Opinion
E078768
11-20-2023
In re Marriage of MARY and CRAIG GAMROTH. v. CRAIG GAMROTH, Appellant. MARY GAMROTH et al., Respondents,
Albut Law and Christian J. Albut, for Appellant. Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Maureen C. Onyeagbako and Jacquelyn Y. Young, Deputy Attorneys General, for Respondent San Bernardino County Department of Child Support Services. No appearance for Respondent Mary Gamroth.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. SBFSS84373 Daniel C. Lough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Affirmed.
Albut Law and Christian J. Albut, for Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Maureen C. Onyeagbako and Jacquelyn Y. Young, Deputy Attorneys General, for Respondent San Bernardino County Department of Child Support Services.
No appearance for Respondent Mary Gamroth.
OPINION
FIELDS J.
I. INTRODUCTION
In 2005, a judgment was entered dissolving the marriage of appellant Craig Gamroth (husband) and his wife, respondent Mary Gamroth (wife). In December 2019, husband filed a motion (modification motion) requesting modification of an existing order for child support. In September 2021, respondent San Bernardino County Department of Child Support Services (Department) filed a motion to enforce the existing child support order (enforcement motion), requesting that the court order husband to pay $1000 a month to satisfy accrued arrears. On January 11, 2022, the trial court held a hearing on both motions, denied the modification motion, and granted the Department's enforcement motion.
Husband appeals, arguing that the trial court erred by failing to conduct a trial or hold an evidentiary hearing prior to ruling on both motions. Husband also argues that the amount he has been ordered to pay monthly toward arrears constitutes an abuse of discretion. We conclude that the record does not show an abuse of discretion regarding the failure to conduct a trial or hold an evidentiary hearing. We further conclude that husband has failed to demonstrate prejudicial error requiring reversal as the record is inadequate to review husband's remaining claim. We affirm the orders.
II. BACKGROUND
Husband has two children. In 2005, a judgment was entered dissolving his marriage with the mother of his children. While no order has been included as part of the record on appeal, the record suggests that, at some point, husband was ordered to pay $2000 in monthly child support.
Husband's modification motion states that he sought to modify a child support order entered in 2017 requiring him to pay "$2000." However, it is not apparent from the register of actions that any such order was entered in 2017.
In December 2019, husband filed a motion requesting modification of the operative child support order. The motion listed no facts in support of the requested modification. The record suggests that husband filed a declaration at the same time as his motion and that wife filed a responsive declaration, as well as an updated income and expense declaration in opposition to the motion. However, none of these documents were included as part of the record on appeal.
On September 13, 2021, the Department filed its enforcement motion, requesting that the court order husband to pay $1000 a month toward satisfaction of accrued child support arrears. The enforcement motion was not included as part of the record on appeal.
On September 27, 2021, husband filed a "declaration in support of request for order." Husband stated that he had been unable to obtain steady employment since 2018; claimed he had difficulty obtaining work due to "issues with [his] license"; and claimed that companies considered him a risky hire because background checks disclosed that he owed back taxes and unpaid child support. He conceded that he continued to work "if there [were] jobs available," but he did not estimate any amount of monthly income. He also purported to attach a pay stub as an exhibit, but the record on appeal does not include this exhibit. Husband claimed that he had to rely on family members to support himself, and he also claimed that he owed significant sums in unpaid taxes. The record suggests that husband also filed an updated income and expense declaration, but this document was not included as part of the record on appeal.
On January 10, 2022, husband filed an updated income and expense declaration on Judicial Council Forms, form FL-150. Husband reported that he received no salary or wages in the past 12 months and estimated his monthly expenses to be $1,275. However, husband left blank numerous items on the form, including disclosures regarding the receipt of public assistance, investment income, income from selfemployment, and disclosure of his current financial assets. Husband also submitted a second declaration that repeated the assertions made in his September 2021 declaration but also stated he was in the process of filing a claim for disability.
We observe that this appears to contradict his prior declaration purporting to attach a paystub from September 2021.
On January 11, 2022, the trial court held a contested hearing on husband's modification motion and the Department's enforcement motion. At the time of the hearing, the parties informed the trial court that husband's youngest child was considered emancipated as of June 2021. Accordingly, the trial court concluded that the relevant time period with respect to husband's modification motion was January 2020 through June 2021. The trial court denied husband's modification motion and granted the Department's enforcement motion, ordering husband to pay $1000 a month toward his accrued arrears. Husband appeals from this order.
By statute, a court-ordered child support obligation continues only "until the time the child completes the 12th grade or attains 19 years of age, whichever occurs first." (Fam. Code, § 3901, subd. (a)(1); In re Marriage of D.H. & B.G. (2023) 87 Cal.App.5th 586, 595.)
