Marriage of Hernandez CA1/5

Filed 7/28/16 Marriage of Hernandez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re the Marriage of EDWARD and
KAREN HERNANDEZ.
EDWARD HERNANDEZ,
A141188
Respondent,
v.
(Sonoma County
KAREN HERNANDEZ, Super. Ct. No. SFL-30948)
Appellant.
In this contentious family law proceeding, Edward Hernandez moved for
modification of child and spousal support obligations after losing his job. The parties
conducted discovery, and the family court took testimony over six hearing dates. By
written order, the court imputed income to Karen Hernandez, declined to impute income
to Edward,1 and granted modification of both child and spousal support. Karen appeals,
alleging misapplication of the law, abuse of discretion, and judicial bias. We affirm.
I. BACKGROUND
The parties married in 1976, and separated in 2005. The court granted a marital
status dissolution in 2008, and judgment on reserved issues was entered on December 8,
2009, including orders establishing child and spousal support. At the time of the
1
Consistent with appellant’s briefing and the trial record, we refer to the parties by
first name to avoid confusion. No disrespect is intended.
1
proceedings at issue here, one minor child of the marriage (a son) was living with Karen
and receiving child support from Edward.
Edward was licensed as a registered nurse and worked as a psychiatric nurse until
he lost his job in January 2011. He moved for modification of his child and spousal
support obligations the following February. Karen opposed, alleging that Edward was
willfully unemployed. An interim temporary support order was entered by stipulation in
April 2012.
The court received evidence over six days between May 25 and August 16, 2012.
Both parties testified. The evidence focused on employment available to both parties,
and the question of whether income, for support purposes, should be imputed to either or
both. After briefing, the matter was submitted in October 2012. The following January,
the court requested further evidence of the parties’ incomes, and a tentative decision was
issued in April 2013. Following objections by Karen, the court issued a second tentative
decision in July 2013. On October 16, 2013, the court issued an order modifying spousal
and child support (Modification Order).
The court found Edward made good faith efforts to find full-time employment and
found no factual basis to impute additional income to him. The court imputed income to
Karen in the amount of $2,000 per month. Spousal and child support was based in part
on Edward’s actual earnings from the time he lost his full-time job through the end of
trial. Edward received a credit against his child support obligation in the amount of $780
for outside financial aid received by the son during the period March 8 through June 11,
2012. Edward also received a credit against future child support of “one half of any
financial assistance the minor child may receive from third party sources.”2
II. DISCUSSION
Karen timely appealed from the Modification Order. She specifically contends the
family court abused its discretion or failed to apply the law by (1) refusing to take judicial
2
The issue is moot as to future support because the parties’ son is now over the
age of 18.
2
notice of certain documents, (2) imputing income to her but not Edward, (3) ignoring
impeachment of Edward’s testimony, (4) finding Edward made good faith efforts to find
full-time employment, (5) considering third party payments in setting child support, and
(6) denying her a fair and impartial trial, as demonstrated by an “ongoing bias” against
her in its findings.
A. Standard of Review
We review an order modifying support based upon earning capacity for an abuse
of discretion. (In re Marriage of Berger (2009) 170 Cal. App. 4th 1070, 1079.) “[W]e
consider only ‘whether the court’s factual determinations are supported by substantial
evidence and whether the court acted reasonably in exercising its discretion.’ [Citation.]
. . . ‘[W]e do not substitute our own judgment for that of the trial court, but determine
only if any judge reasonably could have made such an order.’ ” (Ibid.)
“When modifying a support order, the trial court must provide a statement of
decision explaining its ruling if requested by either parent. [Citations.] . . . [¶] ‘Under the
doctrine of “implied findings,” when parties waive a statement of decision expressly or
by not requesting one in a timely manner, appellate courts reviewing the appealed
judgment must presume the trial court made all factual findings necessary to support the
judgment for which there is substantial evidence.’ [Citations]. A party who does not
request a statement of decision may not argue the trial court failed to make any finding
required to support its decision.” (In re Marriage of McHugh (2014) 231 Cal. App. 4th
1238, 1248.) Karen did not request a statement of decision. We therefore imply all
findings necessary to support the trial court’s order.3 (Ibid.)
