Filed 2/28/18 Marriage of Zapata and Vanderlaan CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


In re the Marriage of KATHERINE ZAPATA and MARCO VANDERLAAN.

KATHERINE ZAPATA,
Appellant,
v.
MARCO VANDERLAAN,
Respondent.


A148861

(Contra Costa County
Super. Ct. No. D0905945)


Katherine Zapata (Katherine) appeals from orders issued by the family court in response to her request for temporary child and spousal support from Marco Vanderlaan (Marco) and her subsequent request to modify support. Katherine argues that the family court erred by refusing to issue a statement of decision in connection with her first request, by awarding child support below guideline, by failing to consider and apply statutory factors in awarding spousal support, by failing to make findings as to the marital standard of living, and by refusing to modify its initial orders. We conclude that the family court erred in denying Katherine’s motion to modify child support without addressing Katherine’s argument that the amount of child support to which the parties had stipulated was a below-guideline amount. Accordingly, we vacate the family court order denying Katherine’s motion to modify child support and remand the matter for further consideration of that motion. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Katherine filed a petition for dissolution of marriage in Contra Costa County. She stated that she and Marco married in December 1995, separated in October 2009, and had two minor children aged 10 and 12. Marco filed his response and request for dissolution in November 2015, at which time the couple had just one minor child, aged 16.
A. Katherine Requests Child Support and Spousal Support
In December 2015, Katherine, in pro per, filed a request for order seeking child support of $3,000 per month and spousal support of $7,146.00 per month. The request for order was accompanied by her income and expense declaration, in which she stated, “Respondent has shown the ability to pay $12,000/month in combined child and spousal support. Most recent payment of $3,000 was received by me in child support. Spousal support of $7,150 proposed and informally accepted.” A hearing was scheduled for January 20, 2016.
Marco filed a responsive declaration in which he consented to guideline child support and to the amount of spousal support that Katherine requested. Marco stated that starting in January 2010 he had been paying child support of $4,241 per month for two children, and that since the couple’s older child aged out he paid Katherine $3,000 per month in support for the younger child, while also paying for the older child’s college tuition, room and board. He also stated that since January 2011 he had been paying pendente lite spousal support of $7,146 per month. ~(AA 53:14-15)~ Attached to the declaration was a DissoMaster report that showed basic guideline child support as $2,911 per month.
The day before the scheduled hearing, Katherine filed in pro per a request that the court “immediately dismiss the underlying petition” for failure to bring the matter to trial within five years, so that she could proceed in Alameda County, where she currently resided. In the alternative, she asked the court to convert the hearing on her request for orders to a hearing on her motion to dismiss.
Although the record does not include a reporter’s transcript of the January 20, 2016 hearing, subsequent filings in the family court indicate that attorney John Davis appeared at the hearing on Katherine’s behalf. After the hearing, the family court issued an order denying Katherine’s motion to dismiss, and requiring Marco to continue paying pendente lite spousal support of $7,146 per month and guideline child support of $3,000 per month. The order further stated that Katherine’s “oral request for a Statement of Decision made in argument” was denied “because it was untimely and the Court has discretion to grant or deny under these circumstances.” The matter was continued to March 2, 2016.
B. Katherine Moves for Reconsideration and Modification of the Support Orders
Katherine retained a new attorney, Tanya Leydiker, and in mid-February 2016 filed a request for order in which she asked the court to reconsider the matter or modify the January 20, 2016 order. The request was supported by various declarations, but was not accompanied by an income and expense declaration. A hearing on the request was scheduled for March 28, 2016.
At the previously-scheduled March 2, 2016 hearing, the family court denied Katherine’s motion for reconsideration. The family court subsequently issued an order that included the following findings: “The Court finds that [Katherine] was represented by Counsel at the January 20, 2016 Request for Order filed by [Katherine]. [Marco] did not object to [Katherine’s] request as to spousal and child support, thus [Katherine’s] Request for Order was granted. The Court has reviewed [Katherine’s] motion for reconsideration and finds that [Katherine] fails to present any new facts or law that did not exist at the time of the January 20, 2016 hearing.” The order further stated that the motion for reconsideration “has already been reviewed and considered by the Court and . . . is denied,” and that Katherine’s request for order to modify support would be heard as scheduled on March 28.
