MICHELLE SHAMBOURGER, Plaintiff and Respondent, v. MANUEL LLANERAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINIONSTATEMENT OF THE CASE
On June 10, 2009, appellant Manuel Llaneras filed a motion for modification of child support in Fresno County Superior Court. Among other things, appellant specifically requested that the Fresno County Department of Child Support Services (DCSS) grant him credit of $4,901.30 for past payments made toward his child support obligation.
On August 6, 2009, appellant filed another motion for modification of child support seeking credit for $4,826.30 in past payments on his child support obligation. On September 14, 2009, the court conducted a contested hearing on appellant's motions, took judicial notice of the court file, and found insufficient evidence to show that appellant's checks were written to pay child support. The court denied appellant's request for credit for past payments and ordered appellant to pay the arrears at the rate of $200 per month effective October 1, 2009.
On December 4, 2009, appellant filed a timely notice of appeal from the trial court's ruling.1
STATEMENT OF FACTS
Appellant and respondent Michelle Shambourger had a child together in 1985. The Los Angeles County Superior Court apparently entered a child support order against appellant in 1986. On April 25, 1989, the Los Angeles County Superior Court filed a modified order against appellant for $150 per month of child support (case No. WED 46684). The case was eventually transferred from Los Angeles County to Fresno County DCSS as case No. 0192492643-01.
In 2009, appellant's child support account with DCSS reflected $33,000 in “Arrear Interest.” Appellant maintained this calculation was incorrect and that the DCSS should have granted him credit for an additional $4,826.30 in child support payments. This sum allegedly comprised a $632.50 check issued June 1, 1990; a $1,603.80 check for respondent's housing issued July 11, 1992; a $1,590 Wells Fargo Cashier's Check issued June 23, 1995; and a $1,000 Glendale Federal Bank Cashier's Check issued November 24, 1995.
On September 14, 2009, after conducting a contested hearing, the Honorable Jamileh Schwartzbart, Commissioner of the Fresno County Superior Court, filed a ruling stating:
“[COURT] TAKES JUDICIAL NOTICE OF [COURT] FILE FINDING INSUFFICIENT EVIDENCE THAT THE CHECKS WRITTEN WERE FOR THE PURPOSES OF PAYING [CHILD SUPPORT]. [COURT] DENIES REQ[UEST] TO CREDIT ARR[EAR]S FOR THOSE AM[OUN]TS. RESP [ONDENT] [LLANERAS] TO PAY ARR[EAR]S $200/MO EFF[ECTIVE] 10/01/09.”
The court further directed that all previous orders remain in full force and effect except as specifically modified by her ruling.
I. DID THE TRIAL COURT DENY APPELLANT AN ADEQUATE OPPORTUNITY TO ARGUE HIS MOTION?
Appellant contends the trial court did not give him an adequate opportunity to argue his motion:
“On September 14th, 2009 ․ the plaintiff [Shambourger] was present with (DCSS) [a]ttorney and the defendant [Llaneras] made his appearance by [t]elephone. In this hearing the previous Judge was not present so a new Judge was assigned: Temporary Judge-Commission[er] Schwartz-Bart, [sic ] Jamileh presided.
“The presiding Judge reviewed the documents filed then asked the (DCSS) attorney if a current agreement existed between the parties. He responded after talking with the plaintiff ‘NO’, your honor; so the Judge moved on to review the attached exhibits and evidence; when the defendant tried to inform the Judge that the parties have not talked in several years, the Judge told the defendant to be [quiet] while she was reviewing the documents and if [defendant] had another [outburst] she would dismiss the case, so the defendant stayed [quiet].
“When the Judge ask[ed] if the defendant would like to comment; the defendant told the Judge that (A) an agreement did exist back in the 1990's between the parties for which said agreement entitled the defendant to receive credit as ‘child support’ for any expenses incurred from RST & Associates-Leasing Company for the rental of said apartment (for which the plaintiff personally requested the defendant to obtain for her and the then child)․
“(B) The defendant[ ] commented on the canceled personal Check # 67 dated June 6th, 1990 for $575.00 which the plaintiff personally [signed] and deposited [into] her bank account․
“(C) The defendant continued on the issue of the two Cashier's Checks (1) Glendale Federal Bank dated: 24NOV95 in the amount of $1,000.00 and (2) Wells Fargo Bank dated: June 23, 1995 in the amount of $1,590.00․
“(D) The defendant had also stated as evidence to the judge; the Payment History printout of the original Los Angeles Case, which was obtained through the Los Angeles County Courthouse Records Department ․ to show additional support that the payments for which the defendant is requesting credit for had never been applied towards his child support obligation for those specific time periods․
“Before the defendant was able to complete his statements/arguments regarding the evidence and exhibits provided and the incorrect posting of missing payment [s] that were credited towards Interest Only and nothing to Principal, the presiding judge told the defendant to stop and didn't give him a chance before she commented on her point of view. At this time the defendant[']s (Internet) Phone began to distort the line and gave problems by losing connection while the judge made her ruling as to the exhibits and stated due to the lack of clear purpose of ‘USE’ and based on such, ‘Insufficient Evidence’ was ruled and a Judgment plus Order of $200.00 per month was placed against the defendant.
