Opinion
H043869
01-25-2018
In re the Marriage of CHRISTINA and MIKE AJLOUNY. CHRISTINA AJLOUNY, Respondent, v. MIKE AJLOUNY, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super.Ct.No. 6-11-FL007189)
This appeal is from a March 2016 order denying a motion to modify spousal support and child support. In August 2012, the court ordered appellant Mike Ajlouny to pay respondent Christina Ajlouny temporary spousal support of $8,587 per month and temporary child support of $7,760 per month. Thereafter, in July 2013, the parties signed a stipulation upon which an order was entered that modified the monthly spousal support amount to $5,000 and the monthly child support amount to $5,000. In November 2014 and February 2015, respectively, Mike filed requests to modify child support and spousal support. In both requests, Mike also sought to reduce or eliminate support arrearages that had accrued before the date each request was filed. After an eight-day trial, the trial court, in a statement of decision filed March 8, 2016 (the Order), denied Mike's two requests to modify support and denied the requests for reduction or elimination of accrued arrearages. The court also imposed $50,000 in sanctions against Mike payable to Christina as attorney fees and costs pursuant to Family Code section 271, subdivision (a), "based on his increasingly litigious, meritless, and vexatious actions."
"Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
All further unspecified statutory references are to the Family Code.
Mike, a self-represented litigant, contends on appeal that the court erred in denying his requests to modify spousal and child support and to reduce or eliminate support arrearages. He also challenges the court's imposition of sanctions, its failure to order the Santa Clara County Department of Child Support Services (DCSS) to cease all collection efforts, and the court's refusal to extend the stay of the suspension of Mike's driver's license.
We conclude the court did not abuse its discretion by denying Mike's requests to modify spousal and child support and to reduce or eliminate support arrearages. We also hold that the court did not abuse its discretion in awarding attorney fees and costs as sanctions to Christina. We conclude further that the court did not err in denying Mike's requested relief relative to the DCSS's collection efforts and the stay of suspension of his driver's license. Accordingly, we will affirm.
I. PROCEDURAL HISTORY
As noted below, Mike has failed to designate a number of significant documents relevant to the issues raised in this appeal, including the papers filed in connection with the subject request for modification and the Order. As such, our ability to ascertain the relevant procedural history is significantly impeded. Most of the relevant procedural background recited herein is taken from the challenged Order, which was designated by Mike but was not included as part of the clerk's transcript. It was nonetheless made available to us as an attachment to Mike's case information statement filed herein on August 31, 2016. We therefore on our own motion augment the record to include the Order. (See Cal. Rules of Court, rule 8.155(c)(1).) Further rule references are to the California Rules of Court.
A. Prior Proceedings
Christina filed a petition for dissolution of her marriage with Mike on a date unknown. At the time of their separation on or about August 1, 2011, they had been married for slightly over 18 years. They have four children, whose names are, and ages were (at the time of the court's Order of March 8, 2016), as follows: Annabelle (13), Logan (16), Blake (18), and Lucas (21). As of March 2016, Annabelle and Blake resided with Christina, and Logan and Lucas lived with Mike.
In the summer of 2012, the court conducted a six-day trial concerning issues of temporary spousal support, child support, and attorney fees and costs. On August 21, 2012, the trial court issued its written findings and order. In addition to awarding retroactive support, the court ordered Mike to pay temporary monthly child support and spousal support from August 1, 2012, forward of $7,760 and $8,587, respectively. The court based these support orders on its findings, including that (1) "the parties enjoyed a high marital standard of living"; (2) Mike's income was "cyclical and [could] sometimes be less than $10,000 per month," and was therefore subject to fluctuation "both seasonally and due to business factors"; (3) as recently as 2010, Mike earned approximately $75,000 per month; (4) Mike was "an able and resourceful entrepreneur" who "ha[d] faced . . . . business challenges in the past and ha[d] always succeeded"; and (5) notwithstanding Mike's claim that "his business was in crisis," the court was "confident that [Mike would] succeed and equally confident that [Mike's] business [would] fail only if he want[ed] it to fail." The court based its support order on Mike's average monthly income for the 12-month period before the trial commenced (i.e., June 1, 2011 through May 31, 2012), concluding that this figure was $42,868. Neither party challenged this order by appeal. (See In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637 ["temporary support order is operative from the time of pronouncement, and it is directly appealable"].)
