Filed 11/12/20 Montrief v. Munoz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MICHAEL MONTRIEF,

Plaintiff and Appellant,

v.

BLISS MUNOZ,

Defendant and Respondent;

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervenor and Respondent.

G058029

(Super. Ct. No. 14P001222)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Paula J. Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Corey Evan Parker for Appellant.

No appearance for Respondents.

* * *

INTRODUCTION

The trial court entered a permanent child support order at a hearing at which Michael Montrief, the children’s father and the party paying child support, was not present. Montrief filed a motion to set aside the child support order and a motion for reconsideration, both of which were denied. Given the standard of review, the doctrine of implied findings, and the lack of a reporter’s transcript for the hearings on any of the challenged orders, we affirm the trial court’s order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

This action began as a petition to determine paternity. In December 2014, the parties stipulated to a temporary child support order, in which Montrief agreed to pay $2,000 per month to Bliss Munoz, the mother of his children, “subject to re allocation.” At some point, the matter was assigned to the Department of Child Support Services for the County of Orange (the Department).

On January 30, 2019, an order was entered making the stipulated temporary child support order permanent (the support order); Montrief was not present at the hearing at which this order was entered. Montrief filed a motion to set aside the support order, in which he claimed he did not receive notice of the January 30 hearing. The trial court denied the motion to set aside the support order.

Montrief then filed a motion for reconsideration, claiming that he did not receive mail deliveries at the address to which notice of the January 30 hearing was served—his actual home address—and that the post office box address at which he received mail had been officially provided to Munoz’s counsel and the Department. The trial court denied the motion for reconsideration. This appeal followed.

DISCUSSION

I.

STANDARD OF REVIEW

“The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

“A court’s discretion in setting . . . permanent child support awards is constrained by the statutory scheme, as courts must adhere to the algebraic uniform state child support guidelines in [Family Code] section 4050 et seq. As stated in [Family Code] section 4052, ‘The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article.’ (Italics added.) To the limited extent permitted by statute, the court may exercise discretion to adjust awards where fairness so requires.” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104.)

“The standard for appellate review of an order denying a motion to set aside under [Code of Civil Procedure] section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] ‘“‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” [Citations.]’ [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118, fn. omitted.)

The order denying Montrief’s motion for reconsideration is also reviewed for abuse of discretion. (Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.)

Montrief elected to proceed without a record of the oral proceedings in the trial court; his designation of the record states, in relevant part: “I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”

The failure to provide an adequate record on an issue on appeal requires that the issue be decided against the appellant. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) When the substantial evidence or abuse of discretion standard of review drives an appeal, the lack of a reporter’s transcript or a settled statement can be fatal to the appellant’s claims. (See Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019), ¶ 4:36, pp. 4 10 to 4 11.)

II.

PERMANENT CHILD SUPPORT ORDER

At the hearing on January 30, the trial court entered the support order setting permanent child support at $2,000 per month.

Montrief’s argument presumes that the support order differs from the statutory guidelines. But Montrief offers no evidence that it does, other than the fact the permanent support amount is the same as that in the stipulated temporary support order. Montrief does not offer a payment estimator form or any other estimate of what he claims the guideline support should be. Given the standard of review, the doctrine of implied findings, and the lack of a transcript of the oral proceedings, we cannot find error.

Even if Montrief could establish that the support order set support at an amount different than what is provided by the statutory guidelines, we would still be required to affirm the support order. Family Code section 4056 requires that the trial court “state, in writing or on the record, the following information whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula amount under this article: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children.” (Fam. Code, § 4056, subd. (a).) In the absence of a transcript of the hearing, we are unable to determine whether the trial court failed to fulfill any statutory obligation it might have had.

For the first time, at oral argument, Montrief argued that the trial court’s failure to complete paragraph 10 of the support order requires reversal. Generally, arguments on appeal made for the first time at oral argument will not be considered. (People v. Pena (2004) 32 Cal.4th 389, 403; Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1408; In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1047, fn. 1.) If we were to consider this argument, we would reject it.

