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In Re the Marriage of Valerie Kim and John Dennis Cadigan. v. John Dennis Cadigan

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


November 30, 2011

IN RE THE MARRIAGE OF VALERIE KIM AND JOHN DENNIS CADIGAN. VALERIE KIM CADIGAN, APPELLANT,
v.
JOHN DENNIS CADIGAN, RESPONDENT.

(Super. Ct. No. 05FL05617)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Marriage of Kim and Cadigan

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this family law proceeding, Valerie Kim Cadigan appeals the trial court's denial of her motion for various forms of postjudgment relief against John Dennis Cadigan. She asserts that the trial court erred by (1) failing to hold an evidentiary hearing, (2) denying her motion to obtain reimbursement from John for their son Michael's respite care, (3) denying her claim for unreimbursed medical expenses, again with respect to Michael's respite care, (4) denying reimbursement for fees she paid to an attorney she hired to represent Michael's interests, and (5) denying her request to modify spousal support that John pays to her.

None of Valerie's contentions has merit. Therefore, we affirm.

BACKGROUND

Because of deficiencies in Valerie's briefing, this is a difficult case to summarize. Valerie makes many of her assertions in her opening brief concerning the facts of this case and the trial court proceedings without providing citations to the record to support the assertions. For example, she asserts that their autistic teenage son Michael is over six feet tall and weighs more than 180 pounds. For this assertion, she cites to factual findings from an administrative hearing when Michael was three years old. Also, she states that the couple hired an attorney to advocate for Michael's special education needs; however, the page of the record to which Valerie cites for this proposition states only that "[e]ach party will pay one-half of all agreed upon legal fees on behalf of Michael." Similarly, Valerie relates the story of the couple's daughter who died of leukemia, with no accompanying citation to the record or explanation of the relevance to this appeal of this sad event in their lives.

Stating facts and trial court procedure without a supporting citation to the record violates rule 8.204(a)(1)(C) of the California Rules of Court. We therefore disregard all unsupported statements of fact and procedure in Valerie's brief.

In 2005, Valerie petitioned to dissolve her 17-year marriage to John. Their son, Michael, was born in 1997, and he is autistic, requiring 24-hour supervision. Both parties claim that a judgment of dissolution was entered, but no such judgment is present in the record on appeal. John notes that deficiency and cites to a later order referring back to the judgment. Valerie, on the other hand, states that a judgment was entered and cites to a support order in the record on appeal as if it were a judgment of dissolution.

Valerie has been represented in this action by several attorneys serially. We need not recount their names, nor the extent of their involvement.

This appeal arises from trial court proceedings relating to Valerie's postjudgment motion to modify child support and spousal support. It appears from the record that, at the time Valerie initiated this motion to modify, the existing orders for support, from John to Valerie, included $2,367 per month in child support and $4,733 per month in spousal support. The parties retained joint custody of Michael, with Valerie having 80 percent physical custody. That order was entered April 16, 2009, pursuant to the parties' stipulation.

A little more than six months later, on October 28, 2009, Valerie initiated this proceeding as an order to show cause concerning modification. The pertinent parts of her motion requested (1) an order setting aside the April 16, 2009, order, (2) additional support and reimbursements, and (3) attorney and expert witness fees and sanctions.

First, Valerie asked the court to set aside the stipulation and order of April 16, 2009, based on allegations of unilateral mistake of law and John's fraud. She claimed that she received bad advice from her attorney that (1) giving John the dependency exemption for Michael would not have an adverse financial impact on her, (2) her disability payments for her depression and anxiety ($1,339 per month) should be included as her income in calculating support, (3) disability income she receives in behalf of Michael ($669 per month) should be included as her income in calculating support, and (4) attributing $9,000 per month in additional income to John would adequately compensate her for John's stock sales and bonuses.

