Marriage of Gonzalez CA4/1 ( 2021 )

Filed 4/19/21 Marriage of Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 LUPITA and
JESUS GONZALEZ.
D077467
LUPITA GONZALEZ,
Respondent, (Super. Ct. No. EFL18851)
v.
JESUS GONZALEZ,
Appellant.
APPEAL from an order of the Superior Court of Imperial County, Eran
Bermudez, Judge. Affirmed.
La Quinta Law Group and Timothy L. Ewanyshyn for Appellant.
No appearance for Respondent.
I
INTRODUCTION
Jesus Gonzalez (Husband) appeals an order denying his request to
terminate spousal support for his ex-wife Lupita Gonzalez (Wife). He
contends the trial court erred in denying his termination request on grounds
that a material change of circumstances warranted termination of the
spousal support. We affirm.
II
BACKGROUND
Husband and Wife were married for approximately 16 years and had
two children together. They separated and a judgment for dissolution of
marriage was entered in 2016. The judgment for dissolution of marriage is
not included in the appellate record.
In 2018, the trial court ordered Husband to pay spousal support to Wife
in the amount of $1,334 per month. The spousal support order is not
included in the appellate record.
On July 12, 2019, Husband filed a request to terminate spousal support
for Wife based on an alleged material change of circumstances. According to
Husband, a change of circumstances existed for two reasons. First, Husband
alleged Wife began cohabitating with a new boyfriend in early 2019. Second,
Husband alleged Wife obtained new employment at a school. In a report filed
together with Husband’s request to terminate spousal support, a private
investigator averred he was hired by Husband to verify Wife’s living
arrangements. The private investigator alleged he surveilled the boyfriend’s
home and witnessed Wife and her children exiting the boyfriend’s home on
two occasions.
There is no order adjudicating Husband’s request to terminate spousal
support included in the appellate record. However, Husband asserts in his
appellate brief that the trial court denied his request because he failed to file
an Income and Expense Declaration together with his request.
2
On September 27, 2019, Husband filed a second request to terminate
spousal support for Wife. He largely reiterated the allegations of his initial
request, but added that he had received documentation from Wife’s new
employer verifying she worked as an instructional aide. Husband asserted
the spousal support was “designed to assist [Wife] while she was single and
didn’t have a stable job,” but Wife was “no longer single and [was] working a
stable job.”
Father filed an Income and Expense Declaration together with his
second request to terminate spousal support. The Income and Expense
Declaration stated Husband earned $9,734.90 in salary and wages in the
prior month while working as a police officer. It stated Husband had
$5,827.14 in average monthly expenses including $3,500 in child support and
spousal support.
On November 6, 2019, Wife filed a responsive declaration requesting
that the court maintain the existing spousal support order. In an attachment
to her declaration, Wife conceded she lived with her boyfriend and was
employed at a school. However, she averred the judgment of dissolution of
marriage incorporated an “agreement” that an increase in Wife’s income
“could not be considered a change of circumstances unless [her] income
increased by more than $2,000 per month.” According to Wife, “[t]hat
provision was included because [she] initially agreed to a much lower amount
of support than [she] would have been entitled to based on [her] actual
income at that time.” Wife alleged her income at the time of the judgment of
dissolution of marriage was $1,334 per month and her current income was
$2,287 per month. Because the increase in income was less than $2,000, Wife
asserted there was no change in circumstance warranting a reduction of
spousal support. Additionally, Wife alleged that although cohabitation with
3
her boyfriend reduced her monthly housing-related costs by $275, she had
increased out-of-pocket healthcare costs of “at least $200 per month.”
The register of actions, Wife’s responsive declaration, and the
attachment to Wife’s responsive declaration all indicate that Wife filed an
Income and Expense Declaration together with her responsive declaration.
However, Wife’s Income and Expense Declaration is not included in the
appellate record.
A hearing regarding Husband’s request to terminate spousal support
took place. Thereafter, the trial court issued a written order denying the
request without elaboration.
III
DISCUSSION
A
Applicable Family Law
“The trial court has broad discretion to decide whether to modify a
spousal support order based on a material change of circumstances.” (In re
Marriage of Terry (2000) 80 Cal.App.4th 921, 928; see In re Marriage of
Tydlaska (2003) 114 Cal.App.4th 572, 575 [“The trial court has broad
discretion to decide whether to modify a spousal support order.”].)
In its exercise of discretion, “the trial court is required to reconsider the
same standards and criteria set forth in ... Family Code section 4320 it
considered in making the initial long-term [support] order at the time of
judgment and any subsequent modification order.’ [Citation.] These criteria
include, among other things, the earning capacity of each party, the ability of
the supporting party to pay spousal support, the needs of each party, the age
and health of the parties, the balance of hardships to the parties, and any
4
other factors the court determines are just and equitable.”1 (In re Marriage
of Berman (2017) 15 Cal.App.5th 914, 920.) For example, the court may
consider whether the supported spouse cohabitates with another adult person
because “ ‘sharing a household gives rise to economies of scale ... [and] the
cohabitant’s income may be available to the [supported] spouse.’ ” (In re
Marriage of Bower (2002) 96 Cal.App.4th 893, 899; see § 4323, subd. (a)(1)
[setting forth a rebuttable presumption of a decreased need for support if the
supported party is cohabiting with a nonmarital partner].)