We are aware that Mike filed a notice of appeal on October 25, 2012, presumably challenging the court's temporary support order of August 21, 2012. This court dismissed the appeal on November 30, 2012, due to Mike's failure to procure a record, and a remittitur issued on January 30, 2013. We take judicial notice of these filings before this court. (Evid. Code, § 459, subd. (a).)
On July 15, 2013, pursuant to the parties' stipulation, the court entered an order modifying support to provide that Mike would pay $5,000 per month in child support and $5,000 per month in spousal support. It was also recited in the stipulation that Christina would receive $1,045,000 as a global buyout of her portion of the parties' community real property, which consisted of a residence on Hicks Road in Los Gatos, two properties in Santa Cruz, and a property in Gilroy. And it was stipulated that the business known as MacPro, which was owned prior to the marriage and operated during the marriage, would be awarded to Mike, with the acknowledgment that the business was "in extreme debt to several creditors."
A further stipulation and order was filed on October 8, 2013, in which the parties, among other things, reiterated the terms of the July 15, 2013 stipulation and order and declared them to be in full force and effect. It was also recited that as of October 1, 2013, Mike was current with respect to the payment of spousal support and child support payments.
B. Mike's Modification Requests
As recited by the court in its Order, after the filing of the August 21, 2012 support order, the stipulation and order of July 15, 2013, and the stipulation and order of October 8, 2013, Mike filed requests for orders to modify child and spousal support. These requests are not part of the appellate record. On or about November 25, 2014, Mike filed a request for "modification of the October 8, 2013 child support orders on an ongoing basis and the reduction or elimination of his arrears accruing before that date." And, as further recited in the Order, on or about February 23, 2015, Mike filed a request for "modification of the October 8, 2013 spousal support orders on an ongoing basis and the reduction or elimination of his arrears accruing before that date." (Hereafter, Mike's November 25, 2014, and February 23, 2015 requests for orders are collectively referred to as the support modification requests.)
The matter proceeded to an eight-day court trial held in December 2015. As enunciated by the court, the issues at trial consisted of "termination of marital status, permanent or judgment spousal support, modification of temporary child support, modification of temporary spousal support, attorney fees and sanctions." The court issued its tentative decision on January 27, 2016, and Mike filed an objection on February 11, 2016. At the court's request, on March 1, 2016, Christina served a proposed ruling in response to Mike's objections. The court issued a ruling on Mike's objections on March 8, 2016. And on the same date, it issued its 30-page Order (statement of decision), which included an order of dissolution of the marriage.
The issues at trial also included temporary child support in the separate case between Mike and Nina Grimm, the mother of Mike's child, that was joined with the marital dissolution case for trial. That case is not relevant here.
The Order references the entry on March 8, 2016, of a separate judgment, but that judgment is not part of the record on appeal.
C. March 2016 Order
In the Order that is the subject of this appeal, the court denied Mike's requests to reduce or eliminate accrued child and spousal support arrearages. It concluded that "[n]either of Mike's Requests for Orders identified any basis for the retroactive modification of either the child support or spousal support orders." It concluded Mike had failed to meet his burden of proof "of showing any grounds or valid reason" for such retroactive modification.
The Order was lengthy and embraced a number of topics. Some of the rulings of the court stated in the Order—such as payment of the uninsured medical expenses of the parties' children, payment of Blake's tuition, reimbursement of health insurance premiums paid by Christina, and denial of Christina's request for attorney fees under sections 2030 and 2032—have not been challenged by Mike in this appeal and therefore will not be detailed here.
In addition, the court denied Mike's request that the DCSS cease all collection efforts. It found that Christina had submitted an application for services with DCSS in October 2014 in which she requested enforcement of child support orders, and that the DCSS was a necessary party in any litigation concerning such support obligations.
At trial, Mike made an oral request to extend the stay of execution on the revocation of his driver's license due to nonpayment of child support. The court denied the oral request, finding that "Mike ha[d] clearly acted in bad faith in seeking to avoid payment of child support."
