Marriage of Lockington CA4/3 ( 2013 )

Filed 12/26/13 Marriage of Lockington CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of TRICIA K. and
JAMES E. LOCKINGTON.
TRICIA K. LOCKINGTON,
G047832
Respondent,
(Super. Ct. No. 04D004637)
v.
OPINION
JAMES E. LOCKINGTON,
Appellant.
Appeal from an order of the Superior Court of Orange County, Ronald P.
Kreber, Judge. Affirmed.
James E. Lockington, in pro. per., for Appellant.
No appearance for Respondent.
* * *
Appellant James E. Lockington appeals from a trial court order granting his
application to modify his monthly child support obligations, granting respondent Tricia
K. Lockington’s application for reimbursement of additional child support expenses, and
granting Tricia’s application to modify legal custody.1 As explained below, we affirm
the court’s order because James’s failure to provide a complete record of the three-day
hearing on these applications requires us to presume the evidence presented at that
hearing supported the court’s ruling and James does not identify any legal error that
appears on the face of the appellate record.
I
FACTS AND PROCEDURAL HISTORY
James and Tricia married in 1991. They have two daughters, one born in
1998 and other in 2000. Tricia filed for divorce in May 2004 and the trial court entered a
stipulated judgment dissolving the marriage in December 2006.
The judgment awarded the couple joint legal custody and Tricia primary
physical custody with a 70/30 percent timesharing arrangement. The judgment ordered
James to pay approximately $2,000 per month in child support based on his and Tricia’s
then current incomes, and also ordered James and Tricia to share equally in (1) the
children’s uninsured health, dental, hospital, and orthodontic expenses; (2) “all day care
expenses incurred in connection with employment”; and (3) “any mutually agreed upon
in writing activities, tuition and expenses, including but not limited to fees, tuitions, room
and board, travel costs, extracurricular activities, lessons, college standard test
preparatory classes, student driver’s education class, sports, summer camp and tutoring.”
Finally, the judgment required James and Tricia to maintain the children on any
1 For clarity, “we refer to the parties by their first names, as a convenience to
the reader. We do not intend this informality to reflect a lack of respect. [Citation.]”
(In re Marriage of Balcof (2006) 141 Cal. App. 4th 1509, 1513, fn. 2.)
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employment-related group health or dental insurance at their own expense, and obtain
written consent of the other parent or a court order before beginning “any extended
course of medical, dental, orthodontic, psychiatric or psychological
treatment/counseling” for either child.
In May 2009, James and Tricia stipulated to temporarily grant Tricia sole
legal custody of the children and limit James to eight hours of supervised visitation every
other weekend while he sought treatment for a pornography addiction. The parties
agreed to resume joint legal custody once James completed his treatment and his doctors
eliminated the monitored visitation requirement.
A year later, James and Tricia entered into a second stipulation
acknowledging James had made significant progress in his treatment and restoring joint
legal custody, although the agreement also provided “[Tricia] shall continue to make all
of the decisions related to medical, dental, educational, psychological and extracurricular
activities for the children.” In addition, this stipulation required James to continue both
his treatment and monitored visitations, but stated “[i]t is the ultimate goal that [James’s]
custodial rights and time, as designated in the Judgment filed December 11, 2006, shall
eventually be reinstated, without any requirement of monitoring.” James contends the
appointed parenting coordinator removed all visitation monitoring requirements in
December 2010 and therefore all legal rights associated with his joint legal custody of the
children were restored as of that date, including his right to participate in decisions
regarding the children’s medical, dental, educational, psychological, and extracurricular
activities.
In April 2010, James filed an order to show cause asking the trial court to
reduce his monthly child support payments because he lost his job and exhausted his
financial resources by paying more than $100,000 in treatment expenses to address his
pornography addiction and attorney fees incurred in the related custody dispute. The
court denied James’s request in August 2010, and he timely appealed. In
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December 2011, we issued an unpublished opinion reversing the court’s decision and
remanding the matter for further proceedings because the court applied improper legal
standards in denying James’s request to reduce his child support payments.
