Filed 1/17/20 Marriage of Valencia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FELIPE and CHRISTINA VALENCIA.

FELIPE DE JESUS VALENCIA,

Appellant,

v.

CHRISTINA NAOMI VALENCIA,

Respondent.

G056515

(Super. Ct. No. 15D002584)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Salvador Sarmiento, Judge. Reversed and remanded with instructions. Appellant’s motion to strike respondent’s brief denied.

Kerwin and Associates and William F. Kerwin for Appellant.

Law offices of Michael J. Brady and Michael J. Brady for Respondent.

* * *

Felipe De Jesus Valencia appeals from the judgment dissolving his marriage to Christina Naomi Valencia. Felipe contends the court erred in (1) awarding him only a 40 percent share of physical custody of the couple’s then five-year-old twins, rather than splitting custody time equally, (2) ordering that transfers of custody take place at the Brea Police Station with no third parties present, (3) requiring him to pay retroactive and current child support payments to Christina, (4) and ordering that he pay $3,500 as a contributive share of Christina’s attorney fees.

Felipe has also moved to strike Christina’s respondent’s brief, contending it ignores the requirements that factual claims must be supported by citations to the record and legal claims must be supported by citations to authorities. We agree with Felipe’s contention, but decline to strike the brief. Rather, we have disregarded any claims in Christina’s brief, whether factual or legal, that are not appropriately supported. (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 [If statements of fact are unsupported by record citations, we may disregard them]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [failure to support contention with reasoned argument and citations to authority results in waiver].)

On the merits, we find no abuse of discretion in the court’s division of child custody. While it is true that the child custody investigator found no reason the parties should not share equal custody so long as Felipe lived in close proximity to Christina, the trial court was not bound by that opinion. The court could reasonably conclude the children’s best interests were served by a custody split that maximized the time they would be cared for by their parents and Christina’s mother, rather than by a professional daycare provider. We also reject Felipe’s assertion the court erred by delaying its resolution of his request for an order, and thereby prejudiced his claim for an equal custody split. Any such claim was waived when Felipe failed to object to the continuances in the trial court.

However, we conclude the court did abuse its discretion in ordering that custody transfers take place at the Brea Police Department, with no third parties present. The Brea location was selected when Felipe was living in Chino, which was no longer the case when the order was issued. It is undisputed that both parties usually relied on third parties (Felipe’s wife and Christina’s mother) to effect custody transfers and that Brea no longer offered any geographical benefit to either party.

Additionally, we conclude the court erred in its award of child support. Christina had affirmatively waived any child support claim for the period before November 2016, and the court therefore should not have awarded her support for that period. Additionally, the court erred by concluding Felipe’s gross monthly income after November 2016 was $8,717 per month. The evidence is undisputed that Felipe’s gross monthly income was $5,445 per month, rather than $8,717. We consequently reverse that aspect of the court’s order, and remand the case for a redetermination of child support liability from and after November 2016, in light of Felipe’s correct income figure. For the same reason, we reverse the award of attorney fees to Christina, which was based in part on an evaluation of Felipe’s ability to pay, and remand that issue for further consideration in light of Felipe’s correct income figure.

FACTS

Felipe petitioned for dissolution of the parties’ marriage in March 2015, when the twins were two years old. A year later, after a breakdown in the parties’ informal custody sharing agreement, both Felipe and Christina filed a request for an order (RFO) to establish a formal custody sharing arrangement and child support orders. Felipe also requested that the court appoint an expert to conduct a child custody investigation. At the time, Felipe was living in Chino with his fiancée (now wife) and was working part-time while studying for a master’s degree; Christina remained in the Santa Ana area.

In October 2016, the court entered a status-only judgment dissolving the marriage. In November 2016, Felipe began full-time employment as a clinical social worker.

Following several continuances of the parties’ RFOs, the court granted Felipe’s request to appoint a child custody investigator to evaluate custody issues and report back to the court with her conclusions. The court otherwise continued the RFOs pending the completion of the child custody investigation.