The court further concluded that, pursuant to section 4058, subdivision (b), it was appropriate to consider Mike's earning capacity rather than actual earnings in determining support. It concluded that at trial, "Mike demonstrated that he voluntarily reduced, divested, and simplified, at the very least, his lifestyle at the cost of his children." The court based this conclusion on a number of circumstances, including the fact that "[b]y his own admission, Mike gifted his business to his son and then forgave the loan in excess of $400,000 at the expense of the other children . . . [and in October 2014] divested his interest in his home currently valued in excess of $5,000,000 for what he claimed was the benefit of four of his five children." The court observed further that there had been a prior finding in August 2012 by a different judge in the case that Mike's earning capacity was $42,868 per month, and it concluded that this prior finding could be relied on as evidence, since the judge who made the prior order had been "careful to note that Mike had fluctuations in income based on cyclical factors and contemplate[ed] Mike's allegations that the business was on the verge of collapse at the time of the 2012 trial." The court concluded further that Mike had "offered no persuasive evidence [in the December 2015 trial] that his earning capacity ha[d] changed," and "[t]he evidence at trial . . . clearly showed that Mike acted in bad faith in attempting to hide his assets and income to avoid his child support obligations." It therefore concluded that it was appropriate to adopt the prior finding that Mike had an earning capacity of $42,868 per month.
In addition, the court held it was appropriate to impute income to Mike because the evidence he presented concerning his financial situation was not credible, and he had "demonstrated a willful intention to avoid fulfilling his support obligations through deliberate misconduct." It noted that Mike and his expert both "verified that none of the profit and loss statements submitted by Mike's companies were ever accurate." The court observed that Mike had based his support modification requests, in part, upon a change of circumstances, namely, that his business had failed. The court rejected this justification for modification of the support orders because Mike had stated in sworn declarations and testimony that his business had closed in June 2013, before the entry of the stipulations for support he was seeking to modify in July and October 2013. The court also found that "Mike's own representation of his expenses was not consistent with his income or his lifestyle." Accordingly, the court held it was appropriate to impute income to Mike at the level of $42,868 per month.
Regarding Mike's lifestyle, the court cited evidence, inter alia, that he and his former girlfriend, Grimm, had travelled extensively on vacations; they had opened a bank account while they were in Panama; Mike had a bank account in Switzerland; Mike had kept expensive jewelry at home in his safes; and Mike had bought a 2013 Tesla vehicle and a charging station for in excess of $100,000 that was originally in Grimm's name but, after her relationship with Mike ended, was "gifted at Mike's direction to his son Lucas for what appear[ed] to be an effort to rid [Mike] of assets and avoid his obligations, including his child support obligations"
The court adopted DissoMaster calculations to order that Mike—beginning December 1, 2014, the month after the filing of his request to modify child support—pay $5,409 per month to Christina in child support. The court concluded that, although this amount was greater than the child support to which the parties stipulated in July 2013 and October 2013, because the stipulated amount was "below-guideline order," no change of circumstances was required to modify the support amount to guideline level.
"The DissoMaster is a privately developed computer program used to calculate guideline child support under the algebraic formula required by section 4055. [Citation.]" (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1227, fn. 5.)
The parties acknowledged in their July 2013 stipulation that the child support amount agreed upon might not be at guideline levels, and they agreed that "[n]o change of circumstances need to be demonstrated to obtain a modification of child support to the applicable guideline level under the statewide uniform guidelines or above."
The court ordered that Mike pay Christina permanent spousal support of $5,000 per month. It made a finding under section 4336 that the marriage had been one of long duration (i.e., the parties had been married for over 18 years). In determining permanent spousal support, the court found—referring to the finding in the prior August 2012 order—that the parties had a high marital standard of living. (See § 4330, subd. (a).) In addition, the court specifically considered in detail each of the factors specified under section 4320 in making its order of permanent spousal support. (See In re Marriage of West (2007) 152 Cal.App.4th 240, 246-247.)
The court denied Mike's request to reduce the amount of temporary spousal support from the $5,000 monthly figure to which the parties stipulated in July and October 2013. The court noted that the stipulated figure was lower than the guideline temporary spousal support, and that at the time of the stipulation in July 2013, the parties also agreed that Mike would make a payment to Christina of over one million dollars in connection with the division of assets. And it observed that the stipulated amount was "the same amount the court arrived at independently [in determining permanent spousal support] when it examined all of the Family Code section 4320 factors, including that Mike has another child. This amount is the correct amount under all the facts and circumstances regardless of whether Mike had a burden of showing changed circumstances or not with respect to spousal support."
