Osborn v. Musalman (In re Osborn)

In re the Marriage of JULIE ANN OSBORN and MILES MUSALMAN.

JULIE ANN OSBORN, Appellant, v. MILES MUSALMAN, Respondent.

D070027

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

June 20, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. D515334)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Ernest M. Gross, Commissioner. Affirmed.

Julie Ann Osborn, in pro. per., for Appellant.

Miles Musalman, in pro. per, for Respondent.

Appellant Julie Ann Osborn challenged certain provisions in a marital settlement agreement (MSA) she had entered into with her former spouse Miles Musalman, including provisions (1) giving Musalman a $16,500 credit against child support, and (2) diverting child support funds to a trust account earmarked for their children's college and automobile expenses. (In re Marriage of Osborn (May 29, 2015, No. D065329) [nonpub. opn.].) After the family court affirmed those provisions, Osborn appealed and this court reversed and remanded for the family court to enter a new order on child support that eliminated the credit, and did not employ a trust account unless the court made detailed factual findings to support the need for a trust. (Id. at p. 11.) Osborne now appeals from the family court's postjudgment order following this court's remand. She contends the court erred or abused its discretion by determining the child custody sharing percentages; ordering her to pay Musalman $16,500 in debt; not considering her motion for Family Code¹ section 2030 attorney fees; and imputing income to her with an order requiring her to, among other things, make and document ten job contacts each week.

Musalman has not filed a respondent's brief. We do not treat his failure to do so as a default or an admission that the trial court erred (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1), but instead examine the record for prejudicial error on the basis of Osborn's opening brief. (See In re Bryce C. (1995) 12 Cal.4th 226, 232-233; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 224.) We conclude Osborn's first two contentions are barred by law of the case, and she has not demonstrated error as to her remaining claims. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

We summarized the background facts of the parties' MSA in our prior opinion (In re Marriage of Osborn, supra, D065329), and need not repeat them here. In that appeal,we concluded the family court, Judge Susan D. Huguenor, had erred by declining to invalidate a provision in the MSA creating a trust restricting use of Musalman's child support payments for college and automobile expenses. (Id. at p. 6.) We further concluded the court had erroneously affirmed an MSA provision giving Musalman a credit against child support, observing that " 'a child support obligation cannot be satisfied through the obligor parent's performance of an entirely different (independent) obligation.' " (Id. at p. 7.) We said: "[T]he family court stated Musalman's new child support obligation would 'begin after the credit of the $16,500 is complete and exhausted.' The record indicates the credit was for amounts owed by Osborn to Musalman for legal costs related to a restraining order hearing. Thus, the credit was for an independent debt owed by Osborn. Child support payments are owed to the children, not the parent who receives the payments. Thus, the parties could not use child support to satisfy an unrelated debt between them." (Ibid.) This court also concluded that Osborn had not shown the family court erred by assigning 30 percent as Musalman's time share with their two children, based on the parties' agreement to that effect in the MSA. (Id. at pp. 9-10.) We remanded the matter, directing the family court "to enter a new order on child support that does not employ a trust account unless the court makes detailed factual findings to support the need for a trust. Additionally, the new child support order shall not include a credit for satisfaction of an independent obligation. In all other respects, the order is affirmed." (Id. at p. 11.)

Following issuance of the remittitur, the family court commissioner sought briefing on the trust issue and addressed the $16,500 credit, and set the matter for afurther hearing on child support. In the interim, it ordered Musalman to repay Osborn the $16,500 he had originally received as a credit against child support, at $250 per month starting September 1, 2015. At an August 31, 2015 hearing on the matter, the commissioner ordered the parties to update their income and expense declarations, and set the child support matter for an October 2015 hearing. The record contains Musalman's October 16, 2015 income and expense declaration.

In October 2015, the commissioner held the first hearing on Osborn's June 2014 request for an order regarding child support, Musalman's request for sanctions, and this court's remittitur. The commissioner ruled on Musalman's evidentiary objections, considered testimony from both parties, and continued the hearing to December 18, 2015.

In November 2015, the commissioner considered Musalman's separate request for an order setting a payment plan for Osborn to repay him the $16,500 in debt that this court had ruled was improperly treated as a credit against child support. Though the commissioner found the money owed, it initially denied Musalman's request for a payment plan as not set out in the MSA. However, it later entered an amended order requiring Osborn to make monthly $200 installment payments to Musalman to satisfy that debt, which, the commissioner observed, both the family court and this court had found was owed by Osborn independent of child support.

In January 2016, the commissioner entered findings and an order after hearing on Osborn's June 2014 request for order, calculating Musalman's child support using the California's Statewide Uniform Child Support Guidelines as reflected in attachedDissoMaster² reports. In part, the commissioner ordered that Musalman pay Osborn monthly child support at $1,499 from July 2014 to January 2015 and $1,704 from February 2015, based on its finding, among others, that Musalman had a 30 percent visitation timeshare. It further ordered that Musalman make a combined monthly payment to Osborn of $300 for the balance of child support arrears as well as the MSA's $16,500 credit due back to Osborn until paid in full.

DISCUSSION

I. Calculation of Child Support

Osborn contends the commissioner erred in reaching its child custody sharing percentages because they were not determined based on the actual time sharing with each parent. She argues the 30 percent figure assigned to Musalman was "fictional," and even where the parties stipulate to a child support order, to deviate from the guideline formula, the family court must state its reasons on the record, which the commissioner did not do. She asks us to order the family court to properly apportion the time sharing percentage based on actual physical custody and recalculate it from Judge Huguenor's November 1, 2013 findings and order after hearing. This claim in effect is one challenging the sufficiency of the evidence of the commissioner's decision.

Osborn's claim of error was previously asserted in her appeal from Judge Huguenor's order, and this court rejected it. As summarized above, this court expressly addressed the family court's use of a 30 percent time share for Musalman in calculating child support, observing that Osborn and Musalman had agreed in their MSA for child support purposes to the 70/30 time share percentages. (In re Marriage of Osborn, supra, D065329.) On Osborn's challenge to the family court's order affirming the MSA provision, we held Osborn had not shown the court's determination was an abuse of discretion. (Ibid.) Though we directed the family court on remand to enter a new order on child support, the commissioner's authority was limited to entering a different order eliminating the credit as well as the trust account absent findings to justify it. We otherwise affirmed the court's order, including its child sharing percentage determination ("In all other respects, the order is affirmed"). (Id. at p. 11.) And indeed, the commissioner then used the 30 percent time share for Musalman in its January 2016 findings and order after hearing.

Our conclusion on the matter is law of the case. " 'The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' " (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434 [law of the case "generally precludes multiple appellate review of the same issue in a single case"]; Sefton v. Sefton (2015) 236 Cal.App.4th 159, 172; In reMarriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.) "The doctrine applies only if the issue was actually presented to and determined by the appellate court" (People v. Yokely (2010) 183 Cal.App.4th 1264, 1273), even when an appellant cites different authorities or asserts different reasons in support of his or her legal claim or theory. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.) And "sufficiency of the evidence is a question of law to which the doctrine applies." (In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 821.) The rule applies to self-represented parties, who are...