Marriage of Ybarra

Filed 9/11/07 Marriage of Ybarra CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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When the parties 20-year marriage was dissolved in 1987, the court awarded no spousal support but reserved jurisdiction on the issue of support.

Nineteen years later, the court granted Yolandas request for support and entered an order that Ramon pay her $150 per month. Ramon appeals. We shall affirm the judgment.

BACKGROUND

The limited record before us establishes that Yolanda and Ramon were married in 1965, and have one daughter, born in 1973.

Their marriage was dissolved in 1987. The judgment of dissolution incorporated the parties stipulation concerning their division of community assets and their agreement regarding support: the court ordered Ramon to pay child support to Yolanda, and it reserved the issue of spousal support.

Nearly 20 years later, in March 2006, Yolanda brought a motion to modify the judgment, and requested $700 a month in spousal support. In support of the motion, she averred: I was married to respondent for 20 years. Spousal support has been reserved all of these years. I am in need of support. I am a hairdresser. I now have health problems: Carpal tunnel syndrome, blindness in one eye, a bad knee. These conditions make it difficult for me to work. My clientele has diminished over the years. I am unable to support myself. Until recently, I was living off of savings. I am too young to receive Social Security, and my health prevents me from supporting myself. Because of my age, I am having problems getting jobs that make good money. I work at 2 places on a part-time basis. Her income and expense declaration showed monthly income of $520.

Ramon opposed Yolandas motion. His declaration stated in relevant part: I am not in a position to pay my former spouse an award of spousal support. I am completely disabled, and have been disabled since 1991. I receive a pension of $720.00 each month together with social security disability in the sum of $1,250.00 each month. That is the sum total of all of the money that I have to live on. I have an 11 year old daughter and an 18 year old son, both of whom reside in my residence half of each month.

The court conducted a hearing and the order after hearing (no statement of decision was entered in this case) states: Having heard the evidence presented, both oral and documentary, and having considered the written and oral arguments of counsel, the Court makes the following order on the issues taken under submission.

In this matter, the Court is asked to consider the request of Petitioner, wife, for spousal support from Respondent, husband. The parties were married for over 20 years and separated in 1986. Spousal support was previously reserved. Wife has been working as a hairdresser for a number of years. She is 60 years of age and cannot work full time due to various medical problems. She does work about five days per week, but not an eight-hour day. She also receives tips from her customers. Husband is 62 years of age and his only income is social security disability and a pension benefit. His total monthly income is about $2,000.00.

The Court is naturally concerned about the lengthy time between the divorce and the current request. However, due to the length of the marriage and the current circumstances of wife, it is appropriate to consider the request. The Court has looked at the pertinent provisions of Family Code section 4320. Based on that review and the other information provided, commencing June 1, 2006, husband shall pay to wife as and for spousal support the sum of $150.00 per month. A review of this matter would be appropriate at such time as wife reaches age 62 and begins receiving her social security benefits.

DISCUSSION

In deciding whether to modify a spousal support order, a court must take into consideration the factors set forth in Family Code section 4320 (hereafter 4320), which include the parties health, education, skills, needs, and ability to meet those needs. (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928; In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.) Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court . . . . (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) As long as the court exercises its discretion along legal lines, its decision will not be disturbed on appeal if there is substantial evidence to support it. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.)

Ramon first argues on appeal that the trial court abused its discretion when it ordered him to pay spousal support because the evidence submitted by Yolanda was inadequate. Specifically, Ramon contends Yolanda failed to provide all the information required by the income and expense statement form, and that she failed to attach certain back-up documentation to the form, such as copies of her pay stubs, and profit and loss statements for the past two years. In other words, his primary challenge is to the sufficiency of the evidence to support the trial courts award.

It is the appellants burden to assure the record on appeal is sufficient to resolve the issues raised. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) 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, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

But the record contains no transcript of the hearing on Yolandas motion, and without a reporters transcript, this must be considered an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) In such circumstances, we must conclusively presume that the evidence is ample to sustain the [trial courts] findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

Here, in the absence of a reporters transcript of the hearing, we must conclusively presume on appeal that whatever evidence may be necessary to sustain the courts findings concerning Yolandas financial situation was adduced at the hearing. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)

Ramon next contends the judgment should be reversed and remanded because there is nothing in the record indicating [the court] applied the factors set forth in section 4320 governing the criteria to be considered in determining spousal support.

But, as we explained above, it is a fundamental principle of appellate practice that the judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 349, pp. 394-395.)

The trial court stated it considered the pertinent provisions of Family Code section 4320. Of course, because the record includes no transcript of the hearing or statement of decision, we cannot determine precisely what factors the court considered but absent an affirmative showing that the court failed to consider the circumstances specified in section 4320, we must presume the trial court properly followed the law. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1533; see also Evid. Code, 664 [presumption that official duty has been regularly performed].) Accordingly, we reject Ramons claim of error relating to section 4320.

In sum, because no error appears on the face of the record, and absent a reporters transcript of the proceedings, Ramon has failed to carry his burden of establishing reversible error.

DISPOSITION

The judgment (order) is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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