(In re Marriage of Lockington (Dec. 29, 2011, G044066) [nonpub. opn.].)
On remand, James and Tricia filed supplemental papers regarding James’s
request to reduce his monthly child support payments and whether to apply any reduction
retroactively. These filings showed James had found full-time employment by
December 2011 and was making more than $10,000 per month. Tricia also filed two
applications with the trial court. The first sought an order compelling James to pay Tricia
approximately $16,000 for his one-half share of various medical, dental, orthodontic, day
care, and extracurricular activity expenses Tricia incurred for the children between
March 2010 and February 2012. Her second application sought an order granting Tricia
sole legal custody for both children because James purportedly interfered with Tricia’s
exclusive right to obtain orthodontic and other necessary care for the children and failed
to follow several earlier court orders in this action.
During July 2012, the trial court conducted a three-day hearing on James’s
request to modify child support and Tricia’s requests for reimbursement and sole legal
custody. Both James and Tricia testified during the hearing. In September 2012, the
court conducted a separate hearing to announce its tentative decision granting James’s
request to modify child support, granting Tricia’s reimbursement request in the full
amount, and granting Tricia’s request to modify custody by awarding her both sole legal
and sole physical custody. The court directed James and Tricia to file any objections to
the tentative ruling within 10 days. James filed lengthy written objections to the court’s
tentative ruling, rearguing much of the evidence presented during the three-day hearing
and asking the court for detailed written rulings on his objections to Tricia’s
reimbursement claim.
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In November 2012, the trial court issued a minute order responding to
James’s objections and modifying its tentative decision in a few respects. The court
granted James’s request to modify his monthly child support payments, reduced the
monthly payments to approximately $1,000 effective August 1, 2012, and by comparing
his actual income to the amount imposed by the statutory formula, found James had
overpaid his child support obligations by $5,832 for the period April 1, 2010, to
July 31, 2012.
The court granted Tricia’s reimbursement request except the premiums
Tricia paid to maintain the children on her employer’s health insurance. After reducing
the amount requested by those premiums and crediting James for the amount he overpaid
in child support, the court ordered James to pay nearly $6,900 to reimburse Tricia for the
various medical, dental, orthodontic, day care, and extracurricular activity expenses she
incurred for the children. The court explained that it reviewed each of the items for
which Tricia sought reimbursement, found each of them (except the health insurance
premiums) to be appropriate, and rejected James’s objections that Tricia failed to
adequately document the expenses.
The court also granted Tricia sole legal custody, but left physical custody
unchanged. The court explained it granted the request because (1) although James
completed many of the treatment obligations he agreed to undertake in earlier
stipulations, he had not completed all of them; (2) the longstanding inability of James and
Tricia to reach agreement on decisions regarding the children required one decision
maker for all matters; and (3) Tricia previously had been granted sole decisionmaking
authority regarding the children’s medical, dental, child care, and extracurricular
activities. Finally, the trial court awarded Tricia $2,200 in attorney fees. James timely
appealed.
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II
DISCUSSION
A. James’s Burden to Provide an Adequate Record and Affirmatively Establish Trial
Court Error
“A fundamental principle of appellate law is the judgment or order of the
lower court is presumed correct and the appellant must affirmatively show error by an
adequate record.” (Parker v. Harbert (2012) 212 Cal. App. 4th 1172, 1178.) “‘In 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.”’ [Citation.]” (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal. App. 4th 181, 187 (Foust).)
“It is the burden of the party challenging a judgment on appeal to provide
an adequate record to assess error.” (Nielsen v. Gibson (2009) 178 Cal. App. 4th 318, 324
(Nielsen).) Here, James provided an appellant’s appendix containing his original
application to modify child support, all moving and responding papers on Tricia’s
applications for reimbursement and sole legal custody, the trial court’s minute orders
regarding the hearings on those three applications, his objections to the court’s tentative
decision, and his exhibits from the three-day hearing on the applications. He also
provided a reporter’s transcript of the court’s tentative decision. James, however, failed
to provide a reporter’s transcript from the three-day hearing on the applications, Tricia’s
exhibits from that hearing, or any documents on his request to modify child support other
than his original application.
