Opinion
C080562
05-23-2017
In re the Marriage of DAVID G. and PATRICIA E. SCOTT. DAVID G. SCOTT, Appellant, v. PATRICIA E. SCOTT, Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SDR0037363)
Appellant, David G. Scott (David), appeals from an order denying his motion to modify spousal support. Appellant contends the trial court abused its discretion and erred as a matter of law in denying his motion. David's claim of legal error is not supported by the law. David also failed to support his claims with an adequate record on appeal. He has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Moreover, David has omitted several documents on which the trial court relied in reaching its decision. On the face of this record, no error has been established. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The limited record we have establishes that on June 24, 2015, David filed a motion to modify spousal support. In support of his motion, David claimed that he was 65 years old and was selling his business and "retiring for health reasons." Relying on the decision in In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, David argued he could not be compelled to work after the " 'usual retirement age of 65' in order to pay spousal support."
David further claimed he had substantial health issues as the result of a motorcycle accident, which required surgery on both shoulders and substantial recovery time. As a result, he was applying for disability. In addition, he claimed, respondent Patricia E. Scott's (Patricia) failure to comply with prior orders to remove his name from certain loans at Bank of America and to pay him a court-ordered equalization payment had further jeopardized his financial situation. David attached numerous documents to his motion, including his 2014 tax returns and the first two pages of his 2013 tax returns.
David also argued the trial court previously imputed him with income of $9,000 per month and then used that number to calculate spousal support. In reaching that number, he argues, "[t]he court apparently relied on a loan application where prior to 2009 [David] stated he was earning $7,500 per month. [David] at that time was working sixty or more hours [per] week plus weekends. [David] is not capable of and can no longer be required to work extra hours that were imputed to him." Now, given his age, the court cannot require him to work overtime "nor 'impute' an earning capacity."
Patricia opposed the motion. She argued David was attempting to relitigate issues that were considered and resolved in a prior trial. In particular, she noted that the issue of David's injuries and whether they qualified as a material change in circumstance was litigated in an evidentiary hearing in September 2014, and was resolved against David in a written ruling on January 26, 2015. According to Patricia, at that same hearing, David argued that "his business income was significantly reduced from that which the court based its initial spousal support order, at trial." Also according to Patricia, the court rejected that argument as well.
Patricia also noted that the trial court did not impute David with income in reaching the prior order for support. Instead, the trial court based spousal support on the "extensive testimony and written report of [a forensic accountant], which stated that [David's] average available monthly income for the years 2009-2012, was approximately $9,000 per month. That this was corroborated and supported by a 2009 loan application wherein [David] stated his monthly income to be $7,500 per month." Patricia cited the trial court's April 17, 2014, statement of decision to support her argument.
Moreover, Patricia argued, statements David made to support his current motion to modify support were inconsistent with "matters set forth in the court's Statement of Decision of April 17, 2014, . . . ."
And finally, she argued, the income and expense declarations filed by David from 2012 and until the most recent filing, "reflect very little, if any change in his economic circumstance." She points out that at trial in 2013, David claimed his business was worth $0 or $20,000. Now, less than two years later he claimed he sold the business for $170,000. She also notes that David now has a $63,000 note receivable earning 3 percent interest, along with rental income from a residence he inherited. David also failed to disclose his estimated income from social security, which if awarded as disability would be largely nontaxable. "Therefore, in habitually understating and under reporting his income he may be hoisted by his own petard, there is no showing of a substantial change in circumstance."
Both parties waived their right to an evidentiary hearing and the matter was heard on August 20, 2015. David and Patricia both were present and represented by counsel. Following the hearing, the trial court issued a written decision in which the court wrote it considered "all evidence both oral and documentary, all pleadings on file, points and authorities on file and the arguments of counsel." The court also took judicial notice of "the prior statement of decision, prior judgment and findings and orders of the court."
The parties waived an evidentiary hearing; however, the court's written order indicates that it considered oral evidence. Without a reporter's transcript of the hearing, we have to presume the court did in fact consider oral evidence and we have no record of what that evidence was. --------
The court then ruled as follows: "The court finds there is insufficient evidence of a substantial change in circumstances to modify the long-term spousal support order." The court found David presented no new evidence with regard to his shoulder injury, the court having already considered the injury less than one year prior in an earlier motion to reduce spousal support.
The court noted, as Patricia did, that it did not previously impute income to David. The court also noted that it is not required "to find a change in circumstances in every case in which a party has retired. [Citation.] Similarly, attainment of retirement age does not require a finding by the court there is a material change in circumstances. [Citation.]"
The court then compared the information David provided relative to his "income, assets, and factors set forth in Family Code section 4320" with regard to the current motion, with that which David produced in "both the previous trial and the previous evidentiary hearing." Having compared the information, the court ruled that David failed to establish a material change in circumstances. The court also found inconsistencies in the information David provided to the court on the current motion and deemed his evidence "unreliable." The court denied David's motion to modify support.
DISCUSSION
I
Standard Of Review
On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
It is the burden on the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154). Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Services, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
II
Modification Of Spousal Support
David contends the trial court erred as a matter of law and abused its discretion in finding that his retirement was not a material change in circumstances sufficient to support a reduction or termination of spousal support. Both claims fail.
First, David contends "[r]etirement is a material change of circumstances sufficient to support a reduction or termination of spousal support." In support of his contention, David cites the decision in In re Marriage of Reynolds, supra, 63 Cal.App.4th at pages 1378-1379. He reads that decision too broadly.
The Reynolds decision does not stand for the proposition that the mere fact of retirement constitutes a material change of circumstances sufficient to support a reduction or termination of spousal support. Rather, the Reynolds court addressed a circumstance where the trial court failed to consider the effect of the supporting spouse's retirement on his income and whether that effect resulted in a material change in circumstances. (In re Marriage of Reynolds, supra, 63 Cal.App.4th at pp. 1378-1379.)
Thus, the court ruled that a "bona fide retirement" may support a finding of changed circumstances warranting a reduction or termination of spousal support. (In re Marriage of Reynolds, supra, 63 Cal.App.4th at p. 1379.) Here, the trial court considered David's retirement but found its effect on David's income was not a material change in circumstances. Accordingly, the trial court did not err as a matter of law.
David also claims the trial court abused its discretion in denying his motion to modify or terminate spousal support. Specifically, he contends the trial court failed to consider the Family Code section 4320 factors as they relate to him. David's claim is not supported by the record provided to us.
Family Code section 4320 identifies various factors a court must consider in ordering spousal support. (See In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 ["In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion"].) We are foreclosed from addressing this argument by the state of the record on appeal. Because this is a judgment roll appeal, we do not know what evidence was presented at the August 20, 2015, hearing. Accordingly, we cannot assess the trial court's application of that evidence to the section 4320 factors.
Moreover, what we do know is that several documents were considered at that hearing, including the prior statement of decision, the prior judgment, and the prior findings and orders of the court, and none of those documents are part of the record on appeal. It is apparent from the trial court's written order that, in reaching its decision, the trial court compared information in those documents with information provided by David in support of the current motion. Without those documents, it is impossible for this court to assess the trial court's determination that David "failed to meet his burden to support a finding there is a material change in circumstances."
On the record before us, we must presume both that the court made all findings necessary to support its decision and that all of those findings were supported by the evidence presented to the court.
DISPOSITION
The orders of the court are affirmed. Costs on appeal are awarded to respondent Patricia E. Scott. (Cal. Rules of Court, rule 8.278.)
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.