E.E. v. E.G. CA5 ( 2020 )

Filed 11/20/20 E.E. v. E.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
E.E.,
F079489
Plaintiff and Respondent,
(Super. Ct. No. MCS011912)
v.
E.G., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Madera County. Ronda Duncan,
Temporary Judge.
E.G., in pro. per., for Defendant and Appellant.
E.E., in pro. per., for Plaintiff and Respondent.
-ooOoo-
Appellant, E.G., appeals from the trial court’s order establishing the amount of
child support arrears owed by him to respondent, E.E., under a child support order.
Appellant claims the trial court erred by failing to grant certain equitable offsets or credits
* Before Franson, Acting P.J., Smith, J. and Snauffer, J.
he requested, and/or by incorrectly determining that he failed to pay child support. We
conclude that appellant has failed to meet his burden of affirmatively demonstrating
reversible error with an adequate record and cogent legal argument. The order of the trial
court, which is presumed to be correct, is accordingly affirmed.
FACTS AND PROCEDURAL HISTORY
Appellant’s and respondent’s marriage ended by divorce in 2010. They had three
children. Their oldest child was born in March 1994; the middle child was born in July
1996; and their youngest child was born in November 1999.
A child support order was issued by the trial court and required appellant to pay
respondent $1,200 per month. The monthly child support obligation was apparently to
continue until the youngest child turned 18 or graduated from high school. According to
respondent, the youngest child graduated in June 2018.
Initially, the child support payments were garnished directly from appellant’s
wages. However, in June of 2014, the parties agreed to discontinue the garnishment of
appellant’s wages. According to respondent, appellant had requested that wage
garnishment be stopped to give him an opportunity to get “back on his feet” financially,
and respondent agreed.
For several years after the parties’ divorce, appellant lived in a trailer on
respondent’s land and paid rent. According to respondent, in June of 2018 she requested
that appellant remove the trailer and leave. At that time, she also inquired about the past
child support that was still unpaid. Appellant allegedly responded that it was too late to
ask him for payment of child support, since he no longer had any child support obligation
to her now that the youngest child had graduated. At that point, respondent sought the
help and guidance of Madera County Department of Child Support Services (DCSS), and
DCSS informed her that appellant still had a legal obligation to pay her the past due child
support he owed from June 2014 to June 2018.
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A motion to enforce the child support order, and to determine the total arrears
owed by appellant to respondent, was heard by the trial court. The proceedings involved
the assistance of DCSS. The evidentiary hearing was held on April 18, 2019. At that
time, both parties testified and presented documents, and other witnesses also testified.
Following the hearing, the trial court issued its minute order. In that minute order,
wherein appellant was referred to as “Father” and respondent as “Mother,” the court
made the following findings and determinations: “Father is to receive $1,200.00 credit
for the following months: June of 2015, 2016, and 2017. [¶] Father is to receive
Jackson credits of $1,200.00 for the following months: November and December of
2017, also, January, February, and March of 2018. [¶] Any other credits provided by the
mother, shall remain provided.… [¶] DCSS is to prepare a new audit that will become
the Court’s Order, which is to be mailed to the parties and provided to the Court with the
Order After Hearing. [¶] As a temporary order, Father is to pay $100.00 per month on
arrears, commencing May 1, 2019.” (Italics added.)
On May 28, 2019, the trial court entered its formal written order after hearing.
The trial court’s order was prepared by DCSS and was apparently based on an attached
DCSS audit. The order provided that appellant owed child support arrears to respondent
of $44,101.24, payable by appellant in monthly payments of $100 per month, plus
interest. Payments were to be made by appellant to the California State Disbursement
Unit at an address stated in the order. The order included the finding of certain credits,
including the “Jackson credits,” that had been specified in the trial court’s April 18, 2019
minute order.
Appellant filed the present appeal from the trial court’s April 18, 2019 and May
28, 2019 orders. Since the May 28, 2019 order became the final order of the court on all
matters adjudicated below, we treat the appeal as taken from the May 28, 2019 order.
The record on appeal consists of only a clerk’s transcript. It appears that appellant
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elected to proceed with his appeal without the benefit of a reporter’s transcript, settled
statement or other record of the oral proceedings that were held in the trial court.
DISCUSSION
I. Appellant Failed to Meet His Fundamental Burden on Appeal
A fundamental principle of appellate procedure is that a judgment or order of the
trial court is presumed to be correct, and thus an appellant has the burden to demonstrate,
on the basis of the record presented to the appellate court, that the trial court committed
an error that justifies reversal. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557,
564; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409.) “All intendments
and presumptions are indulged to support [the order appealed from] on matters as to
which the record is silent, and error must be affirmatively shown.” (Denham v. Superior
Court, supra, at p. 564, italics added.) That is, “[i]n the absence of a contrary showing in
the record, all presumptions in favor of the trial court’s action will be made by the
appellate court. ‘[I]f any matters could have been presented to the court below which
would have authorized the order complained of, it will be presumed that such matters
were presented.’ ” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) “This general
principle of appellate practice is an aspect of the constitutional doctrine of reversible
error.” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
“ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court should be affirmed.’ ”
(Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
“Consequently, [the appellant] has the burden of providing an adequate record.
