Newberry v. Amerine

 

 

 

 

 

 

 

 

 

 

 

 

Filed 10/17/13  Newberry v. Amerine CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

 
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JEREMY NEWBERRY,             Petitioner and Respondent, v. MINDY AMERINE,             Respondent and Appellant.

A137926         (Contra Costa County       Super. Ct. No. D0804035)

 

>I. INTRODUCTION

            Appellant,
the former wife of respondent, appeals on five separate grounds from a href="http://www.fearnotlaw.com/">post-judgment order entered by the trial
court regarding child support payments she sought from respondent via an order
to show cause.  We find only one flaw in
the trial court’s order regarding the child support payments payable by
respondent to appellant, and hence affirm the order in all respects save that
one.  Regarding that ground, we remand
the matter to the trial court for recalculation of the proper child support
payments.

>II. FACTUAL AND PROCEDURAL BACKGROUND

            The
parties were married in June 2004, had two children during their brief
marriage, but then separated in August 2007, and agreed to a href="http://www.mcmillanlaw.com/">stipulated judgment of dissolution that
was entered on July 18, 2011.


            A
year later, i.e., on July 19, 2012,
appellant filed an order to show cause regarding the issues of attorney fees
and child support payments.  On December 10, 2012, an href="http://www.fearnotlaw.com/">evidentiary hearing was held on those
issues; the trial court entered its order regarding both issues on December 18, 2012.  Appellant, the former wife, objects to the
trial court’s findings in that order regarding the correct amount of child
support payments, and filed a timely notice of appeal from it.  Roughly simultaneously, however, appellant
also apparently filed a motion to set aside the judgment of dissolution entered
in 2011.  However, although apparently a href="http://www.fearnotlaw.com/">partial hearing has been held on that
motion, as of the present time, no order has yet been entered relative to it,
and apparently will not be until at least November 2013.

>III. DISCUSSION

            Appellant
seeks to vacate that portion of the trial court’s December 18, 2012, order regarding the proper amount of
child support payments respondent should be providing.  Her argument is based on five separate and
distinct alleged flaws in the trial court’s order.  We agree regarding the first of appellant’s
contentions, but not the others; we shall deal with the issues raised in the
order they have been briefed by the parties. 


A.

            First
of all, appellant contends that the trial court erred in calculating the child
support payments based not on respondent’s “gross income” as required by Family
Code sections 4058 and 4059href="#_ftn1"
name="_ftnref1" title="">[1]
but, instead, on his net income, i.e., his income after the deduction of
federal taxes. 

            The
record makes clear that such did, indeed, happen.  Per the record supplied us—and which
respondent does not contend is in any way incorrect—respondent, a former
professional football player, received a monthly pension in the gross amount of
$5,170, from which was deducted federal tax payments of $1,034, resulting in a
net payment amount of $4,136 monthly. 
The trial court used the latter figure in determining respondent’s
current monthly income of $8,190, a figure it then used in computing the
monthly child support payments due from respondent to appellant, i.e., $1,844
per month. 

            However,
contrary to the calculations used by the trial court, section 4059 makes clear
that “gross income” is the amount of income a person receives >before the deductions for “state and
federal income tax liability resulting from the parties’ taxable income.”  (§ 4059, subd. (a.))  That figure was, clearly, $5,170, and not
$4,136.  As appellant argues in her
briefs to us, the trial court thus erred in one of its computations relevant to
the child support payments due to appellant, and that if it had used the correct
figure for respondent’s monthly pension income, her monthly child support
payments would have been higher.