The language Montrief contends should have been included in the final support order was already included in the stipulated temporary support order that became “the permanent order.” In the stipulated temporary support order, Montrief and Munoz agreed, in relevant part: “[W]e are fully informed of our rights concerning child support. We make this agreement freely without threat, coercion or duress, and the needs of our minor children will be adequately met under this agreement. This agreement is in the best interest[s] of the minor children.” At the time this stipulated order was entered, Montrief was represented by counsel (not the counsel representing him in this appeal), and his trial counsel approved the form of the stipulated order. Any failure to check the appropriate boxes on the final support order in this case was not prejudicial. We remind the trial court, however, to fully complete form orders, even if the matter is uncontested.

III.

MOTION TO SET ASIDE

In the motion to set aside the support order, Montrief argued that he never received notice of the January 30 hearing.

In response to the motion to set aside, Munoz attached to her counsel’s declaration the notice of the January 30 hearing, which had been served by mail on Montrief at his home address in Mission Viejo. Counsel’s declaration also included copies of correspondence from her office to Montrief marked “refused” and returned. Counsel noted that “according to my records, the notice of the January 30, 2019 hearing was not refused.” Counsel admitted, “given the history, I would not be surprised if [Montrief] did not have knowledge of this hearing, but, if he didn’t, it was due to his own negligence. The fact that Mr. Montrief refuses to accept mail or emails from my office is not a reason to set aside the order.”

The Department also argued that the motion to set aside should be denied because Montrief failed to prove he had not been served with notice of the January 30 hearing and because Montrief had failed to establish the trial court would have entered a different support order if Montrief had been present at the hearing. (Fam. Code, § 3690, subd. (b) [“before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original order and that the moving party would materially benefit from the granting of the relief”].)

Thus, the trial court had before it one declaration from Montrief denying he received notice of the hearing, and one declaration from Munoz’s counsel attaching a copy of the notice with a proof of service and stating that Montrief had previously refused mail from her office. Based solely on the information before it, the trial court did not abuse its discretion in denying the motion to set aside.

Although Montrief cites to statutes and cases regarding defaults and default judgments, this case is not covered by Code of Civil Procedure section 585 et seq. Here, Montrief was not in default of the original petition. Montrief does not cite to the Family Code’s statutes that are specific to relief from support orders. (Fam. Code, § 3690 et seq.) It does not appear that the result would be different if we were to apply these statutes specific to support orders.

IV.

MOTION FOR RECONSIDERATION

In his motion for reconsideration, Montrief submitted as “new or different facts, circumstances or law” (Code Civ. Proc., § 1008, subd. (a)) the following:

(1) Montrief’s declaration stating that for the previous three years he has not received mail at his home, he has received mail only at a post office box in Capistrano Beach, and “Geri” from the Department had previously told him the guideline monthly payment should be about $800. The declaration attached copies of his utility bills sent to the post office box in Capistrano Beach;
(2)
(3) a declaration from a postal clerk that, at Montrief’s request, mail had not been delivered to Montrief’s home address in Mission Viejo for three years before February 1, 2019; and
(4)
(5) a declaration from Courtney Shepard, Montrief’s child custody and visitation attorney, confirming that as of January 30, 2019, she did not represent Montrief in connection with the issue of child support. Shepard declared that she had filed and served a notice of limited scope representation in November 2018 in which she had advised the court, the Department, and Munoz’s counsel that for all matters other than child custody and visitation, Montrief must be served directly at a post office box in Capistrano Beach, and that she did not advise Montrief about the January 30 hearing when she learned of it on January 10.
(6)
“To be entitled to reconsideration, a party should show that (1) evidence of new or different facts exist, and (2) the party has a satisfactory explanation for failing to produce such evidence at an earlier time.” (Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160-1161.) “‘An order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of [Code of Civil Procedure] section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling.’ [Citation.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) In this case, the trial court denied the motion, indicating that it had concluded Montrief did not meet the statutory requirements for reconsideration.

The trial court did not err by determining that Montrief failed to meet the requirements of Code of Civil Procedure section 1008. The evidence Montrief presented was not “new”: Both Montrief’s use of a post office box rather than his home address as a mailing address, and the notice of limited representation form listing the post office box as Montrief’s service address for all but child custody and visitation matters were in existence and known to Montrief long before the motion to set aside was filed. Further, Montrief’s motion for reconsideration provided no explanation why he did not present this evidence earlier.

DISPOSITION

The order is affirmed. Because respondents did not appear in this appeal, no costs are awarded.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.