NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 111-FL159220)
Respondent Diana Estrada (Estrada) and appellant Jean Claude Harel (Harel) are the mother and father of a child who was seven years old at the time of the relevant proceedings. After a review hearing—attended by Estrada but not by Harel—the court, inter alia, ordered that Harel pay Estrada monthly child support of $956 from July 2016 forward. A formal order was filed on September 13, 2016 (hereafter support order). Harel filed an application to set aside the support order pursuant to Family Code section 3691 (hereafter set-aside motion). In his supporting papers, Harel also cited Code of Civil Procedure section 473 in support of his position. Harel argued that the support order was entered based upon (1) his excusable neglect in not attending the review hearing because he had received an emergency call requiring him to pick up the child from school; and (2) there was perjury because Estrada allowed the court to enter the support order based upon the false assumption that there was a 50-50 timeshare of the child when, in fact, his physical custody of the child greatly exceeded 50 percent. The court denied the set-aside motion but modified the support order, adjusting monthly child support to $933, effective November 1, 2016. A formal order was filed on November 16, 2016 (hereafter November 16, 2016 order).
All further unspecified statutory references are to the Code of Civil Procedure.
Harel, as a self-represented litigant, appeals the November 16, 2016 order. We conclude the court did not abuse its discretion and will therefore affirm.
I. PROCEDURAL HISTORY
A. September 13, 2016 Support Order
A review hearing occurred on September 12, 2016 (hereafter September 12 hearing). Estrada, representing herself, appeared, as did attorney Rakhee Mehta from the Department of Child Support Services (Department); there was no appearance by Harel. Mehta advised the court that the parties were to have exchanged quarterly income information, and that Estrada had submitted an income and expense declaration, but Harel had not. Estrada stated she had started a new job approximately two months earlier, and the court found that her gross monthly income was $5,451. It was also represented that Harel's gross monthly income was $17,453. Based upon these figures and "a fifty percent time share" of the child, the court ordered that Harel pay monthly child support of $956 from July 2016 forward. Also based upon "a 50/50 time share," the court set child support from December 2015 through June 2016 at $1,098 per month. Lastly, the court ordered that Harel make payments of $24 per month commencing October 1, 2016, to address arrearages. The court filed the support order reflecting these matters on September 13, 2016.
At the conclusion of the September 12 hearing, Estrada advised the court that Harel "had to pick up our daughter" and "wanted to ask for a continuance." The court twice responded, "He's not here."
B. November 16, 2016 Order
On October 12, 2016, Harel filed the set-aside motion pursuant to Family Code section 3691. The stated ground for relief in the form application was "[p]erjury." Harel did not present facts in the verified application nor did he attach a declaration as specified in the form.
The application was accompanied by a document captioned "declaration" (capitalization omitted) submitted by Harel. He recited that the parties had entered into a nonguideline stipulation for modifiable child support on June 4, 2015, after judicially supervised settlement discussions. Harel stated that the court recommended, and the parties agreed, to Harel paying monthly support of $775 from June 1 to December 1, 2015, and $500 "until review on September 12th 2016."
The document submitted by Harel did not satisfy the legal requirements of a declaration under penalty of perjury as provided under section 2015.5, including the declarant's certification of the matters to be true and correct under penalty of perjury under the laws of the State of California. We will therefore refer to the document by using quotation marks, recognizing that the document does not constitute a declaration under California law.
As appellant in the action, Harel has the burden of showing reversible error by providing an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Harel did not provide any stipulations or orders concerning child support that predate the support order, notwithstanding that such documents might be significant to disposing of the issues on appeal.
Harel stated further in his "declaration" that he was unable to attend the September 12 hearing because he needed "to respond to an emergency call from school" because of a medical condition of the child. A letter from the school was attached to the "declaration." Harel stated that he had contacted the court to request a continuance, which was denied. He stated in the "declaration" that the grounds for the request to set aside the support order were "excusable neglect (Illness) and perjury." Although the application Harel filed referenced Family Code section 3691 as the basis for the set-aside motion, he argued in his "declaration" that he was "filing the present motion according to [section] 473[.] 'Mistake, inadvertence, surprise or excusable neglect' and perjury." (Original italics.)
