Filed 11/26/19 Marriage of Newcomb CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of SHERI M. and MARK D. NEWCOMB.

SHERI M. CARRUTHERS,

Respondent,

v.

MARK D. NEWCOMB,

Appellant,

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.

G056288, G056824

(Super. Ct. No. 07D003768)

O P I N I O N

Appeals from orders of the Superior Court of Orange County, Paul T. Minerich, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.

Mark D. Newcomb, in pro. per., for Appellant.

Markelz Law Group and Christopher Markelz for Respondent.

No appearance for Intervener and Respondent.

* * *

INTRODUCTION

In 2009, Sheri M. Carruthers and Mark D. Newcomb executed a stipulated marital settlement agreement (agreement) which was incorporated into the judgment of dissolution of their 14 year marriage. The agreement provided Newcomb would pay Carruthers a total of $4,610 per month as child support for their then 12-year-old son and nine year old daughter until, as relevant in this case, “the child . . . reaches age 18 and is not a full time high school student residing with a parent.” The agreement also provided the child support provision “shall be subject to subsequent modification or revocation by further Court order or by written agreement of the parties.” When the parties’ son graduated from high school at 18 years of age, Newcomb unilaterally reduced his monthly child support payments by half. Carruthers, through the intervention of the Orange County Department of Child Support Services (DCSS), asserted the agreement’s monthly child support obligation was not severable and sought recovery of child support arrearages. The trial court agreed the monthly child support obligation was not severable and required Newcomb to pay $53,862.35 in arrearages to Carruthers.

We affirm as modified. The agreement did not allocate the monthly child support obligation between the parties’ children and did not authorize Newcomb to unilaterally reduce his monthly payments by half. The agreement gave Newcomb the option to seek a court order or enter into a written modification agreement with Carruthers to reduce his monthly obligation; Newcomb pursued neither option. We reject Newcomb’s argument that DCSS failed to comply with any statutory duty. We modify the court’s July 19, 2018 order to state that Newcomb owes Carruthers a total of $53,862.35 in child support, not spousal support, arrearages.

FACTS AND PROCEDURAL BACKGROUND

I.

The Agreement and the Judgment of Dissolution

Newcomb and Carruthers were married in 1993 and separated in 2007. Their son was born in 1997 and their daughter in 1999. In 2009, the parties entered into the agreement for legal and physical custody of their children, with Carruthers having primary physical custody.

With regard to child support, the agreement provided in relevant part: “Commencing November 1, 2009 and continuing each month thereafter, Husband shall pay to Wife for the support and maintenance of the minor children, the sum of $4,610 per month, payable one-half on the first day of each month and one-half on the sixteenth day of each month, until further order of Court, until the death of the recipient spouse, or until the child marries, dies, is emancipated, reaches age 19, or reaches age 18 and is not a full time high school student residing with a parent, whichever occurs first. The provisions herein relating to child support shall be subject to subsequent modification or revocation by further Court order or by written agreement of the parties.”

The agreement also included a stay of wage assignment provision, which stated in part: “Pursuant to Family Code Section 5230 Husband shall assign to Wife that portion of his earnings sufficient to pay the amount of child support set forth herein. Pursuant to Family Code Section 5260 the Court may order that service of the assignment be stayed on a finding of good cause. The parties stipulate and the Court finds that good cause exists for a stay of service of the wage assignment, in that the terms of this Judgment provide an alternative arrangement to ensure payment of the support obligation. Thus, the parties stipulate and it is ordered that service of the wage assignment is stayed, pending fifteen (15) days delinquency.”

The agreement also required Newcomb to pay Carruthers $6,452 in monthly spousal support until the earlier of either party’s death, the remarriage of Carruthers, or further order of the court. On December 3, 2009, judgment of dissolution was entered; the agreement and its child support provision were expressly incorporated into the judgment.

II.

DCSS Intervenes to Recover Unpaid Child Support

Newcomb paid $4,610 in monthly child support to Carruthers from November 2009 until June 2016. In June 2016, the parties’ then 18-year-old son graduated from high school. Newcomb thereafter paid half of the monthly child support amount provided in the agreement, less offsets for “non-covered medical expenses” for his daughter which are not at issue in this appeal.

