Filed 6/7/13 
Marriage of Horgan CA5 (unmodified opn.)

 

 

 

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 


 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
>

In re the Marriage of KIMYLA and CHRISTOPHER HORGAN.
KIMYLA HORGAN,   Appellant,                           v.   CHRISTOPHER HORGAN,   Respondent.	F064969   (Kern Super. Ct. No. S1501-FL-597250)     >OPINION

 

            APPEAL from
a judgment of the Superior Court of Kern County.  James L. Compton, Commissioner.

            Klein,
DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett, and
James R. Harvey for Appellant.

            The Law
Offices of Edward J. Quirk, Jr., and Edward J. Quirk, Jr., for Respondent.

-ooOoo-

            Wife
appeals from a judgment which set the amount of support to be paid by husband
to wife as temporary child and spousal support during pendency of the
dissolution action and as permanent post judgment child support.  She contends the trial court acted in excess
of its jurisdiction by retroactively modifying the temporary support;
alternatively, it abused its discretion by reducing the support amount
retroactively.  Further, she contends the
trial court abused its discretion by failing to take into account husband’s
wealth and substantial assets, rather than just his income, in setting child
support.  We agree the retroactive
modification of child and spousal support exceeded the trial court’s
jurisdiction.  As to post judgment child
support, no abuse of discretion has been demonstrated.

>FACTUAL AND PROCEDURAL BACKGROUND

            The parties
were married in 1991.  They owned a
business in New York City that did custom audio-visual installations.  In 1999, they sold the business and retired;
they lived in a trailer and traveled around the country, while Christopherhref="#_ftn1" name="_ftnref1" title="">^[1] managed their investment accounts.  Their daughter was born in 2000.  In 2004, they purchased a home in Lake
Isabella and settled down.

In March 2006, Kimyla petitioned
for dissolution of the marriage.  After a
hearing on May 1, 2006, the trial court entered an order granting Kimyla
primary custody of their daughter, with visitation for Christopher.  The order reflected that the parties
continued to occupy the family residence and, “[a]s a form of non-taxable
child, spousal and/or family support,” ordered the community to pay specified
household expenses.  The order also
allowed the parties to make withdrawals from their joint bank account.  The withdrawals “shall be, in the court’s
discretion, deemed a pre-distribution of a community property asset,” and the
court “retain[ed] jurisdiction to ultimately characterize the aforementioned
distributions.”  After trial commenced on
February 20, 2007, the trial court entered a partial stipulated judgment, which
addressed custody and visitation, property division, and other issues.  It provided that Christopher was to vacate
the family residence by March 24, 2007. 
Each party was authorized to withdraw $5,000 per month from the joint
bank account “subject to later characterization or classification by the
court,” and the trial of all unresolved issues was to be continued.

On December 16, 2008, after trial
of the reserved issues, the trial court entered an order requiring Christopher
to pay child support of $989 per month and spousal support of $500 per month,
effective May 1, 2006.  The trial court
subsequently reopened the matter for further briefing, then continued the same
support amounts in a July 31, 2009, order. 
A judgment of dissolution, status only, was entered on December 31,
2009.  After a hearing on September 21,
2009, the trial court entered its findings and order after hearing on January
21, 2010; it found that Christopher owed Kimyla $58,071 in child and spousal
support arrearages for the period of May 1, 2006, through August 20, 2009.  It ordered that amount to be disbursed to
Kimyla from a specified investment account. 
On April 26, 2010, judgment on the reserved issues was entered.  The judgment contained the order requiring
Christopher to pay Kimyla child support of $989 per month and spousal support
of $500 per month.  The trial court
determined that the predistributions taken by the parties totaled $250,000, and
Christopher was to be charged with $150,000 of that amount and Kimyla was to be
charged with $100,000.