As to the second ground of his set-aside motion, perjury, Harel stated in his "declaration" that "[Estrada] acknowledged [in court] that the computation of child support was based [on] a 50% actual physical custody of the child . . . while [Estrada] perfectly knew it was not true." (Original underscoring.) Harel explained that he had custody of the child 90.5% of the time July 1 to December 31, 2014, 70% of the time in 2015, and 66% of the time in 2016. Harel argued that "[Estrada had] attempted to take advantage of [his] absence in order to gain an undue financial support."
The record does not reflect that Estrada filed any papers in opposition to the set-aside motion.
The court heard argument on Harel's set-aside motion on November 16, 2016. Both parties appeared as self-represented litigants. The record does not show that either party was sworn as a witness at the hearing. Attorney Mehta appeared on behalf of the Department. Harel argued that the motion should be granted because (1) he had not been present at the September 12 hearing because "we had an emergency" and he had to pick up the child at school; (2) "equity and fairness" justified setting aside the support order because it was based on an incorrect 50-50 timeshare; and (3) Estrada had attended the last hearing, had been sworn, and had not disclosed that the 50-50 timeshare upon which the support order was based was inaccurate, thereby misleading the court. Harel did not, either at the hearing or in his motion papers, claim that he had not received notice of the September 12 hearing.
Estrada responded that at the September 12 hearing, she had advised the court that Harel was requesting a continuance because he was not present and needed to pick up their child. Estrada stated that she was unaware of any emergency. She recalled that Harel had contacted her at the time of the September 12 hearing while she was in court by text, "asking [her] what the appointment was for. [¶] And then [she] said, don't we have a court [sic]? [¶] And then he said, for what? [¶] . . . And then that's when he said, can you ask for a continuance[?]" Estrada argued that, based upon her communications with Harel at the time of the September 12 hearing, she believed that he had failed to schedule the September 12 hearing on his calendar. Additionally, Estrada opposed Harel's set-aside motion by arguing that any additional time their child had spent with Harel beyond a 50 percent arrangement was due to Harel taking the child on a number of extended trips over the years, often to Europe. Estrada explained that in the interests of their daughter, she would never say "no" to such vacations because they were tremendous opportunities for the child and Estrada did not have the means to provide her with such experiences.
The court denied Harel's set-aside motion. The court, however, modified the prior support order, ordering that child support, effective November 1, 2016, be $933 per month. A formal order was entered on November 16, 2016. Harel filed a timely notice of appeal. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906 [child support modification orders appealable]; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137 [order denying statutory motion for relief from default judgment under § 473 appealable].)
The notice of appeal, filed two weeks after entry of the November 16, 2016 order, referred to the judgment or order entered on "09/12/2016," which is the date of review hearing. While the notice does not refer to the November 16, 2016 order itself, Harel's notice designating the appellate record filed the same day included requests for (1) the clerk to produce the court's ruling of November 16, 2016, and (2) a reporter's transcript to be prepared from the November 16, 2016 hearing. Construing the notice of appeal liberally "to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced," we will treat Harel's notice of appeal to include a challenge of the November 16, 2016 order. (Luz v. Lopes (1960) 55 Cal.2d 54, 59 (Luz); see also Cal. Rules of Court, rule 8.100(a)(2).)
A. Applicable Law
Under Family Code section 3690, the court is empowered, in its discretion, to grant relief to a party affected by a support order. There are three grounds upon which the court may relieve the moving party from a support order: (1) a party committed actual fraud in procuring the child support order; (2) a party committed perjury in connection with obtaining the order; or (3) the movant did not receive notice with sufficient time to defend the support claim and a default or default judgment was entered against him or her. (§ 3691; see In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 627.)
"The court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this article." (Fam. Code, § 3690, subd. (a).)
Family Code section 3692 precludes an attempt to set aside a prior support order on the grounds that it was inequitable at the time it was entered or that later circumstances have rendered the amount of support ordered inadequate or excessive. And under subdivision (b) of Family Code section 3690, the court may not grant relief unless it finds that (1) the facts supporting the motion "materially affected the original order," and (2) the movant "would materially benefit from the granting of the relief."
