Filed 3/16/20 Marriage of Julian and Teterevleva CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of THEODORE LAURENCE JULIAN III and MARIA YURIEVNA TETEREVLEVA.

B290781

(Los Angeles County

Super. Ct. No. PD052248)
THEODORE LAURENCE JULIAN III,

Respondent,

v.

MARIA YURIEVNA TETEREVLEVA,

Appellant;

LOS ANGELES COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, Stephen M. Lowry, Commissioner. Affirmed.

Maria Yurievna Teterevleva, in pro. per., for Appellant.

No appearance for Respondent.

No appearance for Intervener and Respondent.

___________________

Maria Yurievna Teterevleva (Mother) appeals from a postjudgment order for child support, in which the family court ordered Theodore Laurence Julian III (Father) to pay $1,228 per month to support two sons living in Mother’s sole custody. Mother contends Father underreported his true income and the family court was biased against Mother in setting the award. Mother also contends the family court erred in calculating Father’s arrearages based on the date he received her request for order modifying child support instead of the date it was filed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Mother and Father’s Marriage and Dissolution
B.
Mother is a Russian citizen living in Archangel, Russia. Father is a resident of Sylmar in Los Angeles County. Mother and Father met in October 2004, and in March 2006 Mother gave birth in Archangel to their first son, Alexander. Mother and Alexander came to the United States in October 2006 and began living with Father at the home of Father’s parents in Los Angeles County. Mother and Father married on January 19, 2007. In late 2008, Mother became pregnant and returned to Russia with Alexander because the family could not afford medical insurance and care for the children in the United States. In August 2009 Mother gave birth in Archangel to a second son, Iliya. Although Father communicated with his sons through the Internet, both children lived exclusively with Mother in Russia from the time of Iliya’s birth to the present. During that period Father remained in California.

On June 17, 2011 Father filed a petition for dissolution of the marriage. The family court entered a judgment of dissolution on November 17, 2016. The judgment provided for the division of the proceeds from the sale of two vacant parcels that had been acquired during the marriage but terminated jurisdiction over spousal support without an award to either spouse. With respect to child support, the judgment provided: “There shall be no child support for the parties’ minor children . . . from any party to the other. The court’s jurisdiction over the issue of child support is reserved.” Notwithstanding the terms of the judgment, Father voluntarily provided approximately $939 per month to Mother for child support through the middle of 2017.

C. Mother’s Request for Child Support and Temporary Order
D.
On January 9, 2017 Mother, as a self-represented litigant, filed a request for order to modify her child and spousal support (request), seeking $500 per month in child support for each of the two children and $700 per month in spousal support. Mother’s notice of request included a proof of service on which Mother declared she personally mailed the request and supporting papers to Father from Archangel on December 20, 2016, at the same time she mailed the request to the court. However, according to counsel for the Los Angeles County Child Support Services Department (CSSD), Father did not receive the request until March 2017.

On May 16, 2017, the family court set Mother’s request for a three-hour, long-cause hearing. The court ordered the parties by August 29, 2017 to submit two years of income and expense declarations and tax returns, as well as a general ledger and supporting documents for any businesses they owned.

On August 21, 2017 Mother filed an income and expense declaration stating she had no income other than the voluntary support she received from Father (averaging $939 per month) and total assets of $900. Mother stated her average total monthly expenses were $3,224, and she would require an additional $1,500 per month for childcare to enable her to work outside the home, $200 for healthcare costs, and $600 in educational expenses. Mother also submitted a medical certificate stating Alexander was underweight due to nutritional deficiency.

On August 29, 2017 Father served Mother and CSSD with his income and expense declaration and 2015 and 2016 tax returns. Father reported average monthly income of $1,272, assets of $2,100, average monthly expenses of $1,850, and debts exceeding $25,000 (including credit card balances, back taxes, and personal loans). Father was self-employed and received virtually all of his income as the sole proprietor of Copper Glass Communications, a communications equipment installer. Father produced for 2015 and 2016 his company’s form 1040 schedule C profit and loss statements and company ledgers. Father reported on his profit and loss statements that Copper Glass Communications had gross income of $85,951 for 2015 and $68,264 for 2016, and net profits of $30,260 for 2015 and $15,263 for 2016. Father claimed the net profits as his personal income in lieu of taking a salary.

