Placencia v. Mooney CA2/6 ( 2015 )

Filed 9/16/15 Placencia v. Mooney CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
STEVEN PLACENCIA, 2d Civil No. B254131
(Super. Ct. No. D355151)
Plaintiff and Respondent, (Ventura County)
v.
DENISE MOONEY,
Defendant and Appellant.
Steven Placencia (father) and Denise Mooney (mother) are the parents of a son
born in February 2009. The parties never married. Mother appeals from a judgment
determining child custody, visitation, and child support. We affirm.
Factual and Procedural Background
The parties lived together from son's birth until February 2013, when mother
moved out of the family home. Father has two older children and mother has one
older child from different relationships.
In February 2013 father filed a petition to establish a parental relationship with
son. He requested legal and physical custody. On May 7, 2013, the parties signed a
mediated agreement on custody and visitation (not child support). The court approved
the agreement. The parties were unable to agree on all matters concerning custody and
visitation.
After a trial at which both parties and a mediator testified, the court issued a
judgment awarding the parties joint legal custody. Using the DissoMaster computer
program, the court determined that father's guideline child support obligation is $157
per month. It deviated from the guideline amount and ordered father to pay support of
$100 per month. The court ordered that father is entitled to claim son as a dependent
for tax purposes.
The Appeal Survives Father's Death
On May 27, 2015, father's counsel filed a letter informing us that his client had
died on April 29, 2015. Father's counsel stated: "I wanted to bring this to the court's
attention so that a determination can be made as to whether or not the appeal will
survive" father's death.
On June 11, 2015, we sent a letter to counsel for both parties in which we
stated: "Custody and visitation issues are obviously rendered moot by [father's]
death. . . . It appears that the appeal survives as to the child support issues: 'In
California the rule is that the obligation of a father to support his minor child which is
fixed by divorce decree or property settlement agreement, does not cease upon the
father's death, but survives as a charge against his estate. [Citations.]' (Taylor v.
George (1949) 34 Cal. 2d 552, 556; accord, In re Marriage of Perry (1997) 58
Cal. App. 4th 1104, 1106.) If you believe that any issues other than custody and
visitation are rendered moot by [father's] death, you have until July 2, 2015, to serve
and file a supplemental letter brief explaining why this is so." Neither party responded
to our letter.
"[W]e have not received any request to . . . effect a substitution[] in light of
[father's] death. Under these circumstances, we have retained the original title of the
case." (Konig v. Fair Employment and Housing Com'n (2002) 28 Cal. 4th 743, 746, fn.
3; see Code Civ. Proc., § 377.41 ["On motion, the court shall allow a pending action or
proceeding against the decedent that does not abate to be continued against the
decedent's personal representative . . . ."]; Cal. Rules of Court, rule 8.36(a)
2
["Substitution of parties in an appeal . . . must be made by serving and filing a motion
in the reviewing court"].)
Absence of Court Reporter
Mother contends that the trial court "erred by denying [her] request to have a
court reporter for her final Paternity Trial." The contention is forfeited because she
fails to cite, and the record does not support her claim that she requested a court
reporter. (In re Marriage of Falcone and Fyke (2012) 203 Cal. App. 4th 964, 978.)
Furthermore, mother's contention is forfeited because it is unsupported by
meaningful legal analysis with citation to supporting authority. " '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.' " (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.) "To
demonstrate error, appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the claim of error.
[Citations.]" (In re S.C. (2006) 138 Cal. App. 4th 396, 408.) "When an issue is
unsupported by pertinent or cognizable legal argument it may be deemed abandoned
and discussion by the reviewing court is unnecessary. [Citations.]" (Landry v.
Berryessa Union School Dist. (1995) 39 Cal. App. 4th 691, 699-700.)
The only authority cited by mother is the following portion of Ventura County
Superior Court rule 18.00(D): "Reporting services are not available for the following
proceedings: . . . All Family Law matters, except . . . those hearings involving . . . the
Department of Child Support Services." Mother has not shown that the Ventura
County Department of Child Support Services was involved in the instant case.
The unavailability of reporting services did not mean that mother was required
to go to trial without a reporter. Ventura County Superior Court rule 18.00(D)
provides that, despite this unavailability, "the court in its discretion may order . . . the .
. . proceedings be reported by a court reporter from the Reporting Services section, if
deemed appropriate." Moreover, pursuant to rule 2.956(c) of the California Rules of
3
Court, "a party may arrange for the presence of a certified shorthand reporter to serve
as an official pro tempore reporter" if the services of an official court reporter are not
available. (Ibid.)
