Marriage of Hale

Filed 7/20/07 Marriage of Hale 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed in part, reversed in part and remanded.

In 2003, Daniel and Shilin Hale separated after a seven-year marriage and, in March 2004, a judgment incorporating a Marital Settlement Agreement (MSA) was entered terminating their marriage. The MSA resolved property division and custody issues, imposed family support and child support obligations on Daniel, and resolved other matters. In late 2005 Daniel filed an Order to Show Cause (OSC) seeking to reduce his support obligations and alter the custody arrangement. On June 20, 2006, the court granted Daniel some, but not all, of the relief sought by his OSC, including a reduced amount for spousal and child support.

In July 2006 Daniel filed another OSC (the July OSC) seeking an order that, among other things, would declare the June 20 order reducing his child and spousal support obligations retroactive to December 2005. The court's September 2006 order denied these requests and Daniel timely appealed the September 2006 order entered in response to the July OSC.

I

FACTUAL AND PROCEDURAL BACKGROUND

The facts, viewed most favorably in support of the order,^[1] reflect the following factual and procedural background for this appeal.

A. The MSA

In February 2004 Daniel and Shilin signed the MSA. The MSA provided for joint legal and physical custody of their two children, and required Daniel to pay $2500 per month as his family support payment, effective January 1, 2004. The MSA required this payment to be made for 44 months, absent earlier remarriage or cohabitation by Shilin, after which Daniel would be obligated to pay $1000 per month as child support.

B. The June 2006 Order

In November 2005 Daniel filed an OSC seeking numerous items of relief, including modifications to the child custody arrangement and reduction of his family support payment. He argued the spousal support component of the family support obligation should be reduced because of changed economic circumstances, and the child support component of the family support obligation should be reduced to reflect the de facto change in the amount of time the children spent with Daniel and changed economic circumstances.

The court's June 2006 order in response to the OSC modified the physical custody arrangements, but denied Daniel's request that (for religious reasons) he have custody of the children on Saturdays and Jewish Holidays, and denied his request to preclude Shilin from traveling to China with the children. The court also modified the child support component of the family support obligation because of changed economic circumstances, concluding that Daniel was earning less and Shilin was earning more than contemplated by the MSA when it set the child support component. The court found, on disputed evidence, that Daniel's income should be set at $93,407, that Shilin's income should be set at $41,184, and (after calculating Shilin's custodial timeshare to be 44 percent under the newly ordered custody arrangement) ordered child support reduced to $508 per month. The court also concluded, because of changed economic circumstances, it was appropriate to modify the amount of the spousal support component of the family support obligation to $500 per month.

C. The September 2006 Order

Three weeks later, Daniel filed the July OSC requesting (1) a declaration that his 44-month obligation to pay spousal support under the MSA was intended to commence on October 1, 2003, rather than January 1, 2004; and (2) a declaration that the order reducing his child and spousal support obligations was retroactive to December 2005; and (3) a declaration that Shilin was liable for 50 percent of out-of-pocket costs for medical, dental and childcare costs.

The court's September 14, 2006 order ruled, in pertinent part, that the order reducing Daniel's support obligations was effective as of the June 2006 order. The court also denied Daniel's attempt to revisit various aspects of the June 2006 order.^[2] Daniel filed his notice of appeal of the September 2006 order on October 11, 2006.

II

THE BULK OF DANIEL'S ARGUMENTS ARE UNTIMELY

Daniel's opening brief purports to list nine distinct issues on appeal, most of which appear to attack the propriety of the rulings contained in the June 2006 order. For example, Daniel asserts the court (1) should have allocated a larger timeshare to Daniel for purposes of setting the amount of child support, (2) unjustifiably refused to impose travel restrictions, (3) improperly ignored numerous relevant factors when setting the amount of spousal support, (4) refused to accommodate his request for flexibility for weekend visits, (5) improperly ignored relevant evidence and improperly imputed an income to Daniel when it evaluated the appropriate amount of spousal and child support, and (6) credited Shilin's testimony despite evidence of alleged falsehoods.

However, Daniel did not appeal the June 2006 order, and may not raise alleged errors in that order in this appeal. (Cf. Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) Furthermore, Daniel may not assert alleged errors in the June 2006 order merely because the court's September order, from which Daniel has appealed, encompassed a denial of his request for reconsideration of the issues adjudicated by the June 2006 order. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 769.) Accordingly, we are without jurisdiction to consider any issues except for claims of alleged error in the September 2006 rulings from which Daniel has filed a timely notice of appeal.

III

ANALYSIS

Daniel argues the trial court erred when it denied his request to make the June 2006 order reducing his child and spousal support obligations retroactive to December 2005.

Family Code section 3653, subdivision (a) provides that an order modifying a support order "may be made retroactive to the date of the filing of the . . . order to show cause to modify [the support order]." (Italics added.) This section confirms that, when an order reducing support is entered, the trial court's decision to make the order retroactive is within its broad discretion.^[3] (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555 [order denying retroactivity reviewed for abuse of discretion].) Although this provision applies both to child and spousal support orders, distinct policy considerations guide the decision on the two different questions (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312), and therefore we separately evaluate each component of the decision.