Finally, the court determined that it was appropriate to order Mike to pay Christina $50,000 in attorney fees and costs as sanctions pursuant to section 271, subdivision (a). The court found that Mike "ha[d] been uncooperative throughout this dissolution process. [He] . . . told [Christina] and her attorney that his goal [was] to have [Christina] exhaust her financial resources to pay her attorney's fees and costs so that she [would] drop all pending litigation and agree to Mike's terms for settlement. This sentiment [was] supported by the fact that Mike ha[d] filed six separate motions between December 2, 2014[,] and September 18, 2015. Specifically, Mike has filed a new motion every 40 days or so and intentionally set law and motion hearings and custody conference in hopes that Christina [would] incur significant attorney's fees and costs. Mike has indicated to Christina that this pattern of conduct will continue if he does not receive favorable orders following this trial." The court described Mike's conduct as "egregious," citing his "recent[] remov[al of] the minor children from his medical insurance coverage in violation of a court order" as the "most notable and reprehensible" example. It found that the award of sanctions of $50,000 would not cause an undue burden (see § 271, subd. (a)) in view of Mike's "earning capacity of $42,868 per month."
Mike filed a timely appeal from the Order. The Order, which included orders determining permanent spousal support and modifying child support, "created enforceable rights and obligations," was "final in form and substance, and thus appealable." (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359; see In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)
This proposition (that the Order is appealable) is without regard to whether there was a judgment entered that incorporated the terms of the Order, which judgment would, of course, be appealable. As noted (see fn. 6, ante), it is apparent that there may have been a judgment entered coinciding with the entry of the Order, but any such judgment is not part of the record on appeal.
II. DISCUSSION
A. Standard of Review
We review an order granting or denying a motion to modify a spousal support order for abuse of discretion. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) "In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.)
Similarly, as a panel of this court has explained: "A trial court's award concerning child support is reviewed for abuse of discretion. [Citations.] Likewise, a determination regarding a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found from examining the record below. [Citations.]" (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555; see also In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.)
And an award of attorney fees and costs as sanctions under section 271 is also "reviewed for abuse of discretion. [Citation.] . . . [W]e will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] 'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.' [Citation.]" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)
B. Appeal From March 8, 2016 Order
1. Contentions of the Parties
Mike's challenges to the Order in his lengthy opening brief are somewhat difficult to discern or summarize. His argument includes the claim that the court, in its prior August 2012 order establishing temporary support, erred in concluding that Mike's average monthly income for purposes of setting support was $42,868. That prior order was not challenged by Mike through a timely appeal; the order is now final, and we therefore cannot consider Mike's challenge to it here. (See Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1685 [challenge to validity of ancillary appealable order for which no appeal was taken and which order is final is not cognizable in appeal of subsequent order]; see also Code Civ. Proc., § 906.)
In his opening brief, Mike makes make a number of unkind remarks about counsel, Christina, and the lower court. Such unkind remarks have no place in appellate practice and do nothing to advance plaintiffs' case. (See In re S.C. (2006) 138 Cal.App.4th 396, 412 ["unwarranted personal attacks [in appellate briefs] on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct"; id. at p. 422 [ "Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court."].) We request that all litigants in these proceedings conduct themselves in a respectful and professional manner.
The focus of Mike's claim of error concerning the March 2016 Order is that the court imputed income to Mike of $42,868, notwithstanding (he asserts) that he "ha[s] had no significant income since 2010." Mike argues that the court failed to consider that his business which was his prior source of income (the sale of used computers) had failed, that his income for 2013 and 2014 was a negative figure, and that his monthly income for purposes of determining support amounts should be minimum wage. He contends further that he established a change of circumstances that warranted granting his requests for reduction of spousal and child support. This change of circumstances, Mike argues, included evidence he presented regarding the failure of his business (MacPro), a downward trend in sales to consumers of used computers, the failure of NG Go MacPro (a business purportedly owned by his former girlfriend, Nina Grimm), his having a new baby to support, his having a criminal record (as a result of him having been found in contempt with respect to a restraining order obtained by Christina), changes in child custody (with Logan, at some unspecified date, coming to live with him), and damage to his credit.
The court described NG Go MacPro as a business that opened contemporaneously with the closure of, and at the same location as, MacPro, and which had the same inventory as MacPro. The court further found that NG MacPro was run (according to Grimm's testimony) by Mike, and that he used Grimm's signature stamp to facilitate operation of the business. And, even though Grimm received no profits from the business, Mike received payments from NG Go MacPro of $224,721 between August 2013 and November 2014. The court noted further that after the relationship between Mike and Grimm ended, the business known as NG Go MacPro "transferred its assets to a business known as LMA MacPro.com which was ostensibly operated by Lucas, the adult son of the parties . . . . Again evidence was presented that a stamp was created bearing Lucas's signature and that Mike remains actively involved in running [the] business. Lucas, by contrast, is a full-time college student . . . with a part-time job."