The custody investigator, Sandra Cortez, filed her report on December 28, 2016. She concluded there was “significant resentment and possible anger between the parties resulting in some of their differences and conflict.” She attributed that to the fact both parties had initiated new relationships, which are “a common source of conflict.” In particular, Cortez cited friction between Felipe’s fiancée and Christina, since Felipe had given his fiancée some decision-making authority over the children. Felipe’s fiancée had also participated in child custody exchanges due to her more flexible work schedule. In one instance, which apparently prompted the parties to file their competing RFOs, Christina had called the police after Felipe’s fiancée refused to release the children to her when she arrived to claim them. Cortez opined that “[i]t is essential [that] both parents set clear boundaries with their new significant others and understand all parenting decisions should be made exclusively by the parents without the influence of third parties.” She also recommended that “[n]o other third parties should be present during the [custody] exchanges.”

As to custody sharing, Cortez reported that Felipe stated he would like an “alternative week” custody sharing arrangement, and that he would be willing to relocate closer to Christina if that would facilitate the arrangement. Christina stated that while a 50-50 custody split was not her preference—she preferred the status quo—she would be “open [to] sharing a 2-2-5-5 schedule.”

Cortez noted that both parties “have genuine love and care for the minor children” and “appear to be fit and no significant concerns were raised.” But she believed “[i]t is important to emphasi[ze] that after the parties separated, the minor children continued residing primarily with Mother in Orange County and per the Father, he opted to relocate with [his fiancée] to Chino, California earlier this year. Given the present circumstances, it appears it would be in the best interest of the minor children to continue residing in their primary community with their primary support group.” Cortez also stated that “if Father considers moving closer to the minor children’s primary home and/or school, an equal parenting schedule, such as a 2-2-5-5 schedule[], may be considered.”

In light of her conclusions, Cortez recommended that Felipe have custody on alternative weekends from Friday at 6:00 p.m. until Monday at 8:00 a.m., and every Wednesday night from 6:00 p.m. until Thursday morning at 8:00 a.m. If the children were at school, then the exchanges were to be at school. All other custody exchanges would “continue at the Brea Police Department,” with no other third parties present.

Shortly after Cortez submitted her report, Felipe moved to Anaheim Hills in Orange County, which is approximately 10 miles from Christina’s residence, and within the same school district. He also married his fiancée.

The matter, designated as a long cause for trial, was continued in January 2017 at the request of Christina’s counsel, continued again in March 2017 at the request of both parties, and continued again in May 2017 due to the court’s schedule.

Both parties filed trial briefs. In her brief, Christina requested that the court preserve the current custodial timeshare—giving Felipe custody of the children on Wednesday afternoons until Thursday mornings, and on alternate weekends. She argued that since Felipe had begun working full time at Metropolitan State Hospital in Norwalk, he was working from 8:30 a.m. until 4:30 p.m. Monday through Friday, and had a one-hour commute—leaving him little time to spend with the children on weekdays. By contrast, she finished work at 2:30 every day, leaving her adequate time to spend with the children. Moreover, she and the children were residing with her parents, and when she was at work, her parents provided daily care for the children, as they had been doing since the children’s birth.

Christina complained that Felipe’s new wife’s influence over childcare and custody decisions had continued to grow, despite Cortez’s recommendation that both parties set firm boundaries and retain all decision-making authority for themselves. She noted that Felipe’s wife “does all the pick ups and drop offs of the children,” but did not request an order prohibiting that practice from continuing into the future. Instead, she asked for an order that all custody exchanges be done at the children’s preschool or at her residence.

As for child support, Christina asserted that Felipe had obtained his master’s degree, was working full-time earning a gross income of $5,445 per month, and had remarried. She requested that he be ordered to pay her guideline child support, commencing November 1, 2016, the date of his employment.

In his brief, Felipe contended that Christina had informed him she did not object to an equal custodial timeshare, but she did object to his preferred schedule of alternative weeks because she wanted both parents to have more frequent contact with the children. Felipe acknowledged Christina had also refused to agree to modify the existing custodial arrangement following his move to Anaheim Hills, or to stipulate to have Cortez update her recommendation in light of that residential change. He also pointed out that due to Christina’s current work schedule—which commenced at 5:30 a.m. each workday—the children were largely cared for by Christina’s mother, rather than by Christina herself.