            Respondent’s
only answer to this argument is to note that (1) “this is an appeal from a
temporary child custody support order pending the outcome of a motion to set
aside judgment” and (2) “in looking at the trial court’s order as a whole that
[it] did not err in using $4,136.00. 
Again, the trial court issued its ruling intending that child support be
temporary due to the pending motion and knowing that the temporary child
support may be modified soon.”  However,
nowhere in his brief to us does respondent contend that the $4,136 figure the
trial court used as his monthly “retirement/pension” income was indeed such,
i.e., as opposed to the $5,170 monthly income figures reflected on the bank
records before the court showing the amounts of his monthly pension
payments.  Thus, since the amount used by
the trial court in computing the payments due to appellant “did not comply with
the statutory requirements for child support orders, it was erroneous as a
matter of law.”  (Boutte v. Nears (1996) 50 Cal.App.4th 162, 166; see also >M.S. v. O.S. (2009) 176 Cal.App.4th 548,
553-554; In re Marriage of Schlafly (2007)
149 Cal.App.4th 747, 753.)

B.

            Second,
appellant contends that the trial court “committed prejudicial error in
treating husband’s income as taxable instead of non-taxable.”  She argues that respondent apparently paid no
income taxes in 2011 but, instead, received a tax refund of $5,456, and that such
was due to the fact that “his return showed he had a $232,703.00 net operating
loss carry over to future years. 
Accordingly, due to the large net operating loss carry over, the
evidence was that Husband would not have paid any income tax in calendar years
2012 and probably 2013.”  Appellant thus
argues that the trial court erred in treating respondent’s income as taxable,
instead of non-taxable.  If that income
were treated as non-taxable, she continues, respondent’s monthly gross income
would have been higher, and thus appellant would have been awarded a higher
child support payment, i.e., $2,150 instead of $1,844.  (Ibid.)

            There
are at least two problems with this second argument of appellant.  First of all, appellant’s 2011 tax returns
were not admitted into evidence—or apparently even offered into evidence.href="#_ftn2" name="_ftnref2" title="">[2]  The only factual basis appellant offers in
support of her argument are two pages of the reporter’s transcript which
records some questions and answers (most of the latter rather vague) between
appellant’s counsel and respondent about his 2011 taxable income—or lack
thereof.  Nowhere on these pages is
anything said, or even hinted at, regarding respondent’s 2012 or 2013 income,
or even the actual amount of his “net operating loss carry over” which
appellant alleges, in both of her briefs,href="#_ftn3" name="_ftnref3" title="">[3] to
be $232,703.

            Second,
appellant provides no legal authority in support of her argument that a “net
operating loss carry over” incurred by respondent would have necessarily made
his 2011 or 2012 (or any other year’s) income non-taxable.  In his brief to us, respondent asserts that
his counsel “could find no case law regarding this very issue.”  Appellant’s reply brief offers no such
authority, either.

            For
both of these reasons, we reject appellant’s second claim of error by the trial
court.

C.

            Appellant’s
third claim of error is that the “trial court erred in making Wife’s filing
status head of household on the DissoMaster [it] used to determine the amount
of child support.  Had Wife’s filing
status been shown as ‘single,’ which is her true filing status, the amount of
child support would have been $2,114 . . . . [¶] The
difference between the two child support awards results in a miscarriage of
justice requiring modification of the child support award of $1,844.00.” 

            We
reject this claim of error for the simple reason that there is no evidence in
the record to support appellant’s claim that “Husband claimed his two minor
children . . . as dependents on his income tax return.  Accordingly, Wife was unable to claim them as
dependents in order to file as head of household.”  As already noted, no tax returns by either
party were received in evidence, so there is no evidence before us as to
whether, as claimed by appellant, respondent filed as “head of household” because
the couples’ two minor children were living with him.  Additionally, appellant effectively concedes
that she “had not filed an income tax return since 2007.”

            Because,
again, of the absence of supporting evidence, we reject appellant’s claim that
the trial court erred in  treating her
tax status as “head of household” rather than as “single.”

D.

            Next,
appellant claims that the trial court erred in its finding regarding
respondent’s current monthly income from his limousine and wedding and events
business.  Appellant notes, correctly,
that respondent husband testified that “his average monthly income from his
limousine business was $700.”  This was
the figure the trial court used in computing appellant’s total monthly income
for his “Limo/Wedding Event Business.” 
But, appellant complains, per the record, that amount only included
respondent’s limousine rental business and not his rental of his property,
Newberry Estate Vineyards, a “wedding and events venue” owned by respondent and
rented out for weddings and similar events. 
The amounts charged by respondent for such events ranged, per his
testimony “between like $2,500 to $3,900.”

