Marriage of Mitchell CA2/6 ( 2021 )

Filed 10/25/21 Marriage of Mitchell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re Marriage of NICOLE M. 2d Civil No. B308861
and CHRISTOPHER L. (Super. Ct. No. D362162)
MITCHELL (Ventura County)
NICOLE M. MITCHELL,
Appellant,
v.
CHRISTOPHER L.
MITCHELL,
Respondent,
VENTURA COUNTY DEPT.
CHILD SUPPORT SERVICES,
Intervenor.
Nicole M. Mitchell (mother) appeals from orders modifying
child support and denying her motion to set aside a prior child
support order. Mother claims that the prior order was based on
the fraud and perjury of her former spouse, respondent
Christopher L. Mitchell (father). Both parties represented
themselves in the trial court and on appeal.1 We affirm.
Factual and Procedural Background
In January 2016 the parties’ marriage was dissolved. The
parties have one child who was born in 2005. On August 13,
2019, the trial court conducted a hearing to determine the
amount of father’s child support obligation. Both parties were
sworn at the inception of the hearing. Father declared in open
court: “The only thing that’s relevant right now is my Social
Security, my Reid West income,[2] . . . [and] statements on the
income and expense declarations that I filed around the 17th.”
“I’m on Social Security benefits, and I can make $17,400. [¶] If I
exceed $17,400 in earnings, I have to pay back $1 for every $2
earned, and I was also instructed by the Social Security
department that if that amount is too much, they can actually
stop benefits. So it makes sense to me to calculate child support
based on reality.”
The court calculated father’s child support obligation based
on annual earnings of $17,640 and monthly social security
income of $1,900. The court ordered father to pay child support
of $822 per month beginning July 1, 2019.
In December 2019 mother filed a motion to set aside the
support order because it was based on father’s fraud and perjury.
Mother declared: “[Father] represented to the Court that he had
1We deny mother’s motion to strike father’s brief for failure
to comply with the California Rules of Court.
Father was an instructor at Reid West Golf Academies in
2
Phoenix, Arizona.
2
retired and was taking his Social Security benefits and would not
earn more than the approximately $17,000 annually in extra
income that would not affect his social security benefits. In
reality, he had completed the interviewing process for the
General Manager position at Cold Springs Country Club in early
August 2019 and was offered and accepted that job. He never
disclosed this pertinent and materially significant information to
the Court, and he gave perjured testimony to, once again,
intentionally mislead the Court.” Mother attached to her motion
an announcement from Cold Springs Golf & Country Club (Cold
Springs) that father had started work as general manger on
September 17, 2019.
On September 29, 2020, the trial court conducted a hearing
(the September 2020 hearing) on mother’s motion to set aside the
child support order. The court said it had “received the financial
records on three accounts” and “nothing else was submitted.”
Mother did not object to the court’s statement. The court
continued: “[T]he motion filed and the attached documents
show[] that [father] began his employment at Cold Springs Golf
and Country Club September 17, 2019. . . . Based upon
[mother’s] pleadings and assuming that everything alleged in the
pleading[s] was proven true, the motion is denied. [¶] The new
employment reference began in September of 2019. There is no
basis to alter the amount of child support as ordered based on the
incomes established” at the August 13, 2019 hearing. “So based
upon the pleadings, that motion is denied.”
Mother interjected, “I would like to point out that from the
documents that were subpoenaed from Cold Springs, [father] was
given the offer of employment on August 6[, 2019],” seven days
before the August 13, 2019 hearing. The court replied, “That’s
3
irrelevant.” Mother did not say when father had accepted the
offer.
The court’s signed order denying mother’s motion states:
“Mother’s Motion to set aside child support order . . . based upon
fraud is denied based upon [her] pleadings. The new employment
of . . . Father began on September 27, 2019 [sic, it began on
September 17, 2019]. Assuming all aspects of [mother’s] pleading
was true, there would be no factual basis to alter the child
support amount based upon income as determined” at the
hearing on August 13, 2019.
