Opinion
F070938
04-12-2018
In re the Marriage of SAMEER KHERA and MADHU SAMEER. SAMEER KHERA, Respondent, v. MADHU SAMEER, Appellant; FRESNO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent.
Madhu Sameer, in pro. per., for Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez, and Jennevee H. de Guzman, Deputy Attorneys General, for Intervener and Respondent. No appearance for Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[No Change in Judgment]
THE COURT:
It is ordered that the opinion filed herein on April 12, 2018, be modified as follows:
1. In the second paragraph of part II.D.2 commencing at the bottom of page 19 and continuing to page 20, at the end of the fifth full sentence ending "in the payments required," add as footnote 9 the following footnote, which will require the renumbering of all subsequent
9 Madhu's petition for rehearing argues an exhibit in her request for judicial notice contained a payment schedule from the DCSS Web site. Madhu's second (April 2018) request for judicial notice stated exhibit 5 is a "[c]omplete history of payments made by [Sameer] using DCSS system." The exhibits actually filed with this court did not include exhibit 5. Also, Madhu's first (March 2016) request for judicial notice includes as exhibit 3
five pages of screenshots from the DCSS Web site for payments (typically, twice per month) for participant Madhu from July 13, 2010, through July 2, 2015. Madhu's request does not demonstrate this document was presented to the trial court and, even if it had been, the document does not cover the period from early 2008 through July 2010. Even if Madhu's requests for judicial notice had been granted, they would not have demonstrated she carried her burden of proof.
2. On page 28, the paragraph under the heading DISPOSITION is deleted and the following paragraph and footnote are inserted in its place:
The order denying the motion to enforce arrearages is affirmed. 11 Madhu's March 2016 and April 2018 requests for judicial notice are denied and her request to strike the augmented records submitted by respondent is denied. Respondent shall recover its costs on appeal.
3. On page 28, the added footnote 11 reads as follows:
11 Madhu's petition for rehearing states the decision does not resolve anything at all and asks this court to provide directions for the trial court or DCSS on eight specific points. For instance, she asks us to (1) direct the superior court on how to handle the modification motion filed in Santa Clara County in 2005 and (2) direct the superior court to order Sameer to disclose his income. Our decision resolves whether the order appealed from contained reversible error. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1263-1264 [sufficiency of appellate court decisions].) It is not within an appellate court's authority to provide advisory opinions on issues that might, or might not, arise in subsequent proceedings. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 119.)
There is no change in the judgment. Appellant's petition for rehearing is denied.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J. NOT TO BE PUBLISHED IN THE 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. 05CEFS02946)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary L. Green, Commissioner. Madhu Sameer, in pro. per., for Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez, and Jennevee H. de Guzman, Deputy Attorneys General, for Intervener and Respondent. No appearance for Respondent.
-ooOoo-
A custodial parent filed a motion to enforce child support arrearages from 2003 through 2012. The trial court denied the motion, stating there was neither legal nor factual support for the requested relief. Among other things, the court stated the custodial parent failed to (1) identify the specific underlying orders giving rise to the alleged arrears, and (2) provide documentation of amounts actually paid and the specific amounts of arrears claimed.
A threshold legal question presented is the allocation of the burden of proof. We conclude the custodial parent had the burden of proving which child support orders were operative during the period of claimed arrearages, the amount of fixed child support payments received, the amount of "Ostler-Smith" child support payments received, and when the payments were received. Once the custodial parent has established the existence of an obligation to make Ostler-Smith payments and the amount of those payments received, the noncustodial parent has the burden of proving those payments (or absence of payment) complied with the support order. This burden requires the noncustodial parent to present evidence establishing the amount of bonus and additional income upon which the Ostler-Smith payment is calculated.
In In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, the court affirmed an order for "additional support, based on a percentage of [husband's] future bonuses." (Id. at p. 37.) Accordingly, "[a]n Ostler/Smith provision is 'an additional award, over and above guideline support, expressed as a fraction or percentage of any discretionary bonus actually received.' [Citations.] Its purpose is to capture fluctuations in the supporting spouse's income that are not included in the flat rate amount of support." (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 949.)
Another legal question presented is which standard of appellate review applies when the trial court determines an appellant has failed to carry his or her burden of proof relating to child support arrears. We conclude the applicable standard of review requires the appellant to demonstrate the evidence compelled a finding in appellant's favor as a matter of law. A finding is compelled as a matter of law only if the appellant's evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. Applying this standard of review to the evidence in the appellate record, we conclude the custodial parent did not establish the trial court erred when it determined she failed to carry her burden of proof.
We therefore affirm the order denying the motion to enforce arrearages.
FACTS AND PROCEEDINGS
Appellant Madhu Sameer (Madhu) and respondent Sameer Khera (Sameer) were married in 1986, had three children (born 1989, 1998, and 1999) and separated in 2003. Madhu asserts they first separated in 1995 when they lived in Sydney, Australia and she worked as an executive in the information technology industry. Madhu also contends she was forced to give up her job and move to the United States where she was cut off from her family, prevented from working, and endured domestic violence. Madhu asserts she requested a divorce between 2000 and 2002, with Sameer moving out of the family residence so she and the children could continue to live in the family home. Sameer refused this request.
In 2003, Madhu moved to Fresno. In October of that year, Sameer filed a petition for dissolution of marriage in Santa Clara County. Pursuant to a DissoMaster calculation, Sameer was ordered to pay $2,332 monthly in temporary child support and $1,535 monthly in temporary spousal support. In February 2004, the court modified these amounts slightly and directed Sameer to pay one-half of health and school expenses.