At the August 29, 2017 status conference, the family court ordered Father “to produce bank statements and credit card statements for the years 2015, 2016, and through July 2017, no later than September 7, 2017.” Mother would then “have until September 22, 2017 to decide if she will hire a forensic accountant, and make arrangements if she is going to do so.” On September 12, 2017 Father served Mother and CSSD with his 2015 and 2016 bank and credit card statements.

The family court held a hearing on Mother’s request on January 19, 2018. The court entered a temporary child support order, ordering Father to pay $1,181 per month for child support. The court calculated the monthly child support based upon a DissoMaster report filed on January 19, 2018, which assumed monthly income of $4,309 for Father, no income for Mother, Mother’s sole care of both children, and no spousal support. The temporary child support payments commenced on February 1, 2018, but the court reserved the right to make the final award retroactive. At the conclusion of the hearing, the court declared a mistrial for lack of sufficient time to complete the hearing, and the court reset the hearing for later in 2018.

E. April 13, 2018 Hearing and Child Support Order
F.
The family court held the final hearing on Mother’s request on April 13, 2018. Mother appeared telephonically with the aid of a court-appointed Russian language translator, and Father, his attorney, and a CSSD staff attorney appeared in person. At the outset of the hearing, the court stated that although it had reviewed Commissioner Duron’s temporary support order, it did not have a copy of Mother’s request or a comprehensive account of the proceedings to that point, and the court requested CSSD’s attorney provide an update. CSSD’s attorney indicated she had received the parties’ August 2017 income and expense declarations, met and conferred with the parties, and had “run several guidelines based on various calculations.”

CSSD’s attorney “roughly calculated” Father’s net disposable income to be $3,997 based on the documents Father produced—somewhat less than the $4,309 income used in the January 2018 DissoMaster report to support the $1,181 monthly temporary support order. CSSD’s attorney also generated a DissoMaster report using Mother’s estimate of Father’s gross income ($5,688), which calculated monthly child support of $1,420.

At the beginning of the hearing, the court opined that absent evidence Father “is hiding millions of dollars or rubles,” the temporary order of $1,181 “given the incomes that are shown on the one guideline that I had, doesn’t appear to me to be out of the ballpark. It seems to be right there.” Mother countered that Father “did not show all his income” and should pay $3,000 per month. But Mother did not offer any evidence showing how Father had underreported his income or how Mother calculated the $3,000 child support figure.

Father argued Mother’s claim that Father’s true income was $5,688 per month was based on Mother’s errors in analyzing Father’s documents. Father’s attorney argued, “[S]he’s adding all his credit card statements as his income. So she doesn’t realize that in order to pay the credit card, it goes from his bank account. . . . [¶] . . . [¶] . . . And even the [c]ounty [c]ounsel didn’t calculate a lot of expenses because [Mother] didn’t go through the bank accounts and credit card statements.” Father also asserted Mother understated her own resources and support she received from her family in Archangel, including from her father, a retired surgeon with a doctorate in law. However, the court credited Mother’s testimony her retired parents and elderly relatives had no means to support her. Further, the court declined to impute any income to Mother, although she had three college degrees in mechanical engineering and finance and was qualified as a technical translator, finding Mother had no means to find work in Archangel while also caring for two small children.

After hearing argument, the court decided to take the “mid-point” between the high-end ($1,420) and low-end ($1,036) DissoMaster child support calculations prepared by CSSD’s attorney, and it ordered child support at $1,228 per month. The court acknowledged the order was “not in accord with any one of the guidelines that were run, [but] it can be close to the [$]1,036 and close to the [$]1,181, but it’s in the ballpark.” The court ordered the $1,181 DissoMaster guideline be attached to the final order, “since it’s closer to the [$]1,228.” The court’s final order included no additional payment for childcare costs, but it required Mother and Father to pay half of any unreimbursed medical expenses for the children.

The court ordered child support retroactive to April 1, 2017, calculating Father’s arrearages as $15,964 for the period from April 1, 2017 through April 30, 2018. The court rejected Mother’s argument the award should be retroactive to the date Mother filed her request (in January 2017) or the date she claimed Father received her request (in February 2017). The court explained, “[T]he proof of service that you filed showed March. It did not show February. And we’re using the April 1 date as a result.”

The family court entered its final order on May 14, 2018. Mother timely appealed.