A. The Nonretroactivity of the Child Support Order

The court denied retroactivity in the reduction of Daniel's child support obligation because the order changing the relative timeshares for custody of the minors did not take effect until after June 2006. Daniel asserts this was error because the changed economic circumstances were also a factor and the changed economic circumstances predated the changed timeshare order. However, the court specifically noted it was the timeshare change that led it to modify the child support calculations, and the primary focus of any child support order is to assure that the children have adequate support and are able to share in the parents' standard of living. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 312.) Moreover, even though Daniel's reduced income justified prospective reduction in child support, there was some evidence from which the court could have concluded that retroactive application would have effectively eliminated all child support for a substantial period of time.^[4] Because the trial court could have concluded that entirely eliminating child support would be inconsistent with ensuring that the children had adequate support, the denial of retroactive application was not an abuse of discretion. (See In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 563 [good cause to deny retroactivity where mother's resources were limited and ordering reduced child support to be retroactive would eliminate any child support payments for over five months].)

B. The Nonretroactivity of the Spousal Support Order

The spousal support order is based on different considerations. Although "[t]he overriding policy behind the child support statutes is to assure that children share in their parents' standard of living and have adequate support. [Citations.] . . . [T]he 'purposes of spousal support inevitably vary from case to case, depending upon the parties and the facts and circumstances of the case.' [Quoting In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.] 'The facts and the equities in one case may call for no spousal support, or for very short-term support . . . . At the other end of the spectrum are cases where the purpose of spousal support is to provide financial assistance to the supported spouse until . . . death . . . . In between are the myriad of factual circumstances which the trial court must consider in making its order for purposes which vary from case to case.' (Id. at pp. 480-481.)" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 312.)

Cheriton recognized that, although a court's decision in setting spousal support is constrained by the enumerated statutory factors, there are no explicit statutory standards controlling decisions about retroactivity. In the absence of statutory direction, the trial court's exercise of its discretion regarding retroactivity of spousal support should be informed by considerations similar to those applicable to the setting of spousal support. (Cf. In re Marriage of Jacobs (1981) 126 Cal.App.3d 832, 836 [trial court should tailor its award on the basis of the equitable rights of the parties considering their economic needs and abilities during the period for which a retroactive increase is sought].) These factors include "the marital standard of living[;] . . . contributions to the supporting spouse's education, training, or career; the supporting spouse's ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the children's interests; the age and health of the parties; tax consequences; the balance of hardships to the parties; the goal that the supported party be self-supporting within a reasonable period of time; and any other factors deemed just and equitable by the court." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 303-304.)

In this case, although the court agreed spousal support should be reduced, it denied retroactivity without articulating the reasons for its decision. (See In Re Marriage of Rising (1999) 76 Cal.App.4th 472, 474 [trial court's failure to explain its reasons for step-down constituted reversible error].) It is speculative whether the court's reasons for this decision were limited to the articulated reason (e.g. the altered timeshare of the children), which is irrelevant to the spousal support determination, or whether retroactivity was denied based on appropriate reasons relevant to a spousal support determination. We agree with the Cheriton court that, "[i]n the absence of articulated reasons, we cannot ascertain whether the court exercised its discretion along legal lines, with due consideration for the parties' respective economic needs and abilities during the entire period for which modification was sought. [Citations.] We therefore remand the question of retroactivity of spousal support to the trial court for its reconsideration." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 313.)

DISPOSITION

The order denying retroactivity as to Daniel's modified spousal support obligation is reversed and remanded for reconsideration. In all other respects, the order is affirmed. Respondent is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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^[1] We are required to view the facts in the light most favorable to the judgment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) Because Daniel's brief contains a one-sided recitation of the facts supporting his position, without any effort to state facts that support the ruling, we could deem any contentions regarding the sufficiency of the evidence to be waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [rules apply equally to pro. per. litigant].) We instead elect to examine the issue on the merits, although our factual recitation bears little resemblance to Daniel's brief.

^[2] The September 2006 order also declared that Daniel's 44-month obligation to pay spousal support under the MSA commenced on January 1, 2004, and ordered Shilin to pay 50 percent of out-of-pocket costs for medical, dental and childcare costs. No arguments on appeal are raised that challenge these rulings.

^[3] Daniel asserts on appeal that the failure to make the award retroactive violated subdivision (b) of section 3653, which mandates that when a support order is modified based on the unemployment of the support obligor, the order shall be made retroactive unless the court finds good cause not to make the order retroactive and states its reasons for such finding on the record. However, the modification here was based on the change in relative incomes of the parties, and not because Daniel had become unemployed. Accordingly, subdivision (b) has no application in this appeal.

^[4] The court's order reduced Daniel's child support obligation from $1000 per month to approximately $500 per month. It appears that Daniel's retroactivity motion, which sought recovery from Shilin for approximately seven months of "overpayments," would have been implemented by eliminating seven months of future payments. The net effect of Daniel's retroactivity motion would have been to reduce his child support payments to zero for that seven-month period, which a trial court could conclude would deprive the children of adequate support.