Before the March 28, 2016 hearing, Marco filed a responsive declaration and memorandum of points and authorities asking the court to deny the request for order. Katherine belatedly filed an income and expense declaration, and then filed a reply brief supported by declarations from Katherine, attorney Leydiker, and attorney Davis, who had represented her at the January 20 hearing.
At the March 28 hearing, the family court heard argument, and the judge then said, “All right. On January 20th of 2016, when I heard this case for the first time, I was hearing arguments on [Katherine’s] Request for Order for Child Support and Spousal Support. The orders that the Court made on that day were exactly what she requested. [¶] As it turned out, [Marco] did not object. There was also in file – in the file and had been reviewed by the Court prior to the January 20th hearing, a response by [Marco], a declaration in response, which included the following significant information. . . . [¶] Page three, that [Marco] had been paying, since January 1st of 2011, $7,146 in spousal support to [Katherine]. And that for five years, that was sufficient to keep her at a – at the same marital standard of living. The child support w[as] reduced to 3,000 because one child aged out. [¶] So the Court is not going to change the court order from January 20th. [Katherine] got what she requested, and that is it.” The judge’s statements were incorporated in a written order filed on June 8, 2016.
DISCUSSION
A. Refusal to Issue Statement of Decision
Katherine argues that the family court made a reversible error when it declined to issue a statement of decision after Katherine made what she characterizes as a “timely” request at the January 20, 2016 hearing. This argument lacks merit in the wake of our Supreme Court’s recent decision in F.P. v. Monier (2017) 3 Cal.5th 1099, which holds that failing to issue a statement of decision in response to a timely request a failure is reversible only upon a showing of prejudice. (Id. at p. 1102.)
F.P. v. Monier was decided after the completion of briefing in this case, but Katherine recognized in her opening brief that the decision, when issued, would be dispositive of her argument. Katherine does not demonstrate any prejudice from the family court’s refusal to prepare the requested statement, and therefore we must reject her argument.
B. Child Support
The California Legislature adopted the Statewide Uniform Guideline for child support (Fam. Code, § 4050 et seq ), and the amount of support established by the guideline is presumed to be the correct amount to be ordered. (§ 4057, subd. (a); Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1449-1450 (Rojas).) Section 4056 requires that a court ordering child support that differs from the guideline amount “shall state, in writing or on the record, the following information . . . [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children.” (§ 4056, subd. (a).) It is reversible error to order an amount of child support that differs from guideline unless the missing reasons are implied in the court’s express findings or “would necessarily have been adverse to appellant.” (Rojas, supra, 50 Cal.App.4th at pp. 1450-1451.) We review a child support order under the abuse of discretion standard, and we review the findings of fact in connection with such an order under the substantial evidence standard. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906.)
Here, Katherine requested $3,000 per month in child support, and she concedes that the family court ordered Marco to pay precisely that amount, which the court identified as “guideline” support. Katherine argues on appeal that $3,000 per month is below guideline, and that the family court erred by awarding a below-guideline amount in its January 20, 2016 order without making the findings required by section 4056. We conclude that Katherine has not met her burden as appellant to show error.
It is a fundamental principle of appellate review that an order challenged on appeal is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “All intendments and presumptions are indulged to support it on matters as to which the record is silent,” and it is the appellant’s burden to affirmatively demonstrate error. (Ibid.) An appellant must present an adequate record for review, and failure to do so requires us to resolve issues against the appellant. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) And an appellant must “cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party’s position.” (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.)
Here, the family court order states that the court “considered the case file, pleadings, oral argument, and testimony in this matter,” and found that “there has been a long-term informal agreement between the parties whereby [Marco] has paid [Katherine] spousal and child support commensurate with the marital standard of living.” On that basis, and in response to Katherine’s request that the court order Marco to pay $3,000 per month in child support, the family court ordered Marco to continue paying “guideline” child support of $3,000 per month pending further court order.