On July 13, 2010, the trial court
granted Christopher’s motion for a new trial, finding there was insufficient
evidence to support the judgment on certain property issues; additionally, it
granted a new trial on the issue of child and spousal support because the
redistribution of other property might affect the parties’ income and change the
proper amount of support.  The trial
court “retain[ed] jurisdiction to make any orders retroactive to their original
dates of filing.”  The second trial
commenced October 26, 2010, and lasted several days.  After extensive briefing of the parties’
disagreements about the content of the statement of decision, the trial court
entered its second judgment on reserved issues on March 9, 2012.  The trial court designated an amount of child
and spousal support for each year from 2007 through 2010; all amounts were less
than those previously ordered for those time periods.  For the year 2011 and subsequently, it set
child support at $490 per month and spousal support at $400 per month.  It found that Christopher had already paid a
total of $75,350 in support (including the $58,071 in arrearages designated in
the January 21, 2010, order), and ordered that the amount paid be credited
first to child support and then to spousal support due under the new judgment.

The total support already paid
exceeded the amount of temporary support awarded in the second judgment.  Kimyla argues the effect of reducing the
amount of support ordered and crediting Christopher with the overpayment is
that she will not receive any child or spousal support payments for four
years.  She appeals, contending the trial
court had no jurisdiction to retroactively reduce child and spousal support;
alternatively, it abused its discretion by doing so.  Further, she contends the trial court abused
its discretion by failing to consider Christopher’s wealth and assets in
setting support amounts, by failing to consider the needs of the child, and by
failing to articulate its reasons for disregarding the factors that would have
rebutted the presumption that support calculated by the statutory formula was sufficient.

>DISCUSSION

I.          Standard of Review

            Awards of
child support and spousal support are reviewed for abuse of discretion.  (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.)  “[W]e do not substitute our judgment for that
of the trial court, and we will disturb the trial court’s decision only if no
judge could have reasonably made the challenged decision.  [Citation.]” 
(In re Marriage of Cryer (2011)
198 Cal.App.4th 1039, 1046-1047.)  In
reviewing a child support order, “we are mindful 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.’  [Citation.]”  (Id.
at p. 1047.)  “[T]he trial court’s
discretion is not so broad that it ‘may ignore or contravene the purposes of
the law regarding … child support. [Citations.]’  [Citation.]” 
(In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 283 (Cheriton).)  “The abuse of discretion standard is not a
unified standard; the deference it calls for varies according to the aspect of
a trial court’s ruling under review.  The
trial court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the
facts is reversible only if arbitrary and capricious.”  (Haraguchi
v. Superior Court (2008) 43 Cal.4th 706, 711, fns. omitted.)

II.        Modification of Support
Order

            During the
pendency of any proceeding for the dissolution of marriage, the trial court may
order one party to pay spousal support to the other, or one or both parties to
pay child support.  (Fam. Code,href="#_ftn2" name="_ftnref2" title="">^[2] § 3600.) 
The function and purpose of such a temporary, or pendente lite, support
order is fundamentally different from that of a permanent support order.  (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637 (>Gruen).) 
“ â€˜The temporary support award is usually obtained soon after the
filing of the petition and before any final determination on the various issues
in the dissolution.  Its purpose is to
maintain the living conditions and standards of the parties [and their
children] as closely as possible to the status quo, pending trial and the
division of the assets and obligations of the parties.’  [Citation.] 
A temporary order is intended to allow the supported spouse and children
to live in their ‘ â€œ â€˜accustomed manner’ â€ â€™ pending the
ultimate disposition of the action. 
[Citation.]  ‘The order is based
on need and is not an adjudication of any of the issues in the
litigation.’  [Citation.]”  (Ibid.) 

