Filed 10/4/19 Marriage of Warren and Langerud 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Marriage of JESS WARREN and TINA MAE LANGERUD.

JESS WARREN LANGERUD,

Appellant,

v.

TINA MAE RICE,

Respondent,

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.

G056385

(Super. Ct. No. 10D000481)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Paul T. Minerich, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Motion to Augment. Granted.

Jess Warren Langerud, in pro. per., for Appellant.

Tina Mae Rice, in pro. per., for Respondent.

No appearance for Intervener and Respondent.

* * *

INTRODUCTION

Jess Warren Langerud appeals from the trial court’s order reducing his monthly child support payment to his former spouse, Tina Mae Rice, from $555 to $451. Langerud contends the trial court should have further reduced or entirely eliminated his child support obligation regarding his and Rice’s two minor daughters (the children).

We affirm. As acknowledged by Langerud in his appellate briefs, the amount of modified child support ordered by the trial court was calculated based on the statewide uniform guideline. The court did not abuse its discretion by finding no special circumstance existed that would justify a downward departure from the guideline. Langerud failed to show the court erred in calculating his modified child support obligation by crediting Rice with a deduction for extraordinary health expenses. Sufficient evidence supported the court’s determination that $125 be included in the monthly modified child support amount as Langerud’s contribution to Rice’s travel expenses incurred when she travels from Texas to California to visit the children pursuant to the court’s prior visitation order.

BACKGROUND

In January 2010, Langerud filed a petition for the dissolution of his marriage to Rice. Judgment was entered in June 2011, a copy of which is not included in our record. Starting in July 2013, Langerud and Rice shared equal parenting time with the children on a week on, week off, basis.

In January 2015, Rice requested that the court allow her and the children to relocate to Texas or North Carolina. Rice wanted to move because she believed such a move would benefit the children, ease her financial burdens, and provide opportunities to further her career in psychology. The court found that the children were grounded in Orange County, where their closest family (Langerud’s family) lived. The court also found a high degree of conflict in the relationship between Langerud and Rice.

In an order filed in August 2015 (the August 2015 order), the trial court denied Rice’s move away request; Langerud was awarded legal custody and primary physical custody of the children. The court awarded Rice the following custodial time: “a. Summer Recess from School: Commencing the Monday following the end of school recess for summer, returning to [Langerud] two weeks prior to the commencement of school. [¶] b. School Spring Break: [Rice] shall have minor children for the one week spring break in odd-numbered years. [Langerud] shall have minor children for the one week spring break in even-numbered years. [¶] c. School Thanksgiving Break: [Rice] shall have minor children for the one week Thanksgiving School Break in even-numbered years. [Langerud] shall have minor children for the one week spring break in odd-numbered years. [¶] d. Winter School Vacation: [Rice] shall have minor children during the first half of the winter break in odd-numbered years and the second half in even-numbered years. The winter break is defined as from the day following recess up to the day before school is to resume. The first part is one-half of the total of the entire winter break and the second half is the balance from the midpoint until the day before school resumes.”

As for travel expenses, given Rice’s intended relocation out of state, the trial court ordered: “a. The receiving parent shall be responsible for making travel arrangements and for all costs associated with travel for minor children. [¶] b. The parent whose responsibility [it] is to provide travel arrangements for minor children shall provide an itinerary to the other parent of said travel arrangements, including mode of travel, flight/train number(s), dates and times of travel no less than ten (10) days in advance of travel.”

In November 2016, the trial court held a hearing on, inter alia, Rice’s request for an order modifying custody and visitation and Langerud’s requests for a modification of child support and a change in visitation. No copies of any of these requests are contained in our record. In an order dated February 8, 2017 (the February 2017 order), the court denied Rice’s request for a change in custody on the ground there had been no material change in circumstances, but the court granted Rice two additional visits each year with the children. The court’s order specified that if Rice travelled to California between February 1 of the year and the start of the summer, she would be entitled to one 48-hour visit (two days), and if she travelled to California between September 1 and November 1, she would have the right to another 48-hour visit. As to child support, the court stated that, effective July 15, 2016, Langerud would no longer be required to pay Rice a separate percentage of his bonus income, and Langerud would pay Rice $555 monthly child support.

In December 2017, Langerud filed a petition for relief/adjustment of his $555 monthly child support obligation. A copy of Langerud’s petition is not included in our record. What occurred at the two-day hearing on Langerud’s petition is summarized in the settled statement prepared by Langerud and certified by the trial court under California Rules of Court, rule 8.137, as follows.