3
As previously noted, the family court issued a tentative decision and modified it
after objections from Karen. A statement of decision, however, is “ ‘a formal legal
document containing the factual and legal basis for the court’s decision on each principal
controverted issue for which a statement is requested. Because of the significant legal
effect of a statement of decision, Code of Civil Procedure section 632 and California
Rules of Court, rule [3.1590], provide a highly detailed process by which counsel for the
litigants can provide input into and affect the final content and language of the statement
of decision, so that the appellate court has before it the factual and legal basis for the trial
court’s determination of the issues being reviewed on appeal.’ ” (A.G. v. C.S. (2016)
3
Before addressing the merits of Karen’s claims, we first observe that Karen
ignores the most basic rules of appellate review, attempting to reargue the weight of her
evidence and challenge the credibility of Edward’s evidence. An appeal is not a “do
over” of the trial, and we are not trial judges. “[S]uch ‘factual presentation is but an
attempt to reargue on appeal those factual issues decided adversely to [her] at the trial
level, contrary to established precepts of appellate review. As such, it is doomed to
fail.’ ” (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1531.)
As the reviewing court, “[w]e resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal. 4th 342,
403.) “We review factual findings of the family court for substantial evidence,
examining the evidence in the light most favorable to the prevailing party. [Citation.] In
reviewing evidence on appeal, all conflicts must be resolved in favor of the prevailing
party, and all legitimate and reasonable inferences must be indulged in order to uphold
the trial court’s finding. [Citation.] In that regard, it is well established that the trial
court weighs the evidence and determines issues of credibility and these determinations
and assessments are binding and conclusive on the appellate court.” (In re Marriage of
Hill & Dittmer (2011) 202 Cal. App. 4th 1046, 1051–1052.)
Karen invokes what she characterizes as the “exception” on appellate review for
testimonial evidence that is “inherently improbably or incredible.” Her effort is wasted.
Before evidence can be disregarded as inherently improbable, a physical impossibility of
the evidence being true must exist, or its falsity must be apparent without any resort to
246 Cal. App. 4th 1269, 1282–1283.) The parties in some respects treated the July 2013
tentative decision as a statement of decision. But the court subsequently directed
Edward’s counsel to prepare a statement of decision. Edward’s counsel submitted a
proposed order entitled, “Order Upon Statement of Decision Re Modification of Spousal
Support, Modification of Child Support and Attorneys Fees,” which set forth only the
ultimate rulings on support. Karen made no further objection, and the court adopted the
proposed order and entered it as the Modification Order. To the extent that specific
findings were made by the court in the July 2013 tentative decision, we will look to those
findings. To the extent specific findings were not made or requested, we apply the
doctrine of implied findings. (Id. at p. 1282.)
4
inferences or deductions. (Collier v. Los Angeles Ry. Co. (1943) 60 Cal. App. 2d 169,
174.) The evidence which Karen details in her brief merely discloses conflicts in the
testimony. “But conflicts, whether substantial or otherwise, are wholly insufficient to
warrant a reviewing court in substituting its opinion for that of the trial court.” (Hurley v.
Smith (1955) 137 Cal. App. 2d 630, 632.) “ ‘ “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends.” ’ ” (People v.
Maciel (2013) 57 Cal. 4th 482, 519.) “This rule also applies to conflicts and
inconsistencies in the testimony of an individual witness.” (Howard v. Howard (1954)
128 Cal. App. 2d 180, 184.)
Moreover, Karen misapprehends application of the rule and cites no appellate case
reversing a trial court’s witness credibility determination. “The inherent improbability
rule, like the clear and convincing evidence rule [citation], is a statement of the power of
the trial judge; it is not a doctrine of appellate review. The appellate court will not
substitute its evaluation of the credibility of witnesses even though to some triers of fact
the evidence ‘would have seemed so improbable, impossible and unbelievable’ as to
compel a contrary judgment.” (3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at
Trial, § 103, p. 161.)