On December 10, 2019, mother filed a request to modify
child support. The court considered this request at the
September 2020 hearing. The trial court ordered father to pay
child support of $931 per month for the period from December 1,
2018 through June 30, 2019, and $1,314 per month effective
January 1, 2020. The court did not modify the previously ordered
child support of $822 per month from July 1, 2019 through
December 31, 2019.
Standard of Review for Ruling on
Motion to Set Aside Support Order
Mother’s motion was made pursuant to Family Code
section 3691, which lists the grounds for setting aside a support
order. The grounds include actual fraud and perjury. (Id., subds.
(a), (b).) Family Code section 3690, subdivision (a) provides, “The
court may, on any terms that may be just, relieve a party from a
support order . . . based on the grounds, and within the time
limits, provided in this article.” (Italics added.) The use of the
word “may” indicates that the court has discretion whether to set
aside a support order. Family Code section 3693 provides that
“the court has discretion to set aside the entire [support] order, if
4
necessary, for equitable considerations.” Accordingly, we apply
the abuse of discretion standard of review to the denial of
mother’s motion to set aside the prior child support order.
“‘[W]here a trial court has discretionary power to decide an
issue, an appellate court is not authorized to substitute its
judgment of the proper decision for that of the trial judge. . . .
“‘The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason . . . .’” [Citations.]’” (In re
Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1386; see also
Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773 [“A ruling that constitutes an abuse
of discretion has been described as one that is ‘so irrational
or arbitrary that no reasonable person could agree with it’”].) We
view the evidence “most favorably” in support of the court’s ruling
and “indulg[e] all reasonable inferences in its favor.” (In re
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)
We “focus[] on what was presented to the trial court at the time it
made its decision.” (People v. Greenberger (1997) 58 Cal.App.4th
298, 343.)
Motion to Augment the Record
Mother has moved to augment the record to include
subpoenaed records relating to father’s employment by Cold
Springs. We deny the motion because the records were not before
the trial court when it ruled on mother’s motion to set aside the
child support order. “Augmentation does not function to
supplement the record with materials not before the trial court.”
(Vons Companies, Inc. v. Seabest Foods, Inc., (1996) 14 Cal.4th
434, 444, fn. 3, impliedly abrogated on other grounds in Bristol-
Myers Squibb v. Superior Court (2017) __ U.S. __, [137 S. Ct.
1773, 1781].) At the hearing on mother’s motion, the court said it
5
had “received the financial records on three accounts” and
“nothing else was submitted.” Mother did not object. The court’s
denial order states that it is “based upon [mother’s] pleadings.”
The order does not mention the subpoenaed records.3
The Trial Court Did Not Abuse Its Discretion
in Denying Motion to Set Aside Support Order
Perjury
Mother’s motion to set aside the child support order was
based on father’s alleged perjury and actual fraud. Mother
forfeited her claim that the trial court had erroneously denied her
motion on the perjury ground. When the court ruled at the
September 2020 hearing, it mentioned only the fraud ground:
Mother “made that motion based on allegations of fraud. . . .
[T]he motion is denied.” The court’s subsequent written ruling
mentions only the fraud ground: “Mother’s Motion to set aside
child support order . . . based upon fraud is denied based upon
[her] pleadings.” Mother failed to preserve the perjury ground for
appellate review because she did not press for a ruling on this
alternate ground. “‘“[W]here the court, through inadvertence or
neglect, neither rules nor reserves its ruling . . . the party who
objected must make some effort to have the court actually rule. If
the point is not pressed and is forgotten, [the party] may be
deemed to have waived or abandoned it, just as if he had failed to
3 In his brief father states that the trial court “considered
and reviewed all the documents from the Subpoena records.” We
disregard the statement because it is not supported by citation to
the record. (Lee v. Department of Parks & Recreation (2019) 38
Cal.App.5th 206, 213 [“We may disregard any factual
contention not supported by a proper citation to the record”].)
6
make the objection in the first place.”’” (People v. Braxton (2004)
34 Cal.4th 798, 813; see also People v. Ramirez (2006) 39 Cal.4th
398, 450.)