During the first day of the hearing in February 2018, the trial court found that Rice had the children in her care 21% of the time (a percentage that was three percentage points higher than what Langerud argued Rice had and seven percentage points less than what Rice described). At the hearing, the issue was raised that, under the August 2015 order, Rice and Langerud each pay the costs associated with flying the children to their respective homes for long visits but there were no such provisions for Rice’s two 48-hour visits in California; Rice asked that those travel costs be shared. Rice described her estimated expenses for her travel to California but did not provide receipts or other evidence.

Rice also informed the trial court that in late 2017, she was diagnosed with a “brain tumor and possibly MS” and that she had already incurred significant health care costs and expected she would continue to incur such costs as she would need further treatment. Rice stated she was still working on a treatment plan with her doctors but that her health insurance required her to first meet her $7,350 deductible before her expenses would be covered. She stated she also needed to pay for medication and other tests.

The trial court initially deemed Rice’s health expenses to be extraordinary and calculated her monthly health expenses to be $612. Langerud asked the court for a continuance to respond to Rice’s claimed health expenses and asked the court for an order requiring Rice to provide corroborating evidence. The court granted Langerud’s request and continued the hearing to a date in April. The court further ordered that discovery be conducted that would result in Rice producing documentation of the medical expenses she would likely incur, including proof of her annual health insurance deductible, as well as proof of travel and other expenses related to her 48-hour visits in California with the children (the February 2018 order).

When the hearing on the petition resumed in April 2018, Langerud’s counsel confirmed having received “the discovery documents” from Rice. According to Langerud’s settled statement, Langerud’s counsel “began by providing the court with an additional accounting of the timeshare between [Langerud] and [Rice]. This calculation again showed [Langerud] having full physical and legal custody and [Rice] having 18% visitation. [Langerud’s counsel] also said that in this case, even a small change in percent timeshare can have a dramatic effect on the resulting guideline child support. During this discussion, [Rice] began speaking out of turn and became quite emotional. Claiming additional time outside of the orders and that the court had already determined her visitation to be 21%. . . . [T]he court determined it would retain the 21% visitation it had previously found.”

The trial court also found Langerud’s taxable income to be $18,123 per month and nontaxable income to be $211 per month. The court had previously found Rice’s monthly income to be $3,750.

The trial court next addressed Rice’s medical expenses as described in the settled statement: “In the current hearing [Rice] provided evidence of her medical expenses and the deductible portion of her insurance. [Langerud]’s counsel stated the documents provided by [Rice] did not substantiate her claims. [Langerud’s counsel] argued there were really only two expensive MRI test[s] which had been done about a month apart. The medication expenses seemed ordinary as did the few clinic co-pays [Rice] had provided. [Langerud’s counsel] said instead the court should include [Rice]’s anticipated expenses in the tax deduction portion of the Dissomaster as a medical expense.” The settled statement recorded that Rice “testified that she is suffering from a brain tumor and multiple sclerosis and she provided testimony of her medical expenses and the deductible portion of her insurance.” The court “amortized the deductible portion of her medical insurance coverage over the course of one-year which came to $612/month. The court determined that to be an extraordinary expense for [Rice] per Family Code [section] 4071[, subdivision (a)] given her income and the expense she incurs in exercising visitation with her children from [Rice]’s residence in Texas.”

The final issue addressed at the hearing that is pertinent to this appeal is the issue of Rice’s claimed travel expenses to facilitate her twice annual 48-hour visits with the children in California. According to the settled statement, Rice “provided testimony as to what her travel expenses were.” Langerud’s attorney challenged “the receipts” Rice had provided as “excessive.” Rice stated she had “longer visits” than were described in the order and difficulties in finding appropriate accommodations. The court stated it would calculate expenses as follows: $350 for airfare, four nights in or at a hotel at a nightly rate of $150, $200 for a rental car, and $350 for “food/gas/miscellaneous expenses,” for expenses in the total amount of $1,500 per visit for two visits a year; the annual total amount of expenses for these visits the court stated equated to $250 per month. The court allocated those expenses “equally between the parties as a discretionary child support add-on per Family Code [section] 4062[, subdivision (b)(2)]. Therefore $125 (one-half of the total) was added to the resulting [Langerud]’s child support payment.”

