Marriage of Rush

Filed 4/24/07 Marriage of Rush CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Tommy Lee Rush (husband) appeals from a judgment on reserved issues in the dissolution of his marriage to Cristal Rush (wife). Husband contends the trial court set an unreasonable amount of child support in an interim order filed on February 4, 2005, that the court failed to enforce the interim order to the extent it required wife to immediately list the family residence for sale, and that the court made an unequal division of community property. We affirm.

FACTS AND PROCEDURAL HISTORY

The parties were married on April 6, 1996. They have two sons: Jeremy, who was born in 1993, and Jarred, who was born in 1998. In 1999, the parties purchased the family residence in Santa Maria. On October 9, 2004, wife and the children moved out due to husband's alleged drug use and physical abuse. On November 3, 2004, wife filed a petition for dissolution of the marriage. She sought custody of the children, child support, and division of the community property. She also asked the court to order husband to vacate the family residence.

On November 12, wife filed an income and expense declaration listing a current monthly gross income of $2,108. She declared she could not estimate husband's monthly income "because he fails to go to work." She claimed average monthly expenses of $5,356, which included a $1,835 monthly payment on the mortgage for the family residence. She also listed four credit cards with a total outstanding balance of approximately $17,000.

On December 14, 2004, husband filed his response to the dissolution petition. In his income and expense declaration, he declared that he was currently unemployed, that he had earned $1,735 in the preceding month, and that his average monthly income for the past year was $2,648. He objected to wife's request that he vacate the home.

Wife's motion for support was initially set for January 25, 2005, but was continued for one day because husband was ill. Husband's attorney notified him of the change, and asked him to call her the following morning. When husband did not call, counsel went to his home and was told by his roommate that he was no longer ill, but was not there. Counsel attended the scheduled hearing and informed the court that she had been unable to locate husband. The court continued the hearing for one more day, and told husband's attorney to notify her client that he was expected to attend. Counsel left a detailed message on husband's answering machine informing him that his attendance at the hearing the following morning "was absolutely necessary."

Husband did not appear at the hearing the following day, and the court proceeded to hear the matter in his absence. At the conclusion of the hearing, the court imputed wages of $2,600 to husband and ordered him to pay $601 a month for child support, retroactive to January 1. Husband was also ordered to vacate the house, and wife was given temporary possession starting February 11, 2005. Wife was ordered to list the home for sale and sign the listing on behalf of both parties. The order was filed on February 4, 2005. Husband did not file a timely notice of appeal from that order.

On February 9, 2005, husband's attorney filed a motion to be relieved as counsel. On February 16, 2005, husband consented to the substitution and agreed that he would be representing himself in the proceedings.

On June 20, 2005, wife moved to bifurcate the issue of dissolution on the ground that husband had been arrested for possession for sale of a controlled substance and had been incarcerated in jail since March. Husband did not oppose the motion, and a judgment of dissolution was filed on July 14, 2005.

On November 10, 2005, husband, through a new attorney, filed an order to show cause why wife should not be held in contempt for failing to list the family residence for sale, as provided in the February 4, 2005, order. Husband asserted that he "was unemployed and became incarcerated for a time and completely unable to defend his rights."

Trial on the reserved issues of custody, support and distribution of property was set for December 12, 2005. Wife testified that husband had not paid her any child support as ordered by the court, even though he had won over $10,000 at a casino in November 2004 and had been working since his release from jail in August 2005. She also itemized the numerous community debts she had paid since separation. Husband asked the court to retroactively modify the child support order on the ground that he had been unable to work during his incarceration.

After a hearing at which both parties testified, the court entered a judgment providing, among other things: (1) that the house was to be sold after an independent appraisal; (2) that wife was to receive credit for various community debts that she paid after separation; and (3) that husband owed wife $8,423 in child support arrearages. Based on husband's current earnings, his monthly child support obligation was reduced to $387. The court declined to hold wife in contempt for failing to sell the house earlier. Judgment was entered on April 24, 2006.

DISCUSSION

The Interim Child Support Order

Husband purports to challenge the interim child support order filed on February 4, 2005. It has long been settled that child support orders are directly appealable, and that any error in making such an order can be reviewed only on an appeal from that order, and not on appeal from the final judgment of dissolution. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) Because husband did not timely appeal from the interim order, he lost his right to challenge it.

In any event, husband's attack on the order is specious. The Family Code plainly provides that "a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." ( 3651, subd. (c).) Husband was notified when the order was issued that he would continue to owe $601 a month in child support, plus 10 percent interest on any unpaid amounts, so long as he did not seek modification of the order. He did not seek modification until November 10, 2005. The child support arrearages continued to accrue until that date, and are the equivalent of a money judgment. (In re Marriage of Hubner (2004) 124 Cal.App.4th 1082, 1089.) Though it is undisputed that husband was incarcerated from February through August of 2005, his incarceration did not prevent him from promptly seeking to modify his support obligation.

Sale of the Family Home

The February 4, 2005, order provided that wife was to list the family residence for sale. On November 10, 2005, husband filed an order to show cause for contempt against wife based on her failure to list the property. Wife responded that husband had made no support payments and currently owed over $7,200 in arrearages. She also noted that husband had won over $10,000 at a casino on December 24, 2004. Husband admitted that he used some of the winnings to lease a brand new car and "lost the rest back to the casino."

On appeal, husband claims that "[t]he court failed to enforce its own orders" by refusing to hold wife in contempt for failing to list the family residence for

sale back in February 2005. His argument is simply that "[t]here was no defense offered and [wife's] only comment was that she didn't remember the order." No mention is made of the evidence the court relied on in making its ruling. By failing to set forth that evidence, husband has waived his right to challenge the ruling. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 152.)

In any event, husband's claim is meritless. Wife testified that she had not listed the house for sale because husband had not complied with his support obligations. In the meantime, wife had to pay approximately $5,500 in delinquent mortgage payments and $1,400 in delinquent utility bills that were incurred while husband was in sole possession of the house. She also had to pay delinquent property taxes and credit card balances that were incurred prior to separation, which included a charge of approximately $3,000 to bail husband out of jail in July 2004. In light of these obligations, husband could not be heard to complain that wife had failed to comply with the order to immediately list the family residence for sale.

Division of Community Property

Husband argues that the court made an unequal division of community property by ordering him to pay sums "for what appears to be house related expenses that were incurred by wife because she refused [to] obey the orders to sell the house." He also complains that wife's "property claims were either transparently false or unsubstantiated by evidence." Because husband did not request a statement of decision, he waived the right to challenge the trial court's valuation of his community property interest. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.) In any event, the record belies husband's claim that wife was improperly reimbursed for expenses incurred after separation.

The judgment is affirmed. Respondent is entitled to recover her costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Rodney S. Melville, Judge

Superior Court County of Santa Barbara

______________________________

Roger M. Hubbard for Appellant.

Weldon & DeGasparis and Richard P. Weldon for Respondent.

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