Opinion
E079083
08-02-2023
In re the Marriage of SHAKIRAH GREEN- REYES and RENE G. REYES, JR. v. RENE G. REYES, JR., Respondent; SHAKIRAH GREEN-REYES, Appellant, DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.
Shakirah Green-Reyes, in pro. per., for Appellant. No appearance for Respondents.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FAMSS1303159. Daniel C. Lough, Temporary Judge.
Shakirah Green-Reyes, in pro. per., for Appellant.
No appearance for Respondents.
OPINION
RAMIREZ P. J.
The parties to this child support proceeding are Shakirah Green-Reyes, her ex-husband Rene G. Reyes, Jr., and the County of San Bernardino. Shakirah appeals from the trial court's denial of her request for increased child support from Rene. Most of her contentions fail because she did not raise them below and/or she does not support them with an adequate record here. Even on this skimpy record, however, one contention has merit: The trial court erred by finding no changed circumstances. In 2018, the parties stipulated to $1,375 a month in child support. As of 2022, however, guideline child support was $1,725 a month. This increase of more than 25 percent demonstrated that there must have been some changed circumstance, even if we cannot tell what it was.
I
STATEMENT OF THE CASE
Shakirah and Rene were married in 2006. They have two children. At the time of the hearing, the oldest child was 18, but he was still entitled to support because he was in high school. (Fam. Code, § 3901, subd. (a)(1).)
In 2012, the Department of Child Support Services (Department) filed an action for child support against Rene. In 2013, the trial court entered a stipulated judgment.
Later in 2013, Shakirah filed a petition for dissolution of marriage. Rene defaulted. The two cases were consolidated. In 2014, after a default prove-up hearing, the trial court terminated the marriage. It awarded Shakirah sole custody of the children, and it continued the stipulated child support order in effect. In 2018, however, the parties stipulated to a modification of the child support order.
In 2022, Shakirah filed a request to increase child support. Her request said, "See attached declaration" (capitalization altered), but our record does not include any attached declaration. A month later, she filed some kind of declaration that also is not in the record.
The Department filed a responsive declaration, but it, too, is not in the record. Rene did not file a responsive declaration. However, he did appear at the hearing. Both spouses were in pro. per.
The trial court denied the request because it found no significant change of circumstances.
II
FAILURE TO FILE AND SERVE AN INCOME AND EXPENSE DECLARATION
Shakirah contends that Rene failed to file an income and expense declaration. She claims that he provided a copy of his paystubs to the Department, rather than to the court; thus, he also failed to serve them on her.
She forfeited this contention by failing to raise it below. "'It is axiomatic that arguments not raised in the trial court are forfeited on appeal.' [Citation.]" (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1074.)
Moreover, the record fails to show that Rene did not, in fact, file an income and expense declaration. "'[[T]he appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Rene's declaration may have been attached to the Department's responsive declaration. Moreover, the trial court evidently had it; it said to Rene, "So I have the income and expense declaration. I've reviewed the expenses. Looked at the paycheck."
Finally, Shakirah has not shown that the asserted error was prejudicial. (See Cal. Const. art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) Counsel for the Department represented that, as a result of a mediation, there was "no dispute" as to the spouses' respective incomes. Shakirah did not disagree.
III
SUBMISSION OF FORGED PAYSTUBS
Shakira contends that Rene submitted forged paystubs. She says, "When I was able to observe the paystub (after the trial), I noticed that the paystub was a fake ...."
We cannot reach this issue, because Shakira failed to raise it in the trial court. Assuming the paystubs were forged, once she discovered that fact, she needed to raise it below, by way of a motion for reconsideration and/or a new request for orders.
We also cannot reach it because our record does not show that the paystubs were, in fact, forged. Shakira claims she could tell they were forged because the one she saw was in brown ink and blurry. However, it is not in the record. "From our perspective, 'if it is not in the record, it did not happen.' [Citation.]" (Vascos Excavation Group LLC v. Gold (2022) 87 Cal.App.5th 842, 852, fn. 3; see also Cal. Rules of Court, rule 8.204(a)(1)(C).)