Karen concedes that, absent reconsideration of the trial evidence’s weight, she
“would be finished in as much as [Edward] has testified and the Court has relied upon
that testimony.” She is correct. We find nothing in the evidence that is “ ‘ “unbelievable
per se,” ’ physically impossible, or ‘ “wholly unacceptable to reasonable minds.” ’ ”
(Oldham v. Kizer (1991) 235 Cal. App. 3d 1046, 1065.) We decline Karen’s invitation to
usurp the role of trial judge in this matter.
B. Request for Judicial Notice
On the first day of trial, Edward requested judicial notice of a November 2008
statement of decision filed by an earlier assigned judge, Judge Cerena Wong. Karen then
sought judicial notice of an earlier tentative statement of decision by Judge Wong, and of
5
Karen’s objections to that tentative statement. Karen argued the earlier tentative
statement in combination the November 2008 statement of decision evidenced pejorative
statements concerning Karen’s credibility and a “draconian” child custody order, which
Karen was entitled to use as evidence of Judge Wong’s bias against her. The court
denied Karen’s request, finding the requested evidence to “have no value to this Court, or
to any relevant issue involved in this litigation.”4
Karen contends the court abused its discretion in denying judicial notice of the
tentative statement of decision and her objections to it, asserting judicial notice was
mandatory because the documents were part of the court’s file. Evidence Code section
452, subdivision (d), permits judicial notice of “Records of (1) any court of this state or
(2) any court of record of the United States or of any state of the United States.” Karen
argues that judicial notice of such records is mandatory under Evidence Code section
453,5 once proper request is made and notice given. She is incorrect.
“ ‘Although a court may judicially notice a variety of matters [citation], only
relevant material may be noticed.’ ” (Aquila, Inc. v. Superior Court (2007)
148 Cal. App. 4th 556, 569.) The court here—near the conclusion of trial and having
heard extensive evidence—found the requested documents were not relevant to any
disputed issue before it. Karen asserts the offered documents would lead to a conclusion
that Judge Wong exhibited bias against her. “When judicial notice is taken of a
document, however, the truthfulness and proper interpretation of the document are
disputable.” (StorMedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9.) A
4
It is not clear, either from the record or briefing, for what purpose Edward’s
counsel offered the November 2008 statement of decision. The limited record colloquy
indicates that Edward’s counsel sought to question the parties as to their compliance with
Judge Wong’s custody order—an issue not relevant here. The court apparently allowed
introduction of the 2008 statement of decision as an exhibit over Karen’s objection.
5
“The trial court shall take judicial notice of any matter specified in Section 452 if
a party requests it and: (a) Gives each adverse party sufficient notice of the request,
through the pleadings or otherwise, to enable such adverse party to prepare to meet the
request; and (b) Furnishes the court with sufficient information to enable it to take
judicial notice of the matter.” (Evid. Code, § 453, italics added.)
6
court does not take judicial notice of the truth of factual matters which might be deduced
from noticed material “ ‘ “since in many instances what is being noticed, and thereby
established, is no more than the existence of such acts and not, without supporting
evidence, what might factually be associated with or flow therefrom.” ’ ” (Aquila, Inc., at
p. 569.) Even if the existence of the tentative decision and Karen’s objections to it were
somehow relevant (and Karen does not explain why), the inferences and conclusions
Karen sought to draw from the documents would not be judicially noticeable. (Tenet
Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal. App. 4th 821, 836
[existence of a document may be judicially noticeable, but not the truth of statements
contained therein or the proper interpretation of the document].)
C. Imputed Income
“In computing child support obligations under the statewide uniform guidelines,
the trial court has discretion to impute income to either parent based on that parent’s
‘earning capacity.’ [Citations.] The Family Code also permits the court to consider a
party’s present or future ‘earning capacity’ as a factor in determining spousal support.”
