Filed 5/27/20 Marriage of Vandermolen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CURTIS A. and JEANINE VANDERMOLEN.

CURTIS A. VANDERMOLEN,

Appellant,

v.

JEANINE RICKMAN,

Respondent;

SACRAMENTO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.

C088243

(Super. Ct. No. 10FL06871)
This is an appeal by Curtis A. Vandermolen (father) from an order reducing his obligation to pay monthly child support to Jeanine Rickman (mother). The Sacramento County Department of Child Support Services (Department) is an intervenor and a respondent on appeal.

On appeal, father contends the trial court erred by (1) violating his and his new spouse’s constitutional rights to equal protection and due process of law, (2) considering the income of his subsequent spouse while ignoring the income of mother’s subsequent spouse, (3) modifying father’s responsibility for travel expenses even though the parties had already resolved the issue by agreement, (4) imputing income to him without also considering evidence regarding the earning capacity of mother, and (5) failing to consider the best interests of the children.

Father appeals without supplying a reporter’s transcript or settled statement of the hearing culminating in his reduced child support obligation. On this limited appellate record, we affirm the trial court’s child support order.

BACKGROUND

Father and mother married in 2002 and had two children. They separated in 2010, and have since both remarried. Father is the noncustodial parent. In 2013, the trial court ordered father to pay monthly child support to mother in the amount of $941 – a reduction from the calculated guideline support amount of $1,116. The reduction was intended to provide a fund to pay travel expenses allowing father to visit the children.

In January 2018, mother filed a request related to custody and visitation. About a month later, the Department moved to modify the January 2013 child support order due to father’s unemployment. A hearing on the motion for modification of child support was conducted on September 18, 2018. Father, mother, and an attorney for the Department were present for the hearing. However, there was no reporter at the hearing.

The contested hearing culminated with the trial court’s entering an order after hearing (the support order). The trial court modified child support to require father to pay $740 per month starting August 1, 2018. The support order states: “The court further orders . . . : [¶] Child support for February 1, 2018 through July 31, 2018 is 378.00 per month. [¶] Father is now [in] full-time Law School, is able to do [so] as his current wife earns $10,000 per month, court attributes income to father. Father shall pay costs of airfare. Guideline child support reduced to allocate costs (of visitation).”

Father timely filed a notice of appeal from the support order.

DISCUSSION

I

Principles of Review and the Appellate Record

On appeal, we begin with the presumption that the trial court’s order is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We draw all inferences and intendments in favor of the order unless the record expressly contradicts them. (Ibid.) As the appellant, father bears the burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Father also bears the burden to provide an adequate record to assess any claimed error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.)

Father appeals without supplying a reporter’s transcript or settled statement of the hearing culminating in his reduced child support obligation. This is called a judgment roll appeal.

In a judgment roll appeal with only a clerk’s transcript we “ ‘must conclusively presume that the evidence is ample to sustain the [trial court]’s findings.’ ” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler) italics added.) Our review is limited to determining whether any error appears on the face of the record. On this point, California Rules of Court, rule 8.163 provides: “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.”

II

Equal Protection and Due Process

Father contends the trial court “violated [his] equal protection rights by engaging in discrimination based on gender and race.” On the claim of gender discrimination, father asserts the trial court engaged in “a pattern and practice of creating advantage for [mother] and disadvantage for [him].” Regarding the claim of race-based discrimination, father asserts the trial court “severely disadvantaged an unrelated indigenous family for the benefit of a related white family.” Neither claim of equal protection violation can be assessed on this record.

The record does not demonstrate any violation of father’s equal protection or due process rights. Father cannot show that the trial court “engaged in discriminatory bias during the child support hearing,” or that there is “a pattern of [such] conduct exhibited by the Superior Court.” In the absence of a reporter’s transcript or settled statement, we conclusively presume the trial court acted properly during the hearing. Review of the trial court’s support order reveals no hint of racial or gender discrimination.

We reject father’s assertions of what the trial court may or may not have considered in rendering its decision. The record limits review to the trial court’s order after hearing, which we presume to have been supported by all of the necessary findings and substantial evidence. (Ehrler, supra, 126 Cal.App.3d at p. 154.) The fact that the trial court ordered him to pay child support does not itself establish an equal protection violation. Legions of cases involve constitutionally permissible orders requiring a noncustodial parent to pay monthly child support to the custodial parent. (E.g., City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 850 [rejecting equal protection challenge to child support statutes]; In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628 [rejecting equal protection and due process challenges to child support statutes]; City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652, 659 [rejecting equal protection challenge].) Limited to only the order after hearing, father is unable to meet his burden to establish any of his due process and equal protection claims.

II

Equal Apportionment

Father next argues the trial court “abused its discretion for imputing wages when it assigned the income of [his] spouse without also assigning the income of [mother]’s spouse.” On this record, father cannot demonstrate the claimed error.

A.

Consideration of Income Received by the Subsequent Spouse

Although most cases involving child support orders do not involve considering the income of a subsequent spouse, section 4057.5 expressly allows the trial court to do so in extraordinary cases. Section 4057.5 provides, in pertinent part: “(a)(1) The income of the obligor parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner. [¶] (2) The income of the obligee parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee’s subsequent spouse or nonmarital partner. [¶] (b) For purposes of this section, an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income.” (Italics added.)

B.