            Appellant
notes that, in 2012, appellant booked two events into that property, but in his
testimony respondent could not recall the amount he received for those two
events.  Respondent husband also
testified that, as of the date of the hearing (December 2012), he had close to
30 events scheduled for 2013 and 2014. 
Later, he testified that he thought he and his now-wife had written
contracts for those events, contracts which she had “put away somewhere,” but
for which they had already received “25 percent up front from the people who
hire” him.  From this testimony,
appellant contends the trial court “committed prejudicial error in not
including any of husband’s income from his wedding event business in the child
support calculation.” 

            We
do not agree; appellant’s calculations as to the alleged additional income
received by respondent husband from the rental of his estate property for
weddings was far from precise.  For
example, he testified that he did not have “the foggiest” idea as to how much
money he and his current wife had “received to date from the 30 potential
customers.”  Further, he made clear that
they were “in the infancy stage of this business” and thus “I don’t know what
the exact expenses [for the weddings, etc.] are going to be for the event
because we haven’t done enough of them.” 
Thus, appellant is simply speculating when she argues that the trial
court should have included additional monies from such events in computing
respondent’s monthly income.  Clearly, a
trial court’s order regarding child support payments is reviewed for abuse of
discretion.  (See In re Marriage of Zimmerman (2010)
183 Cal.App.4th 900, 906; M.S. v. O.S.,
supra, 176 Cal.App.4th at p. 553; In
re Marriage of Schlafly, supra,
149 Cal.App.4th at p. 753; In re >Marriage of Leonard (2004) 119
Cal.App.4th 546, 555.)  In view of the
highly speculative circumstances surrounding the net income likely to be
received by respondent from the rental of his Newberry Estate Vineyards
property for weddings and the like, the trial court clearly did not abuse its
discretion in not including any such figure in respondent’s estimated net
income.

E. 

            Finally,
appellant argues that the trial court erred in not making the “temporary child
support award retroactive” to the date appellant filed her order to show cause
for modification, i.e., July 19, 2012.

            Under
section 3653:  “An order
modifying . . . a support order may be made retroactive to the date
of the filing of the notice of motion or order to show cause to modify or
terminate, or to any subsequent date, except as provided in subdivision (b) or
by federal law.”  (§ 3653, subd.
(a).)href="#_ftn4" name="_ftnref4" title="">[4] 

            Here,
the trial court specifically considered whether or not to grant retroactive
child support payments and determined, because of the pending motion to set
aside the dissolution, not to do so.  It
stated: “The court orders no retroactive amounts at this time although, as
noted above, a permanent order modifying child support may include a
retroactive amount.” 

            Especially
in view of the fact that the entire dissolution judgment—of course including
child support payments—is under review by the trial court, our review of such
an order is for abuse of discretion. 
(See cases cited ante.)  We find no abuse of discretion by the trial
court on the retroactivity issue, especially because of the ongoing litigation
regarding the judgment of dissolution.    

>IV. DISPOSITION

            The
trial court’s order of December 18, 2012, is affirmed in all respects except
regarding the computation of the monthly payments due to appellant as discussed
in part A. above.  Regarding that one
determination, the trial court’s order is vacated and the matter remanded to it
for recalculation of the child support payments required to be



 

made to appellant as set forth in
part A. above; any increase in such payments shall be retroactive to December
18, 2012.  The parties are to bear their
own costs on appeal.

 

 

 

                                                                                    _________________________

                                                                                    Haerle,
J.

 

 

We concur:

 

 

_________________________

Kline, P.J.

 

 

_________________________

Brick, J.*

 

 

 

 

 

 

 

 

 

 

            *
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.