California Court of Appeal Apr 1, 2022 No. E075065Unpublished
Filed 4/1/22 Marriage of Kinney CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re the Marriage of RACHEL AND WILLIAM KINNEY.
RACHEL LYNN ANN KINNEY, E075065 Respondent, (Super.Ct.No. FAMSS1807599) v. OPINION WILLIAM FREY KINNEY,
Appellant;
SAN BERNARDINO COUNTY CHILD SUPPORT SERVICES,
Respondent.
APPEAL from the Superior Court of San Bernardino County. J. Bruce Minton,
William’s objection, the family court granted the motion and ordered that he pay $2,226 a
month in child support.
William timely appealed, but he presents no reasoned legal argument in his
opening brief why the family court erred. For instance, he does not inform this court of
the appropriate standard of review or explain why, when applying the facts to that
standard, the family court committed prejudicial error that must be reversed. William
responded to the department’s (represented by the Attorney General) assertion that his
brief is completely deficient. But, to the extent he somewhat expands upon his claim of
error in his reply brief, it was too little too late.
In addition, William raises a vague claim of error about the garnishment of his
pension to pay his child support obligation, but the garnishment started after the family
1 For the sake of clarity, we refer to the parties by their first names. We mean no disrespect. (See In re Marriage of Pletcher (2021) 68 Cal.App.5th 906, 909, fn. 1.)
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court entered its postjudgment order and it was accomplished by an administrative order
by the department, not by an order or judgment of the family court. Consequently, we
have no jurisdiction to address that claim. The appeal is dismissed.
I.
FACTS AND PROCEDURAL BACKGROUND
On April 23, 2019, the family court entered a stipulated judgment dissolving
William’s and Rachel’s marriage. The parties agreed that Rachel would have sole legal
and physical custody over their two minor children and that William would have no
visitation. They also agreed that the family court should set William’s child support
obligation at zero.
On November 14, 2019, the department filed a motion to modify William’s child
support obligation.2 William opposed the motion claiming that, if his child support
obligation were modified, it should not be in the amount prayed for by the department,
$2,226 a month. Inter alia, he argued the department’s motion failed to properly consider
Rachel’s income and William’s liabilities, to wit, his federal and state taxes, spousal and
child support obligations from prior marriages, and health care premiums.
William, who is incarcerated, made no appearance for the January 24, 2020
hearing on his opposition to the department’s motion. Rachel, who appeared
telephonically, testified William receives a full military retirement of $43,140 annually
and Veteran’s Administration (VA) disability benefits of $1,194 a month. She also
2 William did not list the motion in his amended designation of record on appeal, so it was not included in the clerk’s transcript.
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testified that she spent $1,170 a month on childcare for the children. Based on William’s
income, counsel for the department argued William’s child support obligation under the
statewide child support guidelines would be $2,226 a month. Counsel asked that the
family court make the obligation effective December 1, 2019. The family court granted
the motion.
In its formal order entered February 3, 2020, the court indicated William’s child
support obligation of $2,226, under the statewide guidelines, reflected a $1,113 hardship
deduction and a $581 health insurance deduction for Rachel. The court found William
was still receiving his pension and VA benefits. On February 7, 2020, the department
served the order on William by mail.
William timely filed a notice of appeal on May 29, 2020.
II.
DISCUSSION
In its brief, the department requests that this court strike William’s opening brief
because it fails to comply with the content requirements set forth in rule 8.204(a) of the
California Rules of Court. (See Cal. Rules of Court, rule 8.204(e)(2)(B) [Court of Appeal
may, in its discretion, strike a noncomplying brief.].) We decline to strike the brief.
However, because William presents no reasoned argument why this court should
conclude the family court erred and why such error is reversible, we dismiss the appeal.
“‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
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practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564, first italics in original, second italics added; see
Cal. Const., art VI, § 13 [reviewing court may reverse the superior court only if it finds
“the error complained of has resulted in a miscarriage of justice.”]; Code Civ. Proc.,
§ 475 [“There shall be no presumption that error is prejudicial, or that injury was done if
error is shown.”].)
The sine qua non of an appellate brief is cogent legal argument. “Each brief must:
[¶] . . . [¶] State each point under a separate heading or subheading summarizing the
point, and support each point by argument and, if possible, by citation of authority . . . .”
(Cal. Rules of Court, rule 8.204(a)(1)(B), italics added; see id., rules 1.5(b)(1) [“‘Must’ is
mandatory.”], 8.7 [“The rules of construction stated in rule 1.5 apply to these rules.”].)
As the leading practice guide on California civil appeals explains, “Written briefs
comprise the heart of the appellate process. While the appellate record provides the
context for arguing an appeal . . . , the appellate briefs are the primary vehicle for
presenting the argument and persuading the court that your . . . position is correct.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021)
¶ 9:1, p. 9-1.) “The primary role of an appellate brief is to convince the reviewing court
of the merits of your . . . position . . . .” (Id. ¶ 9:3, p. 9-1; accord, 1 Appeals and Writs in
Criminal Cases (Cont.Ed.Bar 3d ed. 2021) § 4.40, p. 4-53 [“A brief is an exercise in
persuasion”].)