Analysis

On the record provided by father, we reject the contention that the trial court erred in considering the income of his subsequent spouse while ignoring the income of mother’s subsequent spouse. We reject the contention for two reasons.

First, no error appears on the face of the order. The order after hearing indicates the trial court did not consider the income of father’s subsequent spouse in calculating child support but only in determining father’s tax rate based on his current family income. This is because the guidelines calculation attached to the order after hearing notes father’s “monthly taxable & nontaxable gross income” as $3,900.

Second, even if we assume the trial court considered the income of father’s subsequent spouse, we must still apply the conclusive presumption that substantial evidence supports the trial court’s findings. Thus, we presume the evidence at the hearing supported a finding that father’s children would suffer extreme and severe hardship if his subsequent spouse’s income was not utilized to calculate support. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) Likewise, even if we assume the trial court did not consider the income of mother’s subsequent spouse, the substantial evidence presumption compels the conclusion that the trial court made the requisite finding that the circumstances supported exclusion of income received by the subsequent spouse of mother, the custodial parent. (Ibid.) Section 4057.5 separates the considerations of income of the subsequent spouses of custodial and noncustodial parents in subdivisions (a)(1) and (2).

III

Travel Expenses

Father argues that “reassignment of travel expenses [was] barred by res judicata.” In father’s view, the parties’ prior stipulation on the allocation of travel expenses removed jurisdiction from the trial court to modify the parties’ private agreement. We reject the argument.

A.

Stipulation Regarding Travel

As a result of mediation, the parties reached agreement on a substantial number of issues regarding the children on September 4, 2018. As pertinent here, father and mother agreed on matters regarding their children’s travel. About two weeks later, the trial court’s order after hearing required that father “pay costs of airfare.”

B.

Trial Court’s Jurisdiction over Child Support

At the outset, we note res judicata applies only to a judgment entered by a court – not a private agreement between parties. As the California Supreme Court has explained, “ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Res judicata does not apply to the agreement between father and mother regarding their children’s travel expenses.

To the extent father intends to argue the trial court lacked prerogative to undo an agreement of the parties reached only two weeks before the long-cause hearing, we reject it. Instructive on this point is the case of In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062 (Bereznak).) Bereznak involved an agreement of parents to submit all child support disagreements to binding arbitration. (Id. at p. 1064.) The court in Bereznak held the agreement to deprive the trial court of power to determine issues of child support violated public policy. The Bereznak court explained:

“It is true that parties may settle their disputes over child support by agreement. This state has a ‘strong policy favoring settlement of litigation’ over family law disputes. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 910.) Nor was there anything unlawful about the parties’ mutual decision to allow a third party to help them settle future disputes. But such agreements, to the extent that they purport to restrict the court’s jurisdiction over child support, are void as against public policy. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1341; accord, In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469; In re Marriage of Armato (2001) 88 Cal.App.4th 1030.) Children have the ‘right to have the court hear and determine all matters [that] concern their welfare and they cannot be deprived of this right by any agreement of their parents.’ (In re Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 393.) Thus, these agreements are not binding on the children or the court, and the court retains jurisdiction to set child support irrespective of the parents’ agreement.” (Bereznak, supra, at pp. 1068-1069.)

The reasoning of Bereznak, supra, 110 Cal.App.4th 1062 applies here and compels us to reject father’s argument that the trial court lacked power to reallocate travel expenses due to prior agreement between the parties. The trial court had the prerogative to hear and determine all matters concerning the welfare of the children – including their travel expenses – regardless of prior agreement between the parties. Accordingly, the trial court did not exceed its power in allocating airfare expenses to father.

IV

Father and Mother’s Earning Capacities

Father argues the trial court erroneously imputed income to him even though he is unemployed and erred in failing to consider evidence regarding the earning capacity of mother. In so arguing, father acknowledges that “the [trial] court has discretionary power to impute wages based on a new spouse’s income provided certain statutory requirements are met as outlined [in his brief and] in section] 4057.5(a)(1).” In support of the argument, father makes key factual assertions that cannot be evaluated in the absence of a reporter’s transcript of the hearing: what relief mother may have requested, what the evidence may have shown regarding father’s unemployment, the needs of the children, or what implicit factual findings the trial court made in support of its child support order. As we have explained, this judgment roll appeal precludes attacks on the sufficiency of the evidence supporting the trial court’s child support order. (Randall, supra, 2 Cal.App.5th at p. 935; Ehrler, supra, 126 Cal.App.3d at p. 154.) Accordingly, we presume substantial evidence supported the trial court’s findings regarding earning capacities of father and mother.

V

Best Interests of the Children

Finally, father contends the support order “is not in the best interest of the child(ren) because it prevents them from seeing their father, impoverishes [father]’s household creating financial and social stress, and severely undermines [father]’s ability to provide a happy and safe home.” This argument challenges the implied factual findings of the trial court. On this judgment roll appeal, we conclusively presume substantial evidence was introduced at the hearing that supports every implied factual finding underlying the trial court’s order. (Randall, supra, 2 Cal.App.5th at p. 935; Ehrler, supra, 126 Cal.App.3d at p. 154.) Consequently, we reject the argument.

DISPOSITION

The order for child support is affirmed. Respondents Jeanine Rickman and the Sacramento County Department of Child Support Services shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

HOCH, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

MAURO, J.