Felipe argued that because he had been employed only part time while working on his master’s degree from March 2016 through August 2016, and Christina was working full time, she should be ordered to pay him retroactive child support of $226 per month for that period. Felipe also claimed that because he was unemployed from September 1 through October 31, 2016, Christina should pay him child support of $727 per month for that period.

Although Felipe became employed as a clinical social worker in November 2016, receiving gross monthly income of $5,445 per month—slightly more than Christina’s income—he argued that because he had mandatory deductions, Christina should be ordered to pay him retroactive support of $12 per month from that date until the trial; he argued she should be ordered to pay him $355 in monthly child support thereafter in light of what he anticipated was an equal custodial timeshare.

Felipe also filed a motion for an award of $10,000 attorney fees and sanctions, arguing both that Christina had the greater ability to pay a portion of his fees—especially as she lived with her parents and incurred no housing expense—and that she had been unreasonable in refusing to resolve their differences concerning custody. Christina likewise sought a fee award, arguing it was Felipe who had been unreasonable in his custody sharing demands, which were “not motivated in any way, shape, or form in the best interest of his own children.”

The trial commenced in June 2017. Both Felipe and Christina testified consistently with the points they made in their trial briefs. Christina testified that she relied upon her parents—primarily her mother—for childcare during the time she was at work, and that she paid her mother about $200 per month for the assistance. Felipe acknowledged he had never contributed toward that childcare expense, claiming he was never asked; he also testified he was “pretty sure” Christina did not actually pay her parents for childcare. He claimed his own parents would not charge him for childcare. Felipe acknowledged he had not paid either Christina or her parents any money for childcare since November of 2015.

Felipe complained that Christina made unilateral decisions about childcare without telling him, including her decision to enroll the children in a Tiny Tots program run by the City of Orange, even as the parties were in discussions about finding a mutually agreeable daycare program: “During the time that we were trying to negotiate something, talk about a potential location, she took the initiative of doing it without letting me know.”

Felipe explained that he objected to the Tiny Tots program because it was not a licensed daycare provider, and because it lasted only three hours per day for 10 weeks at a time, which was not enough to accommodate the needs of working parents. He believed the children should be enrolled in a full-time daycare program until they started school. Felipe testified he had been trying to negotiate that issue with Christina, but claimed she was not responsive. In her testimony, Christina acknowledged she was not especially concerned with whether the Tiny Tots program worked for Felipe’s schedule. When asked how a program providing only three hours per day of care can “meet the requirements of two working adults,” Christina responded: “It meets my requirements. My mom is there to help.”

Christina explained that her primary objection to altering the parties’ custodial arrangement was that giving more time to Felipe would mean “putting these children into daycare and into a place where other people are going to be taking care of them; not family members, not anybody else that is close to them . . . . So when I see that, I see that [as] disturbing for my children.” She emphasized that the Tiny Tots program, in which the children were thriving, was only three hours per day, and “[t]he rest of the time my mom has them, and then I’m home by 2:30, so the majority of the time I’m there for my children.”

Christina acknowledged that under the current custody-sharing arrangement, most of the custody exchanges were carried out by her mother and Felipe’s wife. She described her relationship with Felipe’s wife as “a little complicated,” but claimed that was because Felipe had not been honest with her about his new relationship. She characterized the custody-sharing as “rocky” in the beginning, “but right now it’s good.” However, she also expressed resentment that Felipe’s wife, a pediatric nurse, communicated with her mother about matters concerning the children at the custody exchanges. She stated “my mom is cordial with her, but I feel that it’s something that a parent should [bring up] with a parent.”

Although Christina conceded Felipe was a good father—or at least that he had been when the children were younger—she questioned his motives for what she considered his sudden insistence on having an equal timeshare with the children when he had not wanted that previously. “The kids are four. He had this whole opportunity to take the same initiative from the beginning of birth, and now he is just taking it. So I see that [as] pretty disturbing in that part.”