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“‘One cannot simply say the court erred, and leave it up to the appellate court to
figure out why.’” (Jewish Community Centers Development Corp. v. County of Los
Angeles (2016) 243 Cal.App.4th 700, 716.) “The reviewing court is not required to
develop the parties’ arguments or search the record for supporting evidence and may
instead treat arguments that are not developed or supported by adequate citations to the
record as waived.” (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 684.) When an appellant fails to cite relevant legal authority in support of his or her
claim of error, “we may ‘treat the points as waived, or meritless, and pass them without
further consideration.’” (In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 561.)
Moreover, “‘[F]ailure of an appellant in a civil action to articulate any pertinent or
intelligible legal argument in an opening brief may, in the discretion of the court, be
deemed an abandonment of the appeal justifying dismissal.’” (Flores v. Department of
The same rules apply to appellants appearing in propria persona. “A self-
represented party is to be treated like any other party and is entitled to the same, but no
greater, consideration than other litigants having attorneys.” (Elena S. v. Kroutik (2016)
247 Cal.App.4th 570, 574.)
Minus the certificate of interested entities or persons, tables of contents and
authorities, and the proof of service, William’s opening brief is seven pages long. Under
the heading “Nature of Action and Appealability,” William states the family court failed
to consider his opposition to the department’s motion, considered things it should not
have when it calculated his child support obligation, and failed to consider other things.
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He then states, without any citation to appropriate legal authority, “For all of the above
reasons, the Appellant considers the Superior Court’s judgment in this case to be
appealable.”3 Last, under the heading “Specific Relief Sought From the Superior Court,”
William sets forth what he expects the family court to do on remand if this court reverses
the postjudgment order. But, other than the bare assertion that the family court should or
should not have considered certain things when calculating his child support obligation,
William does not explain how that amounted to error and, if it was an error, how he was
prejudiced by that error such that we must reverse the order.
For instance, William does not inform us what is the appropriate standard of
review we must apply, and he does not explain why—when the facts of the case are
applied to that standard of review—we must conclude the family court erred
prejudicially. We review an order modifying a child support obligation for abuse of
discretion and may reverse only if we find prejudicial error. (In re Marriage of
Rodriguez (2018) 23 Cal.App.5th 625, 633.) “As long as the trial court exercised its
discretion along legal lines, its decision will be affirmed on appeal if there is substantial
evidence to support it.” (Ibid.) “‘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
3 The family court’s February 3, 2020, order is appealable. (Code Civ. Proc., § 904.1, subd. (a)(2) [appeal may be taken from an order made after an appealable judgment], (a)(10) [appeal may be taken from “an order made appealable by . . . the Family Code”]; Fam. Code, § 3554 [orders and judgments in support cases may be appealed “as in other civil actions.”]; see In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554.)
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prevailing party as true and discard contrary evidence. [Citation.]’ [Citation.] ‘We do
not reweigh the evidence or reconsider credibility determinations.’” (In re Marriage of
Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) Those standards of review
require that we give deference to the family court’s ruling and its express and implied
findings of fact. Because William has not articulated why the family court’s order fails
under those standards, we simply cannot reverse the order.
In response to the department’s request that we strike William’s opening brief, he
states that he did, in fact, comply with the content requirements of rule 8.204 of the
California Rules of Court. To the extent William’s reply brief contains some attempt to
develop his claims of error, “it is too late. We disregard issues not properly addressed in
the appellant’s opening brief.” (Aviel v. Ng (2008) 161 Cal.App.4th 809, 821.)
Finally, to the extent William argues error in the department’s enforcement of his
child support obligation by garnishing his pension, we have no jurisdiction to consider
that claim.4 This court’s appellate jurisdiction is limited to reviewing final judgments
and appealable orders of the superior court. (Cal. Const., art. VI, § 11, subd. (a); Code
Civ. Proc., §§ 901, 904, 904.1 & 906; see Cal. Rules of Court, rules 8.10(4)-(5),
8.100(a)(1).) The garnishment of William’s pension was not accomplished by an order
or judgment of the family court. Instead, it was an administrative order by the
4 In his reply brief, William purports to “concede[] the Attorney General’s point that his claim [about the garnishment] is not properly before the Appellate Court,” but he proceeds to explain why his argument has merit.
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department in furtherance of its statutory duty to collect and enforce child support
644.) The record does not reflect that he did either of those things. Unless and until
William exhausts his administrative remedies and appeals from an order of the superior
court denying him mandamus relief, this court has no jurisdiction whatsoever to consider
his claim about the garnishment order.5
5 Moreover, even if the garnishment of William’s pension had been accomplished by a subsequent judgment or appealable order of the family court, we would still lack jurisdiction to consider his claim of error because his notice of appeal is clearly and unambiguously limited to the family court’s February 3, 2020 postjudgment order that did no more than grant the department’s motion. “‘“Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.’” (In re J.F. (2019) 39 Cal.App.5th 70, 75.)
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III.
DISPOSITION
The appeal is dismissed. In the interests of justice, the parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the appellant failed to provide reasoned legal argument or citations to authority in his opening brief, and the court lacked jurisdiction to review an administrative garnishment order not issued by the family court.
Issues
Whether the appellant's opening brief provided sufficient legal argument to warrant appellate review of the child support modification order.
Whether the appellate court has jurisdiction to review an administrative garnishment order issued by the Department of Child Support Services.
Disposition. dismissed
Quotations verified verbatim against the opinion
“because William presents no reasoned argument why this court should conclude the family court erred and why such error is reversible, we dismiss the appeal.”