Second, Valerie sought (1) additional child support for Michael because Michael's respite care increased by $1,767 per month because of changes in Medi-Cal, (2) additional spousal support because her health insurances premiums went up $504 per month, (3) $739.17, representing one-half of Michael's medical expenses uncovered by insurance, (4) $25, representing one-half of the charge due to the Folsom Fire Department to transport Michael to the emergency room, (5) $6,926.35, representing one-half of attorney fees charged by Richard Ruderman to represent Michael with respect to government benefits and services, and (6) $3,690, representing respite care costs for Michael incurred by Valerie when she was injured and had surgery on her foot.

And third, she requested need-based attorney fees of $25,000, expert witness fees of $10,000, and sanctions pursuant to Family Code section 271 of $100,000.

In Valerie's declaration attached to her motion to modify, she stated: "Because of the complexity and number of the issues involved, I am requesting that, save for my request for need based attorney fees and expert fees in the amount of $35,000, that [sic] this matter be set for a long cause hearing or special set."

John opposed Valerie's request to set aside the April 16, 2009, order as untimely and unsupported by facts. He opposed the requested modifications to child and spousal support because there was no material change of circumstances. John did not object to paying one-half of Michael's reasonable uninsured health care expenses, but he objected to payment of Ruderman's fees because he did not agree to those fees and Ruderman's services were neither necessary nor affordable. He opposed Valerie's request for attorney fees, expert witness fees, and sanctions, and he requested $5,000 in sanctions against her.

In his responsive declaration, John stated, in part: (1) he did not agree to Ruderman's attorney fees for representation of Michael and felt they were unnecessary, (2) he did not agree that he should pay for additional respite care for Michael while Valerie was convalescing from foot surgery because she refused his offer to take Michael in exchange for suspension of child support payments, and (3) some of the health care expenses incurred by Valerie for Michael's care could have been avoided if she had used John's insurance.

The trial court held a hearing on Valerie's motion on November 30, 2009. Counsel for Valerie argued that the April 16, 2009, order should be set aside. He then stated: "I think the credits and reimbursements, because those are in dispute because of the exact dollar amount, are going to necessitate a long-cause hearing. As is the issue of spousal support, because we are going to have to look at the [Family Code section] 4320 factors . . . ." Counsel then summarized some of Valerie's contentions.

Counsel for John started by saying, "I'm not going to address all the factual allegations. We are going to long cause on this stuff." Nonetheless, counsel argued against setting aside the April 16, 2009, order.

The trial court stated that it was going to call other matters and would look at a case that counsel for Valerie cited on the set-aside issue. Later that day, the court called this matter again and stated that it did not realize how late in the day it was. The court suggested that a further court date be set. The court and parties agreed on December 14, 2009.

On December 8, 2009, the trial court issued a statement of decision without an evidentiary hearing. On the set-aside issue, the court ruled that the request is time-barred and, even if it were not time-barred, it would be denied on substantive grounds. The court denied the motion to modify spousal and child support because Valerie did not show changed circumstances. It granted Valerie's request for reimbursement of Michael's medical expenses, but denied the request for reimbursement of Ruderman's attorney fees because John did not agree to those services and fees. The court denied the request for reimbursement for Michael's respite care while she convalesced from foot surgery because "[t]his is not an item of add-on child support, nor is it an item covered by the Judgment or Stipulation and Order." The court awarded Valerie $2,000 in attorney fees and denied her request for expert witness fees. Finally, the court denied both parties' requests for sanctions, "[a]lthough some of [Valerie's] behavior would have supported an award" were it not for the financial hardship it would entail.

DISCUSSION

I

Decision Without Evidentiary Hearing

Valerie contends that the trial court abused its discretion by not holding an evidentiary hearing before resolving the issues presented by her motion. We conclude that Valerie has not shown an abuse of discretion.

It appears that Valerie's main arguments in support of her contention that the trial court abused its discretion in failing to hold an evidentiary hearing are that (1) she requested it and (2) both parties expected that it would be held. She claims that this set of circumstances denied her due process. She cites several authorities, but they are inapposite. She fails to present pertinent authority that her request and expectation were sufficient to require the trial court to hold the evidentiary hearing.

Motions are usually decided based on declarations filed by the parties. (Code Civ. Proc., § 2009; Cal. Rules of Court, rule 3.1306.) "Section 2009 is construed as empowering the trial court to determine motions upon declarations alone and to allow the court discretion to refuse oral testimony. [Citations.]"*fn1 (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483.)

