Filed 11/26/19 Marriage of McMillian CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

In re the Marriage of LELA and REGINALD McMILLIAN, SR. C086467

LELA McMILLIAN,

Respondent,

v.

REGINALD McMILLIAN, SR.,

Appellant.

(Super. Ct. No. 15FL01497)

Reginald McMillian (husband) appeals from a postjudgment order denying his motion to disqualify the trial court judge, setting spousal support arrears at $10,685 and ordering appellant to pay $350 a month toward those arrears. Husband raises numerous claims on appeal, some that are forfeited, some that are not supported by the record, and some that lack merit. We affirm.

BACKGROUND

Husband 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 on 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.)

The limited record we have establishes that on May 30, 2017, the parties entered into an agreement and order, pursuant to which, the parties agreed spousal support would end 18 months from that day. The parties further agreed that husband’s “military pension [and] Thrift Plan [would] be divided 50% by the Time Rule; and wife [would] be designated as the survivor beneficiary.”

The parties’ marriage dissolved on August 15, 2017.

On August 28, 2017, the trial court ordered husband to pay to wife $3,304 in spousal support each month, beginning August 1, 2017. In reaching that amount, the court determined husband’s monthly nontaxable income to be $8,000 and wife’s to be zero. The court also struck “that portion of the ‘agreement’ entered 5/30/17 terminating [spousal support] after 18 months . . . .” The court reserved jurisdiction over spousal support for both parties.

The following month, the court executed an earnings assignment order, directing the withholding of $3,304 from husband’s earnings each month.

Husband filed an income and expense declaration with the trial court on October 11, 2017. He indicated his monthly income to be $6,653.46: $1,681 from Social Security and $4,972.73 from “pension/ retirement fund payments.” His “pension/retirement fund payments” derived from $1,633.71 in combat pay and $3,339.02 in military disability. Husband waived his military retirement benefits. Husband also indicated a thrift savings plan (“Troop Savings Plan”) as “investment income,” with a balance of $39,013.19.

Wife filed her own income and expense declaration shortly thereafter. She declared her only income to be the $1,616 she was receiving from husband each month as spousal support.

On November 6, 2017, husband asked the trial court to set aside the August 28, 2017, order for support. Husband argued he had not received notice of the hearing and the order was based on inaccurate information. The following day, the court retroactively modified the August 28, 2017, order for spousal support.

Husband now was ordered to pay to wife $2,858 in spousal support each month, retroactive to August 1, 2017. The court also found husband owed $3,726 in spousal support arrears. The court ordered husband to pay wife $350 each month toward those arrears. The court continued to reserve jurisdiction over “alleged [spousal support] arrears.”

On December 21, 2017, wife filed a request for order seeking a determination that husband owed her $8,227 in spousal support arrears and ordering husband to pay $350 each month toward those arrears. Along with her request, wife filed another income and expense declaration, wherein she declared her income the prior month to be $1,615. She identified the source of that income as “public assistance.”

On January 24, 2018, the trial court issued an order setting husband’s spousal support arrears at $10,685. The court ordered husband to pay to wife $350 each month toward those arrears. The court denied husband’s Code of Civil Procedure section 170.6 challenge, finding “this court has ruled on contested issues of fact [and] law on 2 prior occasions.”

On January 26, 2018, husband filed a notice of appeal. In his notice of appeal, husband indicated he “hereby appeals all spousal support and support arrears orders issued by the Honorable Matthew J. Gary in the dissolution action . . . , including in particular the Minute Order regarding support arrears issued on January 24, 2018, and the ruling on [husband’s] Motions to Disqualify.”

On March 8, 2018, husband filed an ex parte motion in the trial court, moving the court to vacate the earnings assignment order. The court set the matter for hearing on April 18, 2018. The court subsequently denied husband’s request without explanation.

DISCUSSION

On appeal, we must presume the trial court’s judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not only present an analysis of the facts and legal authority on each point made but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte); Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen).)