“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
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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.]” (Estate of Fain (1999) 75 Cal. App. 4th 973, 992; Nielsen, supra,
178 Cal.App.4th at pp. 324-325 [in the absence of a reporter’s transcript, “we ‘“must
conclusively presume that the evidence is ample to sustain the [trial court’s] findings”’
[and o]ur review is limited to determining whether any error ‘appears on the face of the
record’”].)
Indeed, “‘[t]he absence of a record concerning what actually occurred at the
trial precludes a determination that the trial court [erred].’ [Citation.]” (Oliveira v.
Kiesler (2012) 206 Cal. App. 4th 1349, 1362; Vo v. Las Virgenes Municipal Water Dist.
(2000) 79 Cal. App. 4th 440, 447 (Vo).) “‘Failure to provide an adequate record on an
issue requires that the issue be resolved against [appellant].’ [Citation.]” (Foust, supra,
198 Cal.App.4th at p. 187.)
B. James Fails to Identify Any Error in the Trial Court’s Ruling Granting His
Application to Modify Child Support
The trial court granted James’s request to modify child support, reduced his
monthly child support payments to approximately $1,000 effective August 1, 2012, and
awarded him a $5,832 credit for overpaying his child support obligations for the period
between April 1, 2010, and July 31, 2012. James does not challenge any of these rulings,
but rather asks that we affirm them and “remand to the trial court with specific
instructions to issue an order that can be understood and enforced.”
James contends the trial court’s order is deficient because it fails to identify
a specific, reduced monthly payment for the period between James’s application in
April 2010 and the court’s final ruling in November 2012, and does not provide specific
findings explaining the overpayment the court found applied to James’s child support
obligations for the period between April 1, 2010, and July 31, 2012. According to James,
these deficiencies led the Orange County Department of Child Support Services (Child
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Support Services) to conclude the court only modified his monthly child support
obligations on a prospective basis and therefore he still owed a significant amount of
child support for the period covering the overpayment. James contends he has had
numerous conversations with Child Support Services, but it will not change its records to
accurately reflect the court’s intended ruling and will continue its efforts to collect
phantom arrearages from him.
None of these contentions point to any error in the trial court’s ruling that
we may correct on appeal. James does not contend the court erred in granting his
application, reducing his monthly payments to the amount he requested, and awarding
him the overpayment he requested. He also does not contend either he or Tricia fails to
understand the court’s ruling. Instead, James complains Child Support Services
misinterpreted the court’s ruling and therefore we should order the court to clarify its
ruling. James even asks that we “direct” Child Support Services to correct their records.
We may not consider any of James’ complaints about how Child Support
Services has construed the trial court’s order because there is no evidence in the record to
support his claim and all of the events relating to Child Support Services occurred after
the court issued its order. (Truong v. Nguyen (2007) 156 Cal. App. 4th 865, 882
[“Generally, documents and facts that were not presented to the trial court and which are
not part of the record on appeal, cannot be considered on appeal. [Citation.] We also
disregard statements in the briefs that are based on such improper matter. . . . Generally,
appellate courts [also] disregard matters that occur after rendition of an appealed
judgment”]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2013) ¶¶ 8:171 to 8:173, p. 8-135, ¶ 8:176, p. 8-136.)
We therefore have no basis to intervene. Based on the trial court’s tentative
and final rulings and the exhibits it approved in making those rulings, there is no doubt
the court awarded James a $5,832 credit because it found he overpaid his child support
obligations between April 2010 and July 2012. To clarify any misunderstanding, James
8
first should ask the court to clarify its order. If the court refuses, then his remedy would
be an appeal to this court.