[Citation.] Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].” (Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502.)
Here, although not clearly articulated, it appears that appellant is asserting the trial
court erred in determining the child support arrears because (i) there were allegedly facts
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and circumstances indicating he was entitled to further equitable credits or offsets under
Jackson v. Jackson (1975) 51 Cal.App.3d 363 (Jackson), referred to by the trial court and
parties as Jackson credits; and (ii) there was insufficient evidence to show that he failed
to pay any child support. However, appellant has failed to provide an adequate record on
appeal regarding his assertions. In particular, the record on appeal does not include a
reporter’s transcript of the oral testimony and relevant argument presented by the parties
at the pertinent hearing before the trial court; nor does the record on appeal include the
documentary evidence presented at that same hearing. Because the record before us is
wholly inadequate to allow meaningful review of appellant’s assertions of error, they are
deemed forfeited under the authorities outlined above. (See, e.g., Gee v. American Realty
& Construction, Inc., supra, 99 Cal.App.4th at p. 1416; Hernandez v. California Hospital
Medical Center, supra, 78 Cal.App.4th at p. 502.) Therefore, the presumption in favor of
the trial court’s order prevails, and appellant’s appeal must be rejected.
Additionally, appellant has made his unsupported assertions of error in a
perfunctory and conclusory manner, without any adequate legal discussion or analysis.
This failure by appellant provides a second compelling reason for our rejection of his
appeal. It is well established that where an assertion lacks adequate legal discussion or
citation to relevant authority, we may treat it as forfeited or abandoned. (Bank of
America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1399; Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) Similarly, when arguments are
raised in a perfunctory or conclusory manner, without adequate analysis, we may pass
over them and treat them as forfeited. (Tilbury Constructors, Inc. v. State Comp. Ins.
Fund (2006) 137 Cal.App.4th 466, 482; People v. Harper (2000) 82 Cal.App.4th 1413,
1419, fn. 4; People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994)
8 Cal.4th 137, 214, fn. 19; Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699–700.) That is the case here.
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In summary, appellant’s appeal is unavailing and without merit because he has
failed to meet his fundamental burden as an appellant to affirmatively demonstrate
reversible error based upon (i) an adequate record, and (ii) adequate legal and factual
analysis. Both aspects of appellant’s burden on appeal were glaringly lacking here.
Because the trial court’s order is presumed correct, and appellant has failed to meet his
minimal burden as appellant, the presumption prevails. For these reasons, the order of
the trial court shall be and is affirmed.
II. No Showing Made That Additional Jackson Credits Required
In accordance with our conclusions stated hereinabove, and to provide further
elaboration of the defects we have noted, we briefly highlight the deficiency of
appellant’s appeal relating to the so-called Jackson credits. As mentioned above, the trial
court’s order did, to some extent, offset the total child support arrears by crediting
appellant with certain months payments as Jackson credits. Appellant apparently
believes the trial court should have done more. On this record, we disagree.
Although a trial court is without power to retroactively modify accrued child
support under an existing child support order, the court does have equitable discretion to
partially enforce the order in a way that recognizes equitable considerations. (In re
Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1016–1017.) Thus, an equitable offset
may be granted with respect to a discrete period of time that the supporting parent was
actually caring for the minor child in his or her own home, and solely bearing the expense
thereof, thereby effectively discharging his or her support obligation during that time.
(Jackson, supra, 51 Cal.App.3d 363, 368; accord, In re Marriage of Trainotti (1989) 212
Cal.App.3d 1072, 1074–1075; see Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853,
858–859.) This has been referred to as a Jackson credit or offset.
As noted, the trial court exercised its equitable discretion by expressly recognizing
that the total arrears owed by appellant would be offset pursuant to Jackson, with respect
to certain months identified in the order. Presumably, as to those months, there was some
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evidence presented in the trial court that appellant was solely caring for the party’s minor
child at his own expense during those months. Appellant argues on appeal that further
credits or offsets should have been granted, but there is no record of any evidence to
possibly support that contention. Appellant’s argument is no more than a bare assertion,
and thus no error or abuse of discretion has been shown. And even if appellant could
somehow point to one part of the totality of the evidence that arguably supported his
argument, the trial court was not required to credit or value it. Either way, the appeal
would fail.
DISPOSITION
The order of the trial court is affirmed. Respondent is entitled to recover her costs
on appeal.
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