Mike also challenges the court's denial of his request (1) to reduce or eliminate unpaid arrearages, (2) to require DCSS to cease their collection efforts, and (3) to extend the stay order regarding the suspension of his driver's license. And he challenges the imposition of sanctions against him.
Christina responds that it was Mike's burden to prove a material change of circumstances to justify modifying the child and spousal support order, and that he failed to meet that burden. She argues further that, contrary to Mike's claim on appeal, the court did not err in failing to order a vocational evaluation prior to imputing income of $42,868 per month to Mike, because (1) Mike failed to make a timely request that the court order such evaluation, and (2) such an evaluation was not a prerequisite to the court's making a determination as to the imputation of income.
Christina, on August 18, 2017, filed a document with this court entitled "Respondent's Reply Brief Addendum" (Respondent's Addendum). Although she stated in the document that she was a self-represented litigant, at the time, she was still represented by counsel. (A substitution of attorneys was filed with this court on August 23, 2017.) Christina stated in the document that she wished it to serve "as a[n] addendum and/or full replacement to the Respondent's Brief prepared by my prior attorney." She stated further in Respondent's Addendum that she agreed with Mike "that the [i]mputation of income has no basis in fact" because his current monthly income is approximately $300, and that "there has been many changes of circumstances that [Mike] presented at trial. [Sic.]" Christina requested in the document that this court "[a]ppeal this judgement in favor of Appellant Mike Ajlouny, To impute his gross income to min. wage of $300 per month. [Sic.]"
The Respondent's Addendum should not have been accepted for filing because (1) it was not a permissible filing, as it was not a brief authorized under the rules of appellate practice and neither Christina nor her attorney of record sought leave of court to file it through application to the presiding justice (see rule 8.200(a)(4)); and (2) Christina was still represented by counsel at the time the Respondent's Addendum was filed (see rule 8.36(b)), and we cannot consider a document she purportedly submitted as a selfrepresented litigant while she was represented by counsel. (See McMillan v. Shadow Ridge At Oak Park Homeowner's Ass'n (2008) 165 Cal.App.4th 960, 965 [courts and opposing party have right to rely on court records concerning current status of representation of party as provided in court filings]; Forslund v. Forslund (1964) 225 Cal.App.2d 476, 488 [where procedures for substitution of counsel provided under Code Civ. Proc., §§ 284 and 285 are not followed, pleadings by opposing counsel filed after ineffective substitution of counsel are properly served on counsel of record].) We have accordingly, by order of this court of January 10, 2018, directed that the clerk withdraw the filing of Respondent's Addendum and deem it received on August 18, 2017.
After oral argument, Christina, representing herself, attempted to file a document entitled "Respondent's Reply Brief Addendum No. 2" (Respondent's Addendum No. 2), in which she repeated her position in Respondent's Addendum that she now agreed with Mike's appellate arguments and wished to amend or replace Respondent's Brief. Although Christina did not submit an application to the presiding justice to file her latest pleading (see rule 8.200(a)(4)), this court ordered the filing of Respondent's Addendum No. 2.
We observe further that, at oral argument attended by Mike and Christina (both as selfrepresented litigants, as Christina became selfrepresented on August 23, 2017), Mike advised that a stipulated settlement had been filed with the superior court, a document that has not been provided to this court. Both litigants requested that, consistent with Mike's position in this appeal, we issue a decision reversing the trial court's order. Irrespective of whether the parties may have settled their differences, we are constrained to adjudicate the merits of the appeal and cannot issue a decision that may be contrary to the merits in order to satisfy the parties' resolution of the case. (See Code Civ. Proc., § 128, subd. (a)(8) [reversal of trial court decision based upon stipulation or agreement of parties disfavored]; Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999, 1005 [Code Civ. Proc., § 128, subd. (a)(8) "creates a presumption against stipulated reversals"].)