C. James Fails to Establish the Trial Court Erred in Ordering Him to Reimburse
Tricia for Certain Additional Child Support Expenses
1. General Principles Regarding Additional Child Support Expenses
The Family Code child support formula establishes a basic child support
amount based on each parent’s income and the parents’ timesharing arrangements.
(Fam. Code, § 4055.) The formula, however, does not account for all child care and child
rearing expenses. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter
Group 2013) ¶ 6:285, p. 6-129 (rev # 1, 2012).) The Family Code therefore authorizes a
trial court to require parents to share two additional categories of child support expenses.
(Fam. Code, §§ 4061-4063.)
The first category is commonly referred to as mandatory add-ons and it
includes two subcategories: (1) “[c]hild care costs related to employment” and
(2) “reasonable uninsured health care costs for the children.” (Fam. Code, § 4062,
subd. (a); In re Marriage of Fini (1994) 26 Cal. App. 4th 1033, 1039 (Marriage of Fini).)
As the name suggests, the court must award these expenses when they exist. (Ibid.) The
second category is commonly referred to as discretionary add-ons and it too includes two
subcategories: (1) “[c]osts related to the educational or other special needs of the
children” and (2) “[t]ravel expenses for visitation.” (Fam. Code, § 4062, subd. (b);
Marriage of Fini, at p. 1039.) Consistent with its broad authority to mitigate a decline in
the children’s standard of living postdissolution, a trial court has broad discretion
regarding the type of expenses it may award as discretionary add-ons, including a wide
variety of extracurricular activities and educational expenses. (In re Marriage of Schlafly
(2007) 149 Cal. App. 4th 747, 760-761 (Marriage of Schlafly); Hogoboom & King, Cal.
9
Practice Guide: Family Law (The Rutter Group 2013) ¶ 6:291.2, pp. 6-131 to 6-132
(rev. # 1, 2008).)
Both categories of add-on expenses are generally apportioned one-half to
each parent, but either parent may request a different apportionment based on each
parent’s income. (Fam. Code, § 4061.) A trial court has broad discretion to apportion
add-on expenses between the parents as the court finds appropriate. (Ibid.; Marriage of
Fini, supra, 26 Cal.App.4th at pp. 1039-1040.)
Based on a trial court’s broad discretion in determining which expenses to
award as add-ons and how to apportion those expenses, we review a court’s ruling
regarding add-on child support expenses under the abuse of discretion standard.
(Marriage of Schlafly, supra, 149 Cal.App.4th at pp. 760-761; Marriage of Fini, supra,
26 Cal.App.4th at pp. 1038-1039.
2. The Record Does Not Reveal Any Error in the Trial Court’s Ruling
The trial court ordered James to reimburse Tricia for a variety of mandatory
and discretionary add-on child support expenses, including orthodontic care, doctor
visits, school lunches and bus transportation, summer camps, and various sports, dance,
and other extracurricular activities. James asserts numerous challenges to the court’s
decision regarding Tricia’s reimbursement request, but each lacks merit.
First, James contends the trial court erred by failing to issue a statement of
decision explaining in detail the factual and legal basis for its ruling on every objection
James made to Tricia’s reimbursement request. James, however, never properly
requested a statement of decision from the court. During the hearing at which the court
announced its tentative decision, James requested that the court rule on each specific
objection he previously asserted to Tricia’s reimbursement request. In his written
objections to the court’s tentative decision, James again asked the court to specifically
rule on each of his objections to Tricia’s request for reimbursement: “[James] asks the
10
Court to carefully consider each objection, make a ruling for each objection, state the
reason including the appropriate legal standard or existing court order supporting each
ruling, and make a specific order for each ruling.” This is not a request for a statement of
decision, but rather a request for rulings as to specific arguments James made at trial.
Moreover, James’s request sought much more than a court is required to provide in a
statement of decision.