Although this case does not involve a move-away situation, Valerie cites a move-away case in which the California Supreme Court held that "an evidentiary hearing in a move-away situation should be held only if necessary." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 962 (Brown & Yana).) "[A] trial court may deny the non-custodial parent's requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the non-custodial parent's allegation or showing of detriment to the child[ren] is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief." (Ibid.) "[A]n evidentiary hearing serves no legitimate purpose or function where the non-custodial parent is unable to make a prima facie showing of detriment in the first instance, or has failed to identify a material but contested factual issue that should be resolved through the taking of oral testimony." (Ibid.)

The California Supreme Court distinguished its Brown & Yana decision in a case involving a marital dissolution judgment, as opposed to a postjudgment motion. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1360-1361 (Elkins).) The Elkins court held:

"When parties have been unable (privately or through mediation) to agree on custody, 'the court shall set the matter for hearing on the unresolved issues.' (Fam. Code, § 3185, subd. (a).) It is undisputed that such a hearing is an ordinary adversarial proceeding leading to a 'final judicial custody determination.' (Brown & Yana, supra, 37 Cal.4th at p. 959; [citations].) But once a judgment has been entered in the custody matter, a postjudgment motion or request for an order to show cause for a change in custody, based upon an objection to the custodial parent's plan to move away, requires an evidentiary hearing only if necessary -- that is, only if the moving party is able to make a prima facie showing that the move will be detrimental to the child or has identified 'a material but contested factual issue that should be resolved through the taking of oral testimony.' (Brown & Yana, supra, 37 Cal.4th at p. 962; see id. at p. 959.)

"Our decision in Brown & Yana, supra, 37 Cal.4th 947, did not suggest litigants must make a prima facie showing of some kind in order to be entitled to proceed to trial. Nothing we said undermines the requirement that at a contested marital dissolution trial, prior to entry of judgment, the court must hold an evidentiary hearing on the disputed issues, at which the usual rules of evidence apply. Indeed, we explained that a trial court had authority to deny a full evidentiary hearing in Brown & Yana in part because the custody issue already had been fully litigated and the resulting judgment therefore was entitled to substantial deference in the absence of a showing of a significant change of circumstances. (Id. at pp. 955-956, 959-960; [citations].)" (Elkins, supra, 41 Cal.4th at pp. 1360-1361, italics omitted.)

Here, of course, Valerie sought a postjudgment order. The custody and support issues had been fully litigated with a resulting judgment.

"Family law calendars . . . are so large that the system would collapse if every [child support motion] required a full-scale evidentiary hearing." (See County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1427, disapproved in part by Elkins, supra, 41 Cal.4th at p. 1361, & fn. 15 [as it relates to trials in domestic matters].)

Neither Brown & Yana nor Elkins is helpful to Valerie.

With respect to her citation to Brown & Yana, Valerie fails to show that any factual issue required an evidentiary hearing beyond the evidence and declarations filed in support and in opposition to her motion. In her opening brief, Valerie states: "In the case at bar, [Valerie] provides extensive evidence of expenditures for her minor son, evidence of her ex-husband's unwillingness to cooperate with her regarding reimbursement or medical expenses and decisions affecting the care of their son and evidence of changed legal circumstances to support her motion. As set forth above, [Valerie] requested an opportunity to explain these matters to the Court at the earliest opportunity -- in her moving papers." Far from establishing the need for an evidentiary hearing, this argument states that she provided all the relevant evidence with her motion and simply wanted a further opportunity to argue the legal issues. She fails to establish why an evidentiary hearing was necessary.

With respect to her citations to Elkins, it suffices to note that Elkins confirmed the litigants' right to a trial before a judgment is entered. Here, this is strictly a postjudgment proceeding.

Finally, Valerie asserts we should reverse because the parties never submitted the matter to the trial court and the court never denied the request for an evidentiary hearing. Neither assertion is supported by citation to authority. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [contentions not supported by authority are forfeited].) Valerie presents no authority that any particular incantation is necessary for the matter to be submitted to the trial court. Also, issuance of the order without an evidentiary hearing is, in essence, a denial of an evidentiary hearing.

