. Rules of Court, rule 8.100(a)(2); Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 ["Jurisdiction of the Court of Appeal is limited in scope to the notice of appeal and the judgment appealed from."]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [" 'If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.' "].) We are not persuaded.

Undesignated rule references are to the California Rules of Court.

Postjudgment orders are generally appealable under Code of Civil Procedure 904.1, subdivision (a)(2), which authorizes an appeal from "an order made after [an appealable] judgment." However, "this does not literally mean that any order after a previous judgment is appealable. To be appealable, a postjudgment order must meet certain requirements." (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.) "[A]n essential element of an appealable postjudgment order is that the order be one which is not preliminary to later proceedings . . . ." (In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [postjudgment order finding the trial court had the authority to approve the sale of certain assets and resolve any sale-related issues was not an appealable order]; Ellis, at p. 403 [postjudgment order "determin[ing] that the trial court has authority to evaluate and divide [a] medical subsidy" not appealable because "it is only preliminary to actually doing so"]; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218 [order confirming arbitrator's award and appointing designee to select an accountant to perform an accounting required by the award is nonappealable because it is preliminary to further proceedings].)

Here, the family court's order stemming from the February 3, 2016 hearing expressly contemplated further proceedings on the very topic of the order. That is, the order determining the amount of arrears was "preliminary to later proceedings" regarding the terms of repayment. Accordingly, we have jurisdiction to hear Father's challenge to the court's determination that he owed support arrears.

II. Scope of Appellate Record

Father seeks to enlarge the appellate record by way of a request for judicial notice (RJN) and a motion to augment the record. We received no opposition to either.

The RJN identifies two documents: (1) a purported "2014 'Fact Sheet' from the Judicial Council of California," which Father contends "shows the Family Court Judges receive two-thirds of their salaries from Federal Funds based on their performances of ordering child support"; and (2) a March 14, 2016 letter from the United States Department of Justice, which Father contends "supports the due process violations [he] suffered" in this case. Father acknowledges neither document was before the trial court. We deny the RJN on that basis, and because these are not the type of documents of which appellate courts typically take judicial notice. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Reviewing courts generally do not take judicial notice of evidence not presented to the trial court."].)

Father moves to augment the record with the following documents from the family court file: (1) Father's income and expense declaration filed on October 20, 2015; (2) a certified copy of the reporter's transcript of the August 1, 2016 hearing; (3) Father's counsel's motion to be relieved as counsel, filed on June 21, 2016; (4) the July 28, 2016 order granting counsel's motion; and (5) DCSS's Notice Regarding Payment of Support, filed on March 7, 2017. The motion also includes what purports to be a letter from DCSS to Father enclosing the department's notice, but this document does not appear to have been filed with the family court. We grant Father's motion to augment with respect to the reporter's transcript of the August 1, 2016 hearing, and DCSS's Notice Regarding Payment of Support. We exercise our discretion to deny the motion in all other respects. (See Russi v. Bank of America National Trust & Savings Assn. (1945) 69 Cal.App.2d 100, 102.)

III. The Court's Determination of Support Arrears A. Judicial Estoppel

Father argues that because Mother asked the court during the February 3, 2016 hearing for "a stay of a determination of support from October 1, 2015" onward, she was judicially estopped from later "taking the incongruous position of requesting the Court to assess arrears for child support from October 2015 going forward . . . ." (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [" 'Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.' "].) We disagree.

Father bases his argument on an unreasonable interpretation of Mother's litigation position—that her request at the February 3, 2016 hearing was for the court to absolve Father of his child support obligation from October 1, 2015 onward. To the contrary, the plainly obvious purpose behind Mother's request was merely to allow completion of Father's vocational evaluation to enable the court to determine the appropriate amount of child support owed from October 1, 2015 onward. Because Mother did not take inconsistent positions, judicial estoppel does not apply.

