Marriage of Okum, In re

• Decision Date: 02 September 1987
• Citation: 240 Cal.Rptr. 458,195 Cal.App.3d 176
• Court: California Court of Appeals Court of Appeals
• Parties: Donna OKUM, Respondent and Cross-Appellant, v. Robert OKUM, Appellant and Cross-Respondent. * B014456.

Page 458

240 Cal.Rptr. 458

195 Cal.App.3d 176

Donna OKUM, Respondent and Cross-Appellant, v. Robert OKUM, Appellant and Cross-Respondent. ^*

B014456.

Court of Appeal, Second District, Division 2, California.

Sept. 2, 1987.

As Modified Sept. 29, 1987.

Review Denied Nov. 18, 1987.

Maginnis & Maginnis, J. Patrick Maginnis and Jeannette Torrel on the brief, Los Angeles, for respondent and cross-appellant.

Trope & Trope, William B. Anderson, Los Angeles, for appellant and cross-respondent.

COMPTON, Associate Justice.

In this action involving issues of child custody and support, Robert Okum appeals from a post-dissolution order granting him partial relief under his motion for reconsideration, but denying his motion for new trial. Donna Okum cross-appeals from the same order. We affirm the order.

The record reveals that the couple's marriage was dissolved in 1975. From that union two children were born, Gina on December 11, 1968 and Christopher on February 22, 1972. On November 19, 1978, the couple in writing stipulated to an order modifying a prior physical custody arrangement of the minor children. Pursuant to the modification, both parents had joint legal custody of the children. As for physical custody, the order provided that Robert had physical custody of the children for the last three weekends of each month. Then during the fall and winter months, beginning in September and ending in March, Robert had sole physical custody of the children, except for weekly overnight visitations with Donna on Wednesdays and every other weekend. The remainder of the year, Donna had sole physical custody. The order also contained a schedule dividing visitation between the parents during holidays.

Pursuant to the stipulation Robert was to pay $225 monthly in child support for each child. The agreement provided further that Robert was "solely responsible for the payment of and shall pay all tuition costs, fees, books, uniforms, transportation and expenses in connection with the attendance of the children at STEPHEN WISE SCHOOL, as well as summer camp expenses, should the parties mutually desire to enroll the children in a summer camp. [Robert] shall be responsible for the direct payment of all medical, dental, orthodontia and psychiatric care which the children may incur. However, [Donna] shall first consult with [Robert], prior to her incurring any medical, dental, orthodontia and psychiatric care in excess of $50.00 per visit, except in cases of emergency, for the benefit of the minor children." The order also provided: "[Robert] shall be responsible for and pay all clothing expenses and for all extracurricular activities undertaken by the children, including, but not limited to special tutoring, art lessons and music lessons. However, [Donna] shall first consult with [Robert] prior to incurring any expenses for extracurricular activities for the minor children of the parties."

Beginning on April 1, 1979 Robert ceased making child support payments. On June 22, 1984, Donna filed an order to show cause and declaration of contempt against Robert alleging that he had interfered with her visitation rights on certain stated dates and that he was in arrearage to her for unpaid child support in the sum of $28,575 plus interest. On July 13, 1984, she also secured a writ of execution against Robert for the unpaid child support. ¹ In turn, Robert filed a motion to quash the writ on the ground that the parties in 1979 purportedly executed an oral agreement which relieved him of further child support payments to Donna in exchange for his sole custodial care of both children. Robert further argued that on equitable grounds he could not be in arrearage to Donna because since 1979 he had had de facto sole physical custody of the children. The alleged oral modification, however, was never reduced to a court ordered modification.

Trial was held in October 1984. During the proceeding, a number of witnesses, including the children, were called by both sides. As so often happens in child custody proceedings, each side portrayed the other as the villain. Thus, when Robert called the children to testify, the court exercised its right to control the interrogation of the minor children (see Evid.Code, § 765) and interviewed them in chambers with only a court reporter and the parent's attorneys present. During the interview, the court refused to allow either attorney to propound any questions to the children. Finally, after five days of trial, the court on November 1, 1984 rendered a memorandum of decision. The memorandum, in pertinent part, stated, "The Court finds [Robert] not guilty of contempt in regard to child support and visitation. [p] ... [E]vidence of the existence on an executed oral agreement between the parties to eliminate [Robert's support obligation], although not sufficient to prove the existence of the agreement by a preponderance of the evidence, was sufficient to raise a reasonable doubt as to [Robert's] guilt. [p] [Robert] is obliged to facilitate the visitation of [Donna] with the minor children, even to the point of requiring them to visit their mother. However, [Donna's] evidence is insufficient to prove that, on the dates alleged, [Robert] interfered with [Donna's] visitation."

In regard to Robert's motion to quash the writ of execution the trial court stated: "The motion to quash the writ of execution is granted. A new writ may issue in the sum of $23,175.00 plus interest. [p] For a period of 24 months preceding the securing of the writ [i.e., since 1982], the minor child, Gina, by agreement of the parties, resided full time with [Robert]. [Robert] has assumed the burden of all her expenses and petitioner has no expenses related to her. [Robert] has not proven by a preponderance of the evidence that there existed from April, 1979, an executed oral agreement eliminating his child support obligation. [p] Accordingly, [Robert] is entitled to an equitable reduction of $225 per month for 24 months, a total of $5,400.00."

On November 13, 1984, Robert filed his motion for new trial and, alternately, a motion for reconsideration. In his motions, Robert argued that the issuance of a new writ of execution in any amount constituted a windfall to wife because the evidence proved that during the period in question Donna never exercised her right to custody. Robert also contended that the court had erred by refusing his attorney's request to examine the children during trial. Purportedly, the children would have testified that since 1979 both of them had lived with Robert continuously, and that during this time he alone provided for their support. He further argued that the children would have given relevant testimony concerning the alleged oral agreement. Finally, Robert asserted that the order should be reconsidered, or a new trial granted, because during the course of the proceedings the court may have improperly considered a letter written by Donna that contained numerous accusations against him.

The motions were calendared to be heard on December 17, 1984. The matter, however, was continued and heard on January 11, 1985. On the day of the hearing, Donna did not make an appearance either in person or through counsel, but she did file opposition papers to the motions. She opposed the motion for new trial on the ground that Code of Civil Procedure section 660 required such a motion to be heard no later than December 31, 1984, the sixtieth day after the court's memorandum of decision issued on November 1, 1984. ² As to the motion for reconsideration, Donna maintained that it failed to specify any evidence not previously considered by the court.

On January 11, 1985, the trial court issued its minute order which found that Donna was not due any child support for the care of Gina. The court stated, in relevant, part: "Motion to quash the writ of execution which was granted on November 1, 1984 is modified to strike '$23,175.00 plus interest' and to insert in lieu thereof '$14,175 plus interest'. Said modification is based upon the conclusion that [Robert] is entitled to equitable relief because he was paying all of the support of Gina Okum after April 4, 1979."

We begin first by addressing the issues raised by Robert's appeal. Essentially, he contends that the order allowing Donna to seek a new writ for the collection of Christopher's child support is unsupported by the evidence. He further contends that even if the order is supported by substantial evidence he is entitled to a new trial in order to present the testimony of the children.

" 'A reviewing court must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the [prevailing party] and all legitimate and reasonable inferences must be indulged in to uphold the judgment. It is well settled that whenever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted which will support the conclusions reached by the trial court. [Citation.] All evidence most favorable to [the prevailing party] must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the [order] must be affirmed [citation].' " (In re Morrow (1970) 9 Cal.App.3d 39, 46, 88 Cal.Rptr. 142, overruled on other...