"Notwithstanding any other provision of this article, or any other law, a support order may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the support ordered to become excessive or inadequate." (Fam. Code, § 3692.)
Under section 473, subdivision (b) (hereafter section 473(b)), a party may bring a motion for relief from a "judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." A party seeking relief under section 473(b) bears the burden of "establish[ing] his [or her] position by a preponderance of the evidence." (Luz, supra, 55 Cal.2d at p. 62; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 5:390, p. 5-113 ["[w]here the moving party is responsible for the default . . . declarations must be filed establishing that the 'mistake,' 'neglect,' etc. was excusable"].) The granting of relief under section 473 "requires a showing by affidavit of the existence of grounds therefor, and notice to the opposing party of a motion for such relief." (Wechsler v. United States of America (1976) 56 Cal.App.3d 574, 582, italics added; see also Deschamps v. Independent Cab Co. (1949) 94 Cal.App.2d 127, 135 ["person seeking relief from a judgment or order on the grounds of mistake or inadvertence has the burden of showing why he is entitled to the relief 'and the assumption of this burden necessarily requires the production of evidence' "].)
Section 473(b) is not available to relieve a party from adverse action taken against him or her as a result of any mistake, inadvertence, or neglect of that party or the party's attorney; the mistake, inadvertence, or neglect must be excusable. (See Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 339 [denial of § 473(b) relief will be affirmed on appeal where party's neglect was inexcusable].) A party's neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 (Bettencourt).) Likewise, a conclusory statement of inadvertence will not suffice: "The inadvertence referred to in section 473 is not inadvertence in the abstract but it must be inadvertence which is satisfactory. [Citations.]" (Davis v. Kay (1973) 34 Cal.App.3d 680, 683-684.)
B. Standard of Review
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.) An appellant is charged with the burden of overcoming the presumption of the correctness of the judgment. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.)
A motion for relief from default under section 473(b) is "discretionary and must be based on a showing of 'mistake, inadvertence, surprise, or excusable neglect.' [Citations.]" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 5:310, pp. 5-92 to 5-93, quoting § 473(b), original italics.) Accordingly, "[i]t is well established that ' "a motion for relief under . . . section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal." ' [Citations.]" (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 [ruling on § 473 motion " 'shall not be disturbed on appeal absent a clear showing of abuse' "].) And as the Supreme Court explained in In re Marriage of Connolly (1979) 23 Cal.3d 590, 598, "[a]lthough precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]"
Trial court orders concerning child support, including modification orders, are reviewed under an abuse of discretion standard. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) Harel has cited no case authority concerning the standard of review for set-aside motions brought under Family Code section 3690 et seq. But the language of Family Code section 3690, subdivision (a)—"The court may, on any terms that may be just, relieve a party from a support order . . ." (italics added)—leaves little doubt that the trial court's ruling is a discretionary one and that it is therefore reviewed for abuse of discretion. (Cf. Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44-45 [contrasting § 473's language "shall" with respect to applications for relief from default judgments based upon attorney declaration of neglect with "may" for all other applications, the latter applications are within court's discretion].)
We are aware of only five California published decisions that have mentioned Family Code section 3690 et seq. None of them directly specified the standard of review for a ruling on a set-aside motion brought under Family Code section 3691. One case, which referenced Family Code section 3691, recited the general principle that a trial court's denial of a motion for equitable relief to vacate a default judgment or order is reviewed for abuse of discretion. (See County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.)
C. No Abuse of Discretion in Denial of Set-Aside Motion
A party seeking relief under section 473 is required " 'to show why he [or she] is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]' [Citations.] In a motion under section 473 the initial burden is on the moving party to prove excusable neglect by a 'preponderance of the evidence.' [Citations.]" (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624 (Kendall); see also Hogoboom & King, California Practice Guide: Family Law (The Rutter Group 2017) ¶ 16:52, p. 16-18.) The Judicial Council Form FL-360 required for set-aside motions requires that the applicant either list the facts in support of the motion, sworn under penalty of perjury, or attach a declaration setting forth those facts. Harel in this instance did neither. The separate "declaration" he filed in connection with the set-aside motion was unsworn and contained none of the formalities required under section 2015.5.