The record before the family court at the January 2016 hearing included an income and expense declaration from Marco in which he stated that his income in the previous month was $28,727 from salary, and that his average monthly income over the past year was $58,672 from salary and bonuses. The record also included a declaration from Marco in which he described his history of paying Katherine child support, and represented that $3,000 per month, which he was continuing to pay as support for their younger child, was guideline support. He attached to his declaration a DissoMaster printout purporting to show monthly 2016 guideline basic child support at $2,911 based on his monthly salary of $28,727. This is substantial evidence to support the family court’s order.
Katherine’s only basis for challenging the order is her assertion that the guideline amount was $4,572 because Marco’s monthly income from his employment was $59,167. Katherine does not claim that she or Davis offered any evidence or argument to the family court at the January 20 hearing that $3,000 was below guideline, or that the proper amount of Marco’s income to use as a basis for the calculation was anything other than $28,727. And in her opening brief on appeal, she does not offer any citation to information that was before the family court on January 20 showing guideline as $4,572 or showing that Marco should have based his calculation on $59,167. Instead, she relies on a February 2016 declaration from Leydiker, who was not present at the January 2016 hearing. Such reliance is unavailing: absent circumstances not present here, we review the correctness of an order as of the time it was made, based on the matters that were before the trial court when it ruled. (In re B.D. (2008) 159 Cal.App.4th 1218, 1239.)
C. Spousal Support
In adjudicating spousal support in connection with a judgment of dissolution, family courts exercise broad discretion, but they must consider and weigh the statutory factors set forth in section 4320, subdivisions (a) through (n). (Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 6:835, p. 6-436 (Hogoboom), citing In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304.) However, those statutory factors do not limit the family court’s discretion in awarding pendente lite spousal support. “Temporary spousal support is awarded under section 3600. It is based on the supported spouse’s needs and the other spouse’s ability to pay. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 . . . .) ‘ “Whereas permanent spousal support ‘provide[s] financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property,’ temporary spousal support ‘is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ [Citations.]” [Citation.] The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount. [Citation.]’ (Ibid.)” (In re Marriage of Tong and Samson (2011) 197 Cal.App.4th 23, 29 (Tong & Samson).)
Katherine argues that the family court committed reversible error by awarding temporary spousal support without considering and applying all the factors set forth in section 4320. This argument is meritless. In ordering temporary spousal support, the family court need consider nothing more than the supported spouse’s needs and the supporting spouse’s ability to pay. (Tong & Samson, supra, 197 Cal.App.4th at p. 29.) Katherine does not argue that the family court did not consider those two factors, nor could she in light of the family court’s finding that there was a long-term informal agreement under which Marco paid spousal support “commensurate with the marital standard of living,” and its order that Marco continue paying pendent lite spousal support in that amount, which was exactly the amount that Katherine had requested.
D. Marital Standard of Living
Section 4332 requires that a judgment of dissolution of marriage must include “specific factual findings with respect to the standard of living during the marriage.” Katherine argues that the family court abused its discretion by failing to make such findings in its January 20, 2016 order awarding temporary spousal support. We disagree.
Katherine cites no authority suggesting that a temporary spousal support order must include specific factual findings with respect to the marital standard of living. Nor does she cite any authority to suggest that there is anything deficient in the family court’s January 20, 2016 order, which requires Marco to continue paying spousal support of $7,146 per month based on findings that under a long-term informal agreement Marco had for several years been paying spousal support commensurate with the marital standard of living, and that he had supported Katherine at a very high standard of living.
E. Request to Modify Support
1. Child Support