In October 2017, after Carruthers opened a case with DCSS, DCSS filed a notice in the trial court to substitute in as payee for child support. Three months later, DCSS filed a motion to lift the stay of enforcement on the wage assignment and set a payment schedule for arrearages. Opposing the motion, Newcomb argued (1) he was current on his child support obligation and no longer owed support for his adult son, (2) the arrearages requested were not supported by a declaration, (3) he met the conditions of the alternative arrangement for stay of a wage assignment order, and (4) DCSS improperly comingled its request regarding child support and spousal support.

DCSS thereafter filed a motion asking the trial court to determine that Newcomb’s child support obligation was not severable. The motion was supported by the declaration of senior child support specialist Angela Kirkpatrick, who observed the judgment of dissolution, which required Newcomb to pay Carruthers $4,610 in monthly child support for the two children, “did not contain a Dissomaster, X-Spouse, or Guideline Calculation showing how this amount was to be allocated, if at all, between both children.” She stated, “The terms of the judgment do not reference a per-child breakdown for the purposes of child support.” She added: “Despite the emancipation of the older child, [DCSS] has continued to charge the amount of $4,610.00 as it believes that the child support order within the judgment is non-severable in nature [but] Newcomb maintains a contrary view and asserts that the order is severable, thus allowing him to pay a diminished current support amount for each month after the emancipation of the older of the two children.” DCSS asked the trial court to determine whether “the child support order currently being enforced is non-severable in nature or if said order is severable with a per-child amount.”

Newcomb opposed the motion, arguing the child support obligation was severable. In his statement of facts, Newcomb stated, “Months before graduation, [Carruthers] and [Newcomb] discussed the fact that child support payments would be half (1/2) of the stipulated amount of $4,610, which is $2,305 after [the son] graduated and was 18. During this conversation, [Carruthers] acknowledged and agreed that payments would be cut in half and that she was only going to receive $2,305 a month for [the] youngest child . . . (who was still in High School) and nothing for [the son] (because he was 18 and graduating). This admission (and conversation) shows [Carruthers’s] (and [Newcomb’s]) objective manifestation of their intent that the child support Stipulated Order was intended to be severable and intended to be allocated equally among both children. [¶] [Carruthers]’s actions also confirm that the parties intended the child support amount to be severable and equal.” Newcomb added that after he started paying only $2,305 in monthly child support starting in June 2016, Carruthers “never objected or even raised the issue,” “never said it was wrong,” and “never said the full amount was due.” Carruthers “just accepted the $2,305 amount and never raised the issue.”

III.

The Trial Court Interprets the Child Support Obligation As Not Severable.

Following a hearing on March 8, 2018, the trial court found (1) the agreement’s monthly child support obligation was not severable and (2) Newcomb was to pay $4,610 in monthly child support “until the last child emancipates.” The court ordered Newcomb to provide a spreadsheet with dates and amounts of any disputed credits for spousal or child support and proof of payments to DCSS and Carruthers. The trial court further ordered Newcomb to make $1,200 payments per month for “undetermined arrears.”

Newcomb appealed from the court’s March 8, 2018 order.

IV.

Calculation of Arrearages

Following a hearing on May 24, 2018, the trial court determined: (1) the parties’ daughter emancipated as of May 2018; (2) Newcomb was to continue paying $1,200 monthly for child support arrearages; (3) monthly spousal support payments in the amount of $6,425 were to continue; and (4) “[a]fter May 2018, payments are to be credited to child support arrears then spousal support and then spousal support arrears pursuant to Family Code.” The court ordered the matter continued for a determination of the amount of arrearages owed.

At the hearing on July 19, 2018, the trial court admitted into evidence DCSS’s simple reports dated May 29, 2018 for spousal support, child support, and for all debt types. Those reports showed Newcomb’s child support obligations were paid in full, but spousal support arrearages were in the amount of $54,348.35. Our record does not explain why the simple reports characterized Newcomb’s arrearages as spousal support instead of child support.

