Marriage of Buono

Filed 10/24/07 Marriage of Buono CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Lori Kennedy, Temporary Judge. (Pursuant to Cal. Const., art. VI., 21.) Affirmed.

Salvatore A. Buono, in pro. per., for Appellant.

Honey Kessler Amado and Katherine Perkins Ross, Attorneys for Respondent.

Salvatore A. Buono (Husband) appeals from the judgment of dissolution of his marriage to Carolyn N. Beggs (Wife). He challenges the trial courts order awarding the couples residence to Wife, setting child support at $454 per month, awarding custody of the minor child to Wife, and limiting Husbands visitation.

I. PROCEDURAL BACKGROUND AND FACTS

Husband and Wife married on July 27, 1997, and separated on January 19, 2004. The couple had one child, who was born on September 28, 2003. During the marriage, Wife worked full time for Robinsons-May department store. Husband wrote a book.^[1] Otherwise, Husband was unemployed.

On January 20, 2004, Husband filed a petition for dissolution of marriage. Wife moved with the child to the home of her parents. Wife continued to work at Robinsons-May during the separation, and the child attended a daycare center while Wife worked. During the separation, Husband resided in the couples mobilehome in Lake Elsinore and remained unemployed.

On March 10, 2004, and January 25, 2005, the court issued temporary restraining orders (TROs) against Husband, prohibiting him from contacting Wife and from coming within 100 yards of her, her home, or her place of employment.^[2] These TROs were later extended into permanent restraining orders for a three-year period.

On March 23, 2004, the court granted Husband visitation with the child every weekday from 9:00 a.m. to 1:00 p.m. and on alternating weekends (Saturday and Sunday) from 9:00 a.m. to 5:00 p.m.^[3] Husband was to drop the child off at the daycare center by 1:00 p.m. each weekday. On July 29, 2004, Wife filed an order to show cause (OSC) seeking to limit Husbands visitation to every other weekend on Saturday and Sunday from 9:00 a.m. to 5:00 p.m. each day, without overnight. Wife recounted the number of times Husband had been late in bringing the child to daycare, which jeopardized Wifes receipt of state funds. Wife also explained that Husbands residence continued to be in disrepair, presenting a dangerous place for a toddler. Wife was concerned that Husband was bringing the child to his residence notwithstanding its unsafe condition.^[4] In September, the court custody mediator reported that she suspect[ed] that [Husband] has taken the child to his residence. Thus, the mediator recommended that all visits with Husband be supervised by [the] paternal aunt pending [Husband] addressing the housing repairs. The court agreed and so ordered.

In late November 2004, Husband took the child from Wife. He called her and told her that if she wanted the child back, she would have to follow him and discuss the divorce. He threatened that if she called the police, she would never see the child again. Wife initially complied with Husbands demands, but then called the police, who were able to recover the child.

Husbands Christmas 2004 visit with the child was to be supervised by his sister pursuant to the courts order. The sister picked up the child from Wife at approximately 6:00 p.m. on Christmas Eve. The child was to be returned by Noon on Christmas Day. The child was not returned by Noon. Wife attempted to contact Husband and Husbands sister; however, no one answered the calls. The police confirmed that no one was at the home of Husbands sister. At 11:00 p.m., Wifes family went to the sisters house and it was dark. On December 26 at approximately 10:45 p.m., Husband called Wifes sister and denied having the child with him. At 11:15 p.m., Wifes sister spoke with Husbands sister, who confirmed that the child was at her house. Wifes family retrieved the child around Midnight; he was wearing only an undershirt and a diaper.^[5]

On January 6, 2005, the court limited Husbands contact with the child to six hours of professionally supervised visitation each week.^[6]

Regarding the couples assets, the only serious dispute involved the royalty payments from a book that Husband had written during the marriage and the ownership of the Lake Elsinore Property. Regarding the royalties, Wife requested an accounting and that all royalties be placed in a trust account. On March 23, 2004, the court granted the request. Husband disclosed one royalty payment to Wife for $3,347.81. Wife claimed that Husband was using the royalty payments to make delinquent mortgage payments.

