Opinion
NOT TO BE PUBLISHED
Charles W. Campbell, Jr., Judge, Superior Court County of Ventura Super. Ct. No. D264137
Steven A. Debbas, Lasher & Lascher, Wendy C. Lascher and Eric R. Reed for Appellant.
Taylor, McCord, Praver & Cherry and Patrick G. Cherry for Respondent.
GILBERT, P.J.
Robert G. Noe (Husband) appeals the trial court's order awarding Sue Ann McClellan (Wife) child support accrued after Husband took the parties' child from Wife's custody. He also appeals orders increasing spousal support and awarding attorney fees. We affirm.
FACTS
Husband and Wife were married in October 1985 and separated in September 1998. They have two children: Colby, born in February 1991, and Morgan, born in October 1998. The parties stipulated to joint legal and physical custody of their children.
The parties entered into a marital settlement agreement (MSA) in April 2001. Husband agreed to pay $2,800 per month child support and $3,200 per month spousal support. The MSA contained an admonition pursuant to In re Marriage of Garvon (1998) 203 Cal.App.3d 705, that Wife should make reasonable good faith efforts to become self-supporting.
In 2002, Husband requested a modification of child and spousal support. The modification request was precipitated by Husband's pending retirement. The court reduced child support to $1,800 per month and spousal support to $750 per month. The court's ruling stated in part: "In the three and one-half years since separation, [Wife's] efforts to become employed can be generously described as deminimus [sic].... She has made no effort either to generate income or to economize."
In January 2005, during Wife's custodial period, Husband took their son, Colby, to live with him. Husband did not obtain Wife's consent or an order authorizing the change of physical custody. In March 2005, Husband unilaterally and without a court order reduced his child support payment to Wife by half to $900 per month.
In November 2005, Wife filed a motion for modification of custody. She was concerned that Husband wanted to send Colby away to school in New Zealand. She requested the court to enjoin Husband from removing Colby from the United States. Wife also requested if Husband continues to breach the current custody order, that sole physical custody be awarded to her. The motion did not mention child or spousal support.
On November 23, 2005, Husband responded with a motion to modify custody and child support. He requested sole legal and physical custody of Colby. The trial court awarded sole physical custody to Husband and temporarily reduced child support to $417 per month. The temporary modification was without prejudice to a retroactive modification. The court reserved final decision on the financial issues for a later date.
In August 2006, Husband filed a motion to terminate spousal support. He pointed to his decreased income since the dissolution. He also claimed that Wife had failed in her obligation to become self-supporting.
A hearing on the modification was repeatedly continued. Finally, the matter was set for a hearing on September 22, 2008. On September 19, 2008, Wife filed a response requesting an increase in spousal support to $1,500 per month. Wife claimed Husband's income was $16,000 per month in nontaxable loan repayments from his corporation, Agrizap, Inc. (Agrizap). Wife also requested that the court order child support retroactive to March 2005, when Husband unilaterally reduced support payments.
A hearing on the matter was held on September 26, 2008. The trial court ruled Husband was not entitled to reduce child support without a court order. The court ordered Husband to pay arrears for the amount he withheld until his motion for modification in November 2005.
In computing the parties' incomes for the purposes of spousal support, the court considered as Wife's income a payment of $672 per month from Husband's pension, $1,042 per month from Wife's self-employment, and $1,000 per month gift from her parents. The court refused to consider $100,000 Wife received as a gift to pay for attorney fees. The court imputed as taxable income to Husband the amount of loan repayments he was receiving from Agrizap. Husband was working for Agrizap without salary. The court ordered spousal support increased from $750 to $1,000 per month, but ordered support to end after 18 months. Finally, the court ordered Husband to pay Wife's attorney fees in the amount of $35,000 under Family Code section 2030.
DISCUSSION
I
Husband contends the trial court abused its discretion in imputing so little earnings to Wife.
Our review for abuse of the trial court's discretion is whether the court exceeded the bounds of reason. (In re Marriage of Lloyd (2003) 106 Cal.App.4th 754, 759.) In making that determination, "we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]" (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)
Husband relies heavily on the trial court's finding in 2002 that Wife had not used good faith efforts to become self-supporting. But that was six years prior to the instant hearing. The trial court made no such finding here. Instead, the court found Wife was working almost full time, 30 to 35 hours a week. The court also found she received $1,042 per month from self-employment, $672 per month from her share of Husband's pension, and $1,000 per month in gifts from her family, for a total income of $2,714 per month.
Husband argues that the trial court should have imputed income at the minimum wage of $8.00 per hour. That is $1,280 per month instead of $1,042 per month derived from Wife's self-employment. But Husband cites no authority requiring the trial court to impute income at the minimum wage. The $2,714 on which the court based its order is more than twice the minimum wage. Husband points to no evidence binding on the trial court that Wife could earn more. The trial court did not abuse its discretion.
Husband complains that Wife did not request an increase in spousal support until more than a month after the time for submitting evidence closed, and only a week prior to the hearing. But Husband cites no objection or request for continuance. An appearance at the hearing on a motion or opposition to the motion on its merits is a waiver of defects or irregularities in the notice of a motion. (Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1375.)
II
Wife contends the trial court erred in including loan repayments from Agrizap as income for the purpose of calculating support.