DISCUSSION

A. Standard of Review
B.
We review a trial court’s order granting or denying child support for an abuse of discretion. (In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 527 (Macilwaine); In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) “Under this standard, we consider only ‘whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’ [Citation.] ‘We do not substitute our own judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order.’” (Macilwaine, at p. 527; accord, In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) “On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. [Citation.] We accept all evidence favorable to the prevailing party as true and discard contrary evidence.” (Drake, at p. 1151; accord, In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.)

However, we are also “‘mindful that “determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule.”’” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1312; see Macilwaine, supra, 26 Cal.App.5th at p. 527 [“‘[T]he trial court’s discretion is not so broad that it “may ignore or contravene the purposes of the law regarding . . . child support.”’”].) “To decide whether the trial court followed established legal principles and correctly interpreted the child support statutes, we apply the independent standard of review.” (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 731.)

C. Law Governing Child Support Orders
D.
In California, child support payments are determined by statutory guidelines set forth in Family Code section 4050 et seq. “[A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 284.) Section 4055 sets forth a mathematical formula for computing the guideline amount of child support based on the relative income of the parents and their time-sharing arrangement for physical responsibility of the children. This calculation is incorporated into the DissoMaster program to generate child (and spousal) support guidelines. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3.) “The guideline amount of child support . . . is presumptively correct.” (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) The presumption may only be rebutted by “admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case.” (§ 4057, subd. (b).)

“The mandatory formula for calculating child support takes into account both parents’ ‘net monthly disposable income’ [citation], which is determined based upon the parents’ ‘annual gross income’ [citation].” (In re Marriage of Alter, supra, 171 Cal.App.4th at p. 731.) “Parental income is ‘broadly defined’ for the purpose of calculating child support under the statutory guidelines.” (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1237.) Section 4058, subdivision (a)(2), defines “annual gross income” as “income from whatever source derived,” including, without limitation, salaries and wages, investment income, insurance benefits, and “[i]ncome from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.”

“A parent’s gross income, as stated under penalty of perjury on recent tax returns, should be presumptively correct. [Citation.] Returns are, after all, ultimately enforced by federal and state criminal penalties. Hence it is not surprising that tax returns are the core component of determinations under the guideline formula.” (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332 (Loh); accord In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 107 (Ciprari).)

E. The Trial Court Did Not Abuse Its Discretion in Ordering Child Support
F.
Mother contends Father’s income tax returns and company ledgers do not reflect his true income. In her appellant’s opening brief and the attached tables, Mother has pored through the receipts and bank and credit card statements Father produced in August and September 2017 and identified what she claims are significant discrepancies between the income shown on Father’s tax returns and company ledgers, and the cash flow in Father’s bank and credit card accounts. Mother also asserts certain discrepancies between Father’s 2015 and 2016 tax returns and the company ledgers, for example, relating to his accounting of “[c]ar and truck expenses.” (Italics and underscoring omitted.) Mother claims many of Father’s receipts, including gas bills and sales receipts, lack customer information and “probably, these charges [were] not actually incurred by [Father].” Finally, Mother posits that Father has additional bank accounts and income he did not disclose in his income and expense declaration or on his tax returns, citing to 428 transactions showing transfers between Father’s bank accounts and his PayPal account during the disclosure period. On these bases, Mother calculates Father had an average monthly income of $5,565.56 during the period from January 2015 through July 2017, in contrast to the $4,309 monthly income attributed to Father in CSSD’s January 2018 DissoMaster calculation (which supported the temporary child support order of $1,181 per month).

Mother urges us “to review and appraise the evidence[] once again.” But our review is limited to “‘whether the court’s factual determinations are supported by substantial evidence.’” (Macilwaine, supra, 26 Cal.App.5th at p. 527.) To that end, Father’s declaration of his gross income on his federal tax returns is presumed to be accurate as the basis for calculating his child support obligations under sections 4055 and 4058. (Ciprari, supra, 32 Cal.App.5th at p. 107 [“tax returns are presumptively correct, and provided substantial evidence of [Father’s] income”].) Mother had the burden below to rebut this presumption with admissible evidence Father had additional income. (See In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34-35 [“[T]he presumption of correctness of recent tax returns may be rebutted by a statement of income on a loan application where, as here, the parent owns his own business.”].)