(In re Marriage of Cohn (1998) 65 Cal. App. 4th 923, 927; Fam. Code, § 4320, subds. (a),
(c).) “[F]or purposes of determining support, ‘earning capacity’ represents the income
the spouse is reasonably capable of earning based upon the spouse’s age, health,
education, marketable skills, employment history, and the availability of employment
opportunities.” (In re Marriage of Simpson (1992) 4 Cal. 4th 225, 234.) “ ‘ “ ‘Earning
capacity is composed of (1) the ability to work, including such factors as age, occupation,
skills, education, health, background, work experience and qualifications; (2) the
willingness to work exemplified through good faith efforts, due diligence and meaningful
attempts to secure employment; and (3) an opportunity to work which means an
employer who is willing to hire.’ ” ’ ” (Cohn, at pp. 927–928; In re Marriage of Regnery
(1989) 214 Cal. App. 3d 1367, 1372.) “[E]arning capacity may only be considered when a
parent unreasonably fails to avail himself or herself of employment possibilities.” (In re
Marriage of Padilla (1995) 38 Cal. App. 4th 1212, 1217.) “[I]n fixing support, courts
have looked solely to the actual income, rather than the earning capacity, of the
7
supporting spouse in cases where the record demonstrated that a reduction in the
supporting spouse’s income was attributable to circumstances beyond the spouse’s
control.” (Simpson, at p. 232.)
1. Edward’s Income
In addition to her attack on Edward’s credibility, Karen insists that the trial court
misapplied the law in declining to impute income to Edward, but she fails to articulate
how it did so. Absent reasoned argument, and citation to authority, the claim is waived.
(Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 784–785.) Her claim also fails
on the merits.6
Edward was 56 years old at the time of trial, held two bachelor’s degrees and
master’s degrees in business administration and public health. He was licensed as a
registered nurse, and worked as a psychiatric nurse. Following loss of his full-time
position at John George Psychiatric Pavilion in January 2011, Edward worked for Accent
Care as a home health nurse from March 8, 2011 to March 2, 2012. He was paid on a per
visit basis and earned an average of $1,208 per month. While unemployed, each month
Edward received approximately $1,800 in unemployment compensation and an average
6
Karen also contends the court erred in permitting Edward to deduct health
insurance premiums in computing the amount of his income that was available for
support. She acknowledges the Family Code provides for deductions from gross income
of certain items, including actual amounts attributable to health insurance or health plan
premiums for the parent. (Fam. Code §4059, subd. (d).) Karen bases her objection to
Edward’s deduction on statements in his trial court briefing that medical insurance was
provided through his current wife’s employer. Suggesting this is an issue of first
impression, she argues that the “proper interpretation of [Family Code] section 4059”
would require the claiming party to pay such premiums out of his or her own separate
income, and not household income. Karen provides no discussion or elaboration of why
her preferred interpretation is the “proper” one. Edward argues that she waived this issue
by failing to properly raise it in the trial court or to adequately object to the court’s
tentative decision. We need not address Edward’s arguments because Karen admits she
can find no authority in support of her position, and she provides no reasoned argument
on why we should read this requirement into the statute. Again, absent reasoned
argument and citation to authority, the claim is waived. (Badie v. Bank of America,
supra, 67 Cal.App.4th at pp. 784–785.)
8
of $1,929 in pension/retirement payments. He found a part-time job on June 11, 2012, at
St. Helena Hospital in Vallejo (80 hours/$3,863.20 per month). At the time of trial, his
monthly income was $5,310, including his pension benefits.
Edward testified that during his employment with Accent Care he sought a full-
time position within the company, and he continued to search for other job opportunities
on websites and at local hospitals. He never rejected an interview and never refused to
apply for a position he became aware of during this period. He applied for positions
posted online or through nurse registries and planned to continue to look for a full-time
position. Edward did not dispute his ability to work and asserted his willingness to do so.
As noted ante, the court found, based on this trial testimony, that Edward was making
good faith efforts to find further employment and declined to impute income to him.
Karen cites no authority for the proposition that the court was required to impute income
to Edward under these circumstances, and she fails to show the court abused its discretion
in refusing to do so.
2. Karen’s Income
Karen objects to the court’s imputation of any income to her and argues the
finding she had the ability to earn additional income is speculative and unsupported by
the evidence. Karen contends she had neither the opportunity nor the ability to earn at
the level imputed to her, and imputation of income to her was “punitive.” We find the
evidence sufficient to support imputation of income to Karen, and the court did not abuse
its discretion in doing so.