As noted above, because husband has not provided a reporter’s transcript of the relevant hearings we must treat this as an appeal “ ‘on the judgment roll.’ ” (Kucker v. Kucker (2011) 192 Cal.App.4th 90, 92-93 (Kucker).) Accordingly, we must conclusively presume that the evidence is ample to sustain the trial court’s findings and our review is limited to determining whether any error “ ‘appears on the face of the record.’ ” (Id. at p. 93; Nielsen, supra, 178 Cal.App.4th at pp. 324-325.)

I

Prior Agreement To Terminate Spousal Support

Husband first claims the trial court “erroneously overrode” the parties’ prior agreement that wife’s spousal support would terminate 18 months after May 30, 2017. Husband offers no argument to support his claim; he says only that wife entered into the May 30, 2017, agreement willingly and the “waiver was given for due consideration of all factors including the assumption of liabilities.” He failed to support those assertions with citations to the record or to relevant legal authority. This alone is grounds for finding the claim forfeited. (Duarte, supra, 72 Cal.App.4th at p. 856; Nielsen, supra, 178 Cal.App.4th at p. 324.)

Our review is limited to determining whether any error “ ‘appears on the face of the record.’ ” (Kucker, supra, 192 Cal.App.4th at p. 93; Nielsen, supra, 178 Cal.App.4th at pp. 324-325.) And on the face of this record, we find no error.

II

Code Of Civil Procedure Section 170.6

Husband also contends he was “deprived of a hearing before an unbiased judge.” Husband fails to support his contention with appropriate citations to legal authority or the record. His claim is thus forfeited. (Duarte, supra, 72 Cal.App.4th at p. 856; Nielsen, supra, 178 Cal.App.4th at p. 324.)

III

Calculation Of Spousal Support

A

Disability And Combat Pay

Husband next contends the trial court erred in calculating spousal support by including husband’s military disability and combat pay as income. We find no error.

To receive nontaxable military disability and combat pay, a veteran must waive his or her retirement benefits. (In re Marriage of Cassinelli, supra, 20 Cal.App.5th at pp. 1273, 1276.) Military disability and combat pay, however, cannot be treated as community property. (Id. at pp. 1274, 1276.) Additionally, state courts cannot order a veteran “to indemnify the divorced spouse for the loss caused” by a veteran’s decision to waive retirement benefits in order to receive disability and combat pay. (Howell v. Howell (2017) 581 U.S. ___ [197 L.Ed.2d 781].) State courts may, however, take the veteran spouse’s disability benefits and combat pay into account as a source of income when calculating spousal support. (In re Marriage of Cassinelli, at pp. 1275, 1277.)

Thus, on the face of this record, we find no error. (Kucker, supra, 192 Cal.App.4th at p. 93; Nielsen, supra, 178 Cal.App.4th at pp. 324-325.)

B

Wife’s Income

Husband argues the trial court also erred in calculating spousal support without considering wife’s “substantial income.” Again, husband raises the issue but fails to support the claim with citations to the record or relevant legal authority. The claim is forfeited. (Duarte, supra, 72 Cal.App.4th at p. 856; Nielsen, supra, 178 Cal.App.4th at p. 324.)

Even were the claim preserved, on this judgment roll appeal our review is limited to determining whether any error “ ‘appears on the face of the record.’ ” (Kucker, supra, 192 Cal.App.4th at p. 93; Nielsen, supra, 178 Cal.App.4th at pp. 324-325.) On the face of this record, we find no error.

IV

Earnings Assignment Order

Husband contends his combat pay “cannot be attached to satisfy even a legitimate state court spousal support award.” He is wrong. (In re Marriage of Cassinelli, supra, 20 Cal.App.5th at p. 1277.) He further contends that when he filed his notice of appeal on January 26, 2018, the support “modification” was automatically stayed and the court violated that stay by issuing the earnings assignment order. He cites no relevant authority to support this contention. The claim is forfeited. (Duarte, supra, 72 Cal.App.4th at p. 856; Nielsen, supra, 178 Cal.App.4th at p. 324.)

DISPOSITION

The orders of the trial court are affirmed. Respondent shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Hoch, J.