Mother failed to meet this burden despite an ample opportunity to do so. After Father produced his income and expense declaration and tax returns in August and September 2017, the court ordered Father to produce bank and credit card statements, and the court continued the hearing on Mother’s request to give Mother time to review the documents and to decide whether to hire a forensic accountant. There is no indication Mother hired a forensic accountant, nor does the record show Mother presented to the family court the arguments and citations to Father’s disclosures she has included in her brief on appeal.

Even if the tables and analyses set forth in Mother’s opening brief were provided to the family court, they do not constitute admissible evidence Father’s income exceeded the business income reported on his tax returns and income and expense declaration. Mother provided no foundation showing her analysis of the documents was accurate or consistent with forensic accounting principles. Further, we are not in a position to evaluate in the first instance whether Father properly claimed specific expenses such as vehicle usage on his federal tax returns; whether differences between Father’s profit and loss statements and his company’s general ledgers show improprieties; whether the receipts Father produced belong to someone else (a proposition for which there is no evidence); or whether Father’s frequent use of PayPal for online purchases and transfers to and from his bank accounts are indicative that he maintains a significant hidden cash balance in his PayPal account.

We recognize Mother may lack the resources to commission a professional forensic analysis, but it was her burden to present admissible evidence to rebut Father’s showing based on his tax submissions signed under penalty of perjury. Further, Mother has not presented any evidence Father failed to comply with the court’s document production order or falsified documents. Because Mother does not challenge the DissoMaster calculation of child support, only Father’s monthly net income, the trial court did not abuse its discretion.

G. The Family Court Did Not Demonstrate Bias Against Mother
H.
Mother contends Commissioner Lowry, who presided over the April 13, 2018 hearing on Mother’s request, was biased against her and favored Father. She asserts the commissioner (1) refused to consider the merits of the case; (2) refused to allow Mother to file a reply memorandum concerning the defects in Father’s submissions; (3) did not allow Mother to file a motion to compel additional documents from Father; (4) displayed “malevolence” and “evil will” toward Mother while engaging Father and his attorney amiably; (5) did not allow Mother to speak without interruption; (6) interrogated Mother offensively about her family’s circumstances; (7) gave mother advice about employment in Russia he “was not authorized and competen[t] to give”; and (8) “wasted time” on inappropriate conversation about the commissioner’s family, Russian geography, Soviet history, and politicians, including United States President Donald Trump and Russian President Vladimir Putin. Mother contends the commissioner’s conduct violated canons 3 and 5 of the Code of Judicial Ethics and denied her due process of law.

“The operation of the due process clause in the realm of judicial impartiality . . . is primarily to protect the individual’s right to a fair trial.” (People v. Freeman (2010) 47 Cal.4th 993, 1000.) Judicial conduct must “‘“‘accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality.’”’” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 462, disapproved on another ground in Freeman, at p. 1007, fn. 4.) “The role of a reviewing court ‘is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the challenging party] a fair, as opposed to a perfect, trial.’” (People v. Harris (2005) 37 Cal.4th 310, 347.)

As a threshold matter, a failure to object on the grounds of judicial bias generally forfeits the claim for appeal. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320 [“As a general rule, a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review.”]; accord, People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Samuels (2005) 36 Cal.4th 96, 114.) However, a failure to object may be excused where the objection would have been futile, for example, where the trial court was overly hostile or made “numerous, extensive, disparaging remarks” about a party or counsel. (People v. Houston (2012) 54 Cal.4th 1186, 1220; accord, People v. Sturm (2006) 37 Cal.4th 1218, 1237.)

Here, the court was not openly hostile or disparaging toward Mother, and an objection raising judicial bias might have alerted the court to Mother’s discomfort and provided the court an opportunity to respond and to moderate its comments. However, we recognize the challenges of a self-represented litigant, especially here where Mother interacted with the court telephonically from Russia through a translator, and Mother’s subjective impression of the court’s questions and comments may have made her fearful to interpose any objection. We therefore decline to find Mother has forfeited her claim of judicial bias.

However, our review of the April 13, 2018 hearing transcript does not show any bias against Mother. To the contrary, although several of the family court’s comments were irrelevant and at times highly inappropriate, it appears the court was awkwardly attempting to build rapport with Mother and to demonstrate empathy, albeit in a patronizing manner. Further, despite Mother’s claims, the hearing transcript does not show Mother requested leave to file a reply brief or the court denied Mother an opportunity to file additional documents. Indeed, the court accurately summarized Mother’s position: “I assume that, from this set of papers that have been provided to the Court by [Mother], that she believes that [Father] has a significantly greater income than he has ever informed the Court.” Further, during the hearing the court provided Mother multiple opportunities to be heard without interruption. One of the few times the court interrupted Mother occurred when Mother criticized Father for failing timely to produce all his records in his initial August 2017 production. In response the court stated, “The Court doesn’t consider the two months [delay] to be of any great consequence. . . . We’re not here to punish people for being tardy. We’re here to try to figure out if [Father] has more money that should be used to pay for the child support for two small children.”

