IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 9, 2010
ALEXANDRA NARANCIC, PLAINTIFF AND RESPONDENT,
PERRY NARANCIC, DEFENDANT AND APPELLANT; SAN MATEO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES INTERVENOR AND RESPONDENT.
(San Mateo County Super. Ct. No. 090615)
The opinion of the court was delivered by: Lambden, J.
Narancic v. Narancic
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Perry Narancic (Narancic) appears in propria persona in this appeal. Narancic contends that the trial court erred when it denied his motion for modification of child support and other relief for lack of jurisdiction, and asks that we reverse this denial and remand the matter back to the trial court for adjudication of the merits of his motion.
During the pendency of this appeal, respondent Alexandra Gadzo (Gadzo; identified as Alexandra Narancic in the caption) moved for sanctions, contending that Narancic's appeal is frivolous, and for costs of appeal as the prevailing party.
We affirm the court's order, deny Gadzo's motion for sanctions, and award her costs of appeal.
In 2006, a judgment for the dissolution of the marriage of Narancic and Gadzo, parents of two small children, was entered in San Mateo Superior Court.
On February 23, 2007, the court issued a written order that ruled on a number of matters between the parties, who were both represented by counsel at the time.*fn1 The court ordered that an order to show cause concerning a set aside of the marital settlement agreement would be heard in a short cause hearing in May 2007, and that an order to show cause concerning return of a computer would be heard in a further hearing in June 2007.
The court then addressed an order to show cause concerning modification of custody and child support. Regarding custody, the court made certain rulings pending the outcome of a criminal case against Narancic. Regarding child support, the court ordered that, effective January 1, 2007, Narancic would pay $2,774 a month based on a "DissoMaster Calculation" that included certain assumptions, apparently an increase from his previous payment of $1,500 a month. The court stated, "Jurisdiction is reserved to modify the DissoMaster Calculation retroactively to January 1, 2007, since the court arbitrarily made certain assumptions which may or may not have in fact been accurate." It then stated the order to show cause would be heard in a short cause hearing in June 2007. At the time, Narancic did not have a pending motion before the court to modify the court's order.
A trial between Narancic and Gadzo was set for April 28 through 30, 2008. On March 28, 2008, counsel for Gadzo wrote a letter to the court, with a copy to Narancic, in which he stated: "The parties have agreed to take this matter off calendar since Mr. Narancic will need additional time to file a separate lawsuit against third parties and Alexandra Gadzo involving the same issues and attempt to consolidate both lawsuits for trial in your department."
The trial was taken off calendar. The parties do not dispute that this included the question of the possible retroactive modification of the support order.
Almost a year later, in February 2009, Narancic filed a motion to reduce the child support payments he was required to pay pursuant to the support order. He subsequently filed an amended motion in March 2009. Narancic asserted that the support order should be modified retroactive to January 1, 2007, because his support payments were based on inaccurate calculations, including of his 2007 income and the percentage of his "time share" with the children. Among other things, Narancic claimed that Gadzo had committed perjury in stating her earnings in a January 2007 income and expense declaration.
Gadzo and San Mateo County Department of Child Support Services (DCSS) filed replies to Narancic's motion. Both asserted the view that Narancic had waived any right or claim to retroactively modify the child support payments called for in the support order by allowing the trial scheduled for April 2008 to be taken off calendar. DCSS, however, did not take a position on Narancic's motion for retroactive modification of his child support payments.
Narancic replied that the court retained jurisdiction to modify the payments because it had expressly reserved jurisdiction to do so in the support order. Also, he argued, the March 28, 2008 letter by Gadzo's counsel taking the trial off calendar made clear that he, Narancic, intended to pursue the retroactivity issue at a later date.
At the hearing on Narancic's motion, the parties discussed the retroactivity issue extensively. The DCSS representative stated her recollection that the trial court had made a calculation based on certain assumptions, and continued the matter to a later date when there was going to be a full hearing, but that the matter had then been taken off calendar. She recalled that during a more recent in-chambers discussion, the court had opined "that the retroactivity issue was dead, because the motion died when it was taken of calendar."
Narancic argued that the March 2008 letter from Gadzo's counsel established that the "retroactivity of [the] January 2007 Income and Expense Declaration were not waived. It was simply continued." He also argued that Family Code section 3160 was a basis for setting aside any order obtained through perjury. However, when pressed by the court about where in his motion he was "asking that the orders be set aside because of alleged perjury," Narancic responded, "There's nothing in this motion, that relies on Family [Code] section 3160." He repeatedly indicated to the court that his claims that there were miscalculations in the support order were not based on allegations of perjury.
The court indicated its view that Narancic was seeking a modification of the support order based in part on income information that was not known when the court issued its order. The court stated, "in part of this you are relying on . . . getting a modification of support based on information that was not known until 2007. It's based on subsequent information and you're relying on the language in the first order that the order was modifiable, retroactive back to 2007, and that this information is not relying on any alleged perjury committed by Ms. Gadzo." Narancic responded, "That's my position, Your Honor."
At the conclusion of oral argument, the court stated: "So in reviewing . . . the file on this one issue, unfortunately, Mr. Narancic, what happened was the matter was dropped, even with looking at the language that was submitted in [Gadzo's counsel's] letter, that perhaps the intention was to keep this issue alive. However, the fact that he . . . wrote a letter and sort of infers that is not enough for the court, that if the parties had agreed to keep the issue of retroactivity alive, then there should have been a specific order reserving jurisdiction, either something signed and written by both [parties] with the attorneys that can be submitted to the court that the court continues to reserve jurisdiction over the issue of retroactivity, but the matter had been continued and continued and then dropped. And clearly by the language of that letter, the one thing that is clear is that the matter would be dropped. The . . . language states, it's the parties intention or your intention to do something, that at that point being speculative . . . . It doesn't mean that the court is going to keep jurisdiction over this issue based on that kind of speculative language. And . . . nothing in that letter, specifically, states that it's the intention of the parties to have the court reserve jurisdiction over the issue of retroactivity. . . . So, . . . the court no longer has jurisdiction over the issue of retroactivity."
