Opinion
G054621
11-20-2018
In re Marriage of TODD W. and BONNIE J. KEPPLE. TODD W. KEPPLE, Respondent, v. BONNIE J. KEPPLE, Appellant.
Law Offices of Marc E. Mitzner, Marc Edward Mitzner and Christina Doemeny Jones for Appellant. The Law Offices of Saylin & Swisher, Brian G. Saylin, Lindsay L. Swisher and Parris Trimble for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14D001215) OPINION Appeal from a judgment of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Law Offices of Marc E. Mitzner, Marc Edward Mitzner and Christina Doemeny Jones for Appellant. The Law Offices of Saylin & Swisher, Brian G. Saylin, Lindsay L. Swisher and Parris Trimble for Respondent.
* * *
Bonnie J. Kepple (Bonnie) appeals from a judgment in the dissolution of her marriage to Todd W. Kepple (Todd). She limits her challenge to two aspects of the court's judgment. First, she contends the court erred in denying an award of mandatory child care costs incident to employment. Second, she claims the court should have ordered Todd to undergo random drug testing.
We refer to the parties by their first names for ease of reading and to avoid confusion, and not out of disrespect.
The court did not err. While an award of child care costs incident to employment is mandatory, there was insufficient evidence these costs were being incurred for the care of the minor children. Likewise, the only relevant evidence on the drug testing issue was the testimony and recommendation of a child custody evaluator. The court did not abuse its discretion in impliedly finding the evidence was insufficient to support a drug testing order. We affirm the judgment.
FACTS
Bonnie and Todd married in April 2001 and separated in January 2014. They have two minor children. In February 2014, Todd filed a petition for dissolution of marriage.
The court conducted a five-day trial from January 2016 through April 2016. Bonnie testified she had a nanny who sometimes transported the children to and from school, but she could not identify how often because it "depend[ed] on [Bonnie's] work schedule." She also testified her boyfriend took the children to school when she and the nanny are unavailable. Todd testified he "asked for accountability for childcare, and . . . never received one number, 1 hour, any schedule, nothing ever" from Bonnie.
The court also heard testimony from Dr. W. Russell B. Johnson, who had performed a child custody evaluation. Dr. Johnson testified that Todd told him he "smoked marijuana occasionally for the past 25 to 30 years" until the summer of 2014 when he quit. According to Dr. Johnson, Todd tested positive for marijuana based on a hair follicle drug test performed in 2015. However, Dr. Johnson explained, "It [was] possible that when [Todd] told me he had quit the summer of 2014 that was true and he had not used marijuana until that time. And subsequent to telling me that, he used some and it showed up in the drug test." Dr. Johnson ultimately recommended Todd undergo random hair follicle drug testing every three months for a year.
On June 1, 2016, the court issued a purported judgment for dissolution of marriage. Among other things, the purported judgment determined child custody, visitation, child support, and spousal support. The court did not award any child care costs incident to employment under Family Code section 4062, subdivision (a). With respect to the drug testing, the court found, "Todd tested positive for use of marijuana by a hair follicle test performed by Dr. Soltani. Although it is clear that Todd did use marijuana sometime since the summer of 2014, the date is unknown." Based on this, the court ordered "follow up testing with Dr. Soltani randomly every three months commencing September 1, 2016, at Todd's expense."
All statutory references are to the Family Code unless otherwise stated.
Todd filed a motion for reconsideration on June 14, 2016, and the court heard the motion in October 2016. At the hearing, Todd's counsel requested the court deem the initial judgment to be a "tentative decision" so "nobody's rights are necessarily deprived." He explained, "In my 37 years I've never had a judgment that didn't have the Judicial Council form as the lead form . . . . We [also] didn't have the rights and responsibilities because there are minor children involved. The form that talks about 4063 and 4062, I believe that isn't there. There's also some missing language regarding the child support." Bonnie's counsel concurred with the suggestion, the court agreed, and ordered the initial "judgment" to be a "tentative decision." The court also addressed additional issues missing from the newly dubbed tentative decision, including, among other things, division of Todd's deferred compensation plan, division of both parties' 401(k) plans, and Todd's overpayment of nanny expenses. The court ordered Todd to prepare a new judgment consistent with the modifications discussed at the hearing.
Todd's motion for reconsideration is not part of the record on appeal so we are only able to identify the arguments raised at the hearing.
The missing judicial council form was the form for a judgment of dissolution, form FL-180. "All forms adopted or approved by the Judicial Council for use in any proceeding under the Family Code, including any form in the FL . . . series, are adopted as rules of court under the authority of Family Code section 211; article VI, section 6 of the California Constitution; and other applicable law." (Cal. Rules of Court, rule 5.7(a).) All further references to rules are to the California Rules of Court.