Calculation of Guideline Child Support
The trial court's DissoMaster calculation shows guideline child support of $157
per month payable by father. Relying on father's DissoMaster calculation, mother
contends that the guideline amount should have been at least $258 per month. Father's
and the court's DissoMaster entries are different. Father's DissoMaster report shows
wages of $3,250 for father and $1,092 for mother, health insurance premiums of $72
for father and $100 for mother, a hardship deduction of $517 for father and $258 for
mother, two federal exemptions for mother, and three for father. The court's
DissoMaster report shows wages of $3,250 for father and $1,485 for mother, health
insurance premiums of $72 for father and none for mother, a hardship deduction of
$314 for father and $157 for mother, three federal exemptions for mother, and three
for father.
Because there is no reporter's transcript of the trial, it is conclusively presumed
that the court's DissoMaster entries are correct. "Where no reporter's transcript has
been provided and no error is apparent on the face of the existing appellate record, the
judgment must be conclusively presumed correct as to all evidentiary matters. To put
it another way, it is presumed that the unreported trial testimony would demonstrate
the absence of error. [Citation.] The effect of this rule is that an appellant who attacks
a judgment but supplies no reporter's transcript will be precluded from raising an
argument as to the sufficiency of the evidence. [Citations.]" (In re Estate of Fain
(1999) 75 Cal. App. 4th 973, 992.)
In any event, mother forfeited her claim that the trial court's DissoMaster
entries were erroneous because the record does not show that she made this claim in
the trial court. (In re Marriage of Hinman (1997) 55 Cal. App. 4th 988, 1001-1002
[wife waived right to challenge the number of federal exemptions attributed to
4
husband because she failed to raise the issue in the trial court]; In re Marriage of
Whealon (1997) 53 Cal. App. 4th 132, 143-144 ["For better or worse, California child
support law now resembles determinate sentencing in the criminal law: The actual
calculation required of the trial judge has been made been so complicated . . . that, to
conserve judicial resources, any errors must be brought to the trial court's attention at
the trial level while the error can still be expeditiously corrected"].)
Deviation from Guideline Child Support
Family Code section 4056, subdivision (a)(2) provides that "the court shall
state, in writing or on the record," the reasons why the "amount of [child] support
ordered differs from the guideline formula amount." Mother contends that the trial
court "erred in deviating from the guidelines without stating a justification or
exemption on the record for doing so as required." Because there is no reporter's
transcript, mother's contention fails. Where, as here, " 'the record is inadequate for
meaningful review, the appellant defaults and the decision of the trial court should be
affirmed.' [Citations.]" (Gee v. American Realty & Construction, Inc. (2002) 99
Cal. App. 4th 1412, 1416.)
Retroactive Child Support
The court ordered father to pay child support of $100 per month commencing
on June 1, 2013. Mother argues that "guideline support should have been made
retroactive to February 14 or 15, 2013." The argument is forfeited for two reasons.
First, it is not preceded by an appropriate heading or subheading. The California Rules
of Court require that a brief "[s]tate each point under a separate heading or subheading
summarizing the point . . . ." (Rule 8.204(a)(1)(B).) "The failure to head an argument
as required by California Rules of Court, rule [8.204(a)(1)(B)] constitutes a waiver.
[Citations.]" (Opdyk v. California Horse Racing Board (1995) 34 Cal. App. 4th 1826,
1830, fn. 4.) Second, mother has failed to "present meaningful legal analysis
supported by citations to authority and citations to facts in the record that support the
claim of error." (In re S.C., supra, 138 Cal. App. 4th 396, 408.)
5
Mediation
Mother contends that the trial court erroneously "failed to call for a
recommendation from a mediator after the agreed to mediation terms were dissolved at
trial." The only mediated agreement in the record is an agreement for custody and
visitation that was signed by the parties and approved by the court on May 7, 2013.
Issues of custody and visitation are rendered moot by father's death. In any event, the
terms of the mediated agreement were not dissolved at trial. The trial court's minutes
show that the court adopted the agreement and ordered that it be incorporated into the
judgment.
Disposition
The judgment is affirmed. Father shall recover his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
6
William Q. Liebmann, Judge
Superior Court County of Ventura
______________________________
Ernest Calhoon, for Defendant and Appellant.
L. Paul Zahn, for Plaintiff and Respondent.
7