In addition to Felipe and Christina, two other witnesses testified at trial: Cortez, the custody investigator; and an instructor for the Tiny Tots program the children attended. Cortez testified consistently with her written report, emphasizing that “once the case is closed, the investigation is completed, I do not follow-up on anything in regards to the case.” Thus, she has “no knowledge of any issues” after the period of her investigation. However, when asked to consider the hypothetical situation of Felipe having relocated to the area where Christina resides, Cortez agreed it was still her opinion that in those circumstances, there is no reason why the children would not be able to share equal time with both parents.

Cortez addressed the issue of Felipe’s wife being involved in custody exchanges. She initially agreed that such involvement did not comport with the “spirit of the message [she had] sent to these parties during [her] examination.” However, when Cortez was asked if it would surprise her to know that the other person usually involved in the custody exchanges was Christina’s mother, and was asked if the participation of a grandparent would also violate her “no other third parties” recommendation for custody exchanges, Cortez agreed it would.

Ultimately, Cortez agreed that sometimes a plan of “parallel parenting,” where each party cares for the children during their own custody periods, and interacts only during peaceful custody transfers, is the best approach in a high-conflict situation such as this one. She noted that because the children were only four years old, Felipe and Christina would have 14 more years to learn to work with each other with the goal of being “able to co-parent, and if they do have new significant others be part of this, that they all work together to make it a better situation for the children.”

In his closing argument, Felipe’s counsel stated that the “singular challenge, as pointed out by the child custody evaluator, is can [Felipe and Christina] effectively co-parent?” He asserted that while “they are on the road to recovery together[,] [i]t’s not that easy.” Counsel argued there was no evidence demonstrating “why [Felipe] should not equally share in the upbringing of these two lovely kids.” He also reiterated Felipe’s request for an award of retroactive and continuing child support, suggested a split of preschool expenses, and proposed that both parties continue providing “insurance as reasonably available through work and each party is to cover one half of the uncovered medical expenses.” In support of his claim for attorney fees, Felipe’s counsel argued that Christina “has used the children as pawns to control [Felipe’s] behavior,” and suggested Christina had floated the possibility of agreeing to a 50-50 custody split as a means of coercing Felipe into restricting his new wife’s influence over the children.

Christina’s counsel argued that the current parenting plan should be maintained because it was working well, and it allowed the children to spend the maximum amount of time with both parents at times when the parents themselves are available to be with them. Her counsel reiterated that she was seeking retroactive child support from November 2016, the date Felipe began his full-time employment, but not before, characterizing the parties’ support obligations as “a[]wash” before that date.

On September 26, 2017, the court served the parties with its ruling. In the ruling, the court made a factual finding that Felipe lived in Chino, and reasoned that giving him equal custody time would result in the children having to travel over 100 miles during a school day, which was not acceptable. The court thus concluded there should be no “major modification” in the custody schedule. The ruling specified that if the drop-off time was during school, the children should be dropped off at the school. Otherwise, it specified that “[a]ll exchanges shall be at the Brea Police Department,” a location the parties had been using while Felipe lived in Chino, and that “NO other third persons to be present during the exchanges.”

As to child support, the court found that although both parties agreed Felipe had been earning a gross salary of $5,445 per month since November 1, 2016, his paystub reflected that as of March 17, 2017, he had received year-to-date income of $21,780, which equated to $8,717 per month. Relying on that theoretical monthly income, the court determined that Felipe should pay Christina $1,174 per month in child support, for the period commencing November 1, 2016. Moreover, the court determined that based upon Felipe’s income before November 2016, he owed Christina retroactive child support of $689 per month for the period of January through October 2016. Finally, the court concluded Felipe should pay $3,500 of Christina’s attorney fees, based on his ability to pay and her need.