B. Excess Jurisdiction

Father contends the family court exceeded its jurisdiction in ordering arrears because Mother had not requested that the court "modify [its] orders to not make any child support orders from October 2015 going forward." This, again, reflects Father's misunderstanding of the record. The family court did not order that Father not make child support payments from October 2015 onward. Rather, the court merely deferred the determination of Father's ongoing support obligation until after completion of the vocational evaluation so that the court could determine Father's appropriate support obligation. Indeed, the court "state[d] for the record" during the November 8, 2016 hearing "that nothing in [the court's] comments . . . was designed to say that [Father was] absolved of the responsibility to provide child support." No reasonable reading of the record supports Father's contrary contention.

Father also contends the court exceeded its jurisdiction in ordering support because the court "does not have a law to give it jurisdiction to make child support orders for a parent . . . with joint custody." DCSS filed a brief responding to this contention. As DCSS correctly observes, the statutory formula for determining child support expressly contemplates that a parent with shared custody may nonetheless owe child support. (See Fam. Code, § 4055.)

In his opening brief, Father "object[s]" to DCSS's substitution of appellate counsel. In fact, the objection appears to challenge DCSS's standing rather than its selection of counsel. In that respect, we reject Father's challenge. DCSS is authorized to intervene in pending child support litigation matters, which it did here by filing a notice regarding payment of support. (Fam. Code, § 17400, subd. (k); Code Civ. Proc., § 387, subd. (b); rule 5.360 ["When a local child support agency is providing services as required by Family Code section 17400, that agency may appear in any action or proceeding that it did not initiate by giving written notice to all parties, on Notice Regarding Payment of Support (form FL-632), that it is providing services in that action or proceeding . . . ."].)
In his reply brief, Father makes a "motion . . . to strike" portions of DCSS's brief based on alleged factual inaccuracies. We decline to consider the purported "motion" because it is procedurally improper. (See ReadyLink Healthcare, Inc. v. Jones (2012) 210 Cal.App.4th 1166, 1174 [declining "to treat . . . a request presented in the middle of a reply brief as a formal motion"]; rule 8.54(a) ["a party wanting to make a motion in a reviewing court must serve and file a written motion"].) In any event, we have independently reviewed the appellate record according to the appropriate standards of review.

Family Code section 4055 provides in part:

"(a) The statewide uniform guideline for determining child support orders is as follows: CS = K[HN - (H%)(TN)].
"(b)
"(1) The components of the formula are as follows:"
[¶] . . . [¶]
"(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. In cases in which parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child."

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In his reply brief, Father cites (for the first time) several state and federal authorities that refer to "custodial" and "noncustodial" parents in the context of child support, which he contends support his view that a parent with joint custody cannot be ordered to pay child support. We disagree. "[T]he concept of custodial parenthood must be interpreted differently depending upon the context within which it is considered." (County of Ventura v. George (1983) 149 Cal.App.3d 1012, 1018.) In the context of "enforcement of support arrears, it is of no consequence as to whether a parent is a custodial or noncustodial parent." (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 827; see id. at pp. 826-828.)

IV. Additional Contentions

Father obliquely raises numerous additional contentions in his opening brief. To the extent they are discernable, we have considered each of his arguments and have found them to be without any factual and/or legal merit. Under the circumstances, there is no need to address each of these contentions in this opinion. (See Linhart v. Nelson (1976) 18 Cal.3d 641, 645 ["Having examined [appellant's] other contentions, we find them of insufficient merit to warrant discussion."].)

Father additionally raises several contentions for the first time in his reply brief (e.g., judicial bias, denial of a continuance, prejudicial withdrawal of counsel). We decline to consider these assertions for "[o]bvious reasons of fairness." (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; accord Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1074 ["We decline to address this argument because it is raised for the first time in her reply brief and is thus forfeited."].)

DISPOSITION

The orders filed on March 13, 2017 and April 3, 2017 are affirmed. Mother is entitled to her costs on appeal.

HALLER, J. WE CONCUR: BENKE, Acting P. J. IRION, J.