In a nonjury trial, a party may request the trial court issue a statement of
decision explaining the factual and legal basis for the court’s decision. (Uzyel v. Kadisha
(2010) 188 Cal. App. 4th 866, 896.) Any request must identify the particular controverted
issues on which the requesting party seeks a statement of decision. (Code Civ. Proc.,
§ 632.) “[A] statement of decision is adequate if it fairly discloses the determinations as
to the ultimate facts and material issues in the case. [Citation.] When this rule is applied,
the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a
claim. [Citation.] Ultimate facts are distinguished from evidentiary facts and from legal
conclusions. [Citations.]” (Central Valley General Hospital v. Smith (2008)
162 Cal. App. 4th 501, 513.)
“[A] trial court is not required to respond point by point to issues posed in a
request for a statement of decision.” (Ermoian v. Desert Hospital (2007) 152 Cal. App. 4th
475, 500.) Similarly, “[t]he trial court is not required to make an express finding of fact
on every factual matter controverted at trial, where the statement of decision sufficiently
disposes of all the basic issues in the case.” (Bauer v. Bauer (1996) 46 Cal. App. 4th
1106, 1118; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547, 559
[“it is settled that the trial court need not, in a statement of decision, ‘address all the legal
and factual issues raised by the parties’”].) “‘Only where a trial court fails to make
findings as to a material issue which would fairly disclose the determination by the trial
court would reversible error result.’” (Kazensky v. City of Merced (1998) 65 Cal. App. 4th
44, 67.)
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Here, the trial court’s ruling adequately disposed of the basic issues
presented by Tricia’s reimbursement request and James’s objections because the ruling
explained the court reviewed “each and every” expense for which Tricia sought
reimbursement, found all of the expenses were “proper child care cost[s],” and found
Tricia adequately supported her request for each item through her testimony and exhibits.
The court also specifically found the orthodontic expenses were reasonably necessary, the
school lunches were an appropriate child care expense, and the summer camp fees were a
reasonable alternative to child care, although the camps may have been more expensive.
Finally, based on the earlier stipulations regarding James’s treatment and child custody
issues, the court found Tricia had exclusive decisionmaking authority concerning which
add-on expenses to incur for the children’s well-being and activities during the period
covered by Tricia’s reimbursement request.
James next argues the trial court should have denied Tricia’s entire
reimbursement request because she failed to (1) establish she obtained James’s prior
written consent to the expenses as the December 2006 judgment required; (2) establish
she timely requested James reimburse her for the expenses; and (3) present sufficient
documentation supporting each expense. We must reject this challenge because James’s
failure to provide a reporter’s transcript and Tricia’s exhibits from the hearing on her
reimbursement request requires us to presume the testimony and other evidence presented
at that hearing showed Tricia obtained any required consent, timely requested
reimbursement, and adequately documented each expense. (Foust, supra,
198 Cal.App.4th at p. 187 [without a complete record, the appellate court must presume
any evidence that could have been presented to support the trial court’s ruling was
presented]; Nielsen, supra, 178 Cal.App.4th at pp. 324-325 [absent reporter’s transcript
appellate court “‘“must conclusively presume that the evidence is ample to sustain the
[trial court’s] findings”’”]; Estate of Fain, supra, 75 Cal.App.4th at p. 992 [same].)
12
We also reject this challenge because James’s failure to provide an
adequate record requires us to presume Tricia was not required to obtain James’s consent
before incurring add-on expenses during the period covered by her reimbursement
request. Although the December 2006 judgment required James and Tricia to obtain the
other’s prior written consent before incurring most add-on expenses, their May 2009
stipulation changed their rights and obligations by temporarily granting Tricia sole legal
custody of the children and their May 2010 stipulation expressly reserved sole
decisionmaking authority to Tricia concerning the children’s medical, dental, educational,
psychological and extracurricular activities, even though it otherwise restored joint legal
custody. James acknowledges the terms of these stipulations, but contends the parenting
coordinator restored his right to participate in decisions regarding the children in
December 2010. We must reject that contention because the absence of a complete
record requires us to presume the evidence did not support it. (Foust, supra,
198 Cal.App.4th at p. 187; Nielsen, supra, 178 Cal.App.4th at pp. 324-325; Estate of
Fain, supra, 75 Cal.App.4th at p. 992.) Similarly, we must reject James’s contention
Tricia did not adequately document the expenses for which she sought reimbursement
because the trial court expressly found that she did and we presume the evidence supports
that finding. (Ibid.)