            In this
action, when Kimyla initially requested a support order, the trial court
declined to order payment of child or spousal support.  Instead, because the parties were still
sharing a household, the trial court ordered that certain joint expenses
continue to be paid out of community funds. 
The first order for payment of child and spousal support was made on
December 16, 2008.  The trial court
ordered Christopher to pay Kimyla child support of $989 per month and spousal
support of $500 per month, commencing May 1, 2006.  The support award was reiterated in a July
31, 2009, order.href="#_ftn3" name="_ftnref3"
title="">^[3]  After a hearing on September 21, 2009, the
trial court entered an order finding that, pursuant to the December 16, 2008,
and July 31, 2009, support orders, Christopher owed support arrearages totaling
$58,071 as of August 20, 2009.  It
ordered that the investment firm holding funds in a specified account
“forthwith” disburse that amount to Kimyla and that the amount be charged against
Christopher’s interest in funds held in that account, when the funds in the
account were apportioned between the parties and distributed pursuant to
further orders of the court.  The sum was
apparently paid in January 2010.href="#_ftn4"
name="_ftnref4" title="">^[4]  Judgment on the reserved issues was not
entered until April 26, 2010.  

            “An
original order for child support may be made retroactive to the date of filing
the petition, complaint, or other initial pleading.”  (Fam. Code, § 4009.)  The first order for support imposed the
obligation beginning May 1, 2006, the date of the hearing of Kimyla’s initial
request for child and spousal support. 
“A temporary support order is operative from the time of pronouncement,
and it is directly appealable.  [Citation.]”  (Gruen,
supra, 191 Cal.App.4th at p.
637.)  “ â€˜If an order is appealable,
… and no timely appeal is taken therefrom, the issues determined by the order
are res judicata.’  [Citations.]”  (Id.
at p. 638.)  The trial court entered its
support award, after final briefing, on July 31, 2009.  It enforced that award by calculating
arrearages and issuing its January 21, 2010, order that they be paid
forthwith.  They were paid in January
2010.  Christopher did not appeal
either the July 31, 2009, support order or the January 21, 2010, order
determining arrearages and ordering they be paid from the parties’ investment
account.  Thus, the order for payment of
arrearages is executed, final, and binding.

            The March
9, 2012, judgment after the second trial attempted to modify the temporary
support orders.  It fixed amounts of
child and spousal support to be paid each year, commencing in March 2007, at
amounts below those ordered in the July 31, 2009, order.  It required that Christopher be given credit
for amounts already paid, including the arrearages calculated in the January
21, 2010, order.  An award of temporary child or spousal support can be modified only with
limited retroactivity, however.  It
cannot be modified as to amounts that accrued before the date of the
filing of the notice of motion or order to show cause to modify it.  (§ 3651, subd. (c); accord,
§§ 3603, 3653, subd. (a).)  When an existing support order is not
challenged by a proceeding to modify it, it may not be retroactively
modified.  (In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728,
739-740.)  “ â€˜[R]etroactive
modifications disrupt the settled expectations of the parties on the existing
state of their financial affairs.’ â€ 
(Gruen, supra, 191 Cal.App.4th
at p. 639.)  The record does not reflect
that any motion for modification of temporary support was made, so retroactive
modification was precluded.

            Christopher
contends the December 16, 2008, and July 31, 2009, support orders were not
orders for temporary support, but the trial court’s intended decision on
“judgment” support.  Consequently, he
argues, they were incorporated into the April 26, 2010, judgment on reserved
issues, and were set aside along with that judgment when the trial court
granted Christopher’s motion for a new trial. 
He contends granting a new trial left the issue of support, both
pendente lite and permanent, to be determined de novo in the second trial.  The record, however, does not support this
argument.