If the trial court had denied mother’s motion on the perjury
ground, it would not have abused its discretion. “The crime of
perjury requires proof that the perjurer acted with specific intent
to make a false statement under oath.” (People v. Meza (1987)
188 Cal.App.3d 1631, 1647; see Pen. Code, § 118 [“Every person
who, having taken an oath . . . , willfully and contrary to the oath,
states as true any material matter which he or she knows to be
false . . . is guilty of perjury”].) Mother does not refer us to any
intentionally false statement by father at the August 13, 2019
hearing. At most, father did not disclose his prospective
employment. Mother claims that father “was not honest . . .
when he testified . . . that his only income moving forward would
be his Social Security benefits . . . and the non-taxable amount of
extra earnings allowed by Social Security of $17,400 annually.”
(Italics added.) But father did not testify that this would be his
situation “moving forward.” He testified that this was his
situation “right now,” i.e., at the time of the August 13, 2019
hearing. Father insisted, “[T]he amount of money that I’m going
to make later down the road . . . [is] not relevant.”4
Although mother told the court that Cold Springs had made
its offer of employment on August 6, 2019, there was no evidence
that father had accepted the offer on or before the August 13,
2019 hearing date. Until father accepted the offer, there was no
agreement and Cold Springs could withdraw its offer. Mother
4In his brief father states, “[Mother] is saying that at the
Hearing I was testifying about my future income, which is a
misrepresentation of the facts.”
7
cites no authority requiring father to disclose an offer of future
employment that he has not yet accepted.
Actual Fraud
The other ground for mother’s motion was actual fraud.
“The suppression of that which is true, by one having knowledge
or belief of the fact,” may constitute actual fraud by a party to a
contract if the suppression is accompanied by an “intent to
deceive another party thereto, or to induce him to enter into the
contract.” (Civ. Code, § 1572, subd. 3.) An intent to deceive is
required where, as here, there is no contract. “[A]n intent to
deceive . . . is the basis of actual fraud.” (Anderson v. Deloitte &
Touche (1997) 56 Cal.App.4th 1468, 1476.) “‘Actual fraud’ has
two parts: actual and fraud. The word ‘actual’ has a simple
meaning in the context of common-law fraud: It denotes any
fraud that ‘involv[es] moral turpitude or intentional wrong.’
[Citation.]” (Husky Intern. Electronics, Inc. v. Ritz (2016) 578
U.S. 882 [136 S. Ct. 1581, 1586]; see also Civ. Code, § 3294, subd.
(c)(3) [“‘Fraud’ means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a
person of property or legal rights or otherwise causing injury”].)
To constitute actual fraud, the person from whom the material
fact is concealed must act in reliance upon the concealment to his
or her damage. (Roche v. Hyde (2020) 51 Cal.App.5th 757, 820.)
The trial court did not abuse its discretion in determining
that, based on the materials before it, father did not conceal his
prospective employment with the intent to deceive mother or
deprive her of property to which she was legally entitled. The
court believed that father’s prospective employment in mid-
September 2019 had no bearing on the calculation of child
8
support at the hearing conducted on August 13, 2019. We do not
consider whether the court’s belief was legally correct. It did not
act arbitrarily or irrationally in impliedly concluding that father’s
nondisclosure of his prospective employment was motivated not
by an intent to deceive but by the same good faith belief held by
the court, i.e., father’s prospective employment was irrelevant to
the calculation of child support as of the hearing date. At the
hearing father stated, “It was my understanding that child
support is based on reality, meaning now . . . .” “The only thing
that’s relevant right now is my Social Security, my Reid West
income, . . . [and] statements on the income and expense
declarations that I filed around the 17th.”
Calculation of Child Support
from 9/17/2019 through 12/31/2019
Mother contends that, after the September 2020 hearing,
the trial court erroneously failed to modify child support for the
period from September 17, 2019, when father started his
employment with Cold Springs, through December 31, 2019.
Mother claims that the court did not follow state guidelines for
child support and did not make appropriate findings for deviating
from those guidelines.
