D.M. v. G.P. (In re Marriage of D.M.)

• Decision Date: 15 June 2021
• Docket Number: D076395
• Parties: In re the Marriage of D.M. and G.P. D.M., Appellant, v. G.P., Respondent.
• Court: California Court of Appeals Court of Appeals

In re the Marriage of D.M. and G.P.D.M., Appellant, v. G.P., Respondent.

D076395

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

June 15, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. D554885)

APPEAL from an order of the Superior Court of San Diego County, John B. Scherling, Judge. Affirmed.

Stephen Temko for Appellant.

Gemmill & Associates and Sondra P. Gemmill; Garrett Clark Dailey for Respondent.

Appellant D.M. (mother) appeals from an order modifying and reducing the amount of child support paid by respondent G.P. (father) from a stipulated amount of $6,500 per month to $3,307 per month. She contends father did not meet his burden to demonstrate a material change of circumstances so as to support the family court's order. She further contends father did not prove their child's financial needs had diminished under In re Marriage of Usher (2016) 6 Cal.App.5th 347 (Usher), and he cannot do so where the evidence assertedly shows the child would be ejected from mother's home as a result of the court's order. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The record consists of a clerk's transcript and a settled statement; there is no reporter's transcript. Our factual background is drawn from the limited record and settled statement. "[W]e recite the facts in the light most favorable to the prevailing party . . . ." (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 747.) We will presume the court made all findings of ultimate fact necessary to support the judgment for which substantial evidence exists in the record. (See McMillin Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 532, fn. 21 [summarizing doctrine of implied findings].)¹

The parties divorced after a marriage lasting two and a half years. In March 2017, they entered into a stipulation that father would pay mother $6,500 per month in child support. This was more than the statutoryguideline support amount² of $2,200 per month, which was calculated based on father's $29,166 in monthly wages and salary and 50 percent custody of their child. The parties acknowledged father's income included dividend and/or return of capital that "fluctuates greatly." The court accordingly ordered father to pay $6,500 per month in child support effective April 1, 2017.

About two years later, father, who was then 82 years old, requested an order to reduce the amount of child support to the guideline amount of $3,456 per month. Father's guardian ad litem, Leigh Galyon, submitted a supporting declaration stating that father was in "deteriorating health" and "was recently diagnosed with Parkinson's and is in the process of learning what that means for his future both medically and emotionally." She averred he "does suffer from some short term memory loss and cannot recall the circumstances surrounding the negotiation of the current child support amount. [Father's] monthly expenses are increasing dramatically as he will be required to have in home nursing care on a part time basis, he will likely need to hire a driver, and he is required by [mother] to have supervision for his visitation with [the child]." Galyon stated that she had prepared aDissoMaster³ calculation showing father's income, dividends and capital gains, a five percent timeshare for father, and income imputed to mother of $2,080.⁴

Mother, who was then 37 years old, opposed the request. In a supporting declaration, she discussed her and father's 2016 and 2017 meetings with a family law facilitator and their agreement that father pay $6,500 in monthly child support. She explained the parties agreed $6,500 was the amount in their child's best interests to maintain their standard of living and the child's needs would be adequately met by that amount. She stated the child's standard of living including a rental home in the child's school district and "extensive international travel." Mother stated that in 2018, she informed father of her intention to move to Finland. She also discussed her current husband's job, explaining they were not married to each other in 2017 when support was calculated, and that she worked from home as an artist. Mother stated, "The only reason [father] is requesting modification of this amount is that he has a Guardian ad Litem who has taken it upon herself to declare that the amount [he] agreed to pay is somehow unjust. [Father] may legitimately oppose my move-away request,but his supposed opposition to paying me child support in an amount he agreed to pay is purely for the purpose of retribution by his Guardian ad Litem . . . ."

The hearing took place in May 2019. Galyon testified that father recently was diagnosed with Parkinson's and the onset of dementia. She testified that as a direct result of his diagnosis his daily living expenses had increased. She stated he specifically needed a visitation supervisor, a $400-per-hour guardian ad litem, a power of attorney to monitor and take charge of his finances, a caregiver, and a driver because his driving privileges were revoked for medical reasons. Galyon also testified father was required to pay for minor's counsel.

Mother did not object to Galyon's testimony. She testified that she signed her current apartment lease through July 31, 2019, in reliance on the $6,500 per month support order.

Father's counsel argued father's increased expenses constituted a change of circumstances. Mother's counsel argued Galyon's testimony was speculative or lacking in any factual basis (as to the costs of a professional supervisor and increase in medical costs) and irrelevant (as to costs of litigation, particularly minor's counsel). Counsel argued father's representative worked for free, the parties had no agreement for overnight visitation, and father did not produce receipts to support the existence of his new expenses. Father's counsel was unable to say whether father's power of attorney required compensation.

After considering the declarations, testimony and arguments of counsel, the family court modified the support order. It found there were material changed circumstances since the March 28, 2017 judgment to modify the parties' above-guideline child support order, "including that[father's] medical condition (post-judgment diagnoses of Parkinson's and dementia) required the appointment of a Guardian ad Litem on February 27, 2019[,] and another third party with a financial power of attorney, and [father] now has increased expenses including supervised visitation, a guardian ad litem and advancing costs of minor's counsel." Using the DissoMaster computer program, it found guideline support was $3,307 per month. The court found "[b]ased on the foregoing circumstances and considering the best interest of the child, pursuant to [Family Code section] 4057[, subdivision] (b)(5) the court deviated upward and continued the current $6500 [per] month in child support through the month of July 2019, when [mother's] lease expired. Beyond July 2019, however, the court did not find that [mother] demonstrated by a preponderance of the evidence that guideline support is unjust or inappropriate under the circumstances of this case." The family court ordered father to pay guideline child support of $3,307 effective August 1, 2019, finding it was in the best interests of the child considering the parties' current circumstances.

The court provided only an oral statement of decision. It initially entered its findings and order after hearing in June 2019. In August 2019, mother filed a notice of appeal from that order. The court then entered amended findings and order after hearing in September 2019.⁵

DISCUSSION

I. Claim of Inadequate Record

We begin with father's claim that the record is inadequate for this court to review the family court's findings and order after hearing. He asserts the parties have been litigating a long time, pointing to the 15-page register of actions and the fact that mother includes only seven pleadings out of "hundreds . . . ." He argues the settled statement is deficient in that mother left blank a section in the Judicial Council form settled statement asking her to explain why the family court's order was not supported by substantial evidence; she did not list any errors of law or procedure; and she did not object to Galyon's testimony. According to father, this court should affirm the order given the presumption of correctness and mother's failure to provide a reasonable record.

We are not convinced by father's bare assertion that mother's record is inadequate because she included only seven pleadings out of many. The record includes father's request for order and Galyon's declaration in support, the parties' original stipulation and 2016 DissoMaster calculation, a 2019 DissoMaster calculation, father's income and expense declaration, mother's responsive declaration, mother's counsel's supporting declaration, mother's income and expense declaration, and mother's points and authorities in opposition to the request for order. Father does not explain and we see no reason why these pleadings are not enough for this court to assess the court's order on father's request to reduce his child support obligation.

Nor are we convinced that the settled statement is insufficient because mother did not fully fill out the Judicial Council form, which states it is "Approved for Optional Use." (See Judicial Council form APP-014; In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 165 [discussing differencebetween mandatory and optional judicial council forms].) Appellant could choose to use it but need not. A settled statement is "a summary of the superior court proceedings approved...