Filed 6/8/20 Marriage of Malo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Marriage of ALISA MALO and LEONARD M. MALO

___________________________________

LEONARD M. MALO,

Respondent,

v.

ALISA MALO,

Appellant,

G055947

(Super. Ct. No. 16D001973)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, David S. Weinberg, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Alisa Malo, in pro. per.; Merritt McKeon; Law Office of Corey Evan Parker and Corey Evan Parker for Appellant.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Seastrom Seastrom & Tuttle and Brian G. Seastrom for Respondent.

* * *

In this marital dissolution proceeding, Alisa Malo appeals from a judgment on reserved issues concerning spousal support, child support, and attorney fees. She raises essentially two issues. First, she contends the court erred by failing to include arrearages in the support order. However, the record supports the court’s finding that the parties resolved arrearages by settlement. Second, she contends the court erred in finding that domestic violence by the husband was solely verbal, rather than physical. However, that ruling was the subject of a separately appealable order, which Alisa did not appeal, and which is now beyond our jurisdiction to consider. Accordingly, we affirm.

FACTS

The parties were married on March 17, 2006. Leonard petitioned for dissolution of the marriage on March 7, 2016. The parties ultimately stipulated that the date of separation was February 15, 2016, resulting in a marriage of approximately nine years and 11 months.

After the petition was filed, each party applied for a temporary restraining order against the other due to domestic violence. The court granted both requests.

As part of their dispute over custody of their only child (who was three years old at the time), the parties stipulated to an evaluation pursuant to Evidence Code section 730. A mental health expert evaluated both parents and the child and made several recommendations, including that the parents have joint physical custody of minor.

In August 2016, the parties, both represented by counsel, stipulated to temporary custody orders of their son, and to temporary child and spousal support. The stipulation provided that child support from Leonard to Alisa was to commence on April 1, 2016, at $1,209 per month, to be paid commencing with the August 2016 payment, and “the arrears occasioned by the retroactive nature of this order, from April 1, 2016 through July 31, 2016, shall be paid as hereinafter provided under ARREARS.”

The stipulation also provided that spousal support from Leonard to Alisa in the amount of $2,785 per month would commence on April 1, 2016. Like the child support, the spousal support was to be paid commencing with the August 2016 payment, and the arrears from April 1, 2016 through July 31, 2016 “shall be paid as hereinafter provided under ARREARS.”

The stipulation confirmed Alisa had received $25,000 of community funds, designated as an advance distribution of community property.

The section of the stipulation captioned ARREARS provided as follows: “[Leonard] shall be given credit for payments made for the debt service on the family residence and other payments as agreed upon between the parties, or determined by the Court, for the period April 1, 2016 through July 31, 2016. [Leonard] shall show proof of payments for which he seeks credit, to counsel for [Alisa], through [Leonard’s] counsel. Counsel for both parties shall meet and confer in an effort to determine creditable payments. The Court reserves jurisdiction over the issue of creditable payments in the event that the parties cannot agree. [¶] Once a determination is made as to the actual arrears, such arrears shall be a charge on the marital balance sheet, against [Leonard’s] share of the approximately $25,000 herein-above advanced to [Alisa].” (Italics added.) As we explain below, the court ultimately relied on the italicized portion in ruling that the arrears had been resolved as part of the distribution of community property.

The stipulation, which had been prepared by Alisa’s counsel, was approved by both parties and their counsel, and entered as an order by the court in August 2016.

The court entered a status only judgment of dissolution in December 2016. Shortly afterward, the parties stipulated to the appointment of retired Commissioner David S. Weinberg as a privately-retained temporary judge in the matter.

Following the completion of the Evidence Code section 730 evaluation, a trial was held in May and June 2017 on the issues of custody and a five-year domestic-violence restraining order sought by Alisa. The court ultimately awarded the parties joint physical and legal custody and denied the request for the restraining order. It found that Leonard had committed domestic violence through verbal and emotional abuse, but not physical abuse. It found that the parties marriage—on both sides—was hamstrung by abuse of alcohol and marijuana, and that Leonard’s domestic violence was fueled by intoxication. However, in the 14 months since separating, both parties had consistently tested clean for drugs and alcohol, and there were apparently no further instances of emotional abuse. Based on that evidence and the Evidence Code section 730 evaluation, the court concluded a restraining order was unnecessary.

The foregoing judgment was filed on August 2, 2017. Alisa did not appeal.

In September 2017, the parties entered into a stipulated judgment “for complete settlement of the property division (assets and liabilities), including rights to reimbursements and credits.” The stipulation, as the name suggests, divided the parties property and settled all issues of community property. According to the stipulation, “The remaining issues for trial are child support, spousal support, and attorney’s fees and costs.” Alisa did not appeal this judgment.

Afterward, trial commenced on the issues of support and costs.

Regarding child support, the court ordered Leonard to pay $725 per month retroactively from September 1, 2016 through December 31, 2016. During that time frame, Leonard actually paid Alisa $1,209 per month, resulting in a net credit to Leonard of $1,936. From January 1, 2017 onward, Leonard was ordered to pay $720 per month. Similarly, for the retroactive portion of that order, Leonard was given a net credit of $3,912. The court described this child support order as a “guideline calculation,” which will prove important in the discussion below.