On May 9, 2005, both parties appeared for a hearing on Wifes OSCs. Pursuant to the initial petition, Husband claimed that the Lake Elsinore Property was his separate property. Wife claimed it was community property. Wife noted that it was bought in 2000, during the couples marriage. Husband failed to produce any evidence to the contrary. Regarding child support, Wife provided bank records that showed Husbands deposits, which totaled $14,523 during the first eight months of 2004. Wife offered copies of her pay stubs and claimed a monthly income of $1,716. The court found that Husband had a monthly income of $1,936, while Wifes monthly income was $1,716. The trial court continued the hearing and ordered Husband to file an income and expense declaration on May 19. On May 19, 2005, Husband failed to appear and failed to provide the court-ordered proof of income.

On May 19, 2005, the trial court announced its rulings on custody, visitation, and support: (1) Existing custody and visitation orders were to remain in place; (2) Husband was given limited visitation to be supervised by a professional supervisor until he met the requirements set forth in a prior mediation report; (3) The TROs were made into permanent restraining orders for three years; (4) Child support was set at $454 per month ($394 in child support, plus $60 per month for daycare); (5) Husband received 100 percent of his book royalties; and (6) Wife was awarded the Lake Elsinore Property. The Judgment was entered on March 28, 2006. Husband appeals.

II. JUDGMENT ON THE MERITS OR DEFAULT

Initially, we note that Husband characterizes the judgment as having been entered upon default. However, such characterization is misplaced. While the clerks transcript incorrectly states the matter proceeded as a default, the reporters transcript establishes that the trial court denied Wifes motion to strike Husbands petition and proceed by default. The following exchange occurred:

[WIFES COUNSEL]: Then, Your Honor, in regards to our request to strike his petition and proceed by way of default

THE COURT: I just made all the permanent orders. We had a trial on that, so is [sic] there any other issues?

Thus, we find that while Husband chose not to be present at the continued hearing on the issues of custody, child support, and division of property, the trial court chose not to enter his default but to proceed with the hearing based on the status of the record, any new evidence submitted, and argument of Wifes counsel. Husband was aware of the continued hearing date; however, he failed to attend.

III. AWARD OF LAKE ELSINORE PROPERTY

Husband complains that he was not provided with notice that a property division might take place at the hearing on May 9, 2005. As Wife correctly notes, the trial court did not distribute the parties property on May 9, 2005. Instead, the court began the hearing on Wifes two pending OSCs. The May 9 hearing had to be continued to May 19. It was on May 19, 2005, that the trial court distributed the parties property.

According to the record, the May 9 hearing addressed the issues raised in two pending OSCs Wife had filed on January 6, 2005,^[7]and February 23, 2005. The January 6, 2005, OSC specifically requested, inter alia, that Wife be able to bring the property aspects of this case to a close. The case was initiated on January 20, 2004. The February 23, 2005, OSC requested retroactive child support and an immediate division of the royalties. On May 9, the only issues addressed were custody and visitation. Recognizing the necessity of another day to hear the remaining issues, the trial court continued the matter to May 19. Husband confirmed his availability. Further, as Wife points out, at the close of the hearing on May 9, in the presence of Husband, the trial court stated, Im going to review all of the file again. Ill make a decision as to all the issues in front of me. A few words later, the court repeated: Come back next Thursday. Ill have my decision on all issues, and we will deal with the support issue. File an income and expense declaration.

Considering the fact that Husband was present on May 9, 2005, when the matter was continued to May 19, 2005, Husband has no one to blame other than himself for his failure to appear on May 19. Code of Civil Procedure section 594, subdivision (a), allows the trial court to proceed with trial in the absence of a party, provided the party was given notice of the trial date.

Moreover, we find Husbands claim of insufficient notice of property division to be disingenuous. In one of Wifes OSCs, she requested that Husbands petition be stricken and that she be allowed to proceed to default, and that the property aspects of this case [be brought] to a close. Given Wifes notice of her desire to resolve all issues between the parties, Husband has no excuse for failing to provide all evidence to the trial court, including proof that the Lake Elsinore Property was his sole and separate property.^[8] Thus, the trial court did not err by proceeding in Husbands absence and resolving all issues before it.