In December 2016, the court held a hearing to finalize the judgment. Bonnie's counsel argued Todd should have to pay child care costs because it was "mandatory" and Bonnie "works full-time plus." Counsel also argued Todd paid child care expenses throughout the proceedings, which suggested "both parties were admitting that there was child care." The court rejected these arguments and found "child care in a specified amount [was] denied for lack of proof . . . ." The court explained, "There [was] insufficient evidence of current amounts for child care . . . ."
Bonnie's counsel also raised the issue of Dr. Johnson's recommendation and stated, "Next is number 5 on my letter, which . . . I'm assuming is moot if the court, in fact, was adopting none of Dr. Johnson's recommendations." The court stated it had "adopted its own based upon the evidence it had before it." The court further stated it "intentionally" denied Dr. Johnson's recommendation for Todd to undergo random drug testing.
The letter is not part of our record so we are limited to the arguments raised at the hearing.
The court entered a final judgment on December 20, 2016, and the clerk served "Notice of Entry of Judgment" on the same day using the mandatory judicial council form FL-190. Unlike the initial "judgment," the December 2016 judgment also included judicial council form FL-180 and additional notice language. The judgment also did not require Todd to undergo random drug testing. Instead, the judgment provided, "[Todd] shall not use marijuana and . . . [Todd] and [Bonnie] shall not use any other recreational or non-prescribe drugs other than common over-the-counter medications forty-eight (48) hours before and during their respective parenting times. They shall reduce the minor children's exposure to alcohol use."
Bonnie filed a notice of appeal on February 17, 2017.
DISCUSSION
Bonnie's Appeal Is Timely
Todd argues we should dismiss the appeal because Bonnie did not timely appeal from the June 1, 2016 "judgment." He claims the December 20, 2016 judgment did not restart the time to appeal because it did not substantially modify the initial "judgment." Bonnie disagrees and argues the December 20, 2016 judgment substantially modified the initial "judgment." She also contends the initial "judgment" failed to include judicial council form FL-180 and the notice required under section 2024, subdivision (b).
Todd's argument that the parties cannot restart the time to appeal has facial appeal, because, as a general matter, that is certainly true. We conclude, however, that the court merely stumbled over terminology when it called the June 1, 2016 decision a "judgment." "A judgment rendered after a trial and determination of most of the issues may nevertheless leave some judicial act yet to be done. If so, regardless of its formal appearance or designation as a final judgment, it is interlocutory only, and not appealable unless it comes within the statutory classes of appealable interlocutory judgments" — none of which are applicable here. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 136, p. 209, italics added.) Most notably, the June 1, 2016 initial "judgment" did not dispose of Todd's deferred compensation plan, or the parties' respective 401(k) accounts, each of which were substantial community property assets brought to the court's attention by each of the parties at the outset of the trial. The court's misnomer resulted in several procedural missteps which we detail here for future reference by court and counsel.
First, the court's misnomer likely misled the parties regarding the proper procedure to follow to challenge the findings and rulings in the trial court. Upon completion of closing arguments on April 13, 2016, the court did not issue any rulings from the bench. Instead it stated it would "render its opinion in writing." Rule 3.1590 prescribes the procedure to be followed at the conclusion of a bench trial. "On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk." (Rule 3.1590(a), italics added.) The parties then have 10 days to request a statement of decision and to specify controverted issues it desires the court to address. (Rule 3.1590(d).) The other party then may specify proposals for the statement of decision. (Rule 3.1590(e).) After the statement of decision and proposed judgment are prepared, objections may be made. (Rule 3.1590(g).) Only after the statement of decision and proposed judgment are fully vetted in this manner, or the statement of decision and objections are waived, may the court enter the judgment. (Rule 3.1590(l).)
"Except as otherwise provided in [the Family Law rules] all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code . . . ." (Rule 5.2(d).)
Here, none of these guardrails against error were in place. Instead, the court simply filed its written decision and called it a "judgment." The minute order that accompanied the "judgment" stated, "The Court has prepared a Judgment of its ruling." It appears the trial court clerk may have realized something was wrong with the terminology. The clerk did not serve a "Notice of Entry of Judgment" on the mandatory judicial council form FL-190. (See rule 5.413(a)(2).) Instead, the clerk utilized a certificate of service which certified that service had been made of a "Minute Order & Ruling of 6-1-16."