“The defendant tried to argue the final ruling by asking a simple question; why is the (Judge) being ‘BIA[SED]’ towards the defendant by not allowing nor giving him a fair chance to complete his statement regarding his case on evidence which was provided that was supported including other issues which required attention? After the defendant['s] statement, the Temporary Judge-Commissioner replied, ‘The hearing is over and ruling was done’!”
Our first concern is with the adequacy of the record on appeal. A ruling by a trial court is presumed correct and ambiguities are resolved in favor of affirmance. The burden of demonstrating error rests upon the appellant. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) The reviewing court will presume the record in an appeal includes all matters material to deciding the issues raised. If, as here, the appeal proceeds without a reporter's transcript, this presumption applies only if the claimed error appears on the face of the record. (Cal. Rules of Court, rule 8.163.) An appellant must make an affirmative showing of error by an adequate record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done but rightly done. (Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760.) The failure to provide an adequate record to support the contentions on appeal and support the appellate arguments with appropriate citations to material facts in the record waives the issues on appeal. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Where no reporter's transcript or audio recording 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. Expressed another way, it is presumed the unreported trial testimony would demonstrate the absence of error. The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) When a case has been submitted for review on the basis of an appendix or clerk's transcript, the reviewing court conclusively presumes the evidence was ample to sustain the trial court's factual findings. (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.)
Here, absent a reporter's transcript or audio recording, we must conclusively presume the trial court granted appellant an adequate opportunity to be heard and that the evidence was ample to sustain the trial court's factual findings. (Construction Financial v. Perlite Plastering Co., supra, 53 Cal.App.4th at p. 179.)
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO GRANT APPELLANT CREDIT FOR $4,826.30 IN SUPPORT PAYMENTS PURPORTEDLY MADE IN THE 1990s?
Appellant essentially contends the trial court abused its discretion by denying him credit for $4,826.30 in payments he made and documented as exhibits to his August 6, 2009, motion for modification.
Unlike spousal support laws, which are considered a form of equitable relief, child support is strictly a legal right. (In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1148, superseded by statute on another point as set forth in In re Marriage of Fellows (2006) 39 Cal.4th 179, 185, fn. 6.) If a parent has been ordered to make payments for the support of a minor child, an action to recover an arrearage in those payments may be maintained at any time, since there is no limitations period for enforcement of child support judgments. (Fam.Code, § 291(a)-(b); See In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 722, superseded by statute on another point as set forth in In re Marriage of Fellows, supra, 39 Cal.4th at p. 185, fn. 6.) Although child support is strictly a legal right, child support proceedings are equitable proceedings in which the trial court is permitted the broadest possible discretion to achieve fairness and equity. (In re Marriage of Dancy, supra, 82 Cal.App.4th at pp. 1148-1149.) On appeal, all intendments and presumptions are indulged in favor of the judgment, with conflicts in competing facts resolved in favor of the prevailing party. The trial court's ruling will not be disturbed on appeal unless there was an abuse of discretion. (In re Marriage of Garcia (2003) 111 Cal.App.4th 140, 148, disapproved on another point in In re Marriage of Fellows, supra, 39 Cal.4th at p. 190.)
The abuse of discretion standard measures whether, given the established evidence, the lower court's action falls within the permissible range of options set by the legal criteria. A reviewing court does not defer to the trial court's ruling when there is no evidence to support it. In addition, discretion may not be exercised whimsically and reversal is required where there is no reasonable basis for the ruling or when the trial court has applied the wrong test to determine if applicable statutory requirements were satisfied. (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.)
Here, absent a reporter's transcript or an audio recording, we must conclusively presume the evidence was ample to sustain the trial court's factual findings. (Construction Financial v. Perlite Plastering Co., supra, 53 Cal.App.4th at p. 179.) The absence of a record concerning what actually occurred at the September 14, 2009, hearing precludes a determination that the court abused its discretion. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) Absent reporter's transcripts, we simply have no basis for assessing whether the trial court considered such factors, made appropriate factual determinations, and exercised its discretion “in conformity with the spirit of the law and in a manner to subserve the ends of substantial justice.” (City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 561.)
As the party challenging a discretionary ruling, appellant had an affirmative obligation to provide an adequate record so this court could assess whether the trial court abused its discretion. (Wagner v. Wagner, supra, 162 Cal.App.4th at p. 259.) Absent the relevant reporter's transcripts or audio recording, we must deem this argument forfeited on appeal.
The judgment is affirmed. Costs on appeal are awarded to respondent.
Gomes, Acting P.J.
FN1. An appeal may be taken from an order made appealable by the provisions of the Family Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) Family Code section 3554 states: “An appeal may be taken from an order or judgment under this division [governing spousal and child support] as in other civil actions.”. FN1. An appeal may be taken from an order made appealable by the provisions of the Family Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) Family Code section 3554 states: “An appeal may be taken from an order or judgment under this division [governing spousal and child support] as in other civil actions.”