California Court of Appeal Feb 24, 2015 No. D065540Unpublished
Filed 2/24/15 Marriage of Atchison CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of MARVIN J. and ANGELA ATCHISON. D065540 MARVIN J. ATCHISON,
Appellant, (Super. Ct. No. DN175065)
v.
ANGELA ATCHISON,
Respondent.
APPEAL from an order of the Superior Court of San Diego County, Kelly C.
Dowlan, Commissioner. Affirmed.
Patrick L. McCrary for Appellant.
Dennis Temko and Stephen Temko for Respondent.
INTRODUCTION
Marvin J. Atchison (Marvin) appeals from a family court order filed January 16,
Marvin and Angela were married five and a half years and have three young
children. In June 2013 Marvin petitioned for dissolution of the marriage. Along with his
dissolution petition, he submitted an income and expense declaration stating he was a
surgeon, he was paid $33,000 per month, he had self-employment income of $29,100 the
prior month, and he had average monthly self-employment income of $27,725.
In July 2013 Angela filed a request for order (request) awarding her child support
according to the statewide uniform child support guideline (Fam. Code, § 4050 et seq.)
and an unspecified amount of spousal support. As part of his response to her request,
Marvin filed another income and expense declaration. This declaration stated he was
1 "As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect." (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
2 As Marvin has not raised any issues regarding attorney fees in his opening brief, he has forfeited his appeal of those issues. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1478.)
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paid $15,375 a month, he earned a salary or wages of $18,000 the prior month, his
average monthly salary or wages was $15,375, he had dividend/interest income of
$3,225.41 the prior month, and his average monthly dividend/interest income was
$3,225.42.
Following a hearing in August 2013, the court issued an order awarding Angela
interim monthly child support of $1,807 and interim monthly spousal support of $4,025,
retroactive to August 1, 2013. The order was based in part on findings Marvin had
monthly self-employment income of $33,527 and other monthly income of $6,000.
Following a hearing in September 2013, the court issued an order increasing
interim monthly child support to $5,219 a month and reducing interim monthly spousal
support to $3,000. The order was based in part on findings Marvin had monthly self-
employment income of $33,527 and other monthly income of $3,225. The order reserved
jurisdiction to adjust spousal support retroactive to August 1, 2013, after the court
reviewed Marvin's year-to-date income from all sources. The order directed him to
provide year-to-date income information and an updated income and expense declaration
to the court and Angela's counsel prior to the next hearing. Following a hearing in
October 2013, the court again ordered Marvin to "provide the Court with his current
income information on a year to date statement."
In November 2013 Marvin submitted a personal declaration stating he receives
income from four sources: a medical group, a surgical center, a consulting business, and
as an on-call trauma surgeon. He stated he had only earned $1,000 in 2013 from the
consulting business, but had average monthly income from the other sources totaling
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$31,954. He submitted a companion income and expense declaration also stating he had
self-employment income of $31,954 per month.
Following a hearing the same month, the court issued an order stating in part:
"1. The Court previously ordered that [Marvin] was to provide the Court prior to each of the last two hearings an updated Income and Expense Declaration with documentation attached, verifying all year to date income from all sources including but not limited to: [¶] (a) A copy of all pay stubs year to date including all checks received for services rendered; (b) Documentation showing all money received from his Medical Practice year to date; [and] (c) Documentation of all dividends received by [him] during 2013, year to date.
"2. [Marvin] did not provide an updated [income and expense declaration] with all of the attachments documenting his entire year to date income from all sources, for this hearing.
"3. The Court orders that [Marvin] must provide all of the previously ordered year to date income information from all sources attached to an updated [income and expense declaration] filed with the Court and served on [Angela's counsel] by no later than December 4, 2013.
"4. The Court continues to reserve on the issues of Modification of Interim Child Support and Interim Spousal Support based on the actual year to date income of [Marvin]."
In December 2013 Marvin submitted a notice of lodgment with 10 exhibits. The
exhibits included: an itemization of compensation checks he received from July 1, 2012
to June 15, 2013; deposit details for one bank account; statements from three other bank
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accounts; federal income tax returns for 2010 through 2012; and state income tax returns
for 2011 and 2012.3
Following a hearing the same month, the court issued an order increasing interim
monthly child support to $5,380 and interim monthly spousal support to $4,000,
retroactive to November 1, 2013. The court based its order in part on findings Marvin
had monthly self-employment income of $33,527 and other monthly income of $3,225.