At the time of the temporary support orders, Sameer worked for Cisco Systems, Inc., and received a base salary and significant additional income. Consequently, the temporary support order directed him to notify his counsel immediately upon learning of a bonus for any period and directed the parties to meet and confer with respect to additional support payable from the bonus.
In May 2005, Madhu submitted an application to the Fresno County Department of Child Support Services (DCSS) for child support services. In September 2005, DCSS filed (1) a statement for registration of California support order; (2) a notice of registration of California support order; and (3) a notice regarding payment of support and substitution of payee. These documents directed Sameer to pay all support obligations to the Fresno office of the DCSS.
In September 2005, Madhu filed a motion for modification of child support, requesting the monthly amount of child support of $2,332 be modified to the guideline amount. Madhu asserted Sameer had not reported any bonus, and she referred to an earlier order requiring him to disclose his bonus income and share a portion of it as additional child support. She requested an order compelling Sameer to disclose his bonuses and stock option income and to divide that income in accordance with the guideline. On appeal, Madhu asserts this motion was never heard and is still pending.
In January 2008, DCSS filed a declaration in support of order for child support requesting Sameer to pay Madhu $8,186 monthly child support and $2,047 monthly toward accrued arrearages and reimbursement. This filing was made in Fresno Superior Court. The declaration stated Sameer was employed by Cisco Systems, Inc., had monthly net disposable income of $35,571, and had monthly taxable gross income of $62,580; guideline child support equaled $8,186 per month.
On February 25, 2008, a judgment of dissolution was filed in Santa Clara Superior Court. It dealt with reserved issues and reflected the parties' May 2007 oral stipulation in open court. The judgment addressed issues of property division, child custody, child support, spousal support, and pending contempt proceedings. A provision on child support stated: "Guideline child support, including a bonus table, shall be re-calculated and modified as of June 1, 2007 based on [Sameer's] current income and [Madhu's] income set at zero, the Parties' timeshare, and the Parties' other relevant financial circumstances." In the judgment's provisions addressing property division, each party waived and released the other from any and all liability and claims for child and spousal support arrears accrued prior to June 1, 2007.
March 10, 2008, was the date scheduled for the initial hearing in Fresno Superior Court on DCSS's January 2008 request for a modification of child support. The matter was continued a number of times and the contested hearing did not begin until June 21, 2011. On June 13, 2011, shortly before the start of the contested hearing, the Fresno Superior Court ordered Sameer to pay child support of $3,225 per month plus an Ostler-Smith percentage of "11.25 percent of any gross bonus income and from the sale of any non-community stocks or stock options regardless of how they are characterized." The order stated the child support "is a compromise number until the next hearing and is without prejudice to either party." The order also identified the matters to be tried later in June as including (1) child support "retroactive to January 1, 2008"; (2) reimbursements, arrearages, and setoff; and (3) attorney fees.
On June 21, 2011, the Fresno Superior Court began the contested hearing on DCSS's January 2008 motion to modify child support. The court heard testimony on several nonconsecutive days. The testimonial phase of the hearing lasted for two years.
During that period, the Sixth Appellate District filed its decision affirming a May 2010 order of the Santa Clara Superior Court denying Madhu's motion to modify spousal support. (See In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467.)
In January 2013, the children made allegations of domestic violence and sexual molestation against Sameer. At the direction of the court, the parents participated in emergency screening in March 2013. On March 18, 2013, the Santa Clara Superior Court signed a request and order pursuant to an emergency screening that gave Madhu temporary sole legal and physical custody of the two minor children. Sameer was allowed supervised visitation twice per month for up to 16 hours and directed to have no other contact with the children.
Later in 2013, posthearing briefing on the DCSS's January 2008 motion to modify child support was completed. In October 2013, counsel for Madhu substituted out of the case and Madhu represented herself. In November 2013, the motion finally was submitted.
February 2014 Order
On February 3, 2014, the court filed its ruling on modification of child support and attorney fees. The court found changed circumstances existed justifying a modification of child support effective January 4, 2008. The court found child support calculated solely on the guideline formula was inappropriate in light of Sameer's bonus and stock income. The court found it was in the best interests of the children to deviate from guideline support and require an Ostler-Smith percentage of "any bonus or stock income" to be paid as additional child support. The additional support would allow the children to share in the standard of living of their father.
The order addressed the variable components of Sameer's annual income as follows:
"[Sameer's] salary appears to have stabilized since he began employment at Franklin Templeton. He continues to receive bonus and stock income which continues to fluctuate. On that fluctuating income of bonus and stock income [Sameer] is to pay an Ostler-Smith percentage using the bonus table in the dissomaster™ program. [Sameer] shall pay [Madhu] the bonus table percentage of all bonus income and stock income received within 30 days of receipt. [Sameer] shall provide [Madhu] with an annual statement of bonus and stock income for the prior year no later than April 15, of each year." (Boldface omitted.)
