Marriage of Graves

Filed 5/1/07 Marriage of Graves CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Olando Graves (appellant) appeals, in propria persona, from an order determining the amount of child and spousal support arrearages he owes his former spouse, Lisa Graves (respondent). We shall find no error and affirm the order.

Facts

The parties married in 1992, and separated in October 2001. They had one minor child, Olando II, born on October 7, 1989. Appellant filed a petition for dissolution of marriage on November 8, 2001.

Based upon a stipulation, the court ordered that the parties would have joint physical custody of their son, and that, effective May 2002, appellant was to pay monthly child support in the amount of $210, and spousal support in the amount of $254.

In September 2005, respondent filed an OSC for Modification of Child Support and Spousal Support. Appellant filed a responsive declaration asking the court to terminate spousal support based upon a change in the parties respective earnings, and to modify child support. With respect to claimed arrearages he declared that, contrary to the parties stipulation, respondent had been declaring the minor child as a dependent on her tax returns. Also, in June 2003, he lost his job and his father died. He was disabled by clinical depression from June 19, 2003, until May 2004, when he began working at a new job earning roughly half as much as he had been earning in 2002. He further declared that, in May of 2004, he informed respondent of these facts, and offered to pay her $240, roughly half of the amount he had been paying, and she agreed to accept this amount. He had a journal with entries signed and dated by respondent showing each payment of $240 she had received from him. Based upon the foregoing facts he asked the court to find that the parties had agreed to modify support in May 2004. He also asked the court to take into account that he had been medically disabled from June 2003 through May 2004.

On November 30, 2005, the court ordered spousal support reduced to zero, effective October 1, 2005. The issue of arrearages was continued several times, and finally heard on February 14, 2006. Appellant appeared in propria persona, and respondent was represented by counsel. Commissioner Karen Rodrigue presided.

At the outset of the hearing appellant, without stating his reasons, asked whether he had the option to request Commissioner Oleon, who had issued the November 30, 2005 order reducing spousal support to zero. Commissioner Rodrigue responded that she was filling in for him today, and the parties were sworn in without further objection or any request for a continuance.

The court noted that its file included a document appellant filed on January 9, 2006, stating, under penalty of perjury, many of the same facts set forth in his responsive declaration. The court provided a copy to respondent, who had not been served with a copy.

Respondent submitted an accounting for the period between January 2003 through January 2006, showing payments she acknowledged having received for spousal support and child support. The court asked appellant whether he agreed with respondents accounting with respect to child support, which showed only one payment of $101 and three payments of $210 for the entire period. Appellant stated that he did not agree because respondent had received payments out of his paycheck until he lost his job, but he did not have with him any records showing these payments. He did, however have signed receipts for additional payments not included in respondents accounting. Appellant identified no other payments he had made, but argued that he had indirectly paid respondent additional amounts because she had claimed their son as a dependent for three years.

Respondent denied that she received any payments for child support through appellants employer from January 1, 2003, through February 10, 2006. With respect to spousal support, respondents accounting listed payments of $254 in June 2003, June 2004, July 2004, and October 2004, and payments in the amount of $240 for August, November, and December 2004, and January, February, March, May, June, July, August, and September 2005. Respondent testified that they each took the exemption in alternate years, and there was no agreement to waive support in exchange for the tax exemption. The court stated that, absent an agreement to waive support or accept the tax exemption in lieu of support, the tax issue did not change appellants support obligation.

Appellant testified that in May 2004 respondent agreed to a 50 percent reduction in his total support obligations when he told her he could go to court to seek modification and get the amount reduced or maybe eliminated, based upon the fact of joint custody and that their incomes were then essentially equal. He acknowledged the agreement was not in writing. He did not file a stipulation to the modified amount or formally seek modification, because he trusted her. He also testified that he did not come to court in 2003 to seek a modification when he lost his job because of his mental disability. When the court asked how he nonetheless managed to care for their 13- or 14-year-old son during the same period, appellant testified that it was difficult, but he did have some help.

Respondent testified that there had been no agreement that she would waive child support in exchange for claiming the child as a dependent in her tax filings. Respondent also testified that, in May 2004, appellant told her that despite losing his job he was not going to take money away from his son and that he would eventually pay her all the child support he owed. She agreed to give him a year and a half to get a higher-paying job, but never agreed to waive the balance owed.