On October 13, 2017, Felipe filed a motion for reconsideration of the ruling, pointing out several apparent factual errors. Most significantly, he argued the ruling had relied on the erroneous finding that he lived in Chino as the primary basis for denying him equal custodial time with the children. He also pointed out that the ruling’s requirement that custody exchanges take place at the Brea Police Department was outdated, as he now lived in Anaheim Hills. Moreover, the requirement that no third parties be involved in the custody exchanges was inconsistent with the undisputed evidence that almost all exchanges were being carried out between Felipe’s wife and Christina’s mother due to the parents’ work schedules.

Felipe also pointed to errors in the numbers used by the court to calculate child support, including attributing Christina’s monthly income of $4,364 to him for the period of January through October 2016, rather than his own income of $1,849 from a part-time internship during most of that period.

Felipe also noted that the court had miscalculated his gross income beginning in November 1, 2016, as $8,717 per month, rather than $5,445 per month. He acknowledged that his April 1, 2017 pay stub, which the court had explicitly relied upon in calculating his annualized income, showed his year-to-date income through the March pay period as being $21,780. However, he explained the court had erred by interpreting the “3/17” designation of the relevant pay period as an indication the period had ended on March 17th, rather than as a reference to the entire month of March 2017. More significant, Felipe pointed out that because he gets paid on the first of each month, his year-to-date payment total as of April 1, 2017, included his pay for December 2016, which was not salary he had earned in 2017. Thus, when understood properly, Felipe’s April 1, 2017 paystub reflects the cumulative total of four monthly salary payments of $5,445 on January 1, February 1, March 1, and April 1—i.e., the $21,780 year-to-date figure.

Finally, Felipe claimed the evidence did not support the trial court’s determination he should pay a share of Christina’s attorney fees based on need and ability to pay, pointing to the fact that he had been the low-wage earner before commencing his full-time employment in November 2016, and that their incomes thereafter were comparable.

The court reconsidered its ruling, and served the parties with a new ruling on December 20, 2017. The court altered its findings regarding custody, noting that although Felipe had previously resided in Chino, he had “moved to Anaheim Hills[,] which is in close proximity to [Christina’s] residence.” The ruling acknowledged that Cortez’s report “basically states there is no reason as to why the children would not be able to share equal time with both parents, except for [Felipe’s] Chino residence,” and also found that is “in [the children’s] best interest to spend more time with their father.” Nonetheless the court ruled (1) the parties are “very resentful and angry with each other,” (2) Felipe had given his “girl-friend”—now his wife—“significant decision[] making powers over the children,” which “has added to the friction between the parents,” (3) Christina had been the children’s primary caretaker since the separation, and wanted to keep the status quo, and (4) Felipe has not assisted with support during most of the separation.

Based on those findings, the court again concluded that “a major change of custodial periods is not in the best interest of the children,” but expanded Felipe’s alternate weekend custody periods to commence on Thursday after school, rather than on Friday evenings, until Monday at 8:00 a.m. The court also extended Felipe’s weekly Wednesday overnight period to commence from after school or at 8:00 a.m. on Wednesday, rather than on Wednesday evening, until Thursday at 8:00 a.m. Taken together, this schedule gives Felipe custody from Wednesday until Monday morning on alternative weeks, and from Wednesday morning until Thursday morning on the other weeks. This amounts to a 40 percent share of custodial time.

Regarding drop-off locations, the court concluded that “if children are in school, the drop off [is] to be at the minor[s’] school, if no school drop off at mother’s home,” which is identical to the provision Christina requested. However, the court retained the separate, and now seemingly contradictory, provision mandating that “all exchanges shall be at the Brea Police Department. Unless agreed to otherwise in writing by the parties,” as well as the provision prohibiting any “other third persons to be present during the exchanges.”