The court made findings relating to the DissoMaster factors for the years 2008 through 2012, including total income and the components of income for each year. For example, Sameer's total income for 2010 ($638,249.05) consisted of salary ($241,626.92), bonus income ($152,782.38), restricted stock income ($107,982), nonqualified stock income ($134,173.44) and interest income ($1,684). In 2011, Sameer left Cisco Systems, Inc., and began working for Franklin Templeton. His total income for the year ($924,373.39) included salary from Cisco Systems, Inc. ($154,900.51), salary from Franklin Templeton ($3,384.62), severance payments from Cisco Systems, Inc., and bonuses ($410,325.37), capital gains income ($103,742), restricted stock income ($43,470), nonqualified stock income ($190,952.55), and interest and dividend income ($2,191). At the end of the court's findings as to the DissoMaster factors for each year, the court stated its conclusions. The conclusions for each year are in nearly identical form, and we quote the conclusion for 2011 as an example:
"Based on the above findings [about the DissoMaster factors], Child Support, Bonus Income and Stock Income are to be paid pursuant to the dissomaster™ printout for 2011 which include percentages to be paid pursuant to the bonus tables attached for bonus income and stock income (see attachment 4). The court adopts this as the order of the court for child support to be paid by [Sameer] to [Madhu] in 2011." (Boldface omitted.)
Having dealt with the years 2008 through 2012, the order then addressed the subject of arrearages by stating the court was "unable to determine the arrears in this matter absent further documentation as to amounts actually paid during this period." The order stated the arrearage would be calculated based on the court's findings and directed each party to prepare a declaration of payment utilizing Judicial Council Form FL-421 (Payment History Attachment), showing all the monies owed and all monies received and paid for child support in each month and each year beginning 2008 to the present. The court also directed the parties to meet and confer to determine the amount of child support arrears.
The court also ordered Sameer to pay $92,000 in attorney fees.
In September 2014, the Santa Clara Superior Court signed an order stating Madhu shall have sole legal and physical custody of the two sons and shall have the option of moving with the children to Australia or New Zealand.
Madhu's Motion
On October 28, 2014, Madhu filed a motion in Fresno Superior Court to enforce arrearages from 2003 through 2012, supported by declarations and a memorandum of points and authorities. On November 5, 2014, Madhu filed a request for order of temporary child support of $4,917 per month plus 11.5 percent in Ostler-Smith payments.
In November 2014, DCSS filed a responsive declaration on Judicial Council Form FL-320, with a checked box stating "I consent to guideline support" and also stating it "submits this issue to the court." In December 2014, Sameer filed a responsive declaration stating he did not consent to the order requested by Madhu. Sameer asserted the motion had been served only on his attorney and he had not been served. He also asserted Madhu had not followed the procedures regarding arrearages set forth in the February 2014 order and her request for arrearages for the period before January 2008 was an impermissible collateral attack on prior orders.
Order Denying Motion
On December 15, 2014, the trial court held a hearing on Madhu's motion, which was attended by (1) counsel representing Sameer, (2) an attorney for DCSS, and (3) Madhu, who represented herself. Later that day, the court filed a short form order after hearing stating the court denied Madhu's "requested relief in the absence of factual and legal support." In addition, the order addressed Sameer's procedural argument by stating (1) the February 2014 order obligated Madhu to meet and confer to determine the amount of child support arrears and (2) the record reflected that she had failed to comply with that order.
As to Madhu's papers seeking temporary child support, the order stated her request for relief was unclear because the February 2014 order set child support and Sameer continued to make monthly child support payments, which payments were reflected in DCSS records. The court also noted a proceeding was set in Department 203 to address potential modification of child support. The court concluded a temporary child support order was not properly before it.
In January 2015, Madhu filed a timely notice of appeal.
DISCUSSION
I. Basic Principles of Appellate Review
A. Appellant's Burden of Demonstrating Error
A well-established rule of appellate procedure states the judgment or order of the lower court is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To overcome this presumption, an appellant challenging a judgment or order must affirmatively demonstrate prejudicial error. (Ibid.; In re Marriage of Bowen (2001) 91 Cal.App.4th 1291, 1301 [appellant has the burden of showing error].)
Demonstrating prejudicial error cannot be done without an adequate record of what happened in the trial court. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) For example, the plaintiff in Ballard failed to submit an appellate record that included a reporter's transcript of the portion of the trial relating to the issue of damages. The absence of a transcript, or a settled statement regarding that portion of the trial, meant the appellate court had no way of ascertaining whether the alleged juror misconduct or the instructional error affected the damages awarded in the case. (Ibid.) As a result, our Supreme Court concluded the plaintiff failed to provide an adequate record and therefore failed to carry the burden of demonstrating prejudicial error. (Ibid.)
The burden of demonstrating prejudicial error also affects the contents of the appellant's briefs. Rule 8.204(a)(1)(C) of the California Rules of Court provides the briefs must "[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." We have interpreted this rule to mean that the assertions of fact set forth in an appellate brief must be supported by a citation to the part of the record where that fact appears. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936, fn. 4 [defendants' assertion of fact not supported by citation to record].) This rule applies to matters referenced at any point in the brief, not just the brief's statement of facts. (See Sky River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 741; see also Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [citations to a block of pages do not comply with rule].)
B. Standard of Review
Identifying the standard of review applicable to a particular question (i.e., subject of dispute) is important for appellants because the standard of review defines how one affirmatively demonstrates the trial court erred in deciding that question. Identifying the applicable standard of review begins with determining the type of question involved. Generally, a subject of dispute (i.e., issue) involves a question of fact, a question of law, or a mixed question of law and fact.
Questions of historical fact can be summarized as "who did what, where, when, how, [and] why." (Western Oil & Gas Assn. v. State Lands Com. (1980) 105 Cal.App.3d 554, 565.) In comparison, questions of law include the proper interpretation of a statute, the applicability of a statutory standard to undisputed facts, and the allocation of the burden of proof. (In re Marriage of Peterson (2016) 243 Cal.App.4th 923, 929; In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1489-1491 [burden of proof].)