The court filed its written order determining the amount of arrearages on March 24, 2006. It denied appellants request for modification of his support obligation based upon his alleged disability and job loss/lower income that began in June 2003, because the effect would be a retroactive modification of child support that the court had no authority to order. The court credited respondents testimony that she had only agreed to accept lower payments temporarily, but did not agree to a 50 percent reduction in appellants support obligation, or to waive the balance owed. The court also ruled that the fact that the parties shared physical custody of their minor son did not warrant a retroactive reduction in appellants support obligation because the parties had stipulated to the amount of child support and spousal support on May 2, 2002, the same date as the order providing for joint custody.

In calculating the arrearages, the court gave appellant credit for all of the payments for which he had submitted signed receipts. The court applied the credits first to child support, with [a]ny overages . . . applied to the monthly interest, then the accumulated interest, and finally to any outstanding principal balance. The total amount of child support arrearages were $3,269.99, and the spousal support arrearages totaled $10,881.76.

Analysis

Appellant first contends the court erred by refusing his request that the matter be heard by a different commissioner. He asserts that he had a right to have the matter heard by the courts presiding commissioner, instead of the commissioner who was substituting for him on the day of the hearing. We can find no legal authority supporting appellants argument that he had the right to have the matter continued and heard by a particular commissioner. Appellant also contends Commissioner Rodrigue should have granted his request for the matter to be heard by a different commissioner because there was a possibility that Commissioner Rodrigue was biased against him based upon his appeal of her prior decision in an unrelated traffic matter in which he accused her of displaying bias against African-Americans. Because appellant did not assert any claim of bias in the hearing below as a basis for his request that the matter be heard by a different commissioner, he cannot raise this issue for the first time on appeal. (See LeFlore v. Grass Harp Productions, Inc. (1997) 57 Cal.App.4th 824, 838, fn. 15 [point not raised in trial court is waived].)

Next, appellant contends the court lost documents that were essential to his case, and asserts that the court therefore must have failed to consider these documents in determining the amount of arrearages. The only evidence that any documents were lost is a letter, dated May 10, 2006, from Commissioner Rodrigue to appellant that is attached to the opening brief. The letter was written after the order determining the amount of arrearages was filed, and is not part of the record on appeal. Even if we were to augment the record with the May 10, 2006 letter,[1] it does not support appellants assertion that the documents were not considered by the commissioner. To the contrary, Commissioner Rodrigue states she based her ruling upon the documents, but that the court clerk was unable to locate them to return to appellant. The clerk did, however, obtain duplicate copies of the receipts he submitted, and enclosed the copies. Nothing in this letter, or in the record on appeal, supports appellants assertion that the Commissioner failed to consider this evidence.[2] It is axiomatic that all presumptions are in favor of the judgment below, and we cannot presume error in the absence of an affirmative record that error occurred. (Moreno v. City of King (2005) 127 Cal.App.4th 17, 30.) We therefore must assume the court considered all the evidence, and simply resolved the conflicts in respondents favor.

Finally, appellant argues that respondents testimony was untruthful in several respects, and that the court erred by crediting it instead of [appellants] truthful testimony, which was corroborated and validated by [the documentary evidence]. The court, as trier of fact, was free to resolve the conflicting evidence on the issues of payments made and whether respondent agreed to a reduction in the amount of appellants support obligation, or accepted the right to claim their son on her tax returns in lieu of, or as credit against, recouping the arrearages. (See, e.g.,Frankenheimer v. Frankenheimer (1964) 231 Cal.App.2d 101, 107 [the trial judge is the sole arbiter of all conflicts in evidence, conflicting interpretations thereof, and conflicting inferences which may be drawn therefrom; too, in the exercise of a sound legal discretion he [or she] may draw or may refuse to draw inferences reasonably deducible from the evidence].) The court clearly credited respondents testimony, and her testimony constitutes substantial evidence supporting the judgment. (In re Marriage of Alexander (1989) 212 Cal.App.3d 677, 682 [testimony of a single witness, even a party, may constitute substantial evidence]; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [same].)

Conclusion

The order determining the amount of arrearages is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

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[1] We deferred appellants motion to augment the record with the documents attached to his opening brief until disposition on the merits. Appellants declaration in support of the motion states that the attachments to his opening brief consist of documents/evidence that were lost by the Superior Court, as well as some additional documentation of proof, that is needed as evidence for this appeal. Appellant does not identify which attachments are documents admitted into evidence at the hearing, and which are the documents he is attempting to offer as additional proof for the first time on appeal. The motion must be denied as to the latter because the record may be augmented only with documents that were filed or lodged with the court below. As to the former, the motion is also denied because appellant does not provide any certification from the clerk, or other evidence, that the attached documents are true copies of exhibits that were filed or lodged with the court below.

[2] In fact, the court expressly relied upon appellants signed receipts and gave him credit for all the payments reflected in these documents.