Vandermolen v. Rickman (In re Marriage of Vandermolen)

In re the Marriage of CURTIS A. and JEANINE VANDERMOLEN.

CURTIS A. VANDERMOLEN, Appellant, v. JEANINE RICKMAN, Respondent;

SACRAMENTO COUNTY DEPARTMENT

OF CHILD SUPPORT SERVICES, Intervener and Respondent.

C088243

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

May 27, 2020

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10FL06871)

This is an appeal by Curtis A. Vandermolen (father) from an order reducing his obligation to pay monthly child support to Jeanine Rickman (mother). The Sacramento County Department of Child Support Services (Department) is an intervenor and a respondent on appeal.¹

On appeal, father contends the trial court erred by (1) violating his and his new spouse's constitutional rights to equal protection and due process of law, (2) considering the income of his subsequent spouse while ignoring the income of mother's subsequent spouse, (3) modifying father's responsibility for travel expenses even though the parties had already resolved the issue by agreement, (4) imputing income to him without also considering evidence regarding the earning capacity of mother, and (5) failing to consider the best interests of the children.

Father appeals without supplying a reporter's transcript or settled statement of the hearing culminating in his reduced child support obligation. On this limited appellate record, we affirm the trial court's child support order.

BACKGROUND

Father and mother married in 2002 and had two children. They separated in 2010, and have since both remarried. Father is the noncustodial parent. In 2013, the trial court ordered father to pay monthly child support to mother in the amount of $941 - a reduction from the calculated guideline support amount of $ 1,116. The reduction was intended to provide a fund to pay travel expenses allowing father to visit the children.

In January 2018, mother filed a request related to custody and visitation. About a month later, the Department moved to modify the January 2013 childsupport order due to father's unemployment. A hearing on the motion for modification of child support was conducted on September 18, 2018. Father, mother, and an attorney for the Department were present for the hearing. However, there was no reporter at the hearing.

The contested hearing culminated with the trial court's entering an order after hearing (the support order). The trial court modified child support to require father to pay $740 per month starting August 1, 2018. The support order states: "The court further orders . . . : [¶] Child support for February 1, 2018 through July 31, 2018 is 378.00 per month. [¶] Father is now [in] full-time Law School, is able to do [so] as his current wife earns $10,000 per month, court attributes income to father. Father shall pay costs of airfare. Guideline child support reduced to allocate costs (of visitation)."

Father timely filed a notice of appeal from the support order.

DISCUSSION

IPrinciples of Review and the Appellate Record

On appeal, we begin with the presumption that the trial court's order is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We draw all inferences and intendments in favor of the order unless the record expressly contradicts them. (Ibid.) As the appellant, father bears the burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Father also bears the burden to provide an adequate record to assess any claimed error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.)

Father appeals without supplying a reporter's transcript or settled statement of the hearing culminating in his reduced child support obligation. This is called a judgment roll appeal.

In a judgment roll appeal with only a clerk's transcript we " 'must conclusively presume that the evidence is ample to sustain the [trial court]'s findings.' " (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler) italics added.) Our review is limited to determining whether any error appears on the face of the record. On this point, California Rules of Court, rule 8.163 provides: "The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter's transcript, this presumption applies only if the claimed error appears on the face of the record."

IIEqual Protection and Due Process

Father contends the trial court "violated [his] equal protection rights by engaging in discrimination based on gender and race." On the claim of gender discrimination, father asserts the trial court engaged in "a pattern and practice of creating advantage for [mother] and disadvantage for [him]." Regarding the claim of race-based discrimination, father asserts the trial court "severely disadvantaged an unrelated indigenous family for the benefit of a related white family." Neither claim of equal protection violation can be assessed on this record.

The record does not demonstrate any violation of father's equal protection or due process rights. Father cannot show that the trial court "engaged in discriminatory bias during the child support hearing," or that there is "a pattern of [such] conduct exhibited by the Superior Court." In the absence of a reporter's transcript or settled statement, we conclusively presume the trial court acted properly during the hearing. Review of the trial court's support order reveals no hint of racial or gender discrimination.

We reject father's assertions of what the trial court may or may not have considered in rendering its decision. The record limits review to the trial court's order after hearing, which we presume to have been supported by all of the necessary findingsand substantial evidence. (Ehrler, supra, 126 Cal.App.3d at p. 154.) The fact that the trial court ordered him to pay child support does not itself establish an equal protection violation. Legions of cases involve constitutionally permissible orders requiring a noncustodial parent to pay monthly child support to the custodial parent. (E.g., City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 850 [rejecting equal protection challenge to child support statutes]; In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628 [rejecting equal protection and due process challenges to child support statutes]; City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652, 659 [rejecting equal protection challenge].) Limited to only the order after hearing, father is unable to meet his burden to establish any of his due process and equal protection claims.²

II

Equal Apportionment

Father next argues the trial court "abused its discretion for imputing wages when it assigned the income of [his] spouse without also assigning the income of [mother]'s spouse." On this record, father cannot demonstrate the claimed error.

A.Consideration of Income Received by the Subsequent Spouse

Although most cases involving child support orders do not involve considering the income of a subsequent spouse, section 4057.5 expressly allows the trial court to do so inextraordinary cases. Section 4057.5 provides, in pertinent part: "(a)(1) The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner. [¶] (2) The income of the obligee parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee's subsequent spouse or nonmarital partner. [¶] (b) For purposes of this section, an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income." (Italics added.)

B.Analysis

On the record provided by father, we reject the contention that the trial court erred in considering the income of his subsequent spouse while ignoring the income of mother's subsequent spouse. We reject the contention for two reasons.

First, no error appears on the face of the order. The order after hearing indicates the trial court did not consider the income of father's subsequent spouse in calculating child support but only in determining father's tax rate based on his current family income. This is because the guidelines calculation attached to theorder after hearing notes father's "monthly taxable & nontaxable gross income" as $3,900.

Second, even if we assume the trial court considered the income of father's subsequent spouse, we must still apply the conclusive presumption that substantial evidence supports the trial court's findings. Thus, we presume the evidence at the hearing supported a finding that father's children would suffer extreme and severe hardship if his subsequent spouse's income was not utilized to calculate support. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) Likewise, even if we assume the trial court did not consider the income of mother's subsequent spouse, the substantial evidence...