1. Questions of Law
Appellate courts conduct an independent (i.e., de novo) review of the trial court's resolution of questions of law. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1035.) In other words, appellate courts do not defer to the legal conclusions reached by trial courts. (See Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1304.)
2. Findings of Fact
When an appellate court considers challenges to the trial court's findings of fact, identification of the proper standard of review requires determining which party had the burden of proof in the trial court. When the appellant had the burden of proof in the lower court's proceeding and the trier of fact explicitly or implicitly concluded the appellant did not carry his or her burden, "'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citation.]'" (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.) The finding is compelled as a matter of law only if the appellant's evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) This standard is difficult to meet, as the Second Appellate District explained:
Thus, "'it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965.)
"Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof." (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)
Similarly, credibility findings are difficult to overturn on appeal. Appellate courts are required to accept the trial court's express or implied findings that a witness is credible, unless the testimony is incredible or inherently improbable. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20.) Alternatively, when a trial court finds all or part of a witness's testimony is not credible, appellate courts apply the rule that a trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for disbelieving testimony can be found in Evidence Code section 780, which provides a nonexclusive list of considerations tending to prove or disprove the truthfulness of testimony. For example, the "existence or nonexistence of a bias, interest, or other motive" is such a consideration. (Evid. Code, § 780, subd. (f).)
II. Child Support Arrearages
A. Trial Court's Determination
The trial court's December 15, 2014, order after hearing stated "this Court finds neither legal nor factual support for [Madhu's] requested relief." It also stated Madhu "failed to provide necessary documentation as to amounts actually paid and specific amounts she claims as arrears." The last sentence of the order stated: "For the reasons discussed above and on the record, this Court denies [Madhu's] requested relief in the absence of factual and legal support." These statements show the trial court concluded Madhu had the burden of proof, and it determined she failed to carry her burden of proof.
We recognize the order included the following sentence: "The record before this Court, including information from the [DCSS], confirmed that [Sameer] has been consistently current in his ongoing payments." First, this statement is ambiguous as to whether "ongoing payments" included Sameer's obligation to make Smith-Ostler payments on bonus and stock income. Second, it is not reasonable to resolve the ambiguity by interpreting this statement as a finding that Sameer actually made the appropriate fixed child support payments and the Smith-Ostler payments for the period in question. An implied finding the Smith-Ostler payments were made is appropriate only if supported by substantial evidence. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 66 [presumption of correctness and implied findings of fact].) Here, the appellate record lacks substantial evidence showing any such payments had been made. Consequently, we interpret the court's use of the term "ongoing payments" as referring to the fixed support payments assessed on Sameer's base salary.
B. Burden of Proof
The parties disagree about whether the burden of proof was properly allocated to Madhu. For instance, Madhu contends the trial court erred in placing the burden of proving nonpayment of support on her shoulders. The parties' disagreement about the burden of proof presents a legal issue we must resolve before determining the applicable standard of review.
1. Contentions of the Parties
Madhu argues, without citation to authority, that her allegations of nonpayment are assumed to be true until proven otherwise and Sameer should have been asked to provide evidence of payment. Madhu supports her argument as to the proper allocation of the burden of proof by contending she provided the information available to her—specifically, a copy of the order directing payments be made and her written declaration that payment was not received. She asserts it is not possible to prove a negative as there are no bank records showing Sameer has not paid the amount of child support owed. Moreover, Madhu asserts Sameer's child support obligation included a fixed amount calculated on his base salary plus an Ostler-Smith payment on additional income and Sameer has not been forthcoming about the additional income upon which the Ostler-Smith payments are calculated.
Madhu's second declaration in support of her motion asserts Sameer "paid no child support or spousal support during 2005 [through] 2007" on his "sale of stock option grants, and sale of ESPP stock awards from his employer." Madhu's third declaration in support of her motion also makes a general statement about Sameer's nonpayment of his Smith-Ostler obligation, asserting he "owes child support on additional income generated between 2008 [through] 2012."
DCSS contends: "Madhu's claims fail because she failed to meet her burden at the trial court level, and she now inappropriately requests this Court to reweigh the evidence." This contention implies Madhu had the burden of proof in the trial court proceeding, but DCSS cites no authority specifically stating the party contending support arrearages exist has the burden of proof.
2. Specific Authority for Allocation of Burden of Proof
The parties have cited, and we have located, no statute or rule of court explicitly allocating the burden of proof when a factual dispute arises over the existence of child support arrearages. Our search included the Family Code and division 1 of title 5 of the California Rules of Court, which division is "referred to as the Family Rules." (Cal. Rules of Court, rule 5.2(a).)
In addition, the parties have identified, and we have located, no published opinion deciding, or even acknowledging, the issue about the burden of proof. An Illinois appellate court was in the same position in 2000. (In re Marriage of Jorczak (2000) 315 Ill.App.3d 954, 956 [who has "the burden of proof regarding alleged arrearage of a child support obligation is a question of first impression in Illinois"].)
Appellate decisions from other jurisdictions have adopted different approaches when allocating the burden of proof. Some states place the burden of proof on the parent making the payments. (E.g., Gibson v. Gibson (Ky.App.Ct. 2006) 211 S.W.3d 601 [obligor parent bears burden of proving no arrearage in child support]; Dalton v. Dalton (2000) 207 W.Va. 551 [obligor parent bears burden of proving he or she has fulfilled child support obligations].) Other states assign the burden to the custodial parent receiving the child support payments. (E.g., Hall v. Hall (Ala.App.Ct. 2008) 998 So.2d 1072, 1076 [party alleging a child support arrearage exists has the burden of establishing the existence and amount of arrearage].) In addition, some states shift the burden of producing evidence. (E.g., Rutuelo v. Rutuelo (N.Y.App.Div. 2012) 98 A.D.3d 518 [father failed to rebut mother's prima facie evidence of his partial payment of child support for months in dispute]; see In re Marriage of Jorczak, supra, 315 Ill.App.3d at p. 957 [obligee parent need prove only existence of support obligation; obligor who claims to have satisfied obligation in whole or in part is asserting payment as affirmative defense and has burden of proving that defense].)
