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In Re the Marriage of Ted Brocklehurst and Kimberly Masbad. v. Kimberly Masbad


December 12, 2012


(Super. Ct. No. 04FL03062)

The opinion of the court was delivered by: Hull , J.

Marriage of Brocklehurst and Masbad CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Kimberly Masbad (mother) appeals from an order modifying child support. On appeal, mother claims the trial court violated her right to due process in ordering her to pay child support and erred by failing to consider Ted Brocklehurst's (father) earning capacity in calculating child support.

Mother has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) On the face of this record, no error has been established. Accordingly, we affirm the trial court's order.


The limited record we have establishes that on August 26, 2011, father filed a motion to modify child support. In support of his motion, father argued that although he and mother previously agreed neither of them would pay child support, because the agreement set child support "below guidelines," child support was modifiable at any time. Father also filed an income and expense declaration with his motion, stating his income to be $6,205 per month; he attached several pay stubs to his declaration.

Mother opposed father's motion. In support of her opposition, mother argued father failed to show a material change in circumstances that would warrant a modification of the current order for support. Mother also argued that father's income had been reduced as a result of misconduct at work, and he should be imputed with income "based on his earning capacity per Family Code 4058(b)." Mother filed her own income and expense declaration, declaring her income to be $7,997 per month.

Father's motion was heard by the trial court on March 1, 2012. At that hearing, the court ordered mother to pay to father $259 in child support each month, beginning March 1, 2012. The parties also stipulated that "if [father] prevail[ed] in his action for reinstatement [with] back pay [mother would be] entitled to recalculation of all support paid as if [father] were making the higher income (except all periods of industrial disability where he would not be entitled to loss pay) and if [father] does not get back pay, [mother] may reinstate her motion requesting court to attribute income to him at . . . higher proved amount for whatever months it would be . . . ."

Mother appeals from the trial court's order.

I Applicable Appellate Rules

On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; see also Cal. Rules of Court, rule 8.163.)

These restrictive rules of appellate procedure apply to mother even though she is representing herself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638 639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

II Due Process of Law

Mother contends the trial court denied "her rights to due process and increased child support without affording [her] the benefit of a proper trial." In support of her contention, mother claims the trial court ordered her to pay child support in October 2011, based on a "falsified I&E Declaration."

There are multiple problems with mother's claim. First, there is no October 2011 order for child support in the record. This court cannot review orders not included in the record. Second, mother's notice of appeal refers only to the March 2012 order for child support; there is no reference to an October 2011 order. (Cal. Rules of Court, rule 8.100 [notice must identify the order or judgment appealed from].) And, third, mother filed her notice of appeal on March 16, 2012. Accordingly, any appeal from an order in October 2011 is not timely. (Cal. Rules of Court, rule 8.104 [notice must be filed 60 days after notice of entry of judgment served, or 180 days after entry of judgment].)

Mother also claims the trial court violated her due process rights in March 2012 when, according to mother, the trial court "asked [mother] to cite a specific case where salary was imputed to a parent that was on disability," then refused to continue with the trial when mother could not cite such authority. Mother's argument is not supported by citations to the record or relevant authority. Accordingly, her argument is forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1246 & fn. 14 [the failure to present argument with references to the record and citation to legal authority results in a forfeiture of any assertion that could have been raised].)

III Child Support Calculation

Mother contends that, in calculating child support, the trial court failed to consider: father's earning capacity, the appropriate Labor Code, father's union contract, and the court's "own procedure as defined in the California Judges' Benchguide." Without a reporter's transcript of that hearing, however, we must presume the court properly considered the evidence presented, which was relevant to calculating child support. We must also conclusively presume that evidence was sufficient to sustain the court's finding that mother owed father $259 in child support each month, beginning March 1, 2012. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) On the face of this record, we conclude there is no error.


The order of the trial court is affirmed.

We concur: NICHOLSON , Acting P. J. ROBIE , J.


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