The court thereafter issued an order (the April 2018 order) stating that, based on the guideline, it would reduce Langerud’s total monthly child support obligation (which included Rice’s extraordinary health expenses and her travel expenses for California visits) to $451.

Langerud appealed from the April 2018 order.

MOTION TO AUGMENT

After the record on appeal was filed, Langerud filed a motion to augment with the August 2015 order denying Rice’s move away request and setting the parties’ visitation schedule after Rice moved to Texas; this court granted the unopposed motion.

Langerud has since filed a second motion to augment the record on appeal with Rice’s income and expense declarations. We have received no opposition to the motion. As the subject income and expense declarations attached to the motion were filed in the trial court, they are appropriate matters for augmentation. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We therefore grant Langerud’s motion. The documents attached to the motion to augment, filed April 11, 2019, are deemed part of the record on appeal.

DISCUSSION

I.

Standard of Review

We review orders granting or denying requests for modification of child support under the abuse of discretion standard. (Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021, 1026.) The trial court’s exercise of its discretion must be “‘informed and considered,’” the court may not “‘ignore or contravene the purposes of the law’” (ibid.), and the court’s discretion is granted and limited by the statutes and rules regulating child support (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234). We review the trial court’s factual findings for substantial evidence and consider the evidence in the light most favorable to the party who prevailed in the trial court. (Plumas County Dept. of Child Support Services v. Rodriquez, supra, at p. 1026.)

II.

The Trial Court’s Modified Child Support Order Was Based on the Presumptively Correct Uniform Guideline.

“With certain exceptions not applicable here, the trial court may modify or terminate a child support order at any time the court deems it necessary. [Citation.] The statutory procedures for modification of a child support order ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ [Citation.] ‘The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse.’” (In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1234, fn. omitted.)

The amount of child support established by the formula of the statewide uniform guideline set forth in Family Code section 4055 is presumed to be the correct amount of child support. (§ 4057, subd. (a).) The presumption affects the burden of proof and may be rebutted with admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case because one or more of five factors is found to be applicable by a preponderance of the evidence. (§ 4057, subd. (b).) Those five factors are: “(1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065. [¶] (2) The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 and the rental value of the family residence where the children reside exceeds the mortgage payments, homeowner’s insurance, and property taxes. . . . [¶] (3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. [¶] (4) A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time. [¶] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case.” (§ 4057, subd. (b).)

Langerud argues the trial court should not have modified child support based on the official guideline, but instead should have made a downward departure from the guideline because Langerud is “both the High-Earner and the Custodial parent with primary physical and legal custody of the children.” Langerud’s arguments are without merit.

For purposes of section 4057, subdivision (b)(3), “‘[t]he legislature did not define the term extraordinarily high income, leaving that to the discretion of the trial court.’ In exercising that discretion, however, the trial court must at least approximate the point at which the guideline support obligation due from a high earner would exceed the children’s needs.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 297; see In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 539, fn. 31.)

Langerud has failed to cite or analyze any legal authority showing that his monthly taxable income of $18,123 plus nontaxable monthly income of $211 constitutes “an extraordinarily high income” within the meaning of section 4057, subdivision (b) or that his child support obligation as modified exceeds the children’s needs so as to warrant a downward deviation from guideline support. In any event, any such argument is inconsistent with Langerud’s argument that paying Rice child support takes needed resources away from him to use to care for the children when they are in his care. He argues the modified child support obligation unfairly “transfer[s] financial resources away from the custodial parent to the non-custodial parent.” He further argues in his appellate opening brief his child support obligation “has the additional effect of eroding [Langerud]’s available resources to meet the needs of the children he is solely supporting while multiplying the level of expense he is [e]ncumbered with. While he does currently earn more than [Rice], there is no evidence to support that he is living opulently or more than an upper middle-class lifestyle. Children are indeed expensive to raise and he (and his new spouse) are endeavoring to do so for their three teenage daughters, with no support of any kind from [Rice].” Langerud has failed to show the trial court abused its discretion by not finding the extraordinarily high earner exception of section 4057, subdivision (b)(3) applicable.

Langerud relies on section 4057, subdivision (b)(4) to challenge his child support obligation on the ground Rice is not contributing to the children’s needs at a level commensurate with her custodial time. The trial court found that Rice had custody of the children 21% of the time and entered that amount into the DissoMaster to calculate guideline support. Although Langerud argued in the trial court that Rice had custody less than 20% of the time, he does not challenge that finding on appeal and does not argue that the children are in Rice’s physical care less than the visitation times scheduled in the August 2015 and the February 2018 orders. Therefore, the trial court did not abuse its discretion by concluding the modified child support order, which was calculated in part by taking into account Rice’s time caring for the children, did not run afoul of subdivision (b)(4) of section 4057.