What happened next extended the confusion. On June 14, 2016, Todd filed a motion for reconsideration. But a motion for "reconsideration" is not an available trial court procedure to challenge either a judgment or an intended decision. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 2, p. 584 [listing available post-judgment motions].) If the June 1, 2016 "judgment" were truly a judgment, the only postjudgment motions potentially available would have been a motion for new trial under Code of Civil Procedure sections 657 and 659, or a motion to vacate and enter a different judgment under Code of Civil Procedure sections 663 and 663a. A motion for reconsideration under Code of Civil Procedure section 1008 is limited, by its terms, to reconsideration of an order made upon "an application for an order," i.e., a motion. (Code Civ. Proc., §§ 1008, subds. (a), (b); 1003 ["An application for an order is a motion"].) And if the June 1, 2016 "judgment" were truly an intended decision, the procedures available under rule 3.1590 would have been the appropriate vehicle to challenge the rulings.
Nevertheless, in the face of these procedural irregularities, the court proceeded to hear the motion for reconsideration in October 2016. At the outset of the hearing, Todd's counsel, apparently now recognizing that if the June 1, 2016 document was truly a judgment, time had long since expired either to attack it in the trial court, or to notice an appeal, requested the court to "deem" the initial "judgment" to be a "tentative decision" so "nobody's rights are necessarily deprived." When Bonnie's counsel was asked if he had any objection, he responded: "No, your Honor. I concur."
Thus, at the request of the parties, the court ordered the June 1, 2016 "judgment" to be a "tentative decision." As Bonnie correctly argues on appeal, the initial judgment omitted judicial council form FL-180 and the statutory notice required under section 2024. Judicial council form FL-180 is a mandatory form of judgment in cases involving marital dissolution, legal separation, or annulment. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 15:235 ["In dissolution, legal separation and nullity actions, the judgment must be prepared on Judicial Council form FL-180."].) Under section 2024(b), the judgment also must contain a prescribed notice as to the collateral effects of the judgment. (§ 2024, subd. (b) ["A judgment for dissolution of marriage, for nullity of marriage, or for legal separation of the parties shall contain the following notice"].) In addition to omitting FL-180 and the statutory notice required under section 2024, the initial "judgment" did not address, among other things, division of Todd's deferred compensation plan, division of both parties' 401(k) plans, and Todd's overpayment of nanny expenses. Given these deficiencies, the court was well within its authority to recognize the initial "judgment" was not a final appealable judgment, and neither party argues the court erred in deeming the initial "judgment" to be a "tentative decision."
Because the court issued a subsequent final judgment, the time to appeal ran from the December 20, 2016 judgment. Bonnie filed her notice of appeal on February 17, 2017, and thus her appeal from the December 20, 2016 judgment is timely. (Rule 8.104(a) [notice of appeal must be filed "on or before the earliest of": (1) 60 days after the clerk or a party serves notice of entry of the appealed judgment or order, or (2) 180 days after entry of the judgment or order].)
The Court Did Not Err in Denying Add-on Child Care Costs
Bonnie argues the court erred in failing to award mandatory child care costs incident to employment because there was "ample evidence that Bonnie had child care expenses." We disagree.
"In addition to basic child support established by the guideline formula in section 4055, subdivision (a), a trial court must order certain other costs as additional support . . . ." (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 32.) These costs are referred to as mandatory add-ons and include: (1) "[c]hild care costs related to employment or to reasonably necessary education or training for employment skills," and (2) "reasonable uninsured health care costs for the children." (§ 4062, subd. (a).) The court must award these expenses if they exist, and the expenses generally are apportioned one-half to each parent unless either parent requests a different apportionment. (§ 4061, subd. (a).) "Where the evidence shows no such costs, however, the court would have no mandatory duty to impose work related childcare costs as an add-on to the basic child support." (Stover, at p. 32.)
On appeal, we review the court's decision regarding add-on child care costs under the abuse of discretion standard. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 760-761; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1038-1039.) "We determine 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] We do not substitute our own judgment for that of the trial court but determine only if any judge reasonably could have made such an order." (In re Marriage of Schlafly, at p. 753.)
Based on the record on appeal, the court did not exceed the bounds of reason in finding there was insufficient evidence for add-on child care costs incident to employment. The most relevant evidence on the subject was Bonnie's vague testimony. She testified she has a nanny who sometimes transports the children to and from school, but she could not identify how often because it "depend[ed] on [Bonnie's] work schedule." She also testified her boyfriend took the children to school when she and the nanny are unavailable. While Bonnie claims her income and expense declaration lists child care expenses, the declaration is not part of the record on appeal. There is no indication in the record of any specific amounts incurred for child care, and Bonnie offered no other documentation of the costs. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [rejecting party's claim based on failure to provide an adequate record]; In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499 [declining appellant's "invitation to independently acquire" trial court documents where appellant failed to provide adequate record].)