“Child support orders made pending trial are ‘without prejudice’ to the rights of the parties or the child with respect to any subsequent order in the case. Indeed, child support orders remain modifiable based on changed circumstances at any time . . . .” (Hogoboom, supra, ¶ 5:145, p. 5-78 – 5-79, citing §§ 3603, 3604.) “As a general rule, courts will not revise a child support order unless there has been a ‘material change of circumstances.’ This rule applies to any form of child support order—i.e., whether pendente lite or ‘permanent.’ ” (Id. ¶ 17:25, p. 17-11.) However, “[i]f the parties stipulated to a child support order below the statutory formula amount [citation], ‘no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.’ ” (Id. ¶ 17:30, p. 17-13, quoting § 4065, subd. (d), and adding emphasis.) We review a family court’s decision whether to modify a child support order for abuse of discretion. (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.)
Katherine does not claim that she demonstrated a change of circumstances in connection with her request to modify the January 2016 child support order. Instead, she concedes for purposes of this argument that she and Marco had agreed to monthly child support payments of $3,000 per month, and argues that because that amount was below guideline, she was not required to show a change of circumstances to modify the child support order. She claims that the family court erred in declining to modify the order, because the result was to leave in place an order for below-guideline support without the necessary findings of special circumstances.
In her motion to modify the January 2016 child support order, Katherine argued that even though the parties had stipulated to the amount ordered by the court, the order was subject to modification because it was for an amount below guideline. She supported her argument with a declaration from her financial advisor, who was a certified public accountant, and a declaration from Leydiker, who attached DissoMaster printouts. Marco offered several arguments in response to Katherine’s motion to modify, but did not address her contention that the $3,000 per month that she had previously requested and that the court ordered was below guideline. At the March 28, 2016 hearing, Katherine argued that the January 2016 order was for a below-guideline amount, an argument that was again not addressed by Marco. Most important, at the March 28 hearing, the family court judge said nothing about guideline child support, or about the parties’ income, upon which the determination of guideline is based (§ 4055), and the court’s subsequent written order is likewise silent on those subjects.
Perhaps the family court determined that, despite the evidence Katherine presented, the amount of child support previously ordered was indeed the guideline amount. But the record is to the contrary: the reporter’s transcript of the March 28, 2016 hearing and the court’s written order both indicate that the family court based its denial of Katherine’s request to modify child support solely on the fact that Katherine had previously asked for the amount the court ordered. That is not enough. Where a party seeks to modify a stipulated child support order on the ground that the order is for a below-guideline amount (§ 4065, subd. (d)), and where the family court has before it evidence that the amount of child support to which the parties stipulated is below the guideline, the family court abuses its discretion if it declines to modify support without making any findings as to the guideline amount. (See In re Marriage of Hall (2000) 81 Cal.App.4th 313, 317 [the child support statutes imply that the family court must know what the guideline amount is].) Accordingly, we will remand the matter for the family court for further consideration of Katherine’s motion.
2. Spousal Support
A change of circumstances is required for the modification of spousal support orders, whether the orders are temporary or permanent. (Tong & Samson¸ supra, 197 Cal.App.4th at p. 29.) We review a family court’s decision whether to modify a spousal support order for abuse of discretion. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576.)
Katherine’s argument that the family court erred in declining to modify spousal support rests on a misreading of the Family Code. Conceding that she did not demonstrate any change in circumstances, Katherine argues that there was no need for her to do so, based on the family court’s finding that there was a long-term informal agreement between her and Marco, and based on section 4065, subdivision (d). But section 4065, subdivision (d) pertains only to modifications of stipulated child support, and has no application to modifications of spousal support. Accordingly, Katherine has not shown that the family court abused its discretion in declining to modify its order for pendente lite spousal support.
DISPOSITION
The March 28, 2016 order denying Katherine’s motion to modify the January 20, 2016 child support order is vacated and the matter is remanded to the family court for further consideration consistent with this opinion. In all other respects, the orders appealed from are affirmed. The parties shall bear their own costs on appeal.


 







_________________________
Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.












A148861, Zapata v. Vanderlaan