The court also concluded that the reservation of jurisdiction in the support order was specifically to consider the issue at trial. It stated, "when there's language in a court order reserving jurisdiction to modify or retroactively, you look at what language goes with that. . . . This particular order clearly anticipated the matter being heard at a later date. It was, specifically, continued for that reason, language was pretty clear in what was going to happen, and the matter was continued. And there was, eventually, a trial date set, but then the parties agreed to drop that. So I believe based on the language of the order, and based on what happened that the court's authority terminated at that point."
Finally, the court noted that Narancic had not filed a motion for reconsideration, and that there had not been any further hearings set after April 2008.
The court subsequently issued a written order which stated that "[t]he court has no authority to modify child support retroactively to January 1, 2007, based on a different time share or the parties' incomes." Narancic filed a timely notice of appeal of this written order.
Pending the outcome of this appeal, Gadzo filed a motion for sanctions and costs pursuant to California Rules of Court, rule 8.276 and Code of Civil Procedure section 907, arguing that Narancic filed, and continued to pursue, a frivolous appeal. Gadzo also sought her appellate costs as the prevailing party pursuant to California Rules of Court, rule 8.279.
We review a decision regarding the modification of a child support order under an abuse of discretion standard of review. (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 229-230.) The evidence is viewed in a light most favorable to the prevailing party, and appellant bears the burden to "set forth in his or her brief a summary of the material evidence" in support of a claim of error. (Id. at p. 230.) The trial court has a duty to exercise "an informed and considered discretion concerning the parent's child support obligation. [Citation.] In reviewing the exercise of that discretion for abuse, we consider whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citation.] When two or more inferences can reasonably be deduced from the facts, we will not substitute our deductions for those of the trial court. [Citation.] The burden is on the complaining party to establish abuse of discretion. [Citation.] The showing on appeal is insufficient if it presents a state of facts that affords only an opportunity for a difference of opinion." (Id. at pp. 229-230) In other words, pursuant to a substantial evidence evaluation, " '[w]e accept all evidence favorable to the prevailing party as true and discard contrary evidence.' " (Id. at p. 230.)
Gadzo points out that Family Code section 3653, subdivision (a), limits retroactive modifications in child support "to the date of filing of the notice of motion or order to modify . . . or to any subsequent date," subject to exceptions that do not apply here. (Fam. Code, § 3653, subd. (a).) Nonetheless, Narancic argues in his opening brief that his modification motion should be remanded for adjudication of the merits of his retroactive argument for two reasons. First, Narancic argues that the support order expressly reserved jurisdiction for retroactive modification back to January 1, 2007. Furthermore, he contends that it is "clear from the [March 28, 2008 letter from Gadzo's counsel] that both parties understood that [Narancic] was not waiving his retroactive claims in agreeing to take the mater off calendar; rather the [letter] expressly recognized that [Narancic's] claims would be brought when the case was further developed. [Gadzo] is stopped from arguing that [Narancic] has waived these retroactive claims."
This argument is not supported by substantial evidence. The March 28, 2008 letter does not say anything about the parties agreeing that the court would retain jurisdiction of the retroactive claim. To the contrary, the letter merely states that Narancic would "attempt to consolidate" the two lawsuits he anticipated bringing. (Italics added.) Under our abuse of discretion standard of review, we conclude that the court could reasonably conclude that the parties did not agree (and the court did not order) that the court retained jurisdiction and that, as the court indicated at the hearing, the parties needed to submit a clearer stipulation to that effect. (See In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 844-845 [finding that Fam. Code, § 3653, subdivision (a) "does not authorize the court to award child support retroactive to an informal request . . . . The party seeking child support . . . must make a formal request by procedurally correct means"].) Therefore, Narancic's argument is without merit.
Second, Narancic argues, he "took steps to have retroactive jurisdiction preserved in the support order, so that support could be properly calculated using accurate information." Therefore, "[i]n order for [Gadzo] to prevail on her argument that [Narancic] waived this statutory right, she must do so based on clear and convincing evidence." Based on our own review of the record, we conclude that this argument is unpersuasive. The trial court concluded that the taking off calendar of the April 2008 trial without any clearer agreement between the parties ended the court's jurisdiction regarding the retroactive modification of child support payments to January 1, 2007. Narancic does not explain why the court's findings and conclusions were incorrect, other than to assert his self-serving interpretations of the support order and the March 28 letter. For example, the court based its ruling in part on its own review of the support order, which it concluded was intended to maintain jurisdiction of the retroactivity issue through trial, and no further. As we have indicated, in the support order, the court, immediately after stating that it was reserving jurisdiction on the retroactivity issue, stated that it was scheduling the matter for a long cause hearing. This is substantial evidence to support the court's determination that the reservation of jurisdiction ended when the trial was taken off calendar. Narancic offers no meaningful rebuttal of this evidence, and thereby fails to meet his burden as appellant to show trial court error. Therefore, we reject his appellate argument.
In light of the retroactivity language in the support order, we conclude that Narancic's appeal is not frivolous. Therefore, we deny Gadzo's motion for sanctions. We do, however, award her costs as the prevailing party. In light of our rulings, we do not address the remainder of arguments and contentions by the parties in their appellate papers.
The order is affirmed. Respondent is awarded costs of appeal.
We concur: Kline, P.J. Haerle, J.