3. General Authority Governing Burden of Proof
In the absence of a specific statute, rule of court, or judicial decision, we turn to the general rule of law used to allocate burden of proof. (See Cal. Rules of Court, rule 5.2(d) [provisions of law applicable to civil actions generally apply to proceeding under Family Code not subject to a provision in the Family Rules].) That general rule is stated in Evidence Code section 500: "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." The comment to Evidence Code section 500 by the California Law Revision Commission states: "Under Section 500, the burden of proof as to a particular fact is normally on the party to whose case the fact is essential." (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965), p. 89 (7 Cal. Law Revision Com. Report).) If Madhu's motion for enforcement of arrearages is a "claim for relief" as that phrase is used in the statute, then the general rule would assign her the burden of proof. (Cf. In re S.R.O. (Tex.App.Ct. 2004) 143 S.W.3d 237, 248 ["movant bears the burden of proving the amount of arrearages in an enforcement hearing"].)
The Evidence Code defines the terms "law" and "proof" and the phrase "burden of proof." "Law" includes constitutional provisions, statutes and judicial decisions. (Evid. Code, § 160; cf. Civ. Code, §§ 22, 22.1.) "Proof" refers to "the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 190.) "Burden of proof" is defined as "the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) Unless the law provides otherwise, the level of proof required is a preponderance of the evidence. (Ibid.)
The introductory phrase in Evidence Code section 500—"[e]xcept as otherwise provided by law"—acknowledges there are exceptions to the general rule. The comment of the California Law Revision Commission explains this exception by stating it was "included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule." (7 Cal. Law Revision Com. Report, supra, p. 89.) We note that exceptions "provided by law" are different from exceptions provided by statute because "law" encompasses both statutes and judicial decisions. (Evid. Code, § 160 [definition of "law"].) Consequently, the statutory text takes into account that "courts may alter the normal allocation of the burden of proof." (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1188.) "In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: [1] the knowledge of the parties concerning the particular fact, [2] the availability of the evidence to the parties, [3] the most desirable result in terms of public policy in the absence of proof of the particular fact, and [4] the probability of the existence or nonexistence of the fact." (7 Cal. Law Revision Com. Report, supra, p. 89.)
Many provisions of the Evidence Code begin with the phrase "[e]xcept as otherwise provided by statute." (E.g., Evid. Code, §§ 300, 351, 780, 910, 911, 912, 970 & 1523, subd. (a), italics added.)
Based on the foregoing principles and the absence of a constitutional or statutory provision specifying who has the burden as to the existence and amount of child support arrearages, we conclude the judiciary is authorized to determine the proper allocation of the burden of proof. (See generally In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1267-1268 [principles governing whether to shift the burden of proof].) Deciding whether to apply the general rule or to shift the burden of proof is merely a question of policy and fundamental fairness based on experience. (Adams v. Murakami (1991) 54 Cal.3d 105, 120.)
4. Allocation of Burden in Disputes over Child Support Arrearages
The bedrock concerns of policy and fairness lead us to consider the access the parties have to the evidence that would be used to prove a particular disputed fact. First, evidence as to the operative order defining the child support obligation for a particular period would be equally accessible to the custodial and noncustodial parent. Therefore, we conclude considerations of policy and fairness weigh in favor of applying the general rule and requiring the moving party to prove the existence of a child support obligation, which usually will involve submitting a court order or judgment (or chronological series of orders or modified judgments) addressing the subject of child support.
Second, as to the payment and receipt of the fixed amounts of child support specified in the operative court order, there is not a sufficient disparity in access to information about payment and receipt to justify shifting the burden from the moving party. The obligor parent has the ability to maintain records of payments made, and the obligee parent has the ability to maintain records of payments received. Therefore, we conclude the general rule applies and the moving party has the burden of proving the payment or nonpayment of the fixed amounts of child support owed under a support order. Similarly, we conclude the moving party has the burden of proving whether Ostler-Smith payments were made and, if made, the amount and date of receipt of any such payment.
Third, access to the information necessary to calculate the amount of an Ostler-Smith payment is not readily available to the obligee parent, but is within the knowledge and control of the obligor parent—that is, the party who actually receives the additional income. The person receiving the income, besides being involved in its receipt, is obligated by state and federal tax law to maintain records of that income. (Cal. Code Regs., tit. 18, § 19032, subd. (a)(5) ["taxpayer has a duty to maintain relevant records and documents"].) We recognize the obligor parent's knowledge and control of information about additional income is not always exclusive because third parties sometimes will have records of the payment of the additional income. For instance, where an employer pays a bonus to the obligor parent, the employer has knowledge and control of financial records constituting evidence of the additional income of the obligor parent. In such situations, the obligee parent would have access to the information through legal process. Notwithstanding this indirect form of access, our balancing of considerations of fairness and policy lead us to conclude the burden of proving the amount of additional income on which an Ostler-Smith payment is based should be allocated to the obligor parent. (See In re Marriage of Prentis-Margulis & Margulis, supra, 198 Cal.App.4th at p. 1268 [vastly unequal access to evidence concerning the disposition of community property justified shifting the burden of proof to the spouse who managed the property].)