Langerud also argues the modified child support order’s adherence to the guideline was improper because the order was unjust or inappropriate due to the existence of special circumstances within the meaning of section 4057, subdivision (b)(5). That subdivision provides that such special circumstances may include, but are not limited to: “(A) Cases in which the parents have different time-sharing arrangements for different children. [¶] (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. [¶] (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount. [¶] (D) Cases in which a child is found to have more than two parents.”

Langerud does not argue that any of the special circumstances set forth in section 4057, subdivision (b)(5) apply here. Instead, he argues the modified child support order is unjust because he believes Rice has spent too much time and incurred too much debt pursuing advanced degrees instead of earning a greater amount of income. Even if Rice’s choice to pursue advanced degrees at the expense of delaying earning a higher income constituted a special circumstance justifying deviation from guideline support under section 4057, subdivision (b)(5), the record does not support Langerud’s argument. The record does not show Langerud challenged Rice’s claimed income at the hearings on his petition to modify child support and he cites no evidence showing that the amount of income attributed to Rice is improper. Langerud’s settled statement does not address the calculation of Rice’s income. (Cal. Rules of Court, rule 8.137(d)(1) [“the appeal is then limited to the points identified in the [settled] statement unless the reviewing court determines that the record permits the full consideration of another point”].) We find no error.

III.

Extraordinary Financial Hardship Due to Medical Expenses

“Family Code section 4070 recognizes that if a parent ‘is experiencing extreme financial hardship due to justifiable expenses’ resulting from specified circumstances, the court may modify child support by allowing a deduction from the income of the party experiencing the hardship. [Citation.] The circumstances evidencing hardship are set out in section 4071.” (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1381-1382, fn. omitted.) Section 4071, subdivision (a) identifies circumstances evidencing hardship to include “Extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses.”

Langerud argues there is no evidence to support the finding that Rice was experiencing extreme financial hardship. In his opening brief, Langerud argues: “While [Rice] did describe her commercial medical insurance to have a high initial cost share (50% coverage until the $7,000 deductible was reached), there was no evidence provided that showed she experienced any significant hardship. [Rice] did not describe receiving collection notices, being late on any payments (rent, car, or credit cards) or other financial impacts as a direct result of her new diagnosis.”

“Any evidence or portion of a proceeding not included [in the settled statement] will be presumed to support the judgment or order appealed from.” (Cal. Rules of Court, rule 8.137(d)(2)(A).) The settled statement shows that in response to the trial court’s order that discovery be conducted, Rice produced “discovery documents” and evidence regarding medical expenses. The record does not describe this evidence other than to suggest that it showed Rice has had “two expensive MRI test[s]” and medication expenses. No copies of any such documentary evidence were attached to the settled statement. But the settled statement also states Rice “testified that she is suffering from a brain tumor and multiple sclerosis [and] she provided evidence of her medical expenses and the deductible portion of her insurance.” It does not further describe Rice’s testimony.

Substantial evidence supported the trial court’s finding Rice faced extreme financial hardship due to extraordinary health expenses for which she is financially responsible within the meaning of section 4071, subdivision (a)(1). Langerud’s appellate briefs do not cite any authority showing Rice must produce past due bills in order to seek the extraordinary health expense deduction when sufficient evidence is before the court of Rice’s limited income, high health insurance deductible, and expenses due to recently diagnosed serious health conditions. The trial court did not err.

 

IV.

Travel Expenses for 48-Hour Visits

Langerud challenges the portion of the modified child support order that includes a share of the travel expenses necessary for Rice to have her twice-annual visits with the children in California. The settled statement’s summary of Rice’s testimony on this issue is as follows: “[Rice] provided testimony as to what her travel expenses were.” The settled statement therefore acknowledges that evidence on this issue was presented to the trial court, but provides no detail regarding that evidence. As “[a]ny evidence or portion of a proceeding not included [in the settled statement] will be presumed to support the judgment or order appealed from” (Cal. Rules of Court, rule 8.137(d)(2)(A)), sufficient evidence supported the trial court’s order adding $125 to Langerud’s monthly child support obligation to facilitate such visits.

DISPOSITION

The order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.