Regarding spousal support, from September 1, 2016 through the end of 2016, Leonard was ordered to pay retroactively $1,619 per month. He actually paid $2,785 per month, resulting in a net credit to him of $4,664. From January 2017 through August 2017, the court ordered Leonard to pay $1,602 per month. This resulted in net credit to Leonard of $9,464. The total credit owed to Leonard for spousal support was $14,128. Prospectively, Leonard was ordered to pay $1,250 per month.

In making the spousal support order, the court noted its prior finding of domestic violence, but held, “There was no evidence offered in this phase of the trial that the inappropriate verbal behavior by [Leonard] has had any influence whatsoever on [Alisa’s] ability to work, work skills, or ability to find work.”

The court ruled this marriage was not of a long duration, and it declined to exercise its discretion to treat it as such. Accordingly, it specifically divested itself of jurisdiction over spousal support as of January 31, 2021.

Regarding arrearages, the court made the following finding: “During trial [Alisa] alleged that [Leonard] owed child and support arrearages, during the period of April 1, 2016 through July 31, 2016. In support of her contention, [Alisa] relied upon the stipulation and order filed August 3, 2016. However, [that order] specifically provides that ‘such arrears shall be a charge on the marital balance sheet, against [Leonard’s] share of the approximately $25,000 herein above advanced to [Alisa].’ The court noted that the parties stipulated to resolve all property and marital balance sheet . . . issues in their stipulation signed September 11, 2017. The court therefore ruled at trial that no such child or spousal support arrearages exist from [Leonard] to [Alisa].”

The court ordered both parties to bear their own fees and costs, finding neither had the means to contribute to the other.

The court entered the foregoing judgment concerning support and costs on December 1, 2017. Alisa appeals from the “12-1-17 Judgment—Reserved Issues,” and the “12-14-17 Findings and Order After Hearing.”

DISCUSSION

Alisa first contends the court erred by failing to award her any arrearages from April through July 2016. Her argument fails for two reasons.

First, the court correctly found that the parties had stipulated that those arrearages (if any, more on that below) “shall be a charge on the marital balance sheet, against [Leonard’s] share of the approximately $25,000 herein-above advanced to [Alisa].” The marital balance sheet had already been resolved by stipulation by the time of the trial on support issues. On appeal, Alisa does not address this at all, but instead characterizes the court’s finding as being based on waiver. She then goes on to argue that the waiver was invalid because it lacked requisite language. But there is nothing in the record to suggest this was a waiver, or that the court viewed it as such. It treated the arrearages as part of the distribution of community property, consistent with the parties’ stipulation (which was drafted by Alisa’s attorney). Based on the record before us, we conclude the arrearages from April through July 2016 had already been resolved.

Second, even if the court should have calculated arrearages, Alisa has not pointed to any evidence, nor any offer of proof, that she was owed any arrearages. The history of this proceeding indicates that Leonard tended to overpay. We certainly cannot assume that Leonard would have owed arrearages from April through July 2016. Consequently, Alisa has not shown that the error, if any, was prejudicial.

Next, in a one sentence argument, Alisa contends the court’s “support order” (which one?) was a nonguideline support order that failed to include mandatory language from Family Code section 4056. Under that section, the trial court lacks discretion to adjust guideline child support without making certain required findings. (In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 527-528.) According to the court’s order, however, the child support order was a guideline support order. Alisa has not demonstrated otherwise. Findings under Family Code section 4056 were not necessary.

Next, Alisa contends the court erred in various ways by ignoring the effect of the domestic violence finding on her ability to earn, the spousal support she required, whether the marriage should be deemed “long term” notwithstanding that it was less than 10 years (see Fam. Code, § 4336), and whether the use of the DissoMaster program was appropriate. The problem with all of these arguments is they are based on a false premise: that the court did not consider the domestic violence finding. The court explicitly considered the domestic violence finding. It simply found there was no evidence that the verbal and emotional abuse had any effect on her ability to earn. Alisa has not cited any evidence in the record (a frustrating theme in her brief) to demonstrate the court erred.

Finally, Alisa contends the court erred in finding, in the August 2016 judgment, that the domestic abuse was merely verbal and emotional, rather than physical. And she contends the court erred in failing to issue a five-year restraining order. We have no jurisdiction to consider those contentions, however, because the denial of a restraining order is an appealable order and Alisa never appealed it. (See Code Civ. Proc., § 904.1, subd. (a)(6) [appeal lies “[f]rom an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction”]; Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11, 16, fn. 4 [restraining order is an appealable order under section 904.1, subd. (a)(6)].) Alisa’s notice of appeal in this case was both untimely as to the August 2016 judgment, and, in any event, the notice of appeal is specific about the judgment and orders within its scope, and the August 2016 judgment was not included. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 [“While a notice of appeal must be liberally construed, it is the notice of appeal that defines the scope of the appeal by identifying the particular judgment or order being appealed”].) Therefore, we cannot consider it.

DISPOSITION

The judgment is affirmed. Leonard shall recover his costs incurred on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

GOETHALS, J.