“To rely on earning capacity in lieu of actual income ‘[t]he dispositive question is
whether the evidence will sustain the inference that the party charged with support could,
with reasonable effort, obtain employment generating the postulated (higher) income.’ ”
(Cohn, supra, 65 Cal.App.4th at p. 930.) “The parent seeking to impute income must
show the other parent has the ability or qualifications to perform a job paying the income
to be imputed and the opportunity to obtain that job, i.e., there is an available position.
The parent seeking to impute income, however, does not bear the burden to show the
9
other parent would have obtained employment if it had been sought.” (In re Marriage of
McHugh, supra, 231 Cal.App.4th at pp. 1246–1247.)
We again start with the presumption that the court’s orders are correct. (In re
Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1133.) We apply “the familiar tenets of
the substantial evidence rule, ‘ “In reviewing the evidence on . . . appeal all conflicts must
be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences
indulged in [order] to uphold the [finding] if possible.” ’ ” (In re Marriage of Bonds
(2000) 24 Cal. 4th 1, 31.) “[T]he burden is on the appellant ‘to demonstrate that there is
no substantial evidence to support the challenged findings.’ [Citations.] A recitation of
only [the appellant’s] own evidence or a general unsupported denial that any evidence
sustains the findings is not the ‘demonstration’ contemplated under the rule. An
appellant ‘is required to set forth in his brief all of the material evidence on the point and
not merely his own evidence. If this is not done, the error assigned is deemed
[forfeited].’ ” (Green v. Green (1963) 215 Cal. App. 2d 31, 35.)
At the time of trial, Karen was 54 years old and in good health. She held a Ph.D.
in marriage and family therapy and a California license to practice marriage and family
therapy. She also held pilot and flight instructor licenses. She owned an airplane and
operated a flight school business in Petaluma. Karen started her flight school business in
2006, initially grossing over $87,000 ($18,000 net). After she relocated to El Dorado
County, she found that she was unable to successfully develop her flight business
commuting to Bay Area. She was, however, continuing to offer flight lessons and
anticipated being able to generate net income of approximately $5,000 per year.
In 2011 she began working with Mental Health Net, a Department of Defense
contractor, providing counseling services to military families. Her assignments involved
travel to military bases across the country. She was paid at a rate of $40 per hour,
exclusive of expense per diem allowances. She testified “numerous assignments over the
summer months” were available for which she could make requests to work, but that it
was “awkward . . . not knowing when this court commitment is going to be finished.”
10
She had not applied for other available assignments outside the United States because her
son was then 16 years old and in college.
Karen submitted evidence of a significant number of other job applications and
responses. The court found that “the vast majority of the applications were to positions
for which Karen did not have the requisite experience” and that her “shotgun unfocused
approach suggests a job search more designed for appearances than success.” The court
questioned whether Karen was “truly attempting to seek employment in her chosen field
of mental health therapy,” and found her job search evidence “somewhat disingenuous.”
The court relied exclusively on Karen’s recent contract work as an marriage and
family therapist in determining her earning capacity and imputing income, finding that
she earned annualized income of $30,000 from this employment, and setting the imputed
income at $2,000 per month (rather than $2,500 per month) based on what she had earned
when actively pursuing such assignments. Karen acknowledged that work assignments
were regularly posted for which she could have applied, but for the then-active litigation.
The court found that Karen’s job search evidence “support[ed] a contention that there
were a number of jobs available in her geographic area for someone with licensing and/or
experience in mental health counseling.”
Karen also agreed at trial that it was appropriate to impute income to her—she
simply disagreed as to the amount. She suggested that the court continue to impute
income to her at the net amount of a full-time minimum wage job, or $1,500 per month.
The court ultimately set Karen’s income for support purposes at $3,310 per month,
including Karen’s share of Edward’s retirement benefits and her anticipated income from
flight instruction. Karen fails to demonstrate that the court abused its discretion in doing
so. The court then specifically enumerated and applied the Family Code section 4320
factors in setting spousal support. The court set support at $50 per month for the period
from February 9 to March 8, 2011 (when Edward was unemployed),7 at $150 per month
from March 8, 2011, to March 7, 2012 (when Edward was employed at Accent Care),
7
No income was imputed to Karen for this period.
11
and at $250 per month thereafter. Karen does not separately assert that these
determinations were erroneous.