Unsworn declarations are not evidence, and therefore cannot be considered. (See In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222-1223.) Therefore, we conclude that Harel's failure to file a declaration meeting the requirements of California law means that he did not present any evidence in support of the set-aside motion. Because he failed to meet his burden, the motion was properly denied. (Kendall, supra, 197 Cal.App.3d at p. 624.)
In reviewing the November 16, 2016 order denying the set-aside motion, even were we to consider the unsworn "declaration" of Harel as providing supporting evidence, the trial court did not abuse its discretion in denying the motion. With respect to the first ground stated by Harel in support of the motion—"excusable neglect" of illness—little information was provided to the court. He gave no detail regarding the circumstances, beyond (1) stating in his "declaration" that he received an "emergency call" from the school and was required to pick up the child, and (2) attaching a letter from the school confirming that the child had been sent home sick and that Harel had been called and he had picked up the child at approximately 1:00 p.m. on September 12, 2016. Harel provided no description of the "emergency call." Nor did he state whether he sought (or could have sought) alternative arrangements for child transportation and care that would have permitted him to attend the September 12 hearing. Further, although Harel stated that he had contacted the court to request a continuance (presumably on September 12, 2016), he provided no specifics on this point demonstrating his diligence or reasonable conduct.
Estrada argues on appeal that her mother was always available for stand-by child care. Although this fact, if true, would be a relevant consideration, there is no indication it was raised below. Accordingly, we will not consider it. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 [evidence not appearing in appellate record "will not be considered on appeal and such matters should not be referred to in the briefs"].) --------
Although not sworn at the hearing on the set-aside motion, Estrada's response to the court strongly suggested that when Harel first contacted Estrada on the date of the September 12 hearing, he was unaware that he was due in court that day. Estrada's response was a potential refutation of Harel's claim that the emergency call from school prevented him from attending the hearing. Based upon the record, the court did not abuse its discretion in denying the set-aside motion on the ground of excusable neglect. (Bettencourt, supra, 42 Cal.3d at p. 276 [neglect excusable only if reasonably prudent person in same circumstances might have made same error].)
Harel's appellate argument concerning the second ground of his set-aside motion, perjury, also fails. This claim of perjury was based upon Harel's contention that Estrada committed perjury by advising the trial court at the September 12 hearing that there was a 50-50 timeshare for the child, which Harel contends was a false statement. But the record shows that, although Estrada was sworn at the September 12 hearing, she neither affirmatively advised nor confirmed to the court that the timeshare was 50-50. It was, in fact, the trial court that stated the timeshare was 50-50. The trial court did not abuse its discretion by denying the set-aside motion. There was a substantial basis for the court's rejection of the set-aside motion on the basis that Harel had failed to establish perjury justifying relief under Family Code section 3691, subdivision (b).
Lastly, Harel argued at the hearing on the set-aside motion that the support order was inequitable because it was based upon a false assumption that there was a 50-50 timeshare. He stated that the support order should be set aside because "equity and fairness" required it. On appeal, Harel argues that the trial court erred because the November 16, 2016 order constituted a "miscarriage through inadvertence." Family Code section 3692 precludes the granting of a set-aside on the basis that the order was ineqitable: "[A] support order may not be set aside simply because the court finds that it was inequitable when made . . . ." (See In re Marriage of Tavares, supra, 151 Cal.App.4th at p. 626 [rejecting father's proposal for accounting and recalculation of child support, concluding it was set-aside motion premised on inequity prohibited by Fam. Code, § 3692].)
Lastly, although the notice of appeal references the support order (see fn. 4, ante), Harel's challenge in his appellate brief was limited to the propriety of the trial court's denial of the set-aside motion. Accordingly, we need not address the merits of any unasserted challenge to the support order. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [appellate arguments "neither timely nor fully made" deemed forfeited].)
The November 16, 2016 order denying Harel's motion to set aside the court's child support order of September 13, 2016, is affirmed. To the extent that the notice of appeal constituted a challenge to the September 13, 2016 child support order, that order is likewise affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________