“When support is governed by a marital settlement agreement or
stipulated judgment, the trial court’s changed-circumstances determination
must ‘ “ ‘give effect to the intent and reasonable expectations of the parties as
expressed in the agreement.’ ” ’ ” (In re Marriage of T.C. & D.C. (2018) 30
Cal.App.5th 419, 424 (T.C.).) “ ‘ “[T]he trial court’s discretion to modify the
spousal support order is constrained by the terms of the marital settlement
agreement.” ’ ” (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 956.)
We review an order on a request to modify spousal support for abuse of
discretion. (T.C., supra, 30 Cal.App.5th at p. 423.) “ ‘ “ ‘ “So long as the court
exercised its discretion along legal lines, its decision will not be reversed on
appeal if there is substantial evidence to support it.” ’ ” ’ ” (Id. at pp. 423–
424; see In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235 [if
a trial court follows “ ‘established legal principles and base[s] its findings on
substantial evidence … its order will be upheld whether or not the appellate
court agrees with it or would make the same order if it were a trial court’ ”].)
1 Further statutory references are to the Family Code.
5
B
Principles of Appellate Review
Section 3654 provides as follows: “At the request of either party, an
order modifying, terminating, or setting aside a support order shall include a
statement of decision.” “A statement of decision generally must provide the
factual and legal basis for the trial court’s decision as to each of the principal
controverted issues.” (In re Marriage of McHugh (2014) 231 Cal.App.4th
1238, 1248 (McHugh).) “A statement of decision is as much, or more, for the
benefit of the Court of Appeal as for the parties. It ‘is our touchstone to
determine whether or not the trial court’s decision is supported by the facts
and the law.’ ” (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.)
“ ‘Under the doctrine of “implied findings,” when parties waive a
statement of decision expressly or by not requesting one in a timely manner,
appellate courts reviewing the appealed judgment must presume the trial
court made all factual findings necessary to support the [order] for which
there is substantial evidence.’ ” (McHugh, supra, 231 Cal.App.4th at
p. 1248.) “In other words, the necessary findings of ultimate facts will be
implied and the only issue on appeal is whether the implied findings are
supported by substantial evidence.” (Espinoza v. Shiomoto (2017) 10
Cal.App.5th 85, 100 (Espinoza).) The doctrine of implied findings “is a
natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and
presumptions are indulged in favor of correctness; and (3) the appellant bears
the burden of providing an adequate record affirmatively proving error.”
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
6
C
Analysis
Husband claims the trial court abused its discretion in denying his
request to terminate spousal support because, according to Husband, “[t]he
court did not consider, at all, the change of circumstances in [Wife’s] finances”
allegedly arising from Wife’s new employment and cohabitation with her
boyfriend. Wife did not file a respondent’s brief. However, we do not treat
her failure to file a respondent’s brief as an admission of error; rather, we
consider the record and Husband’s arguments to determine whether reversal
is required. (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339,
1342, fn. 1; Cal. Rules of Court, rule 8.220(a)(2).)
There is no indication in the record that Husband requested a
statement of decision pursuant to section 3654. Therefore, under the doctrine
of implied findings, we presume the trial court made all findings necessary to
support the challenged order. (McHugh, supra, 231 Cal.App.4th at p. 1248.)
In particular, we presume the trial court found there was not a material
change of circumstances warranting termination of spousal support despite
Wife’s new employment and her cohabitation with her new boyfriend.
In general, the sufficiency of the evidence supporting a trial court’s
findings may be challenged on appeal despite the implied findings doctrine.
(Espinoza, supra, 10 Cal.App.5th at p. 100.) However, Husband cannot do so
here because he has failed to provide us an adequate record to assess the
sufficiency of the evidence supporting the trial court’s findings. He has
omitted from the record crucial trial court filings bearing on the Wife’s
financial resources including Wife’s Income and Expense Declaration.
Further, Husband has not provided a reporter’s transcript, agreed
statement, or settled statement for the hearing on his request to terminate
7
spousal support. Therefore, we do not know what was said or what evidence
was presented during the hearing. Because Husband did not provide a
reporter’s transcript, agreed statement, or settled statement, we must
presume substantial evidence was presented during the unreported
proceedings to support the trial court’s findings. (Jameson v. Desta (2018) 5
Cal.5th 594, 609 [“ ‘ “[I]f the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be affirmed.” ’ ”];
see In re Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“Where no reporter’s
transcript has been provided and no error is apparent on the face of the
existing appellate record, the judgment must be conclusively presumed correct
as to all evidentiary matters. To put it another way, it is presumed that the
unreported trial testimony would demonstrate the absence of error.”].)
In sum, Husband’s failure to request a statement of decision precludes
us from assessing any argument other than the sufficiency of the evidence for
the spousal support order. And his failure to provide an adequate appellate
record requires us to presume the evidence was sufficient to support the
spousal support order. For these reasons, Husband has not carried his
burden of establishing a reversible abuse of discretion.
8
IV
DISPOSITION
The order is affirmed. The parties shall bear their own costs.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DO, J.
9