Insofar as Mother contends the court interrogated her about her living circumstances and her family and gave her unwarranted advice about her job prospects, the court was properly (albeit awkwardly) probing into Mother’s earning potential, given her three college degrees, background in finance and mechanical engineering, and qualification as a technical translator, and the court was trying to identify any financial support Mother might receive from her father, a retired surgeon with a doctorate in law, or childcare support she might receive from other family members. Although Mother had declared in her August 2017 income and expense declaration she had no income or other source of support, the court had discretion to impute income to Mother based on her earning capacity under section 4058, subdivision (b), and to take nonincome sources of support into account as special circumstances to depart from the statutory guideline under section 4057. (Loh, supra, 93 Cal.App.4th at p. 335 [discretion “to adjust the amount upward in light of the free housing benefit”].) Ultimately the court accepted Mother’s position she was unable to earn an income while raising the children, and it declined to impute income to her or adjust the level of child support based on any support from her family.

Although we recognize Mother is displeased with the $1,228 per month the court ordered in monthly child support, in light of the evidence before the court Mother achieved a favorable outcome at the April 13, 2018 hearing. The court ordered greater child support than the $1,000 per month in her request. Further, the court increased the award above the temporary support based on the January 19, 2018 DissoMaster report previously ordered by Commissioner Duron ($1,181)—whom Mother does not accuse of bias—and calculated support using the average of two guideline calculations prepared by CSSD based on Mother’s largely conjectural claims about Father’s hidden income. The court declined to impute income to Mother or to recognize any other source of support. The court did not demonstrate hostility to Mother, and although Commissioner Lowry’s digressions were inappropriate, there is no evidence his “‘behavior was so prejudicial that it denied [Mother] a fair, as opposed to a perfect, trial.’” (People v. Harris, supra, 37 Cal.4th at p. 347.)

I. The Family Court Did Not Err in Ordering Child Support Payments Retroactive to April 1, 2017
J.
Mother contends the arrearages period for Father’s child support payments should start from February 1, 2017, the first day of the month following the date Mother filed her request on January 9, 2017, not from April 1, 2017. The family court, following CSSD’s recommendation, found Father was not served with Mother’s request until March 2017, and the correct date for the payments to begin was therefore April 1, 2017. The court was correct.

Under section 3653, subdivision (a), an order modifying child support is subject to the procedural requirements of title 42 United States Code section 666(a), which authorizes the state to allow retroactive modification of a support award over any period “during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.” (42 U.S.C. § 666(a)(9)(C).) The “‘practical impact of subjecting retroactivity to [federal law] is that orders modifying child support (as opposed to original orders of support) may be made retroactive only to the date of service of the . . . notice of motion for modification.’” (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 441.)

Mother contends she served Father by mail at the time she mailed her request to the court, and she signed a proof of service declaring she mailed the notice of request from Archangel to Father’s address in Sylmar on December 20, 2016. Generally, “[t]he filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Mother’s December 20, 2016 proof of service is legally defective because Mother signed the proof of service herself, and thus the affirmation that the party serving the document is “not a party to this action” is incorrect. In addition, section 215, subdivision (b), requires that if a postdissolution request for support is served by mail, the proof of service must include an address verification for the recipient parent, which mother did not provide.

Mother’s proof of service therefore does not create a presumption Father received her request in January 2017. Indeed, Mother herself asserts Father received the request not in January, but in February, although she has not submitted evidence of this fact. Absent evidence Mother properly served Father, the only indicia of service are CSSD’s representation Father was served in March 2017 and Father’s appearance on March 15, 2017 for the hearing noticed by Mother. Under these circumstances, the family court did not err in ordering Father’s child support payments retroactive to April 1, 2017, the first day of the month following Father’s apparent receipt of the request and first appearance on Mother’s request.

DISPOSITION

We affirm the family court’s May 14, 2018 order.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.