The court also modified its finding as to Felipe’s income for the period of January through October 2016, apparently imputing income of $3,800 per month based on a determination he was “spending at least earning $3,800” during that period. The court did not amend its finding that Felipe’s April 1, 2017 check stub demonstrated he was earning “a monthly average of $8,717” beginning in November 2016. Consequently, the court ordered Felipe to pay Christina: (1) retroactive child support of $538 per month for the period of January through October 2016; (2) retroactive child support of $1,174 per month for the period of November 2016 to January 2018, based on a 30 percent custodial timeshare; and (3) child support of $845 per month from and after January 2018 based upon a 40 percent custodial timeshare. The retroactive support amounts—which added up to approximately $16,600, were required to be paid at a rate of $150 per month.

The court did not alter its award of $3,500 in attorney fees to Christina.

On January 16, 2018, Felipe filed objections to the trial court’s reconsidered ruling, raising many of the same points asserted in his motion for reconsideration of the court’s first ruling. He also sought clarification of certain issues, and suggested the court’s ruling implied it had not considered the trial testimony of Cortez or the children’s Tiny Tots instructor. On February 14, 1018, Felipe filed a formal request that the court modify its rulings regarding custody and support, reiterating the objections he had stated in January. On April 5, 2018, the court served its ruling notifying the parties it was overruling Felipe’s objections, and signed the judgment prepared in accordance with its ruling.

In June 2018, the court denied Felipe’s motion for new trial.

DISCUSSION

1. Claimed Error in Percentage of Shared Custody

Felipe first contends the court erred by refusing to award him an equal custodial timeshare with the children. This is a difficult claim to prevail upon because the trial court has “‘“the widest discretion”’” to choose an initial parenting plan that serves the best interest of the child in light of all relevant factors (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955), “including the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents.” (Id. at p. 956; see Fam. Code, § 3011 [setting forth best interest factors].) The court may ultimately “award custody either to both parents (joint or shared custody) or to only one parent (sole custody).” (Brown, at p. 956.)

“We review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard to the court’s factual findings.” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) On review for substantial evidence, we view the evidence in the light most favorable to the court’s findings; the testimony of a single witness, even the party himself, may be sufficient. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) We do not reweigh the evidence, resolve conflicts in the evidence, or make determinations as to credibility. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204.)

Felipe begins his argument with the assertion that Family Code section 3020, subdivision (b), reflects a policy that “each parent is entitled to joint physical custody unless there is some reason why such an arrangement would be detrimental to the children.” Not so. Instead, the statute concerns itself with the children’s best interests, reflecting a policy that children should have a “frequent and continuing contact with both parents . . . , except when the contact would not be in the best interests of the child.” (Fam. Code, § 3020, subd. (b).) The statute does not “specify a preference for any particular form of ‘contact.’ Nor does it include any specific means of effecting the policy, apart from ‘encourag[ing] parents to share the rights and responsibilities of child rearing.’” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 35.) Consequently, we reject Felipe’s implicit assertion that he is presumptively entitled to an equal share of custodial time with the parties’ children.

Felipe also points to the fact that Family Code section 3082 requires the court to “state in its decision the reasons for granting or denying the request,” and suggests the court’s findings in this case failed to satisfy that requirement. Again, we disagree.

Felipe asserts the court’s finding that “these parents are very resentful and angry with each other” is unsupported by the record, as is its finding that both parents “believe the other parent is not [sincere and concerned for the children’s well being].” In making those assertions, Felipe ignores substantial evidence concerning the anger both parties harbor toward one another. Among other things, each party accused the other of having questionable and ulterior motives underlying its position on the division of custody. To us, the apparent level of mutual animosity is striking.

Felipe asserts the trial court had no evidence to support its concern that he had added to the friction with Christina by giving his new wife significant decision making powers over the children. According to Felipe, “[b]y the time of [t]rial, there was no substantial evidence to support [that] finding[].” We must again disagree. Christina’s testimony reflected her continuing resentment over the fact that Felipe’s new wife was directly involved in the care of her children.

For similar reasons, we are unpersuaded by Felipe’s claim that the court’s custody ruling was tainted by its allegedly erroneous finding there were three prior incidents of conflict between Christina and Felipe’s wife, rather than just two. In light of the substantial evidence that the animosity between the two has lingered, at least on Christina’s side, that difference is of no consequence.