2. Mike Has Failed to Establish Error
a. Noncompliance with Procedural Rules
Our determination of the merits of this appeal is controlled by Mike's material noncompliance with rules of appellate procedure. As discussed below, this noncompliance may be generally categorized as involving Mike's failure to (1) procure an adequate appellate record, (2) include proper citations to the record in his appellate briefs, (3) adequately develop legal arguments in those appellate briefs, and (4) preserve issues for appeal.
i. No Adequate Record
Mike filed a timely notice of designating the record on appeal, including a clerk's transcript. He, however, failed to designate a number of documents essential for our review of the Order. Additionally, although designated by Mike, three documents filed by him were not included in the clerk's transcript, and he has made no effort after the filing of the clerk's transcript to correct the record to provide for their filing. (See McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 299, fn. 6 [appellant's failure to correct clerk's transcript may result issue being deemed waived].)
These omitted documents include (1) his request for order to modify child support filed on or about November 25, 2014; (2) his request for order to modify spousal support filed on February 23, 2015; (3) any declarations filed in support of Mike's support modification requests; (4) any opposition filed by Christina to the support modification requests; (5) any opposition filed by the DCSS to the support modification requests; (6) any reply papers filed by Mike in support of the support modification requests; (7) any trial or posttrial memoranda filed by Christina in opposition to the support modification requests; (8) any trial or posttrial memoranda filed by DCSS in opposition to the support modification requests; (9) the court's tentative decision filed January 27, 2016; (10) Christina's proposed ruling on Mike's objections to tentative decision filed March 1, 2016; (11) DCSS's proposed ruling on Mike's objections to tentative decision filed March 3, 2016; (12) the court's ruling on Mike's objections to tentative decision filed March 8, 2016; and (13) any judgment entered by the court on its statement of decision filed March 8, 2016.
The three documents were Mike's trial brief (December 7, 2015), his written closing argument (December 31, 2015), and his objections to tentative decision (February 11, 2016).
The party challenging the trial court's ruling has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) When there is an inadequate record, we must presume any matters that could have been presented to support the trial court's order were in fact presented, and may affirm the trial court's determination on that basis. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 (Bennett).) An appellant's failure to present an adequate record will result in the issue being resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.); see also Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [rejecting claim that demurrer improperly sustained where appellant failed to present adequate record by including operative complaint and demurrers].)
Here, Mike has failed to present the relevant documents from the court below that are necessary to adequately address his challenge to the Order in this appeal, including the moving, opposition, and reply papers relative to the support modification requests. We therefore have no information as to the written arguments, declarations, or documentary evidence presented by Christina or by the DCSS. We will presume that any matters that could have been presented by Christina or by the DCSS to support the trial court's Order were in fact presented. (Bennett, supra, 19 Cal.App.4th at p. 127.) Because Mike has failed to provide an adequate record from which we may evaluate his claims that the court erred in denying his support modification requests and in imposing sanctions, we will resolve those claims against him. (Maria P., supra, 43 Cal.3d at p. 1295-1296.)
ii. No Citations to Record
Mike's opening brief and reply brief are replete with statements of specific factual matters upon which he bases his claim that the court below erred. But he fails repeatedly to include citations to the appellate record identifying where the specific facts were presented to the trial court. For instance, in the 10-page statement of facts in his opening brief, Mike recites numerous purported facts with no citations to the reporter's transcript identifying where the facts may be confirmed from trial testimony. Specifically, in that section of his opening brief, Mike identifies a number of findings by the court in its Order, followed by a recitation of unsupported facts he claims refute those findings. Mike similarly fails to include citations to the record to support alleged facts presented in the argument section of his opening brief. And his reply brief contains the assertion of numerous purported facts without citations to the record. Moreover, Mike's appellate briefs do not include citations to the record regarding procedural matters that occurred below.
Mike's failure to include citations to the record in his appellate briefs constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C., supra, 138 Cal.App.4th at pp. 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs "not supported by references to the record are disregarded" by the reviewing court].)
The difficulty presented by Mike's failure to include record citations in support of his factual assertions is heightened in this case where the record—from an eight-day trial consisting of a reporter's transcript of approximately 1300 pages involving the testimony of more than 10 witnesses—is extensive. " 'We are a busy court which "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record." ' [Citations.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) We will therefore disregard Mike's factual contentions and any references to procedural matters below for which he has failed to provide citations to the record. (Yeboah, supra, 128 Cal.App.4th at p.451.)