The trial court concluded Newcomb owed Carruthers $53,862.35, the arrearages less an agreed-upon credit of $486. The trial court ordered Newcomb to pay the agreed monthly spousal support, plus $1,200 per month to reduce the spousal support arrearages and “both parties are to keep track of the payments.” The trial court ordered Newcomb to pay those amounts directly to Carruthers “as child support is paid in full and [DCSS] is closing its case forthwith.” The court’s minutes also stated: “Father objects to the application of payments from the court order of 5/24/2018—different than the parties[’] intent.”

Newcomb filed a second appeal, challenging the July 19, 2018 order. We granted Carruthers’s motion to consolidate Newcomb’s two appeals.

DISCUSSION

I.

Standard of Review and Rules of Contractual Interpretation

Our standard of review is de novo. (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012.) Marital settlement agreements, when incorporated into dissolution judgments, are construed as any other contract. (Id. at pp. 1012-1013.) Our goal is to “‘“give effect to the mutual intention of the parties.”’” (Id. at p. 1013.) We examine “‘“objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.”’” (Id. at p. 1013.) “The parties’ expressed objective intent, not their unexpressed subjective intent, governs.” (Securitas Security Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1125.)

II.

The Child Support Provision is Not Severable.

The parties’ agreement unambiguously requires Newcomb to pay the lump sum of $4,610 per month to Carruthers “for the support and maintenance of the minor children.” Neither our record nor the language of the agreement itself shows how the parties negotiated Newcomb’s monthly child support obligation or reveals any intended allocation of the single amount between the two children. Nothing in the agreement authorizes an automatic reduction—much less a reduction by half—in Newcomb’s monthly child support when the parties’ son was 18 years of age and a high school graduate. Newcomb’s arguments to the contrary find no support in appellate court decisions interpreting similar language.

In Spivey v. Furtado (1966) 242 Cal.App.2d 259, 262 (Spivey), the appellate court rejected the argument that a monthly child support obligation for more than one minor child is automatically reduced as each child reaches the age of majority or becomes emancipated. In Spivey, the father of three minor children, who was required to pay monthly support under an unallocated order, unilaterally reduced payments as each child reached the age of majority. (Ibid.) The appellate court concluded that although a parent’s support obligation ceases when a child reaches the age of majority, the parent may not unilaterally reduce his or her lump sum monthly child support obligation as to his or her remaining minor children. (Id. at pp. 262-263.)

The Spivey court explained: “[W]here a decree provides for a lump sum payment by a father for support of several children, the father cannot reduce proportionately the amount paid as each individual child reaches 21, because the ratio of the amount needed to maintain the children remaining under 21 to the total amount provided in the decree may be greater than the ratio of the number of children remaining under 21 to the total number of children to which the decree originally applied. Besides, the amount properly allowable for [a] child or children who were still minors may have increased between the date of the decree of divorce and the respective dates on which the eldest child . . . became an adult or the elder children became adults, because of additional needs, because of inflationary developments, because of enhanced financial condition of the father, or because of a combination of these circumstances.” (Spivey, supra, 242 Cal.App.2d p. 263.)

In Comstock v. Comstock (1981) 116 Cal.App.3d 481, 483 (Comstock), a dissolution decree similarly required a father to pay his former wife a lump sum in monthly child support for their five children “until ‘the said children become of legal age, self-supporting or further order of the court.’” In an action brought by the former wife to collect unpaid child support, the trial court interpreted the child support provision to require an automatic reduction in the amount of monthly child support owed by the father each time a child reached majority age or became emancipated. (Id. at p. 487-488.) Citing Spivey, supra, 242 Cal.App.2d 259, the appellate court reversed and remanded “for a determination by the trial court what reduction in child support, if any, is dictated by the circumstances of the parties upon each child reaching majority or becoming emancipated. In this manner the total accrued but unpaid child support may be calculated and become the amount of the judgment in this action.” (Comstock, supra, 116 Cal.App.3d at p. 489.) Observing it was the father’s burden to prove the amount his monthly child support obligation should be reduced upon a child’s attainment of majority age or emancipation, the appellate court noted “we are mindful that neither party at trial offered any evidence on the question of an appropriate reduction of the lump sum amount upon each child’s majority or emancipation.” (Ibid.)