Mother fails to establish that she asked the court to modify
child support for the period in question. The register of actions
shows that, on December 10, 2019, mother made a request to
modify child support. The request is not included in the record.
“The party seeking to challenge an order on appeal has the
burden to provide an adequate record to assess error. [Citation.]
Where the party fails to furnish an adequate record of the
challenged proceedings, his claim on appeal must be resolved
against him. [Citations.]” (Rancho Santa Fe Assn. v. Dolan-King
9
(2004) 115 Cal.App.4th 28, 46.) We cannot fault the trial court
for not modifying child support from 9/17/2019 through
12/31/2019 if mother failed to request modification for this period.
Even if mother had requested modification of child support
for this period, she impliedly withdrew the request at the
September 2020 hearing. The trial court said, “Now, moving on
[from mother’s motion to set aside the child support order] to the
Request for Order for modification of child support filed by
[mother] December 10, 2019. That would have an effective date of
January 1, 2020.” (Italics added.) Mother failed to object that
she was requesting that the effective date be September 17, 2019,
not January 1, 2020. Later the trial court declared, “Right now,
so that I stay on track, . . . we are dealing strictly January 1,
2020, until now. That’s it.” Mother again failed to object. “‘“‘An
appellate court will ordinarily not consider procedural defects or
erroneous rulings, in connection with relief sought or defenses
asserted, where an objection could have been but was not
presented to the [trial] court by some appropriate
method . . . . [T]he explanation is simply that it is unfair to the
trial judge and to the adverse party to take advantage of an error
on appeal when it could easily have been corrected at the
trial.’ . . .”’” (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)
Mother’s Remaining Claims
Mother claims that, in calculating child support after the
September 2020 hearing, the trial court erroneously omitted
father’s 2020 social security income and erroneously provided
him with “deductions for expenses for which no concrete proof
was provided.” The claims are forfeited because mother failed to
show that she had raised them below. (In re Marriage of Hinman
(1997) 55 Cal.App.4th 988, 1002 [mother forfeited “her right to
10
challenge the computation of the child support award on appeal”
because she failed to raise below the alleged errors in the
computation]; In re Marriage of Calcaterra & Badakhsh (2005)
132 Cal.App.4th 28, 37, bracketed material in original [“‘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 so
complicated [citation] that, to conserve judicial resources, any
errors must be brought to the trial court’s attention at the trial
level while the [theoretical] error can still be expeditiously
corrected’”]; Hogoboom & King, Cal. Practice Guide--Family Law
(The Rutter Group June 2021 update) ch. 6-A, ¶ 6:499:13 [“a
party preserves the right to challenge the computation
of formula support only if alleged calculation errors . . . are
brought to the trial court’s attention; otherwise, the errors are
waived”].)
Mother’s claims are also forfeited because the argument in
her opening brief (pages 23-24) is devoid of supporting citations
to the record. “‘Any statement in a brief concerning matters in
the appellate record—whether factual or procedural and no
matter where in the brief the reference to the record occurs—
must be supported by a citation to the record.’” (Professional
Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970.)
“Thus, ‘[i]f a party fails to support an argument with the
necessary citations to the record, . . . the argument [will be]
deemed to have been waived. . . .’” (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246.) Mother “is not exempt from the
foregoing rules because [s]he is representing [her]self on appeal
in propria persona.” (Ibid.)
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In any event, mother’s challenge to the omission of father’s
social security income is without merit. The trial court explained
that it had excluded the income because “[o]n 5/21/20, the Social
Security Administration informed . . . Father that he had
received an improper overpayment in 2020 and the money was to
be refunded. If the money was used in the calculation [of child
support,] . . . Father would be eligible for a modification to factor
it out upon repayment to Social Security as unforeseen income
loss. So, given the Social Security Administration letter, it serves
no purpose to factor [social security income] in the equation.”
Disposition
The orders appealed from are affirmed. Father shall
recover his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
12
William R. Redmond, Judge
Superior Court County of Ventura
______________________________
Nicole M. Mitchell, in pro. per., for Appellant.
Christopher L. Mitchell, in pro. per., for Respondent.
No appearance by Intervenor.