The trial court did not abuse its discretion in deciding Valerie's motion without an evidentiary hearing.

II

Respite Care

Medi-Cal participates in funding for Michael's respite care, necessitated by his autism.*fn2 Beginning October 1, 2009, Valerie's share of the cost of respite care was increased to $1,767 per month. In her moving papers in the trial court, Valerie stated that Medi-Cal had unexpectedly required her to pay $1,767 out-of-pocket for respite care services provided to Michael. She continued: "This policy shift will effectively increase my child care expenses by $1,767 per month, a fact not known or anticipated at the time of our stipulation on April 16, 2009." Valerie therefore asked the trial court to modify child support to "reflect our child's extraordinary special needs, including additional $1,767 in monthly respite care costs . . . ." Valerie also asked separately for reimbursement of half of Michael's uncovered medical expenses ($739.17).

The trial court granted the request for reimbursement of uncovered medical expenses, but denied the request for an increase in child support stating, "[Valerie does] not set forth any changed circumstances other than the alleged change in state law that increases her contribution towards respite care and her increased health care expenses. . . . The income of both parties remains the same. . . . [Valerie] has not indicated what her contribution was for respite care [] before the law change; she does not state under penalty of perjury that her share was 'zero'. [Valerie's] respite care expenses are not factors that would be taken into account in calculating guideline child support and would not change the outcome."

On appeal, Valerie claims, without record support, that Michael has been prescribed respite care by a doctor because of his medical condition, and therefore respite care is a medical expense, not a child care expense. The trial court's characterization of respite care as child care instead of medical care, she argues, resulted in its error in not ordering John to reimburse her for the respite care expenses.

Valerie's argument on appeal is not the one she made in the trial court. In fact, in the trial court she characterized the respite care as a child care expense, not a medical expense. She stated that the Medi-Cal "policy shift will effectively increase my child care expenses by $1,767 per month." And she did not include the respite care expenses in her request for reimbursement of medical expenses.

An appellate court ordinarily will not consider an argument that could have been made in the trial court, but was not. The same is true of legal issues raised for the first time on appeal. Consideration of such arguments and issues is forfeited because of the failure to raise them in the trial court. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.) Therefore, Valerie forfeited review of whether respite care expenses are medical expenses, as opposed to child care expenses. Indeed, Valerie, herself, characterized respite care as child care in the trial court. She will not be heard on appeal to contradict that characterization.

Valerie's further claim that John agreed to reimburse her for respite care as a medical expense is similarly unavailing. In her opening brief, Valerie claims that John agreed "to share the cost of uncovered respite care expenses as a form of medical care rendered to Michael . . . ." (Unnecessary underscoring omitted.) This simply is not true. The record reflects that John agreed to share the cost of Michael's "necessary uncovered health care expenses." It does not reflect that Valerie and John agreed that respite care was a medical expense. Valerie's twisting of the words is unpersuasive.*fn3

III

Uncovered Medical Expenses

Valerie continues in the same vein, arguing that the trial court abused its discretion by not ordering John to pay his share of the medical expenses. Again, she claims on appeal that Michael's respite care expenses were medical expenses. We reject this argument because it was not made in the trial court. (In re Zimmerman, supra, 183 Cal.App.4th at p. 912.)

In her opening brief, Valerie acknowledges that her request for reimbursement of respite care expenses "may have been improperly worded," but it was "really a request for reimbursement and cost-sharing of these uncovered medical costs . . . ." This attempt to recharacterize on appeal what was, in the trial court, a clear request for reimbursement of child care expenses is unavailing.

IV

Reimbursement for Attorney Fees

The parties agreed that they would share the expense of attorney fees for the representation of Michael's interests, but only to the extent that the parties agreed to incur those fees. The court noted: "The Judgment states that only agreed-upon fees for the child will be shared." The court therefore rejected Valerie's request for reimbursement of Ruderman's fees because Valerie "failed to provide any facts in support of her allegation that the fees have been agreed upon."