Finally, James challenges specific add-on expenses for which Tricia sought
reimbursement and the manner in which the trial court allocated the expenses, but his
failure to provide a complete record requires us to presume the evidence presented at the
hearing supported the court’s ruling. (Foust, supra, 198 Cal.App.4th at p. 187; Nielsen,
supra, 178 Cal.App.4th at pp. 324-325; Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
We therefore reject these additional claims, which assert the court erred in (1) finding the
children’s orthodontic expenses were medically necessary; (2) finding school lunches
Tricia purchased for the children were proper child care expenses; (3) failing to credit
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James for $1,740 he previously paid to Tricia for add-on expenses; and (4) failing to
apportion James only 26 percent of the add-on expenses instead of 50 percent.
D. James Fails to Establish the Trial Court Erred in Awarding Tricia Sole Legal
Custody
The trial court granted Tricia’s request for sole legal custody of the children
based on its finding that James and Tricia were unable to work together in making
decisions regarding the best interest of their children and that James had failed to satisfy
all of the pornography addiction treatment conditions placed on his right to fully
participate in decisions affecting his children. The court explained James and Tricia had
attempted a joint decisionmaking process and also a process in which Tricia had
exclusive decisionmaking authority for certain decisions, but this arrangement failed to
reduce their conflict. Accordingly, the court concluded granting Tricia sole legal
custody, while still allowing James some physical custody, was in the children’s best
interest.
James contends the trial court erred because Tricia contributed to the
problems with the decisionmaking process by failing to obtain his consent and involve
him in the process as the December 2006 judgment required. According to James,
granting Tricia sole legal custody rewards her for failing to follow the original judgment.
We must reject these contentions because they seek to reargue the evidence, but James
failed to provide us a complete record of the evidence presented on Tricia’s application to
modify child custody.
The “overarching concern” in making child custody determinations is the
best interest of the children. (Montenegro v. Diaz (2001) 26 Cal. 4th 249, 255.) Indeed,
the trial court has “‘the widest discretion to choose a parenting plan that is in the best
interest of the children.’” (Ibid.) We review any child custody order under the
deferential abuse of discretion standard. (Ibid.) Similarly, a trial court’s ruling on any
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application to modify child support is reviewed for abuse of discretion. (Ibid.; Chalmers
v. Hirschkop (2013) 213 Cal. App. 4th 289, 300.)
Here, James’s failure to provide the reporter’s transcript and Tricia’s
exhibits from the hearing on Tricia’s application to modify child custody prevents us
from finding the trial court abused its discretion. (Vo, supra, 79 Cal.App.4th at p. 448
[“The absence of a record concerning what actually occurred at the trial precludes a
determination that the trial court abused its discretion”].) Indeed, in the absence of a
complete record we must presume the evidence presented supported the court’s ruling
and findings. (Foust, supra, 198 Cal.App.4th at p. 187; Nielsen, supra, 178 Cal.App.4th
at pp. 324-325; Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
James asserts a number of other conclusory challenges to the trial court’s
ruling, but fails to provide any authority or reasoned analysis to support those challenges,
and therefore we treat them as waived. (Nelson v. Avondale Homeowners Assn. (2009)
172 Cal. App. 4th 857, 862 [“‘When an appellant fails to raise a point, or asserts it but fails
to support it with reasoned argument and citations to authority, we treat the point as
waived’”]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 685 [“‘“Issues
do not have a life of their own: if they are not raised or supported by argument or citation
to authority, we consider the issues waived”’”].) “We are not bound to develop [James’s]
arguments for [him].” (In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814,
830; see Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 852.)
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III
DISPOSITION
The order is affirmed. In the interest of justice, the parties shall bear their
own costs on appeal.
ARONSON, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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