Felipe claims the trial court committed prejudicial error when it cited the fact that he “has not assisted with support during most of the separation” as part of its reasoning for rejecting any “major change of custodial periods.” Felipe concedes this finding is “ambiguous” and asserts only that “[i]t appears the court is using the alleged nonpayment of child support as a reason for limiting [his] custodial time.” But we are obligated to construe ambiguous findings in a manner that supports the ruling. (In re Marriage of Arceneaux (1990 51 Cal.3d 1130, 1133 [“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness”].) Thus, in the absence of an unambiguous finding that Felipe’s past failure to assist with support payments justifies a reduction in his custodial time, we will not draw such an inference.

For the same reason, we are unpersuaded by Felipe’s claim that the trial court erred by failing to consider all of the evidence at trial. It is true that the court’s ruling reflects that it “heard from the parties, reviewed the Child Custody Investigation Report . . . , reviewed all of the pleading[s] submitted by the parties and heard argument by the parties,” and then states, several paragraphs later (after reciting factual findings) that it makes its custody ruling “[b]ased on the evidence, stated above.” But the court made no explicit statement that it disregarded other evidence presented at trial. In the absence of such a statement, we will not infer that it did. In any event, we could not conclude that a failure to consider the evidence not expressly mentioned—consisting of the testimony offered by the Tiny Tots instructor and Cortez—would have been prejudicial. The instructor’s testimony was brief and largely non-substantive, and Cortez’s testimony made clear she had formed no new opinions following the submission of her report.

Finally, Felipe contends the court erred by omitting any findings of fact relating to Cortez’s purported “recommendation[]” that he “be awarded joint physical custody of the minor children, with an equal custodial timeshare” if he resided in close proximity to Christina. But the court’s ruling did include a finding that Cortez’s report “basically states there is no reason as to why the children would not be able to share equal time with both parents, except for father’s Chino residence,” as well as a finding that “[a]fter the Report was written, [Felipe] moved to Anaheim Hills which is in close proximity to [Christina’s] residence.” Thus, it is clear the court incorporated Cortez’s recommendation into its analysis.

As we have already noted, the court was not required to follow Cortez’s recommendations. The court acted within its discretion by concluding that, in light of the parents’ differing work hours and the fact that Felipe’s proposal for equally shared custody would include placing the children in professional daycare for extended periods each workday, it was not in the children’s best interest to make that significant change in the year before they started kindergarten. In any event, Cortez made no firm recommendation that Felipe be given equal parenting time if he moved closer to Christina. Instead, she indicated that if Felipe moved closer to Christina “an equal parenting schedule . . . may be considered.”

In light of the foregoing, we find no error in the trial court’s custody ruling.

2. Claimed Error in Custody Exchange Provision

Felipe next contends the court abused its discretion by including a provision in the judgment requiring that the parties carry out transfers of custody at the Brea Police Department, unless agreed to otherwise in writing by the parties, and that no third parties could be present for the exchanges. Felipe argues this provision was an abuse of discretion because the Brea Police Department was chosen during the time when he lived in Chino, but it is no longer a convenient location for either party since his move to Anaheim Hills. Moreover, the prohibition on third-party involvement in the exchanges flies in the face of the undisputed evidence that both parents have regularly relied on third parties—Felipe’s wife and Christina’s mother—to carry out the exchanges.

We agree. At trial neither party requested that custody exchanges take place at the Brea Police Department. To the contrary, Christina requested an order that all exchanges take place either at the children’s school or at her residence, and it appears the court also included that requirement in its ruling—thus rendering the additional Brea Police Department provision somewhat contradictory and redundant. Christina does not defend it in her respondent’s brief.

Similarly, the prohibition on third party involvement in custody exchanges is puzzling because the evidence demonstrated that as of the time of trial, both parties had been routinely relying on others to carry out custody exchanges, with no apparent problems.

Both the Brea Police Department location and the prohibition on third party presence at exchanges are provisions recommended by Cortez in her report. Whatever merit they had at the time that report was issued, changing circumstances rendered them inappropriate by the time of trial. We consequently agree those provisions must be stricken from the judgment.

