Filed 9/26/18 Marriage of Ippolito CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re the Marriage of LISA and JOSEPH W. IPPOLITO. |
|
|
LISA IPPOLITO,
Respondent,
v.
JOSEPH W. IPPOLITO,
Appellant. | D073093
(Super. Ct. No. D556082) |
APPEAL from an order of the Superior Court of San Diego County, Enrique Camarena, Judge. Affirmed.
Joseph W. Ippolito, in pro. per., for Appellant.
Law Offices of Quirk & Quirk and Suzanne M. Quirk for Respondent.
INTRODUCTION
This is the third appeal arising from the dissolution of the marriage of Joseph W. and Lisa Ippolito.[1] Joseph appeals an order issued October 25, 2017, which (1) denied Joseph's request for bifurcation and dissolution of marital status and (2) modified child and spousal support orders. We conclude the order denying his request for a bifurcated trial of the marital status is not appealable. We further conclude Joseph has not met his burden on appeal to show the court abused its discretion in modifying child and spousal support orders. We, therefore, affirm the order.
BACKGROUND
A
Joseph and Lisa were married on May 10, 2003. They have two minor children. The parties physically separated in December 2015.
In Joseph's first appeal, we affirmed in an unpublished opinion orders issued on January 29, 2016, modifying child and spousal support and ordering Joseph to pay a prior attorney fee order from his half of the community assets. (In re Marriage of Ippolito (June 26, 2017, D070888).) Joseph abandoned his second appeal before the record was filed. (In re Marriage of Ippolito (Aug. 15, 2017, D072117).)
B
Joseph requested a bifurcated trial regarding dissolution of the marital status. He stated delays in resolving the issue of dissolution were caused by disagreements regarding settlement, custody, parenting time, and allegations of assault. He also stated the delays in resolving the issue of dissolution were "draining funds from … the marital estate" and causing him to incur debt. He expressed concern Lisa's "deteriorating" financial condition could affect his financial condition without bifurcation. Joseph also stated the contentious nature of the case was affecting the mental health of the children and causing him anxiety.
During the first hearing on the bifurcation issue, the court recalled Joseph previously requested bifurcation, but withdrew the request after discussing the need to research the cost to maintain Lisa's health insurance under COBRA.[2] The court questioned why it should grant a bifurcated dissolution, which would require Joseph to pay additional premiums to maintain Lisa's medical coverage, if Joseph was concerned about running out of money. Lisa's counsel raised additional concerns about Joseph's pension plans, which required qualified domestic relations orders (QDRO) to protect Lisa's interest in Joseph's retirement benefit plans before marital status was bifurcated.[3]
At a second hearing on bifurcation, Lisa's counsel again objected to bifurcation without interim orders, including resolution of the QDRO and health insurance issues. Lisa's counsel noted there was prejudice to dissolving the marriage because Joseph would be required to pay more for COBRA coverage. She noted Joseph was not paying the attorney fees the court ordered him to pay her for sanctions. Lisa's counsel objected to Joseph's proposed QDROs as defective. The court stated it would not deny the bifurcation motion for any factual reason other than preserving Lisa's rights. The court continued the hearing to allow Joseph to provide further documentation showing approval of the QDROs by the plan.
Joseph did not provide a record of the oral proceedings for the third hearing on October 25, 2017. However, the court's order stated the court denied the request for bifurcation of the marital status issue based on the court's "concerns regarding tax ramifications, [Joseph's] ability to pay COBRA health insurance at a comparable level and [Joseph's] previous violation of the ATROs [automatic temporary restraining orders] by withdrawing from a 401k."
C
Joseph filed a request to terminate the July 29, 2016, child support orders and requested support be ordered based upon the child support guidelines. He also sought termination of the spousal support order. Joseph complained about the amount of income attributed to Lisa and asked the court to impute income to Lisa of $18 per hour working full time as of the end of May 2017.
The court denied Joseph's request to impute income to Lisa because it found imputation was not in the best interests of the children. It modified the child and temporary spousal support orders for two retroactive periods and from October 2017 going forward. For the period of March to May 2017, the court attributed wages and salary to Joseph of $12,252 and to Lisa of $715. The court ordered Joseph to pay basic child support of $1,821 and spousal support of $2,001 per month. For the period of June to September 2017, the court attributed wages and salary to Joseph of $12,557 and to Lisa of $715. The court ordered Joseph to pay basic child support of $1,848 and spousal support of $2,091 per month. Going forward from October 2017 the court attributed wages and salary to Joseph of $13,370 and to Lisa of $2,600. The court ordered Joseph to pay basic child support of $1,546 and spousal support of $2,004 per month.
DISCUSSION
I
Bifurcation of Marital Status
Bifurcated judgments dissolving the marriage status of the parties are appealable. (In re Marriage of Fink (1976) 54 Cal.App.3d 357, 362; see In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1433.) However, the order Joseph appeals, denying his request to bifurcate and try the marital status issue separately, was an interlocutory order that is not appealable until there is a resolution of the issue. (See In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.)