C. Applicable Standards of Review
The foregoing allocations of the burden of proof between the obligee parent and the obligor parent establish the foundation for our determination of the standard of appellate review applicable to the determinations made by the trial court in denying Madhu's motion for enforcement of arrearages. First, as to disputed factual issues on which Madhu had the burden of proof and the trial court determined she failed to carry her burden, the applicable standard of review requires Madhu to demonstrate the evidence compels a finding in her favor as a matter of law. (See pt. I.B.2., ante.) A finding is compelled as a matter of law only if her evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Ibid.)
Second, as to any disputed factual issue on which Sameer had the burden of proof and the trial court found in his favor, Madhu must demonstrate the court's finding is not supported by substantial evidence. For example, in In re Marriage of Catalano (1988) 204 Cal.App.3d 543 the custodial parent moved for an increase in child support. The trial court granted the motion, impliedly finding the child's needs were not being met out of the support previously ordered. (Id. at p. 548.) The appellate court affirmed the order, concluding this implied finding was supported by substantial evidence. (Id. at p. 549.)
D. Analysis of Trial Court's Determinations
1. Arrears from 2003 until January 4 , 2008
The appellate record contains a copy of the December 31, 2003, amended order after hearing directing Sameer to pay $2,332 as guideline monthly child support. As augmented by DCSS, the appellate record also contains a copy of the February 5, 2004, corrected further amended order setting the amount of child support at $2,352. In addition, the appellate record contains the Fresno Superior Court's order of February 2014 modifying Sameer's child support obligation effective January 4, 2008. Thus, the record contains court orders specifying the amount of child support Sameer was to pay starting in 2003 and continuing until January 2008.
In contrast, the record does not show the amounts of child support paid to Madhu from 2003 until January 2008. Proof of these amounts is essential to calculating the existence of an arrearage. Madhu had the burden of proving the amounts of child support payments she received during that period. Based on our review of the briefs and record, it does not appear she carried this burden. More importantly, for purposes of appellate review, the record does not establish the trial court was compelled, as a matter of law, to find the child support payments Madhu actually received did not satisfy Sameer's obligation under the applicable support order.
Madhu's opening brief did not attempt to show such a finding was compelled as a matter of law. Instead, the brief stated neither Sameer nor DCSS provided any evidence showing all payments had been made as required by the court orders and asserted Sameer or DCSS had the burden of proving there were no arrearages.
Our review of the record included Madhu's "First Declaration—Enforcement of Court Order of 2004," which set forth her request for arrears of unpaid child support from 2003 through 2005, referenced the temporary child support obligation of $2,352 and stated Sameer "did not pay support for 2 months." We also reviewed Madhu's "Second Declaration—Modification of Support—Arrearages, Reimbursements & Interest for Outstanding Child Support; Medical & Other Expenses from 2005-2008." These declarations did not identify the child support payments received.
Based on the appellate record presented, we cannot determine the amounts of child support paid by Sameer or what amounts, if any, he did not pay. Therefore, it is not possible for this court to calculate whether an arrearage existed. Consequently, we must conclude the trial court did not err in determining Madhu failed to carry her burden of proof with respect to the period from 2003 until January 2008.
2. Arrears for 2008 through 2012
The trial court's February 2014 order required Sameer to make child support payments pursuant to (1) its findings for each year from 2008 through 2012 and (2) the DissoMaster printout attached to the order for that year. It also directed Sameer to pay percentages of bonus income and stock income in accordance with bonus tables attached to the order.
Similar to the prior period, the record does not show the amounts of child support paid to Madhu during the period beginning in January 2008. Our review included Madhu's third declaration in support of her motion for enforcement of child support, which addressed the period from 2008 through 2012. Madhu's declaration does not specify the child support payments she received for this period, but made the conclusory assertion that Sameer "owes child support on additional income generated between 2008-2012." The record before this court does not enable us to determine whether Sameer paid the portion of his monthly child support obligation relating to his base salary or whether he made any Smith-Ostler payments. In the absence of specific information about payments made, we cannot calculate whether there was any shortfall in the payments required. In addition, the lack of evidence about the payments actually made means the burden of proof never shifted to Sameer to establish the amount of his bonus income and his stock income for the period in question. (See pt. II.B.4., ante.)
We recognize the foregoing conclusions are contrary to argument made in Madhu's opening brief, which states: "All evidence shows [Sameer] owed arrerages [sic] as on Dec 15, 2014." This statement, and other similar statements, are not supported by citations to evidence in the record establishing the amount and timing of payments made—information necessary to calculate whether child support owed for a particular period was not paid. Consequently, we conclude the trial court did not err in determining Madhu failed to carry her burden of proof with respect to the period from 2008 through 2012.
E. Credibility Findings
An issue related to the sufficiency of the evidence and whether Madhu satisfied her burden of proof relates to the credibility of her testimony and declarations. DCSS's appellate brief argued this court must accept the credibility determinations made by the finder of fact. DCSS supported this argument by referring to the principle that appellate courts do not second-guess the trial court's credibility determinations. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 349 ["we do not second-guess the calls the trial court made regarding credibility"].) In her reply brief, Madhu responded to DCSS's argument that she lacked credibility by contending the argument was not supported by the facts of this case. Madhu referred to the fact that she has been granted sole legal and physical custody of the minor children, while Sameer is accused of sexual misconduct and domestic violence by the children. Madhu also notes she prevailed on the child support issue and Sameer was ordered to pay $92,000 of her attorney fees. She also asserts: "I do not lack credibility—the Judge lacks credibility, as does DCSS, and opposing parties and counsels."