IV
FAILURE TO CONSIDER EVIDENCE
Shakirah contends the trial court erred by refusing to consider a piece of evidence that she offered.
During the hearing, she asserted, "Rene is claiming that he doesn't have the extra money to help me but I have and printed out from my Citi Bank account from last weekend till November 8th of 2019, just about every month he's been giving me, Zelling me money, extra."
She argues that the trial court refused to consider this document. However, it is not clear that it did not consider it. For all we know, it accepted her assertion but concluded that it did not require a different outcome. For example, it could have reasoned that this flow of money had stopped in November 2019, five months before the hearing, so inferably it was no longer available.
V
EVIDENCE OF INCREASED LIVING EXPENSES
Shakirah contends the trial court erred by finding no changed circumstances, because she submitted an income and expense declaration showing that her cost of living had doubled.
If she did file an income and expense declaration, it is not in our record. Accordingly, the record does not support her claim of changed circumstances. (See part III, ante.)
She did testify that she had moved because she needed more space and her rent (not her total cost of living) had doubled. The trial court, however, did not have to believe her. "[I]n a bench trial, the trial court is the 'sole judge' of witness credibility. [Citation.]" (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) It seemed dubious of her claim; it said, "[I]t wouldn't appear that your monthly income would even allow you to pay the rent." Admittedly, she then pointed out that she had a second job; the trial court acknowledged this. Nevertheless, without a complete record, we can hardly say the trial court had no basis for disbelieving her.
VI
FAILURE TO AWARD THE GUIDELINE AMOUNT
Shakirah contends the trial court erred by refusing to award child support in the guideline amount.
According to the discussion at the hearing, in 2018, the parties had stipulated to $1,375 a month in child support. Counsel for the Department represented that, if Rene's timeshare was one percent, as Shakirah claimed, then guideline child support was $1,736; and if it was two percent, as Rene claimed, then guideline child support was $1,725.The parents agreed that Rene was visiting for not more than two hours a week, which would be a one percent time share (2 / (7 x 24) = 0.012). Nevertheless, the trial court kept child support at $1,375.
Our record contains no documentary evidence of this. Nevertheless, "'attorneys are officers of the court, and "'when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.'"' [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 112, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the trial court expressly accepted counsel's representation.
Of course, the trial court did so because it found no changed circumstances. In the absence of changed circumstances, it had no authority to increase child support. (Swan v. Hatchett (2023) 92 Cal.App.5th 1206, 1214; In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1235.) And, as already discussed, on this record (see part V, ante), Shakirah cannot show that her allegedly increased rent actually constituted a changed circumstance.
However, the very fact that the guideline amount was dramatically higher than the 2018 stipulated amount demonstrated that there was some kind of changed circumstance, even though our record does not reveal exactly what it was. "In determining whether a material change has occurred, the first step often involves applying the statewide uniform guideline to the parent's current financial circumstances. [Citation.]" (In re Marriage of Hein (2020) 52 Cal.App.5th 519, 528.) Thus, the trial court's duty to at least consider modifying child support was triggered.
The trial court could not depart from the guideline amount unless it stated reasons in writing or on the record. (Fam. Code, § 4056, subd. (a).) It did not. Instead, it simply found no changed circumstances and stopped there. Despite the inadequacies of this record, it is clear that that finding lacks support.
Accordingly, we must reverse and remand for reconsideration.
VII
DISPOSITION
The order appealed from is reversed. On remand, the trial court must reconsider Shakirah's request for an increase in child support. Before doing so, it must allow the parties to submit updated income and expense declarations, as well as any evidence of any other relevant subsequent developments.
Shakirah filed a peremptory challenge to the trial court judge, which was rejected as untimely. We note that on remand, she will have the right to file a new peremptory challenge. (Code Civ. Proc., § 170.6, subd. (a)(2).) We do not mean to cast any aspersions on the trial court judge nor to dictate Shakirah's litigation strategy. We mention it only because she is in pro. per. and may not be aware of this right.
In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: McKINSTER J. RAPHAEL J.