Gionis v. Superior Court (1988) 202 Cal.App.3d 786, cited by Joseph, was decided by way of a petition for writ of mandate, not by appeal. In that case, the court determined the husband provided sufficient reasons to support his motion to bifurcate and the wife offered only procedural objections without showing bifurcation would prejudice her interests. (Id. at pp. 789–790.) Under those circumstances, the court abused its discretion in refusing to grant a bifurcated dissolution. The appellate court issued a peremptory writ of mandate directing the court to vacate its prior order and issue a new order granting bifurcation and dissolving the parties' marital status. (Id. at p. 790.)
In contrast, the court here did not find Joseph's showing for dissolution insufficient. It found he had not yet met the conditions necessary to protect Lisa's interests for an early and separate trial on the dissolution of the status of the marriage. (See Fam. Code, § 2337, subds. (c)(2), (c)(5), (d).) Joseph did not file a petition for writ of mandate and we will not exercise our discretion to treat this appeal as such a petition. An appellate court will exercise discretion to treat a purported appeal as a petition for writ of mandate only in unusual circumstances, which are not present here. (In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1639, citing Olson v. Cory (1983) 35 Cal.3d 390, 401.) The appeal as to the portion of the order denying a bifurcated determination of the parties' marital status is dismissed.
II
Spousal Support Order
Joseph challenges the court's order to the extent it increased spousal support. A pendente lite support order is appealable. (Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1234, fn. 1, citing In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)
We review orders imposing or modifying temporary spousal support for abuse of discretion. (In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 773; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 [modification of spousal support order].) "In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir, supra, at p. 47, fn. omitted.) " ' "Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders." ' " (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 269.)
Joseph's opening brief generally complains about Lisa's alleged underemployment and asserts the court's "abuse of discretion" has "saddled" him with "an unreasonable level of [s]pousal [s]upport." With no citations to the record, Joseph admits Lisa declared she began a full-time job earning $15 per hour, but he complains this was less than what she could earn according to a vocational evaluation. Joseph refers to Family Code section 4320, which lists circumstances the court must consider in ordering spousal support, and claims the spousal support order is an unreasonable financial burden along with litigation expenses. However, other than complaining about the increase in spousal support, he does not develop an argument with citations to the record or authority to show how the court abused its discretion.
The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is not our responsibility to search the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Any point raised that lacks citation may, in this court's discretion, be deemed forfeited. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 287, citing Del Real, at p. 768.) " 'We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
In his reply brief, Joseph appears to try to clarify his contentions by stating the court did not take into consideration the monthly expenses of the parties and the court used a wage of $15 per hour for Lisa when Lisa gave him a paystub showing she earned $16 per hour.[4] However, the reply brief again does not provide citations to the record and there is no record of the oral proceedings of the hearing on October 25, 2017, for us to consider because Joseph provided neither a reporter's transcript nor a settled statement.
" '[A] party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.' [Citation.] ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent …." ' [Citation.] A proper record includes a reporter's transcript or a settled statement of any hearing leading to the order being challenged on appeal." (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.) Although Joseph is representing himself, he is not exempt from the rules governing appeals. A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)
Based on the record before us, it appears the court modified the temporary support order for the two retroactive periods and from October 1, 2017, forward based on income changes for both parties. The court attached dissomaster computer calculations of the parties' financial circumstances and findings for each relevant period. These calculations included cash flow analyses for both parties. It also included temporary spousal support calculations using the Santa Clara guidelines, which we have concluded is proper.[5] (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1328.) We cannot discern an abuse of discretion and we presume the order is correct.
DISPOSITION
The order is affirmed. Lisa is entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
[1] Because the parties share a surname, we use first names for clarity. No disrespect is intended. (In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
[2] "The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) mandates that certain employees and their dependents be offered the option of paying premiums to continue medical coverage for a limited time period after the termination of coverage under a group health plan. (29 U.S.C. §§ 1161–1167; 42 U.S.C. §§ 300bb-1 through 300bb-8.)" (Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 460, fn. 3.) Divorce of a covered employee from the employee's spouse is a qualifying event that "but for the continuation coverage required under [COBRA], would result in the loss of coverage of a qualified beneficiary." (29 U.S.C. § 1163, subd. (3).)
[3] A QDRO is an order that creates or recognizes the existence of a spouse's right to receive all or a portion of the benefits payable to the other spouse as a participant in a retirement plan. (29 U.S.C. § 1056, subd. (d).)
[4] Lisa submitted a declaration with supporting documentation showing her part-time job was phased out with her last paycheck on August 18, 2017. She started a new job earning $15 per hour and received her first paycheck on October 13, 2017. She declared she took a job paying $15 per hour because the hours for the lower-paying job enabled her to pick up her children from school, which saved transportation expenses.
[5] Santa Clara Local Family Rule 3.C. provides a formula for temporary spousal or partner support as follows: "Temporary spousal or partner support is generally computed by taking 40% of the net income of the payor, minus 50% of the net income of the payee, adjusted for tax consequences. If there is child support, temporary spousal or partner support is calculated on net income not allocated to child support and/or child-related expenses. The temporary spousal support calculations apply these assumptions."