On appeal, Valerie contends that the trial court abused its discretion by not ordering John to pay a share of Ruderman's attorney fees because the evidence showed that John agreed to pay at least part of the amount. The contention is without merit.

In opposition to Valerie's motion in the trial court, John declared: "[Valerie] has been well aware since the Judgment in our case that I did not believe the services of attorney Richard Ruderman were necessary or affordable. During the pendency of our case, I agreed to be responsible for a limited amount of fees to Mr. Ruderman. However, when we negotiated the terms of our Judgment, I refused to continue to be obligated to pay for Mr. Ruderman's services, other than those I agreed to. This issue was a point of contention between [Valerie] and me, so she has been well aware of my feeling for years. Since our Judgment was entered, I have only agreed to pay Mr. Ruderman, directly, for half of a three-hour consultation with him. Aside from this one consultation, I have never agreed to use or pay for Mr. Ruderman's services since before our Judgment was entered. [Valerie] retained him anyway."

A stipulation and order filed and signed by the trial court on June 29, 2006, stated: "Each party will pay one-half of all agreed upon legal fees on behalf of Michael." That stipulation and order, along with John's declaration, supports the trial court's order here because the prior order stated that John was liable for "one-half of all agreed upon legal fees" (italics added), and John's declaration stated that he did not agree to the fees Valerie now seeks.

Valerie attempts to overcome this lack of evidence to support her claim by invoking another declaration that she states was filed by John with respect to some other motion. John stated: "I do not agree that the attorney [Valerie] refers to has such extra-ordinary skills and knowledge that benefit Michael such that we should pay him more than the $3,600 per year already agreed upon."

We reject this attempt to inject new evidence into our review for two reasons:

First, although John requested judicial notice of the entire trial court record during the trial court proceedings we now review, there is no indication in the record that the request was granted. Valerie notes only that we, not the trial court, granted her request to take judicial notice of John's declaration. We deemed it a motion to augment and granted the request, but that does not cure her failure to properly present it to the trial court.

Even if we were to consider John's declaration, it conflicts with the declaration that John filed in opposition to Valerie's motion under consideration here, to the extent that it can be taken to mean that John agreed to the legal fees that Valerie now seeks. In the current motion, John stated that he did not agree to the fees Valerie seeks. We review the trial court's factual conclusions for substantial evidence (In re Marriage of Schopfer (2010) 186 Cal.App.4th 524, 529), and the declaration filed in opposition to the current motion supplies that substantial evidence, even if there is conflicting evidence.

V

Modification of Spousal Support Order

In addition to her other claims, Valerie sought modification of the stipulated spousal support order, which provided for John to pay her $4,733 per month. She claimed that mistakes were made in calculating that order because her own disability income ($1,339 per month) and Michael's disability income ($669 per month) should not have been attributed to her as income.*fn4 The trial court denied the motion to modify spousal support because there was no change in circumstances.

On appeal, Valerie claims there is "a material change of circumstances" because her "income is not what she believed it to be" when she negotiated the support order. She concludes that the trial court therefore should have refigured support, using the factors in Family Code section 4320.

"While the trial court has wide latitude in exercising its discretion to modify an award of spousal support, there must be demonstrated a material change of circumstances subsequent to the prior order. [Citation.] In the absence of such a substantial change of circumstances, the court has no authority to modify a spousal support award. [Citation.] The facts and circumstances of each case determine whether a modification is warranted, and the exercise of the trial court's discretion in ordering modification will not be disturbed on appeal unless, as a matter of law, an abuse of discretion is shown. [Citation.]" (In re Marriage of Farrell (1985) 171 Cal.App.3d 695, 700.)

Valerie cites no authority concerning a material change in circumstances, but apparently she is aware that a trial court cannot consider a spousal support modification if there is no material change. Beyond that, Valerie cites no authority, and we know of none, that a "mistake" such as the one she asserts constitutes a material change in circumstances.

Accordingly, the trial court did not abuse its discretion in refusing to modify the spousal support order.

DISPOSITION

The order is affirmed. John shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: ROBIE , J. MURRAY , J.


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