California courts follow the principle that a trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. (In re Jessica C., supra, 93 Cal.App.4th at p. 1043.) Accordingly, when a trial court finds all or part of a witness's testimony is not credible, we must accept that finding if any rational grounds support it. Pursuant to Evidence Code section 780, it is rational for a trial court to disbelieve testimony where the witness is biased or interested in the outcome of the proceeding. (Evid. Code, § 780, subd. (f).) Here, Madhu had economic and other interests in the outcome of the child support proceedings.
The trial court's order denying Madhu's motion for enforcement of arrearages did not explicitly find her testimony was not credible. Furthermore, it is possible to conclude Madhu did not carry her burden of proof without inferring the trial court implicitly found she was not credible. Nonetheless, if the trial court made an implied finding that Madhu was not credible in some of her testimony, such an implied finding must be upheld because her interest in the outcome of the proceeding provides a rational ground for disbelieving her testimony.
The point of the foregoing discussion of credibility is that credibility findings made by the trial court, if any, were not erroneous and, therefore, do not provide a basis for reversing the order denying Madhu's motion to enforce arrearages from 2003 through 2012.
III. Obligation to Meet and Confer
As a separate ground for denying Madhu's motion to enforce arrearages, the trial court stated she was obligated by the February 2014 order to meet and confer to determine the amount of child support arrears, and the record reflected Madhu had failed to comply with that order. The court then admonished Madhu "to comply with orders, including to engage in meaningful, genuine meeting and conferring on child support issues."
Madhu's opening brief addressed this ground by asserting, among other things, "that I failed to comply with [the February 2014] order is an absolutely baseless/unsupported finding." Madhu also stated: "Records do not reflect at all that I failed to meet and confer. Records actually reflect that I made several efforts to seek documentation from [Sameer]." Madhu then describes difficulties in getting information about additional income from Sameer, such as his stonewalling discovery. Though not stated explicitly in her papers, it appears Madhu is contending (1) she is unable to provide a reasonably accurate calculation of the arrearages until she obtains reliable information about the income Sameer received in addition to his base salary; (2) she has made many attempts to obtain this information from Sameer; and (3) there is little point in actually conferring about arrearages without information from Sameer about his additional income. In short, Madhu appears to concede she has not met and conferred with Sameer's counsel because her attempts at discovering the pertinent information have been stonewalled.
DCSS responded to Madhu's claim there was no evidence to support the finding she failed to comply with the meet and confer obligation imposed by the February 2014 order by arguing: "This claim fails because the record is again devoid of ... evidence supporting her efforts to meet and confer with [Sameer] regarding the determination of arrears."
We need not analyze this separate ground for upholding the denial of Madhu's motion to enforce arrearages because another ground exists for affirming the order denying the motion—specifically, Madhu's failure to carry her burden of proof.
IV. Retroactive Modification of Support
A. Rules of Law
Generally, an order modifying a support order "may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date." (Fam. Code, § 3653, subd. (a).) Restated in the negative, "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," except for certain situations identified in the statute. (Fam. Code § 3651, subd. (c)(1), italics added.) Under these provisions, child support (including arrearages and accrued interest) may not be altered or discharged retroactively. (In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 98.) Changed circumstances, however, may warrant modification of future support obligations. (Ibid.)
B. Trial Court's Determinations
Besides the failure of proof, the trial court's December 15, 2014, order after hearing set forth additional grounds for denying Madhu's motion to enforce arrearages, one of which stated:
"This Court further concludes that the effect of [Madhu's] requested relief is to recreate or to modify retroactively child support and related orders issued six or more years ago. Such retroactive modification is prohibited under Family Code § 3653."
C. Analysis of the Claim of Error
The trial court's conclusion that Madhu's requested relief was, in effect, an attempt to modify child support retroactively provides an alternate rationale for the court's decision to deny Madhu's motion. Consequently, our prior determination that the trial court's denial was appropriate based on a failure of proof renders any potential legal error of this alternate ground harmless. In other words, no prejudice or miscarriage of justice could have resulted from the purported error because the denial of the motion can be upheld on other grounds. (See Cal. Const., art. VI, § 13 [appellant must show "the error complained of has resulted in a miscarriage of justice"].) Accordingly, further discussion of the trial court's recharacterization of Madhu's motion as a request for a retroactive modification is not necessary.
V. Other Claims of Error
A. Denial of Motion with Prejudice
Madhu contends the trial court erred in denying her motion to enforce arrearages with prejudice. DCSS contends "the trial court simply denied her motion without any reference to prejudice."
We have reviewed the trial court's February 2014 order denying Madhu's motion to enforce arrearages, which ends with the following sentence: "For the reasons discussed above and on the record, this Court denies [Madhu's] requested relief in the absence of factual and legal support." We have located no statement that the motion was denied with prejudice. Therefore, the argument that the trial court exceeded its authority by ordering a denial with prejudice is rejected.
B. Temporary Child Support
1. Rules of Law
Family Code section 3600 provides: "During the pendency of any proceeding for dissolution of marriage ... or in any proceeding where there is at issue the support of a minor child ... the court may order ... either or both parents to pay any amount necessary for the support of the child, as the case may be." (Italics added.) This provision authorizes temporary child support while the case proceeds toward a final judgment. In this context, "support" includes the maintenance and education of a minor child. (Fam. Code, § 150.)