Although Husband claims the Lake Elsinore Property was his separate property, the record is void of any evidence to support such claim. Nonetheless, Husband requests this court take judicial notice of a quitclaim deed from Wife to Husband regarding the property. As we stated in a footnote, we deny such request. Even if we were to grant it, we note that a quitclaim deed signed by a spouse during a marriage does not conclusively establish a propertys characterization. (In reMarriage of Haines, supra, 33 Cal.App.4th at pp. 287, 293 [interspousal transaction that advantages one spouse presumed to have been induced by undue influence].) Although Husband also contends to have paid for the property with inherited funds, he fails to reference any evidence in the record to support such claim. Thus, Husband has not met his burden of demonstrating error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

IV. CHILD SUPPORT

Husband complains that the trial court inaccurately calculated his monthly income, resulting in an excessive child support award. However, as Wife correctly points out, Husband failed to offer any evidence of income or appear on May 19, 2005, to challenge Wifes evidence of Husbands income. It is settled that any errors in computing child support must be brought to the trial courts attention when they may be expeditiously corrected, or they are waived. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144.) Here, the record does not reflect that Husband objected to the trial courts calculation of child support, through a motion for reconsideration or otherwise. Accordingly, this issue has been waived.

Notwithstanding the above, the trial court has discretion to determine the components of the child support formula guideline, and its findings will be upheld if supported by substantial evidence. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1160.) In February 2005, Wife requested that the trial court base Husbands child support obligation on his monthly income of $1,936. In support on this figure, Wife submitted bank records showing that Husband had deposited $14,523 in his checking account during the first eight months of 2004. Husband failed to offer any evidence to refute this monthly income figure. On May 9, 2005, the trial court specifically ordered Husband to provide proof of income to the court on May 19; however, Husband failed to do so and failed to appear. Thus, the trial court used the figure of $1,936, applied the formula mandated by Family Code section 4055, and ordered Husband to pay child support in the amount of $394 per month, plus a daycare contribution of $60 per month, for a total amount of $454 per month.^[9] Given the lack of any contrary evidence,^[10]and the fact that the trial courts calculation conforms to the amount calculated by the Xspouse computer printout, we find substantial evidence to support the courts award of child support.^[11] Moreover, an award of retroactive child support is authorized by Family Code section 4009.

V. CUSTODY

Husband contends the trial court abused its discretion in ordering that his visitation with the child be professionally supervised.^[12] In support of his claim, Husband attacks the weight and credibility of certain evidence offered to the trial court in support of the need for supervised visitation.

We review a custody and visitation order for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We must uphold the ruling if the trial court could have reasonably concluded that the order in question advanced the best interest of the child. (Ibid.) Here, as stated in the beginning of this opinion, the evidence shows Husbands inability to provide adequately for the needs of the child and to take him to daycare or to Wife in a timely manner when required to do so. Nonetheless, Husband argues the following: (1) he was justified in keeping the child beyond the time allotted to him during Christmas 2004, (2) Wife deprived him of his full visitation time; (3) he was not 100 percent late in taking the child to the daycare provider; and (4) the childs injuries were caused by Wife, not Husband. These points were raised at the trial level. Given the record before this court, we find no abuse of discretion in the courts custody and visitation orders.

VI. DISPOSITION

The judgment is affirmed. Wife is to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

MILLER

J.

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^[1] See footnote 6, post.

^[2] According to the record, these TROs were based on Husband stalking and harassing Wife at both her parents home and at her place of employment. At the home of Wifes parents, when she was alone with the child, Husband called her to say he was watching her. When Wifes father arrived, Husband assaulted the father on the front lawn.

^[3] At oral argument, Husband pointed out that the visitation order also provided for alternating weekends from Friday at 5:00 P.M. to Sunday at 5:00 P.M. once the child reached one year of age. The child turned one year old on September 28, 2004.