            Neither the
December 16, 2008, ruling, nor the July 31, 2009, ruling on temporary support,
indicates it is a proposed or intended judgment or statement of decision, to
become effective only after some further action.  Each indicates it is a “ruling,” and
states:  “the court makes the following
findings and orders.”  (Capitalization
omitted.)  The December 16, 2008, ruling
“orders” Christopher to pay Kimyla specified amounts for child and spousal
support commencing May 1, 2006; the July 31, 2009, ruling “maintains the
orders” for child and spousal support. 
The trial court did not treat the support order as an intended judgment
or statement of decision, which would become final and enforceable only when a
judgment was formally entered.  Rather,
the trial court treated it as an existing support order, calculating arrearages
and ordering that they be paid immediately out of a specified investment
account.  It enforced the temporary
support order even though judgment had not yet been entered.  The arrearages were paid, and while the
dissolution proceeding was still pending, Christopher made further payments in
accordance with the temporary support order. 
Although Christopher moved to set aside the December 16, 2008, order,
the trial court did not set it aside, but reopened the matter and accepted
further briefing.  It then affirmed the
support order in its July 31, 2009, order. 
Christopher did not appeal that order.

            The
temporary support order and the order determining arrearages were made and
enforced before the first judgment was entered on April 26, 2010.  The temporary support order was subject to
prospective modification, but only by filing a motion or order to show cause
for modification and showing a change of circumstances justifying the
modification.  (Gruen, supra, 191 Cal.App.4th at pp. 638, 639.)  No motion or order to show cause for
modification was filed.  “Although a
decree for support ‘may be modified as to installments to become due in the
future [,] [a]s to accrued installments it is final.’  [Citation.]  ‘Accrued arrearages are treated like a money
judgment.’  [Citation.]”  (In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80.)  The trial court cannot reduce the accrued
arrearages, even if it believes the amount owed is inequitable.  (Id.
at pp. 80-81.)

We conclude the trial court acted in excess of its jurisdiction when it
entered a judgment that attempted to retroactively modify the temporary child
and spousal support order, and reduce the amount of the accrued
arrearages.  No motion to modify the
temporary support order was made, and the support and arrearages orders were
final, binding, and partly executed prior to entry of the second judgment.  To the extent the March 9, 2012, judgment
purports to modify the support order for periods prior to entry of judgment, it
is ineffective.

III.       Factors Considered in
Setting Support

            Kimyla
challenges the award of child support,href="#_ftn5" name="_ftnref5" title="">^[5] contending the trial court abused its
discretion by failing to consider Christopher’s wealth and assets in arriving
at the amount of support to award, and instead considering only his
income.  She further contends the trial
court erred by considering only Christopher’s ability to pay support, and
failing to consider the child’s needs.

            A.        Consideration of wealth and assets

            “California
has a strong public policy in favor of adequate child support.  [Citations.] 
That policy is expressed in statutes embodying the statewide uniform
child support guideline. 
[Citation.]  ‘The guideline seeks
to place the interests of children as the state’s top priority.’  [Citation.] 
In setting guideline support, the courts are required to adhere to
certain principles, including these:  ‘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.’  (§ 4053, subd. (a).)  ‘Each parent should pay for the support of
the children according to his or her ability.’ 
(§ 4053, subd. (d).) 
‘Children should share in the standard of living of both parents.  Child support may therefore appropriately
improve the standard of living of the custodial household to improve the lives
of the children.’  (§ 4053, subd.
(f).)”  (Cheriton, supra, 92 Cal.App.4th at p. 283, fn. omitted.)

            Section
4055 sets out the formula for a statewide uniform guideline for child support,
which is presumed to be the correct amount of support to be ordered.  (§§ 4055, 4057, subd. (a).)  This “is a rebuttable presumption affecting
the burden of proof and may be rebutted by admissible evidence showing that
application of the formula would be unjust or inappropriate in the particular
case, consistent with the principles set forth in Section 4053, because one or
more” of specified factors is found applicable. 
(§ 4057, subd. (b).) 

            The trial
court awarded child support in accordance with the statutory guideline, finding
that Kimyla had failed to rebut the presumption that it was the correct amount
to be awarded.  Kimyla argues that the
factor identified in section 4057, subdivision (b)(5), justified a departure
from guideline support:

“Application of the formula would be unjust or
inappropriate due to special circumstances in the particular case.  These special circumstances include, but are
not limited to, the following:

“(A) Cases
in which the parents have different time-sharing arrangements for different
children.