III. DISCUSSION
" 'An order of child support "may be modified or terminated at any time as the court determines to be necessary." '" (Swan v. Hatchett (2023) 92 Cal.App.5th 1206, 1214 (Swan); Fam. Code, § 3651, subd. (a).) Additionally," '[i]f a parent has been ordered to make payments for the support of a minor child, an action to recover an arrearage in those payments may be maintained at any time within the period otherwise specified for the enforcement of such a judgment, notwithstanding the fact that the child has attained the age of 18 years.'" (S.C. v. G.S. (2019) 38 Cal.App.5th 591, 598; § 4503.) "Section 290 provides any support judgment/order can be enforced 'by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.'" (In re Marriage of Lak (2020) 50 Cal.App.5th 581, 592.)
Undesignated statutory references are to the Family Code.
On appeal, motions to modify existing child support orders and motions to enforce child support order arrearages at a specified rate are reviewed for abuse of discretion. (Swan, supra, 92 Cal.App.5th at p. 1214 [determination on request to modify child support order reviewed for abuse of discretion]; In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384 [same]; S.C. v. G.S., supra, 38 Cal.App.5th at p. 598 [applying abuse of discretion standard to postjudgment order relating to child support arrears].) "Under an abuse of discretion standard, we review the trial court's legal conclusions de novo and its factual findings for substantial evidence, and we reverse its application of the law to the facts only if it was arbitrary and capricious." (Swan, at p. 1215; County of San Diego v. P.B. (2020) 55 Cal.App.5th 1058, 1068.) "Even in the absence of a responding brief . . ., we adhere to the requirement that the appellant affirmatively demonstrate prejudicial error." (County of San Diego, at p. 1068.)
Initially, we address husband's claim that the trial court abused its discretion by failing to conduct a trial or hold an evidentiary hearing prior to ruling on both motions. In this case, both of husband's declarations included as part of the record on appeal expressly state that husband offered the declarations "in lieu of personal testimony." Husband did not appear at the time of the hearing, and his counsel did not express an intent or desire to offer any additional evidence with respect to either motion. Given this record, the trial court's decision to forego a trial or evidentiary hearing cannot be considered arbitrary or capricious because no party offered to provide live testimony or present any additional relevant evidence beyond that already submitted in documentary form. As such, we disagree with husband's contention that the trial court abused its discretion by failing to conduct such a proceeding.
The only argument raised by husband's counsel at the time of the hearing was that wife should be required to file an updated income and expense declaration prior to any determination on arrearages. Counsel offered no response when the trial court questioned why this evidence would be relevant, since accrued arrearages only reflected husband's financial obligation.
With respect to husband's remaining claim regarding the amount the trial court ordered husband to pay in arrears, we conclude that the record is inadequate to demonstrate prejudicial error. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, the appellant "bears the burden to provide sufficient record to show error; otherwise, we presume the trial court's rulings were correct." (In re Marriage of Brewster &Clevenger (2020) 45 Cal.App.5th 481, 511; Jameson v. Desta (2018) 5 Cal.5th 594, 609 [" 'Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' "].)
In this case, husband did not provide a copy of the operative child support order he sought to modify or a record of the proceedings leading to the entry of that order. Thus, we have no indication of what factors the trial court considered when setting the existing amount of child support and, as a result, no basis to assume that husband's purported unemployed status represented a material change in his financial condition warranting a modification. Further, even assuming husband experienced some loss of employment that might weigh in favor of a reduction in child support, we cannot determine whether this factor might have been outweighed by other changed circumstances because husband did not include a copy of wife's responsive declarations as part of the record on appeal.
In the same manner, husband did not provide a copy of the Department's enforcement motion or any documents that would show the history of accrued arrears on child support payments. Thus, there is no indication of when the arrears accrued, how the total amount of arrears was calculated, what fluctuations in husband's employment status may have occurred through the period he owed child support, whether the trial court had previously issued orders intended to enforce its child support order, or whether husband was currently in violation of any prior court orders related to payment of child support or arrears. Thus, the record does not reflect the totality of circumstances, which the trial court might have taken into consideration when exercising its equitable powers regarding the appropriate means of enforcement of the child support order.
" '[A]lthough accrued arrearages are treated like money judgments that may not be retroactively modified, the trial court nevertheless retains equitable discretion in determining whether and the extent to which original support provisions should be enforced.'" (County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327.)
Because husband failed to include any documents containing information from which this court could determine whether the amount of child support or arrearage payments had been appropriately set, the record on appeal is inadequate to evaluate the merits of husband's claim that the trial court abused its discretion in determining these amounts. Thus, husband has failed to demonstrate prejudicial error as he is required to do in order to obtain the relief he seeks. In the absence of an adequate record, we presume the trial court's ruling was correct, and we affirm the order.
IV. DISPOSITION
The order is affirmed. Respondent San Bernardino County Department of Child Support Services to recover its costs on appeal.
We concur: CODRINGTON Acting P. J., MENETREZ J.