Family Code section 3651, subdivision (a) addresses the modification of an existing support order by stating: "Except as provided in subdivisions (c) and (d) and subject to Article 3 (commencing with Section 3680) and Sections 3552, 3587, and 4004, a support order may be modified or terminated at any time as the court determines to be necessary." (Italics added.)
2. Trial Court's Determinations
The trial court's December 15, 2014, order after hearing denied Madhu's request for temporary child support of $4,917 per month plus 11.5 percent in Ostler-Smith payments on the ground a temporary child support order was not properly before it. The court referred to an existing child support order, the fact Sameer was making payments, and a pending request to modify child support.
3. Contentions of the Parties
On appeal, Madhu contends the trial court did not have discretion to deny her request because the denial was not in the best interest of the children. She also contends DCSS was required to support her motion by requesting the court to make a temporary order to upgrade support to reflect the new custody arrangement and to order guideline support. Madhu also contends the trial court committed procedural errors by (1) refusing to provide a statement under Family Code section 4056 explaining how its denial of temporary child support was in the best interest of the children, (2) denying her motion with prejudice, and (3) failing to order DCSS to seek temporary support on her behalf.
We reject the argument that the court trial erred by denying the request for temporary support with prejudice on the ground that Madhu has not demonstrated the denial actually was with prejudice. This is the same ground for rejecting her argument that it was error for the court to deny her motion to enforce arrearages with prejudice. (See pt. V.A., ante.)
Family Code section 4056, subdivision (a) provides the court shall state, in writing or on the record, certain information "whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula." The information required is (1) the amount of guideline support, (2) the reasons the amount of support ordered is not the guideline amount, and (3) the reasons the support ordered is consistent with the best interests of the children. (Fam. Code, § 4056, subd. (a)(1)-(3).)
We conclude Family Code section 4056 does not apply to the denial of Madhu's request for temporary child support because the denial is not a situation where "the court is ordering an amount of child support" as that phrase is used in the statute. The amount of child support ordered was established by a previous order. It is the previous order to which the requirements in Family Code section 4056 apply.
5. Order Directing DCSS to Seek Temporary Support
Madhu's arguments that the trial court was required to order DCSS to seek temporary support is based on Family Code sections 3620 and 17402 and related provisions. We conclude these and related sections do not apply to the circumstances of this case.
Madhu's argument that the parameters and procedures for temporary child support are set forth in Family Code sections 3620, 3621, 3629, 3630 and 4056 is incorrect. Chapter 4 of part 1 of division 9 of the Family Code addresses spousal and child support during the pendency of proceeding. In contrast, most of the provisions cited by Madhu come from chapter 5 of part 1 of division 9 of the Family Code, which address expedited child support orders and consist of Family Code sections 3620 through 3634. An expedited child support order is one made "without a hearing." (Fam. Code, § 3621.) "Such orders are obtainable ex parte in the first instance, subject to 30-day stay for a noticed hearing." (1 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 5:131, p. 5-70; see Fam. Code, § 3624, subd. (a).) Here, a child support order was in place and Madhu's request was not resolved "without a hearing." (Fam. Code, § 3621.) For these and other reasons, her request does not qualify as an "application for an expedited child support order" as that phrase is used in Family Code section 3622 and related provisions and, therefore, the procedures that govern expedited support orders do not apply to her request.
Family Code section 17402 addresses the noncustodial parent's obligation to the county when aid is granted to the family under chapter 2 of part 3 of division 9 of the Welfare and Institutions Code. Madhu has not shown that this type of aid was being provided and, therefore, has not established that Family Code section 17402 applies to this case.
In this case, there was an existing child support order. Also, at the time the court denied Madhu's request for temporary support, she had a pending request for modification of child support. In this procedural context, the trial court did not abuse its discretion when it determined a request for temporary child support was not the appropriate procedural avenue for the relief requested. Instead of pursuing relief labeled as "temporary support," Madhu was required to seek a modification of existing support pursuant to the authority granted in Family Code section 3651.
6. Lack of Discretion
We disagree with Madhu's contention the trial court lacked the discretion to deny her request. Family Code section 3600, which addresses support during the pendency of a dissolution proceeding, states "the court may order ... any amount necessary for the support of the child." The use of "may" denotes the grant of discretion. (Fam. Code, § 12.) Similarly, subdivision (a) of Family Code section 3651, which addresses the modification of an existing support order, states "a support order may be modified or terminated at any time as the court determines to be necessary." Again, the use of "may" denotes the grant of discretion. Based on these statutory provisions, we conclude Madhu's request was committed to the discretion of the trial court.
Next, we consider whether any statute or judicial decision limited this discretionary authority and compelled the request to be granted in the circumstances of this case. Madhu has not cited specific statutory provisions compelling the grant of her request. Similarly, she has not cited a published decision addressing a similar request—that is, one made when an existing support order was in place and a proceeding to address the potential modification of child support had been set—and concluding it must be granted. Therefore, she has not demonstrated the trial court's denial of her motion exceeded its discretionary authority by going outside the confines of applicable legal principles. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
C. DCSS Refusal to Enforce Child Support Obligations
Madhu contends the trial court was required to order DCSS to enforce the previous support order, including Smith-Ostler payments and medical and childcare reimbursement. Among other things, Madhu supports her position by citing various provisions of the Family Code using the mandatory term "shall." We need not consider these arguments in detail. Our prior determination that the trial court properly denied Madhu's motion because she failed to prove arrearages existed also resolves this claim of error, which assumes Sameer's child support obligations had not been fulfilled.
DISPOSITION
The order denying the motion to enforce arrearages is affirmed. Respondent shall recover its costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.