“(B) Cases
in which both parents have substantially equal time-sharing of the children and
one parent has a much lower or higher percentage of income used for housing
than the other parent.

“(C) Cases
in which the children have special medical or other needs that could require
child support that would be greater than the formula amount.”  (Fam. Code, § 4057, subd. (b)(5).)

            Kimyla does
not argue that any of the three circumstances expressly set out in section
4057, subdivision (b)(5), is present; rather, relying on In re Marriage of DeGuigne (2002) 97 Cal.App.4th 1353 (>DeGuigne), she argues a special
circumstance exists when the payor spouse has wealth and assets that far exceed
the income he generates from employment or investments.  In DeGuigne,
the husband had inherited valuable real property and other assets; neither he
nor the wife worked.  Both had income
from investments.  During their marriage,
they lived an opulent lifestyle; their spending exceeded their income,
requiring the sale of some of the husband’s assets to maintain it.  The trial court ordered the husband to pay
the wife three times the statutory formula child support, and the husband
appealed.  The question before the
appellate court was whether the upward deviation could be justified by special
circumstances under section 4057, subdivision (b)(5).  (Id.
at p. 1360.)

            The court
noted that the “paramount concern in adhering to or departing from the
guideline amount must be the interests of the children .…”  (DeGuigne,
supra, 97 Cal.App.4th at pp. 1359-1360, citing § 4053.)  The trial court had found the guideline
amount “would subvert the overriding principle behind the support guideline”
and “would not serve the interests” of the children; their interests would be
best served by shielding them as much as possible from a drastic reduction in
their standard of living.  (>Id. at p. 1360.)  The court concluded the support order made
would not maintain the family’s former standard of living, but would
necessitate a substantial reduction in that standard for both the parents and
the children.  It noted that, where the
supporting spouse holds substantial property that does not produce income, “the
earning capacity doctrine embraces the ability to earn from capital as well as
labor.”  (Id. at p. 1363.) 
“ â€˜Just as a parent cannot shirk his parental obligations by
reducing his earning capacity through unemployment or underemployment, he
cannot shirk the obligation to support his child by underutilizing
income-producing assets.’ â€  (>Ibid.) 


The court concluded:  “The special circumstance operative here is
not just that the de Guignes lived opulently during the marriage, but also that
[the husband] has the ability to continue to support his children at quite a
comfortable level consistent with his station in life.  The [trial] court concluded it would not be
in the children’s best interest to have their lives changed so radically while
their father sheltered, and continued to enjoy, a substantial asset that
produced no income.”  (>Id. at p. 1366.)  The court noted that, in order to meet his
support obligation, the husband had options, including “working, continuing to
alienate assets or converting some holdings to produce income.”  (Ibid.)  The court found no abuse of discretion in the
trial court’s upward deviation from the formula support, based on special
circumstances.  (Ibid.; see also Cheriton,
supra, 92 Cal.App.4th at p. 292, holding that, while no California
authority mandates consideration of a parent’s assets or wealth in setting
child support, where those assets are substantial, the court should at least
consider imputing reasonable income to them, to the extent necessary to meet
the children’s reasonable needs.)

On appeal, the burden of affirmatively demonstrating prejudicial error is
on the appellant.  (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th
600, 610.)  The appellant must provide an
adequate record to demonstrate the error (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295) and must support its
arguments with references to the portions of the record that demonstrate the
error (Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856). 
References to these portions of the record must include the volume and
page number where the relevant matter appears. 
(Cal. Rules of Court, rule 8.204(a)(1)(C).)

