MARRIAGE OF STAFFORD AND STAFFORD

No. A148773.

In re the Marriage of MICHELE R. STAFFORD and DEREK J. STAFFORD. MICHELE R. STAFFORD, Respondent, v. DEREK J. STAFFORD, Appellant.

Court of Appeals of California, First District, Division Three.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

JENKINS, J.

Derek J. Stafford (Derek)1 appeals from a May 16, 2016, order denying his motion to modify child support payable to Michele R. Stafford (Michele), "there being no change of circumstances." He seeks reversal on the ground the evidence before the trial court established two significant changes of circumstances that would support modification of his child support obligations. Because we cannot ascertain from the appellate record the basis for the trial court's ruling, we reverse the order and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On August 14, 2008, a stipulated judgment was entered dissolving the parties' marriage. Michele was ultimately granted all custodial rights with respect to the parties' two children. Following protracted post-dissolution marital proceedings, the court issued an order on May 29, 2012, directing Derek to pay $1,629 per month for child support for both children and 50 percent of certain additional child support expenses established in prior orders (including a December 14, 2009 order).

Thereafter Derek filed two modification motions, one on July 17, 2015, and one on October 1, 2015. In the first modification motion seeking reduction of child support awarded in the May 29, 2012, order, Derek alleged he had lost his job in July 2015 and he had no other income or assets. In the second modification motion seeking reduction of the additional child support expenses established in the December 14, 2009 order, Derek alleged, in pertinent part, that his current income consisted of unemployment insurance compensation, he had incurred certain debts as a result of the financial costs of the marital litigation, and, in contrast, Michele's average monthly income had increased by nearly 300 percent.

On October 27, 2015, the trial court heard argument, and thereafter, entered an order on December 17, 2015, resolving both motions filed by Derek. As to the motion to modify child support, the court granted the request and ruled that beginning August 1, 2015 and continuing through January 31, 2016, Derek's obligation to pay child support and arrears was reduced to $370 per month for both children. The order provided it was "TEMPORARY," and beginning February 1, 2016, "all prior orders regarding support are back in place." As to the motion to modify the additional child support expenses, the court granted the request in part and ruled that beginning August 1, 2015 and continuing through January 31, 2016, Derek's obligation to pay that additional child support was reduced to eight percent of all such expenses. Again, the order directed that "all prior orders will be back in place beginning" February 1, 2016.

On February 2, 2016 (February 2016 motion), Derek filed a motion to modify child support, designating the court's May 29, 2012 and December 17, 2015 orders for modification. In support of his request Derek submitted a verified declaration, dated January 28, 2016, detailing his income and expenses. In that document, he averred that his financial situation had changed significantly over the last 12 months because he had been laid off on July 2, 2015, and his unemployment compensation insurance ran out on January 16, 2016. In a verified declaration attached to his form request for modification, Derek noted the provisions of the court's December 17, 2015 order, allowing for reductions in his child support obligations, had expired, and the child support provisions of the court's May 29, 2012, order were again in effect. Derek asked the court for a new order, pursuant to Family Code section 4061, subdivision (b) and the Family Code guideline support provisions, based on the following changed circumstances: Since the October 2015 court hearing and the court's December 17, 2015 order, his unemployment insurance compensation had been exhausted the week ending January 16, 2016, and thereafter his income was zero and he continued to have no assets to pay child support. Derek also averred that since 2012/2013 Michele's income had far exceeded his income, and her most recent Income and Expense Declaration filed August 13, 2015, together with "the Bonus Disclosure she submitted . . . following the most recent hearing in this matter, each substantiate[d] that" her average monthly income was more than $23,000 per month.2 In her responsive declaration to Derek's February 2016 motion for modification, Michele stated, "I do not consent to [Derek's] Improper Motion for Reconsideration of the Court's Ruling. The Court ruled on [his] request at an October 27, 2015 hearing. There are no new facts or law to support the Motion."

On April 12, 2016, the trial court held a hearing on Derek's February 2016 motion for modification. The court indicated it had read the pleadings filed by both parties. Derek indicated he had nothing to add to his paperwork and informed the court he "continued to be unemployed." Michele indicated she had nothing to add to her paperwork. The court denied the motion after finding "that there has not been a change of circumstances." In its written order, filed on May 16, 2016, the court denied the motion, stating "there being no change of circumstances." Derek filed a timely notice of appeal.

DISCUSSION

We initially conclude the court's May 16, 2016, order, addressing Derek's February 2016 motion for modification, is properly before us. Michele contends the May 16, 2016, court order is not appealable because the underlying motion giving rise to the order was an untimely motion for reconsideration of the court's December 17, 2015, order. However, both in the trial court and in her respondent's brief on appeal, Michele misconstrues the nature of the February 2016 motion for modification. As the record demonstrates, the court's December 17, 2015 order, reducing Derek's child support obligations, expired by its own terms, and the prior child support provisions in the May 2012 court order again became effective as of February 1, 2016. Thus, Derek's February 2016 motion for modification was not one for reconsideration. Rather, he appropriately filed a motion to modify the reinstated child support provisions of the May 2012 court order based on changed circumstances that were first known after the October 2015 court hearing and the court's December 17, 2015 order. (Cal. Rules of Court, rule 5.92(a)(1)(c).) Accordingly, the court's May 16, 2016 order, denying Derek's motion to modify child support, is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(2), (10).)

As to the substantive issue before us, we cannot ascertain from the appellate record the basis for the trial court's finding there was "no change of circumstances." As noted, Derek's February 2016 motion for modification sought relief from the reinstated child support obligations established in the May 2012 court order. In support of his request he submitted new information regarding the parties' finances (his loss of unemployment insurance compensation and Michele's "Bonus Disclosure"). The information had not been available at the time of the October 2015 court hearing or otherwise reflected in the court's December 17, 2015 order. In Michele's responsive declaration filed in the trial court, she did not address the merits of Derek's modification request. She claimed only that the court had ruled on Derek's modification request at the October 2015 court hearing and he had presented no new information in his February 2016 motion for modification.3

In light of these circumstances, we believe it is appropriate to reverse the order and remand the matter to the trial court for a reconsideration of Derek's February 2016 motion for modification. Our decision should not be read and we express no opinion on how the court should rule on the motion. Specifically, we make no determination as to whether or not Derek's allegations of changes of circumstances are sufficient to warrant a modification of his child support obligations.

DISPOSITION

The May 16, 2016, order is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.

Pollak, Acting P. J. and Siggins, J., concurs.

FootNotes


1. As is customary in marital dissolution proceedings where the parties share the same surname, we refer to them by their first names for convenience and clarity. "We do not intend this informality to reflect a lack of respect." (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
2. Michele's Declaration of her Bonus Disclosure, filed in the trial court on October 29, 2015, indicated that her bonus in 2014 was $120,294.
3. Michele's form "Responsive Declaration" indicates she attached an additional declaration to the form, but that document is not included in the clerk's transcript of the record on appeal. Derek claims he requested inclusion of the document but it was omitted due to clerical error. Instead of seeking augmentation of the record (Cal. Rules of Court, rule 8.155(b)(1)), Derek has attached the additional declaration to his brief as Exhibit B "[f]or the Court's convenience." However, exhibits may be attached to a brief, provided they are part of the record on appeal. (Cal. Rules of Court, rule 8.204(d).) Because Derek failed to seek augmentation of the record on appeal, Exhibit B is not properly before us. In all events, even if we were to consider the additional declaration, we see nothing in that document supporting the trial court's finding of no change of circumstances.

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