Goddard v. Christensen
| Decision Date | 24 August 2011 |
| Docket Number | 2d Civil No. B222135,Super. Ct. No. D311915 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ROBERT GODDARD, Petitioner and Appellant, v. LEE ANNE CHRISTENSEN, Respondent. VENTURA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervenor and Respondent. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Ventura County)
Robert Goddard (Robert) appeals a December 3, 2009 order reducing his child support payments from $1,000 a month to $781 a month from August 1, 2006 through June 30, 2009. (Fam. Code, § 3653. subd. (a).)1 Commencing July 1, 2009, Robert's child support payments were reduced to $370 a month. Robert contends the trial court erred in not retroactively reducing child support to zero. We affirm.
Facts and Procedural History
This appeal arises from a stipulated $1,000 child support order that was assigned to the Ventura County Department of Child Support Services (DCSS) afterRobert's children started receiving public assistance. Robert has paid no support for more than six years.
Los Angeles County Paternity Action - Stipulated Child Support
Robert and LeeAnne Christensen (LeeAnne) have a son (dob 1/20/1998) and daughter (dob 5/10/2000) born out of wedlock. In 2002, Robert filed a paternity petition in Los Angeles County requesting joint legal and physical custody of the children. (Goddard v. Christensen, Los Angeles County Sup. Ct., Case No. LF001933.) LeeAnne was unemployed and had primary custody of the children.
Pursuant to a December 10, 2002 stipulated order establishing paternity, Robert agreed to pay $1,000 a month temporary child support. The order provided that Robert would have 30 percent custody of the children.
On December 13, 2004, the Los Angeles Superior Court granted Robert 50 percent custody and denied LeeAnne's motion to move to Utah with the children. Child support remained the same, $1,000 a month, but Robert stopped paying support. June 13, 2005 Motion to Modify Child Support
On June 13, 2005, Robert filed a motion to modify child support based on the 50-50 custody order. LeeAnne, however, had moved to Ventura County where she and the children were receiving public assistance. Before the motion was heard, DCSS registered the 2002 support order in Ventura County Superior Court (Goddard v. Christensen, Ventura County Sup. Ct., Case No. D311915.) and served Robert with notice that LeeAnne had assigned the support obligation to DCSS.
On January 25, 2006, Robert appeared in Los Angeles Superior Court on his motion to modify support. Robert conceded that LeeAnne was receiving public assistance in Ventura County "which effectively deprive[s] this court of jurisdiction to determine [child support]." Robert stated that "it's been a very messy, messy, confusing, complicated case" and "the only thing I really want is to establish a proper order using imputed income and everything else." The court continued the matter to April 14, 2006, to see "if Ventura County takes it over," at which time Robert could submit an ex parte request to transfer the case to Ventura County.
On April 14, 2006, the Los Angeles Superior Court granted Robert's request to transfer the case to Ventura County. Robert paid the transfer fees and transferred the case on June 22, 2006. (Goddard v. Christensen, Ventura County Sup. Ct. Case No. SD034249.)
Motion to Consolidate and Modify Support
On July 25, 2006, Robert filed a motion in Ventura County Superior Court to consolidate the DCSS action (D311915) and paternity action (SD034249) and modify child support. Robert requested that the court reduce child support to zero, retroactive to April 25, 2005, when Robert was granted 50 percent custody. LeeAnne and DCSS and opposed the motion.
After the cases were ordered consolidated, Judge Kevin DeNoce declared a mistrial on November 20, 2008. On November 2, 2009, Judge Ellen Gay Conroy conducted a lengthy hearing on Robert's motion to modify support. LeeAnne testified that she had finished school and, starting June 11, 2009, was working full time at the California Franchise Tax Board earning $3,309 a month. LeeAnne also earned $401 a month as a part-time veterinary technician and paid $415 a month for child care.
Robert's reported income was $600 a week for the past 16 years. He worked as a heavy equipment operator for R&G Grading but claimed there was no work and that he was receiving unemployment insurance benefits. On cross-examination, Robert admitted that he was president of R&G Grading and the company paid his housing and utilities ($1,000 a month), provided a company truck ($500 a month) and paid for his cell phone ($35 a month).
Based on Robert's income history ($600 a week) and the unreported company benefits, the trial court found that Robert's imputed income was $3,600 a month. Using a DissoMaster calculation based on LeeAnne's income ($3,710 a month) and Robert's income ($3,600 a month), the trial court modified child support because "custody is equally shared" and LeeAnne was working full time. The court modified support retroactive to August 1, 2006, the first day of the month after Robert filed his motion to modify support. Robert was ordered to pay $781 a month support from August1, 2006 through June 30, 2009, and $370 a month support commencing July 1, 2009, the first day of the month after LeeAnne obtained full time employment.
Discussion
Child support modification orders are reviewed for abuse of discretion and will be reversed only if the record shows prejudicial error. (In re Marriage of Pearlstein (2006) 137 Cal.pp.4th 1361, 1371.) Robert claims the order is not supported by the evidence but waived the issue by not providing citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.)
Waiver aside, the order modifying support is clearly supported by the evidence. The trial court found that Robert's present income "is not so clear" but noted that his paycheck stubs through 9/18/09 showed $600 a week income for the past 16 years. Although Robert claimed he was just an employee of R&G Grading, Robert admitted that he is president of the company and that his mother and sister own the company but do not work for the company. Robert makes all the business decisions, sets salary levels, hires and fires employees, and is provided rent free housing ($1,000 a month), a free cell phone ($35 a month), and use of a company truck ($500 a month).
Robert claimed there was no work and that he had health problems but the trial court found Robert "totally lacking in credibility." On review, we do not reweigh the evidence or reconsider credibility determinations. (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.)
The trial court found that Robert has the current ability to earn $600 a week and receives "free rent, utilities, use of a vehicle and paid cell phone, for additional nontaxable income of $1,000.00 per month." It did not err. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301.)
Robert's 16-year income history, his control and management of R&G Grading, and the unreported company benefits clearly supports the finding that he has the earning capacity and financial means to contribute to the children's support. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927-928; Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1753-1754.) The support amounts, as determined by the trial court, are based on guideline support and presumed correct. (§ 4057, subd. (a).)
Other Contentions
Robert's Opening Brief raises other issues which are deemed waived because they lack citation to the record and are being raised for the first time on appeal. (See e.g., Western Aggregates Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290-291.) We summarize these contentions as follows:
"Without Prejudice" Support Order
Robert complains that the trial court did not have a copy of the 2002 temporary support order or know the order was "without prejudice" and could be retroactively reduced to zero. The issue may not be asserted for the first time on appeal. (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 313.)
Robert cites no authority that a stipulated order to pay temporary child support includes the right to retroactively reduce support to zero eight years later. Under Robert's construction of the law, the support arrearage can be "erased" even though the children received public assistance. This violates well established public policy that child support is a parent's first and primary obligation. (Moss v. Superior Court (1998) 17 Cal.4th 396, 424.) " (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.)
Retroactive Modification to 2002
Robert argues that the trial court erred in not modifying child support retroactive to 2002, i.e., the original date of the temporary support order. Robert's motion, however, was filed July 25, 2006 and requested that child support be modified retroactive to December 1, 2004 or April 25, 2005. A family law court lacks jurisdiction to retroactively modify child support before the...
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