Kimyla argues that Christopher’s wealth and assets should have been taken
into account in determining the amount of child support to award.  She asserts he received “over $1 million in
liquid investment assets, along with his personal vehicles and retirement
accounts[,]” in the property division, while she “received the Lake Isabella
house, her personal vehicle, and a $490,000 equalizing distribution.…”  She cites nothing in the record that
establishes these facts or demonstrates that, when all assets and liabilities
are taken into account, Christopher received assets with substantially greater
value than those she received.  The
judgment appealed from sets out the property division to which the parties
stipulated, but it does not include the value of each asset.  Consequently, Kimyla has failed to establish
that the trial court had any grounds for departing from the guideline support
amount pursuant to section 4057, subdivision (b)(5).

            Kimyla also
argues that the trial court considered only the parties’ incomes in determining
the support amount, and failed to consider the child’s needs at all.  The amount of child support established by
the statutory formula is presumed to be the correct amount (§ 4057, subd.
(a)); that is, it is presumed to be sufficient to meet the child’s needs.  In the absence of a showing rebutting that
presumption, the omission to mention the child’s needs in the judgment or
statement of decision does not signify a failure to consider the child’s
needs.  No abuse of discretion in the
child support award has been shown.

            B.        Articulation of reasons

            Kimyla
contends the court improperly failed to articulate its reasons for disregarding
the section 4057 factors in arriving at the child support amount.  Under section 4056, subdivision (a),
“whenever the court is ordering an amount for support that differs from the
statewide uniform guideline formula amount,” the court must state, in writing
or on the record, the reasons for deviating from the guideline amount and the
reasons the deviation is in the best interests of the children.  No such statement of reasons is required when
the court orders support in the formula amount. 
The trial court ordered support in accordance with the statutory
formula, so no written statement of reasons was required.

            Citing >Cheriton, Kimyla argues that a statement
of reasons is required whenever a party contends the court should deviate from
the formula amount pursuant to section 4057. 
(Cheriton, supra, 92
Cal.App.4th at p. 299.)  >Cheriton discussed the advisability of
having an “ â€˜explanation by the trial court when any of the variables
bearing on child support are
disputed, or when one of the parties contends that the case is appropriate for
variation with the guideline as a matter of trial court discretion.’  [Citation.]” 
(Id. at p. 299, italics
omitted.)  It relied on >In re Marriage of Hall (2000) 81
Cal.App.4th 313, a case in which an explanation was required pursuant to
section 4056 because the trial court deviated from the statutory support
amount.  In Cheriton, because the parties’ incomes fluctuated, the trial court
ordered a special procedure for annual adjustments to the child support, in
order to avoid frequent judicial modification proceedings.  The appellate court rejected the procedure
for a number of reasons, including that it circumvented the statutory procedures
for modification of child support, which require evidence and court
supervision, and that it would hamper effective judicial review of the
modifications.  In this context, there
would be no “explanation by the trial
court when any of the variables bearing on child support are disputed,” because the trial
court would not be involved in the modification procedure.  (Cheriton,
supra, 92 Cal.App.4th at p. 299, original italics.)  Thus, Cheriton
was discussing a procedure that omitted trial court participation.  It does not stand for the proposition that
the trial court is required to provide a written explanation of its reasons for
awarding statutory guideline support whenever a party attempts to rebut the
presumption that guideline support is correct by showing that a higher amount
of support should be awarded pursuant to section 4057, subdivision (b). 

            The
statement of decision reflects that the trial court considered the assets and
income of both parties, with the exception of specified items of income, in
determining child support.  Further,
pursuant to section 4055, the trial court calculated child support based upon
Christopher’s actual and projected income; it found the presumption of
correctness of the child support guideline amount was not rebutted by any of
the section 4057 factors.  No further
explanation of the trial court’s imposition of statutory guideline support was
necessary.

DISPOSITION

            The
judgment is modified by striking the provisions for reduced temporary child and
spousal support prior to the date of entry of judgment.  As so modified, the judgment is
affirmed.  The parties shall bear their
own costs on appeal.

 

 

                                                                                                            _____________________

                                                                                 
Poochigian, J.

WE CONCUR:

 

 

______________________

Gomes, Acting P.J.

 

 

______________________

Peña, J.