Newcomb’s position that his monthly child support obligation should have been reduced once his son turned 18 and graduated from high school is not unreasonable, and the parties’ agreement expressly provided for that eventuality. Newcomb could have returned to the trial court to modify the child support order or entered into a new written agreement with Carruthers to pay a lesser monthly amount. Newcomb, however, did not avail himself of either option. Accordingly, his $4,610 monthly child support obligation was never modified. The trial court properly applied the reasoning of Spivey and Comstock to determine Newcomb owes as arrearages the balance of the monthly child support obligation he unilaterally—and wrongfully—withheld.

None of the other provisions in the agreement Newcomb cites compels a different result. The parties agreed to share equally in the children’s private school tuitions and “all medical, dental, mental health, orthodontia, vision, pharmaceutical expenses, hospital, and any other health care costs not otherwise paid through such medical insurance, for said children so long as a liability for child support exists.” Although these provisions show the parties intended to share responsibility for the specified expenses equally between them, they do not show the children’s expenses in any category were equal. They also do not establish that Newcomb’s lump sum monthly child support obligation reflects the parties’ agreement that the children required an equal amount of child support.

Newcomb contends Carruthers orally confirmed the parties intended the child support obligation to be severable and allocated equally between the children. In support, he cites to his statement of facts in his response to DCSS’s motion. He also contends Carruthers’s conduct in accepting only $2,305 in child support each month beginning June 2016 “confirmed the parties intended the child support amount to be severable and equal.” We disagree with both contentions.

Newcomb’s account of his 2016 conversation with Carruthers supports a finding that Carruthers acknowledged at that time Newcomb’s intent to reduce his child support payments by half. The evidence is not relevant, however, to prove the parties’ intent in 2009 when they entered into the agreement.

III.

Newcomb’s Challenges to DCSS’s Intervention

Newcomb’s remaining challenges regarding DCSS’s involvement in this matter are all based on the premise that his child support obligation was severable and DCSS improperly attempted to collect child support for his adult son. As we have rejected that argument, it is not necessary to separately address these contentions. The full monthly child support obligation was owed for Newcomb’s minor daughter, not for the parties’ adult son, because Newcomb did not obtain either a trial court order or Carruthers’s written agreement for modification.

In any event, Newcomb has not provided this court with an adequate record to review his claims. The appellate record he designated does not demonstrate a failure by DCSS to comply with its statutory duties.

IV.

We Modify the Court’s July 19, 2019 Order to Characterize

Newcomb’s Debt as Child Support Arrearages.

Newcomb does not quarrel with the amount of the arrearages. He does complain, however, that the trial court’s July 19, 2018 order improperly characterized the debt as spousal support arrearages.

The trial court’s May 24, 2018 order expressly required Newcomb to make monthly payments of $1,200 for child support arrearages and $6,452 for current spousal support. The simple reports DCSS filed after that hearing reflect no child support still owing, and instead attribute all the arrearages to spousal support. The trial court maintained the new arrearage attribution in its July 19, 2018 order (“The $1,200.00 per month on arrears remains in place as the payment on the spousal support arrears.”)

No explanation for the change is apparent in the trial court’s order other than the comment that “[Newcomb] objects to the application of payments from the Court order of 05/24/2018 – different than the parties[’] intent.” Without a reporter’s transcript or settled statement from the July 19, 2018 hearing, it appears that error, if any, was invited by Newcomb. Nevertheless, we modify the July 19, 2018 order to conform the characterization of the arrearages to that supported by the record: Newcomb’s obligation in the amount of $53,862.35 constitutes child support arrearages and Newcomb is to pay Carruthers $1,200 monthly until the child support debt is paid.

 

DISPOSITION

The March 8, 2018 order is affirmed. The July 19, 2018 order is modified to state (1) Newcomb owes $53,862.35 in child support arrears; (2) Newcomb’s $1,200 monthly obligation remains in place as payment on the child support arrearages; and (3) Newcomb is to continue to pay monthly spousal support to Carruthers in the amount of $6,452. As so modified, the July 19, 2018 order is affirmed. Respondent Carruthers shall recover costs on appeal.

DUNNING, J.*

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.

* Retired Judge of the Orange Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.