A nanny would be necessary to care for Bonnie's daughter (not a child of her marriage to Todd), who was less than one year old at the time of trial. --------
Bonnie contends other evidence further supports she had child care expenses. She points to testimony where she and Todd referenced a 2014 "order for childcare expenses to be divided since July of 2014." The order is not part of our record, and the testimony is not evidence that Bonnie actually had child care expenses incident to employment at the time of the 2016 judgment. It also does not establish any specific amount of child care expenses. In fact, Todd testified he "asked for accountability for childcare, and . . . never received one number, 1 hour, any schedule, nothing ever." Because the court had the benefit of personally observing the parties' demeanor and hearing their testimony, we defer to its judgment regarding credibility and the weight of evidence. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494 ["Reading a typed reporter's transcript does not enable us to view the witnesses, determine credibility or determine which conflicting evidence is to be given greater weight."].) Finally, Bonnie claims the children were in her custody "the majority of the time." Again, this is not evidence of Bonnie's actual child care costs.
Given the insufficient evidence, the court did not abuse its discretion in denying add-on child care costs incident to employment.
The Court Did Not Err in Refusing to Order Random Drug Testing
Bonnie argues the court should have ordered Todd to undergo random drug testing because of Dr. Johnson's testimony and report. We conclude otherwise.
Section 3041.5 provides, "[T]he court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances . . . if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances . . . by the parent . . . . This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance." Section 3041.5 applies to "any custody or visitation proceeding brought under this part, as described in Section 3021." Section 3021 provides, "This part applies in . . . [a] proceeding for dissolution of marriage . . . ."
Here, the court did not order either party to undergo random drug testing. Bonnie claims she filed objections to the final judgment, but the objections are not included in the record on appeal. We only are able to ascertain the vague arguments made at the December 2016 hearing where Bonnie's counsel stated, "Next is number 5 on my letter, which . . . I'm assuming is moot if the court, in fact, was adopting none of Dr. Johnson's recommendations." The court stated it had "adopted its own based upon the evidence it had before it." The court further stated it "intentionally" denied Dr. Johnson's recommendation that Todd undergo random drug testing. In response, Bonnie's counsel did not raise any arguments as to why the court should have adopted Dr. Johnson's recommendations. Thus, we are not able to identify the court's specific reasoning and must presume the court's judgment was correct. "The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Here, the court needed to consider whether by a "preponderance of the evidence" that Todd had currently engaged in "habitual, frequent, or continual illegal use of controlled substances." The court made no such finding. We infer the court concluded the evidence was insufficient to impose drug testing.
Moreover, the only relevant evidence on the subject was Dr. Johnson's report and testimony. The report is not part of our record, so we are limited to Dr. Johnson's testimony. Dr. Johnson testified that Todd told him he "smoked marijuana occasionally for the past 25 to 30 years" until the summer of 2014 when he quit. He also testified that Todd tested positive for marijuana based on a hair follicle drug test performed in 2015. However, Dr. Johnson explained, "It [was] possible that when [Todd] told me he had quit the summer of 2014 that was true and he had not used marijuana until that time. And subsequent to telling me that, he used some and it showed up in the drug test." While Dr. Johnson's testimony suggests Todd smoked marijuana for a long period of time, it also suggests he quit but smoked at least once before the drug test. We can only reverse for abuse of discretion if the court's decision was "'"arbitrary, capricious, or patently absurd . . . ."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Where, as here, there are factors cutting both ways, we do not find an abuse of discretion.
Bonnie also contends the court erred because it had ordered random drug testing in the initial "judgment" and there was "no substantial evidence to support the . . . reversal." Because the June 1, 2016 "judgment" was not final and the court ordered it to be a "tentative decision," the court was not bound by the June 1 ruling.
Finally, the initial "judgment" ordering drug testing was facially invalid to the extent it specified hair follicle testing. Section 3041.5 requires any court-ordered drug testing to "be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees." (Ibid.; see Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1190.) "[T]he procedures and standards established by the Department of Health and Human Services and its Mandatory Guidelines at present only allow urine tests . . . ." (Id. at p. 1193-1194.) Bonnie has not shown that the federal mandatory guidelines have been amended since Deborah M. was decided to allow hair follicle testing.
DISPOSITION
The judgment is affirmed. Todd is entitled to his costs on appeal.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. GOETHALS, J.