3. Absence of Best Interest Findings
Karen argues the court failed to consider their son’s best interest when declining to
impute income to Edward and imputing income to her. She points to the lack of
discussion in what she refers to as the court’s “statement of decision”—the July 2013
tentative decision. Karen is correct that the court’s determination of earning capacity
must be “consistent with the best interest of the child[].” (Fam. Code, § 4058, subd. (b);
In re Marriage of Lim & Carrasco (2013) 214 Cal. App. 4th 768, 775.) The court made
no specific findings on this issue. Even assuming this was error, and further assuming
that the tentative decision can be fairly characterized as a statement of decision 8 (see A.G.
v. C.S., supra, 246 Cal.App.4th at pp. 1282–1283), Karen failed to preserve the issue for
appeal by asking the court for findings in her objections to the tentative decision. “ ‘[A]
party must state any objection to the statement in order to avoid an implied finding on
appeal in favor of the prevailing party. . . . [I]f a party does not bring such deficiencies to
the trial court’s attention, that party waives the right to claim on appeal that the statement
was deficient . . . and hence the appellate court will imply findings to support the
judgment.’ ” (In re Marriage of Cohn, supra, 65 Cal.App.4th at p. 928.)
D. Child Support and Third Party Payments to Son
Child support awards are also reviewed for abuse of discretion. (In re Marriage of
Cheriton (2001) 92 Cal. App. 4th 269, 282.) A trial court, however, “has ‘a duty to
exercise an informed and considered discretion with respect to the [parent’s child]
support obligation . . . .’ [Citation.] Furthermore, ‘in reviewing child support orders we
must also recognize that determination of a child support obligation is a highly regulated
area of the law, and the only discretion a trial court possesses is the discretion provided
by statute or rule.’ ” (Id. at pp. 282–283.)
8
We note that Edward also characterized it in this fashion in the caption of the
Modification Order.
12
At the time of trial, the parties’ then 16-year-old son had obtained a general
education credential, allowing him to graduate from high school, and he had enrolled in
Santa Rosa Junior College.9 He first lived with a family in Santa Rosa, then leased an
apartment with another student. Karen argued that the son’s college expenses were
$1,216 per month on an annual basis, and she asked the court to order Edward to pay half
of this amount as a child support add-on. The court denied the request, finding that
Karen had unilaterally made the decision to enroll the son in college contrary to an order
of the court, and without Edward’s agreement, creating additional expense. The court
equated Karen’s actions to a unilateral decision by one parent to send a child to a private
school.10
The son qualified for need-based federal student aid (a $5,500 Pell Grant) and
waiver of certain college fees ($1,055), for a total amount of $6,555 per year. The court
found these additional funds (annualized at $520 per month) assisted both Karen and
Edward in meeting the college expenses of their son, and found it “appropriate to
attribute one-half of this sum as a deduction” from Edward’s support obligation.
Karen argues that the court lacked discretion to consider this income in
determining support. She again suggests this is an issue of first impression and then
proceeds to cite what she alleges is the “well established rule” that the assets or income of
a child may not be used to offset support payments. She cites In re Marriage of Drake
(1997) 53 Cal. App. 4th 1139, 1158, and attributes the following quote to that case: “ ‘The
child’s own estate, as such, is not a factor in computing a parent’s formula support
obligation; nor can income from the child’s separate estate be held to directly
discharge or offset a parent’s support obligation.’ [Citation.] (Emphasis added)”
That is not what the cited authority actually says. Drake dealt with consideration of trust
income as support for a disabled adult, and instead says: “We are aware that under the
guideline formula the child’s own estate, as such, is not a factor in computing the amount
9
Karen home schooled their son, but the family court ordered her to enroll him in
a “non-charter public school” after Edward objected.
10
An analogy Karen agreed was appropriate.
13
of child support owed by a parent. [Citation.] This feature of the formula reflects ‘the
legislative intent that children [should] share in the standard of living of both of their
parents’ [citations], and the principle that ‘[a] parent’s first and principal obligation is to
support his or her minor children according to the parent’s circumstances and station in
life’ [citation]. Nonetheless, in suitable circumstances, the trial court may adjust
parental support obligations in light of a child’s independent income. [Citation.]