^[4] According to Wife, Husbands residence was a mobilehome located in Lake Elsinore (the Lake Elsinore Property). It was described as having holes in the floor that went all the way down to the ground. Additionally, the septic system was not working, and there was raw sewage building up underneath the mobile home. Wife stated they were not allowed to flush the toilet on a regular basis and thus [t]here was feces and urine building up in the toilet and it was an absolute horror of a situation. She further complained there was no hot water, and . . . no central heating.

^[5] At oral argument, Husband pointed out the testimony of Wifes father that Wife had Husbands sister sign an affidavit stating she would return the child within one hour of twelve oclock on Christmas Day. Wife and her family were concerned about the way the child had been taken and returned on previous visits.

^[6] According to the record, Husbands refusal to comply with the courts visitation orders, coupled with his inability to care for the child, necessitated the trial courts action. Daycare records from June and July 2004 showed the number of times Husband was late dropping off the child. Husband acknowledged being late. On some occasions, he was several hours late. Additionally, it was not uncommon for the child to arrive at daycare hungry and in need of a clean diaper. On one occasion, the child was without a diaper. The couples friends observed that Husband rarely had the basic supplies necessary to care for the child, such as food, appropriate clothing, and diapers. On at least two occasions in December 2004, Husband returned the child to Wife wearing only a very wet diaper. Also, the child was very dirty. On December 27, 2004, the child was wearing only an undershirt and a diaper, despite the cold weather and the presence of Husbands family. The clothes that Wife had sent for the child were not with him.

^[7] At oral argument, Husband referenced the reporters transcript of January 6, 2005, where Wifes counsel acknowledged an inability to serve Husband with notice of the OSC. However, as Wifes counsel noted in response, Husbands appearance on the continued hearing date of January 25, 2005, waives any claim of insufficient notice.

^[8] Husband requests that this court take judicial notice of the grant deed and a quitclaim deed regarding the Lake Elsinore Property. By order of May 16, 2007, this court reserved ruling on the request for judicial notice for decision with the appeal. Husbands request is denied. (Evid. Code,  452, subd. (h); see, generally, Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) 8:286 to 8:293, pp. 8-72 to 8-75.); In reMarriage of Haines (1995) 33 Cal.App.4th 277, 294 [where the transmutation is evidenced by a deed . . . the presumption of undue influence arising from advantage necessarily conflicts with the common law presumption of title].) Although Husband contends that the deeds evidence his separate property interest in the Lake Elsinore Property, we note that he never offered such evidence to the trial court on May 9 or May 19, nor did he timely seek a motion to reconsider the issue of property distribution.

^[9] Wife requests that we take judicial notice of the Xspouse computer printout, which calculates child support, and the Barnes & Noble bookstore online printout showing the cost and title of the book written by Husband. (Evid. Code,  452, subd. (h), 453, 459.) The Xspouse printout shows a calculation of child support in the amount of $394 based on Husbands monthly income of $1,936 and Wifes monthly income of $1,531. Given the trial courts award of $394 in child support to be paid by Husband, it appears that the trial court relied upon the Xspouse printout. We grant Wifes request for the purpose of assisting us in determining whether the trial courts award of child support departs from the guideline formula. Likewise, we grant the request as to the online printout showing Husbands book.

^[10] Although Husband notes that his May 31, 2005, motion to set aside the child support order was denied on August 12, 2005, he has failed to provide this court with the motion and all applicable exhibits, if any, attached thereto. Moreover, Husband has not appealed from the denial of this motion.

^[11] To the extent that Husband claims he will be severely disadvantaged by such child support order, we note that Husband provides no evidence supporting this claim, nor does he offer any legal authority to support his assertion that the court here was required to consider his alleged future impoverishment in determining the amount of child support. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.] (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

^[12] At oral argument, Husband challenged the requirement that his visitation with the child must be supervised pending his repair of the mobilehome. He claimed that he is no longer in possession of the mobilehome and thus should not be required to have supervised visitation pending the repairs. However, Husband did not raise this issue in his opening brief. Issues not briefed on appeal need not be considered. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) An appellant is required to cite pertinent authorities and present meaningful analysis of an issue. If he or she fails to do so, the issue may be deemed forfeited. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)