A further difficulty is presented by Mike's failure to include citations to the record in support of facts raised in his appellate briefs. Without citation to the record, this appellate court is at a loss to know whether the facts identified by the party were actually part of the record below, or are extraneous matters raised by the litigant that were not before, and thus not considered, by the trial court. "Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) --------
iii. Undeveloped Arguments
Mike in his appellate briefs makes a number of general assertions regarding his position that the court erred. By way of example, he challenges the court's denial of his request to reduce or eliminate unpaid arrearages, stating: "Arrears where [sic] unfairly established and my [i]ndustry was not comprehensible to [the court] in 2012. Also, the finding is not appropriate, too severe, unfair, and unjust in this case." He challenges the denial of his request that the DCSS be ordered to cease collection efforts, claiming the efforts were "unfair not appropriate, too severe, unfair, and unjust in this case." (Sic.) He further contends that the sanctions imposed as stated in the Order were "unjust and unfair." There are few or no specifics provided by Mike to support these and other general claims, and, as noted (see pt. II.B.2.a.i., ante), the factual assertions made to support any arguments are devoid of citations to the record.
"Conclusory assertions of error are ineffective in raising issues on appeal. [Citation.]" (Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 533, citing rule 8.204(a)(1)(B).) As a panel of this court has explained: "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) Thus, any claim of error by Mike that is not adequately developed in his appellate briefs is waived.
iv. Unpreserved Claim of Error
Mike argues that the court erred in concluding that his earning capacity was $42,868 (and imputing income to him at that level) without having first ordered a vocational evaluation concerning Mike's ability to earn income. In response, Christina contends that Mike is barred from asserting this claim of error because he did not request that the court order him to undergo a vocational evaluation at any time prior to trial and submission of the cause. In his reply brief, Mike does not address in any way the question of whether he made a timely request below for a vocational evaluation.
Mike, as appellant, has the burden of establishing not only the merits of any claims of error, but also that he adequately preserved such claims by raising them below. This includes the obligation to demonstrate to the appellate court by citation to the record that appellant raised the issue (or objection) before the trial court. (In re S.C., supra, 138 Cal.App.4th at p. 406.) Otherwise, the claim is forfeited. (Ibid.) This principle " 'is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.' [Citations.]" (Ibid.)
In a dissolution proceeding, the court, upon noticed motion and for good cause shown, "may order a party to submit to an examination by a vocational training counselor." (§ 4331, subd. (a), italics added.) An order made pursuant to section 4331 is reviewed for abuse of discretion. (In re Marriage of Stupp and Schilders (2017) 11 Cal.App.5th 907, 912.) But, of course, it is inappropriate for an appellate court to consider whether the trial court properly exercised its discretion where, as here, it was not called upon to decide the matter. Since Mike did not preserve the issue below by moving for a vocational evaluation order, he has forfeited any claim of error on appeal relating to the absence of such order. (In re S.C., supra, 138 Cal.App.4th at p. 406; see, e.g., Children's Hosp. and Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777 [objection that court lacked jurisdiction to issue attorney fee award forfeited due to party's failure to raise objection at trial level].)
b. Conclusion
In this appeal, Mike challenges discretionary rulings made by the trial court after it considered the evidence presented at a lengthy trial. The court provided a detailed statement of decision setting forth its reasoning in support of its various orders with a recitation of the testimony and other evidence deemed relevant to the court's decision. It was Mike's burden, as the appellant, to show " 'a clear case of abuse . . . and . . . [that] there has been a miscarriage of justice' " from the trial court's decision. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) This is a " 'daunting task' confronting an appellant." (Dreamweaver Andalusians, LLC v. Prudential Insurance Company of America (2015) 234 Cal.App.4th 1168, 1171.)
Mike has failed to meet his burden of demonstrating error. He has not provided this court with an adequate record from which we can evaluate the Order and thus we will presume that all matters that could have been presented by Christina and DCSS to support the court's rulings were in fact presented. (Bennett, supra, 19 Cal.App.4th at p. 127.) His failure to include citations to the record in support of the numerous assertions of fact in his appellate briefs renders it impossible for this court to assess the merits of his contentions, and we therefore deem them to lack foundation and to be forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) And to the extent Mike makes general assertions as to certain rulings without developing the arguments, we treat them as having been waived. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
We acknowledge that Mike is representing himself in this appeal and has not had the formal legal training that would be beneficial in advocating his position. However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, "[w]hen a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
III. DISPOSITION
The March 8, 2016 Order (Statement of Decision) addressing, inter alia, appellant Mike Ajlouny's requests for orders modifying spousal support and child support, is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.