3. Clamed Errors in Child Support Calculation

Felipe next contends the court erred in its child support orders. Again, we agree. Christina explicitly waived any claim for child support from Felipe for the period before he began his full-time employment in November 2016. She stated both in her trial brief, and then again in her closing argument, that she was seeking no child support for any period prior to November 2016. She characterized the parties’ separate contributions to the children’s support to be “a[]wash” during that period.

In light of Christina’s concession, and the fact she offered no evidence or argument supporting the trial court’s attribution of $3,800 in income to Felipe during this period—when the undisputed evidence was that he was earning far less from a part-time internship—we conclude the court erred by ordering Felipe to pay child support to Christina for the period prior to November 2016.

The trial court also erred by attributing gross income of $8,717 per month to Felipe from and after November 2016. The evidence was undisputed that Felipe was earning only $5,445 per month in his full-time employment. Not only did he swear to it in his income and expense report, but Christina acknowledged it in her trial brief. And the two check stubs provided by Felipe in connection with his income and expense report demonstrated $5,445 was his gross income per pay period.

The court’s ruling reflects that it based its determination that Felipe’s gross income was $8,717 per month on his year-to-date income figure—which the court seems to have erroneously presumed reflected income earned entirely in 2017—and on the court’s belief that Felipe’s most recent pay period had concluded on March 17, rather than at the end of March. This was error. We consequently reverse the award of child support to Christina for the period commencing in November 2016, and remand the issue to the trial court with directions to reconsider the issue in light of Felipe’s correct income.

We reject Felipe’s other claims of error in connection with the child support ruling. He contends the court erred by failing to impute his new wife’s income, but does not explain how imputing the income of his high-earning spouse to him would affect the calculation of his child support, let alone how it prejudices him. We consequently treat the issue as waived.

We also reject Felipe’s assertion that the court erred in awarding arrearages because the court made no findings on arrearages and Christina “presented no evidence at trial that she has calculated arrearages.” It was Felipe’s consistent contention that Christina should be ordered to pay child support to him during all relevant periods. But he conceded during trial that he had paid her no child support since November 2015. And the court found Felipe “has not assisted with support during most of the separation.” Given those circumstances, there were no “arrearages” to be calculated. Instead, all that needed to be done was to establish the amount of child support Felipe was responsible for during any relevant periods, and then calculate the total. The court’s ruling did exactly that.

4. Error in Awarding Attorney Fees

Felipe challenged the court’s order that he pay $3,500 of Christina’s attorney fees. In making that award, the court specifically relied on Felipe’s “ability to pay a contributive share of [Christina’s] attorney fees.” However, the court made that determination at a time when it erroneously believed Felipe was earning $8,717 in monthly income, rather than $5,445. We consequently reverse that order and remand the issue to the trial court for reconsideration in light of Felipe’s actual income.

5. Claimed Error in Delaying the Hearing on Felipe’s Request for Order
Establishing Support

Finally, Felipe contends he was unfairly prejudiced by the numerous continuances of his RFO. However, he does not contend he objected to any of the continuances at the time they were requested or granted, and our record includes no indication that he did. The first continuance was prompted by the fact Felipe’s counsel was having surgery, and another was occasioned by the court’s grant of Felipe’s request for the appointment of the child custody investigator.

In the absence of a record demonstrating Felipe registered objections to the court’s continuances of his RFO, either at the time those continuances were requested or granted, he has waived any claim of error. “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1.)

DISPOSITION

We are mindful of the heavy caseloads carried by Orange County’s conscientious and hardworking family court judges. The judgment is nonetheless reversed to the extent it requires the parties to transfer custody of their children at the Brea Police Department, with no third parties present, and requires Felipe to pay child support and a share of Christina’s attorney fees. The case is remanded to the trial court with directions to reconsider the issue of whether Felipe must pay Christina child support for the period from and after November 2016, as well as the issue of whether Felipe must pay a share of Christina’s attorney fees, in light of Felipe’s correct gross income. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.