The parties' MSA awards all right, title and interest in Agrizap to the Husband. It also provides that in future support modification proceedings, "[t]he court shall not consider [as Husband's income available for support]...any payments to Husband of interest or principal due under the notes receivable awarded to Husband; or any distribution of capital or profits resulting from Husband's interest in Agrizap. Notwithstanding the foregoing, nothing herein shall preclude Wife from proving that Husband's receipt of capital or profits from Agrizap (or any other business entity awarded to Husband hereunder) are a disguised form of earnings."
At the hearing, the following colloquy occurred between the trial court and Husband's counsel: "THE COURT: My thought on this is -- my recollection is the corporation is not paying him any salary, though. [¶] HUSBAND'S COUNSEL: That's correct. [¶] THE COURT: So if they're not paying him any salary, they can afford to pay him back the loans, then he can afford to earn what they paid him back, and I think it should be taxable income because they impute it in a sense. In other words, the corporation can order to pay him $71,000 in 2006, but no salary. So I think we can impute that that's what he could have earned because he was working for free. [¶] HUSBAND'S COUNSEL: I think if Your Honor is going to call it income, I think that's a fair interpretation."
Wife argues Husband's attorney waived any right to object when he agreed with the trial court. Husband counters that his attorney was only agreeing that if the court treats the loan repayments as income, it should be treated as taxable income as opposed to nontaxable loan repayments. But assuming there was no waiver, Husband cannot prevail on the merits.
Here the trial court did not treat Agrizap loan repayments as income for the purposes of support. If it had, it would have considered the payments as nontaxable. Instead, the court imputed income to Husband because he was working for Agrizap without salary. Thus the court treated the payments as taxable income, instead of nontaxable loan repayments. The court imputed income in the same amount as the loan repayments because that is the amount the corporation could pay in salary if it were not repaying the loan.
In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1082 (Berger), held that the trial court is authorized to impute income to a husband who works without compensation for a corporation in which he has an interest. Husband attempts to distinguish Berger on the ground that there was no MSA prohibiting him from using a particular asset in calculating spousal support. But Husband missed the point. Here the trial court did nothing more than impute income to Husband. Nothing in the MSA prohibits the imputation of income.
III
Husband contends the trial court erred in awarding full child support for a period in which he had full custody of Colby.
On January 6, 2005, Husband took Colby from Wife's custody. On January 8, 2005, Wife wrote to Husband to protest the violation of the parties' custody agreement. Husband contested the authenticity of the January 8, 2005, letter but admitted to receiving a similar letter protesting the violation of the custody agreement on January 12, 2005. Husband unilaterally modified child support in March 2005, but did not file a motion for modification until November 23, 2005. The trial court temporarily modified child support without prejudice to retroactive application. In its final order the trial court made child support retroactive to March 1, 2005.
Family Code section 3651, subdivision (c)(1) provides exceptions not relevant here: "[A] support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate."
Husband argues, however, that the court has the equitable power to modify enforcement of child support orders. He relies on two cases, both decided by the Court of Appeal, Division Two of the Second Appellate District. In Jackson v. Jackson (1975) 51 Cal.App.3d 363 (Jackson), custody of the parties' child was awarded to wife, and husband was ordered to pay child support. Custody of the child was transferred to husband with the consent of wife, but without an order modifying custody or support. Husband ceased paying child support. Later, wife obtained a writ of execution for 22 months of unpaid support, dating from the time husband took physical custody. Husband moved to quash the writ. The trial court denied the motion on the ground it had no jurisdiction to retroactively modify support. The Court of Appeal reversed. It agreed the trial court had no jurisdiction to retroactively modify support, but held it had equitable powers over the enforcement of the support obligation. Thus the trial court had the discretion to find husband had discharged his support obligation by providing the parties' child with a home as wife had agreed. (Id. at p. 368.)
In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072 (Trainotti), was decided on facts similar to those in Jackson. Husband stopped paying child support when, with the agreement of wife, he took custody of their child. Later, wife sought to have husband held in contempt for the unpaid child support. The trial court ruled it had no jurisdiction to offset or discharge husband's accrued support obligation. Relying on Jackson, the Court of Appeal reversed. It stated: "We think it clear that the trial court erred by refusing to consider whether appellant had satisfied his obligation by furnishing Christopher, with the approval of his former wife, a home and support that was equal to or in excess of the court-ordered amount." (Id. at pp. 1075-1076.)
Husband points out that child support is for the benefit of the child, not the former spouse. He claims he is entitled to an equitable setoff for the home he provided Colby after he took physical custody from Wife. But the purpose of Family Code section 3651, subdivision (c)(1) is to prevent parties from unilaterally applying self-help to modify child support. There is a justification for an equitable setoff where, as in Jackson and Trainotti, the parties reach an informal agreement as to a change of custody. But here there was no such agreement. In fact, Wife sent a letter of protest. Under these circumstances, to apply an equitable setoff would be to condone Husband's unilateral behavior, the very behavior Family Code section 3651, subdivision (c)(1) is designed to prevent. The trial court did not err in awarding full retroactive child support.
IV
Finally, under the heading "Conclusion" in Husband's opening brief, he requests that we reverse the trial court's attorney fees order. The contention is not under separate heading, and there is no supporting argument or citation to authority. (See Cal. Rules of Court, rule 8.204(1)(B).) Husband's attorney fees contention is deemed to have been waived. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14.) Husband's attempt to provide authority and argument in his reply brief is too late. We do not consider points raised for the first time in the reply brief. (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.)
The judgment (order) is affirmed. Costs are awarded to Wife.
We concur: YEGAN J., COFFEE J.