Accordingly, when a disabled adult child has independent income or assets, the trial court
has the discretion to reduce the formula-calculated amount of child support.” (Drake, at
p. 1158, first italics in original; see Hogoboom & King, Cal. Practice Guide: Family Law
(The Rutter Group 2014) ¶¶ 6:411 to 6:415, pp. 6-171 to 6-173.) We are dismayed by
Karen’s blatant misrepresentation of case authority. We find equally disturbing Karen’s
failure to acknowledge and correct this egregious misstatement when brought to her
attention in the respondent’s brief. We advise appellate counsel that we consider such
conduct to constitute not only a clear violation of the California Rules of Court, but a
serious ethical breach. This misconduct would more than justify complete disregard of
Karen’s argument on this issue. Karen, in any event, again fails to demonstrate that the
court abused its discretion in setting support under the somewhat unusual circumstances
presented here.
E. Judicial Bias
Karen concludes that her lack of success in this litigation must be the consequence
of judicial bias.11 She contends the court’s bias is evidenced by adverse evidentiary
rulings, the court’s rejection of her testimony, and the court’s “willingness to disregard
the overwhelming evidence of the falsity of [Edward’s] testimony” and “the Court’s
preference for clearly false testimony.” She asserts the court exhibited a “general disdain
for Karen and her evidence.” Conceding the absence of any authority directly supporting
her position, Karen asks us to “examine the totality of the evidence,” which she contends
11
As noted previously, her attacks are not limited to the current family court
judge.
14
demonstrates “a pervasive and ongoing pattern of bias such that she was denied a fair and
impartial trial.”
This ad hominem attack on the court is ultimately nothing more than a challenge
to the court’s credibility determinations. While we must address the issue of judicial
bias, it merits little discussion here.12 First, it well settled that adverse or erroneous
rulings, especially those subject to review, do not establish a charge of judicial bias.
(People v. Guerra (2006) 37 Cal. 4th 1067, 1112, disapproved on other grounds in People
v. Rundle (2008) 43 Cal. 4th 76, 151.) When the trial court sits as a trier of fact, it is
called upon to determine if a witness is to be believed or not—that is the nature of
factfinding. (In re Marriage of Greenberg (2011) 194 Cal. App. 4th 1095, 1099.) “When
making a ruling, a judge interprets the evidence, weighs credibility, and makes findings.
In doing so, the judge necessarily makes and expresses determinations in favor of and
against parties. How could it be otherwise? We will not hold that every statement a
judge makes to explain his or her reasons for ruling against a party constitutes evidence
of judicial bias. [¶] ‘[W]hen the state of mind of the trial judge appears to be adverse to
one of the parties but is based upon actual observance of the witnesses and the evidence
given during the trial of an action, it does not amount to that prejudice against a litigant
which disqualifies him in the trial of the action. It is his duty to consider and pass upon
the evidence produced before him, and when the evidence is in conflict, to resolve that
conflict in favor of the party whose evidence outweighs that of the opposing party. The
opinion thus formed, being the result of a judicial hearing, does not amount to [improper]
bias and prejudice . . . .’ ” (Moulton Niguel Water Dist. v. Colombo (2003)
111 Cal. App. 4th 1210, 1219–1220.)
12
Claims of judicial bias are perhaps to be expected in bitterly contested and
emotionally charged dissolution proceedings—at least from self-represented parties. In
such volatile circumstances, it is not surprising that a party’s “perspective becomes
distorted.” (Green v. Uccelli (1989) 207 Cal. App. 3d 1112, 1122.) Karen, however, is
represented by appellate counsel. Such claims made by a member of the bar, if meritless,
reflect poorly on the attorney presenting them.
15
We presume the honesty and integrity of those serving as judges. (People v.
Chatman (2006) 38 Cal. 4th 344, 364.) Karen fails to demonstrate any reason for us to do
otherwise.
III. DISPOSITION
The judgment is affirmed. Karen shall bear Edward’s costs on appeal.
16
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
SIMONS, Acting P. J.
_________________________
NEEDHAM, J.
17
A141188
18