The court explained, "The Court had requested [Marvin] to provide his year-to-date
income. [He] failed to provide this for the Court[.] Therefore, the Court could only use
the prior income of $33,527.00 that [he] previously testified and submitted to the Court in
August as his current income."
DISCUSSION
I
Marvin's Monthly Income
Marvin contends there was insufficient evidence to support the court's finding his
monthly self-employment income was $33,527. Rather, he contends the evidence
showed his monthly income was $31,954.
We review support orders for abuse of discretion. (In re Marriage of Dietz (2009)
176 Cal.App.4th 387, 398; In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730.)
"In so doing, we determine ' "whether the court's factual determinations are supported by
3 It is not clear from the record whether the court admitted these documents into evidence. The record shows the court received the notice of lodgment; however, the record does not show the court filed the notice of lodgment. 5
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
determine only if any judge reasonably could have made such an order.' " (In re
Marriage of Alter, supra, at pp. 730-731. )
In this case, Marvin is precluded from challenging the sufficiency of the evidence
underlying the court's finding because he has not provided a record of the oral
proceedings where the court made the finding. (Aguilar v. Avis Rent A Car System, Inc.
(1999) 21 Cal.4th 121, 132; see Krueger v. Bank of Am. (1983) 145 Cal. App.3d 204, 207
[An appeal without a record of the oral proceedings "is considered to be upon the
judgment roll alone. [Citations.] . . . The trial court's findings of fact and conclusions of
law therefore are presumed to be supported by substantial evidence and are binding upon
us, unless the judgment is not supported by the findings or reversible error appears on the
face of the record."].)
Moreover, the disputed order states the court based its finding on Marvin's sworn
testimony at an earlier hearing because he repeatedly failed to provide his year-to-date
financial information to the court and Angela's counsel. Although Marvin contends he
provided the requested information, the record belies this contention and instead shows
he provided conflicting, incomplete, and dated information about his income. Marvin,
therefore, has not shown the court exercised its discretion unreasonably.
Finally, even assuming the court erred by basing its determination on Marvin's
prior sworn testimony rather than the documents he provided, he has not established the
error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13 ["No judgment shall
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be set aside . . . in any cause, on the ground of . . . the improper admission or rejection of
evidence . . . unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice."]; Code Civ. Proc., § 475; In re Marriage of Khera & Sameer, supra, 206
Cal.App.4th at p. 1484.) As Angela points out in her brief, the documents supplied by
Marvin showed his average monthly income actually exceeded $33,527. Thus, Marvin
has not established it is reasonably probable the court would have ordered him to pay less
interim child or spousal support absent the claimed error.
II
Notice of Amount of Spousal Support Request
Marvin contends the order awarding Angela interim spousal support is void
because she failed to specify the amount of spousal support she was seeking in her
request, depriving him of adequate notice. Angela contends Marvin failed to establish he
preserved this issue for appeal. She further contends he waived this issue by litigating the
matter on the merits. We agree with both of Angela's contentions.
Nothing in the record shows Marvin ever objected to the absence of notice of the
amount of spousal support Angela sought. " 'Typically, constitutional issues not raised in
earlier civil proceedings are waived on appeal.' " (Fourth La Costa Condominium
Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 585.)
Further, the record shows Marvin opposed Angela's request for interim spousal
support on the merits and participated in multiple hearings on the matter. " 'It is well
settled that the appearance of a party at the hearing of a motion and his or her opposition
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to the motion on its merits is a waiver of any defects or irregularities in the notice of
motion. [Citations.] This rule applies even when no notice was given at all. [Citations.]
Accordingly, a party who appears and contests a motion in the court below cannot object
on appeal . . . that he had no notice of the motion or that the notice was insufficient or
defective.' " (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Arambula v. Union
The order after hearing filed January 16, 2014, is affirmed. Respondent is
awarded costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the family court's order awarding interim child and spousal support, finding that the appellant failed to provide a sufficient record to challenge the income findings and waived his notice objections by litigating the merits.
Issues
Whether the trial court's finding of the appellant's monthly self-employment income was supported by substantial evidence.
Whether the trial court's order for interim spousal support was void due to lack of notice regarding the specific amount requested.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Marvin is precluded from challenging the sufficiency of the evidence underlying the court's finding because he has not provided a record of the oral proceedings where the court made the finding.”
“a party who appears and contests a motion in the court below cannot object on appeal . . . that he had no notice of the motion or that the notice was insufficient or defective.”