Marriage of Hudson CA4/2

Filed 11/19/20 Marriage of Hudson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of CINDY and
LAWRENCE HUDSON.

CINDY R. HUDSON,
E071943
Appellant,
(Super.Ct.No. VFLVS019846)
v.
OPINION
LAWRENCE E. HUDSON,

Respondent.

APPEAL from the Superior Court of San Bernardino County. J. Bruce Minton,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part; reversed in

part with directions.

Law Offices of John A. Tkach and John A. Tkach for Appellant.

Law Offices of Valerie Ross and Valerie Ross for Respondent.

Appellant Cindy R. Hudson (Wife) appeals from the trial court’s grant of

respondent Lawrence E. Hudson’s (Husband) request for an order terminating spousal

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support. In addition, she appeals from the trial court’s order on her request for past due

spousal support claiming the court erroneously calculated past-due spousal support and

failed to award her interest. Below, the trial court conducted a Family Code section

43201 hearing and terminated spousal support to Wife, which had been ongoing for 16

years for an eight-year marriage. Further, the trial court awarded arrearages for unpaid

spousal support but did not award interest on the arrearages.

On appeal, Wife claims (1) the trial court abused its discretion by terminating

spousal support; (2) the trial court erred by failing to award interest on the past-due

spousal support; (3) the award of $42,447.79 in past-due spousal support was not

supported by the evidence; and (4) the trial court abused its discretion by refusing to

allow Wife to argue the correct amount of arrearages at the hearing on past-due spousal

support.

FACTUAL AND PROCEDURAL HISTORY

A. DISSOLUTION JUDGMENT

Wife and Husband were married on December 31, 1990, and had been separated

since July 1999. They had two children, A.H. and M.H., born in April 1990 and

September 1992, respectively. A dissolution judgment was entered on March 1, 2001.

Wife was granted full legal and physical custody of the two children.

1 All further statutory references are to the Family Code unless otherwise
indicated.

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 As for spousal support, it was reported that Wife had a monthly income of $426

from food stamps and Husband had a monthly income of $3,000. Husband held a sales

position and received a salary and bonuses. The minute order from the dissolution

judgment states, “[Husband] is ordered to pay as and for spousal support the sum of

$567.00 per month, payable one-half on the 1st and one-half on the ALL 1st days of each

month, commencing on 02/01/01 and continuing until the death of either party,

remarriage of the [Wife] or: OR AGREEMENT OF THE PARTIES.”

B. HUSBAND’S REQUEST FOR ORDER TERMINATING SPOUSAL

SUPPORT

On May 22, 2017, almost 16 years after the original dissolution judgment,

Husband filed a request for an order terminating spousal support (RFO). Husband sought

to have the trial court end the $567 per month spousal support. Husband listed that

Wife’s training, job skills and employment were “unknown.” Husband also listed it was

“unknown” the current job market for Wife’s job skills. Husband stated that his standard

of living was “Modest.” He did not own any real property or have any investments.

Husband did not know Wife’s standard of living or assets. Husband attested that he was

47 years old and in good health.

Husband provided his own declaration. He was making “substantially less” than

the amount he was making at the time the dissolution judgment was entered. Husband

claimed to have paid spousal support between 2001 and 2016. He argued that paying

spousal support for 15 years, for an eight and one-half year marriage, was a substantial

time.

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 Husband also provided an income and expense declaration. He had been working

at Walmart since June 29, 2015, and he made $19.52 an hour. He was remarried and his

new wife made $600 each month. His average monthly salary was $2,300. He had total

savings of $650. His monthly expenses without paying spousal support totaled

$2,597.64.

Wife filed a response to the RFO.2 She did not consent to the termination of

spousal support. In addition, she requested an order requiring Husband to pay her

$39,429 for past-due spousal support, which was due from February 2001 to November

2006. Wife also alleged he had missed payments between 2013 and 2016 for a total of

$8,808.00.

Wife attached a support payment log to her response. It listed that all payments

were missed between 2001 and November 2006 except for one payment of $261 in

October 2006. Also attached was a wage assignment obtained against Husband in favor

of Wife filed on August 21, 2006. Wife also attached her 2016 income tax return listing

her yearly wages as $32,786. She listed her occupation as optician/warehouse worker.

According to Wife’s income and expense declaration, she worked for Amazon in

Texas. She began working in November 2016; she worked 40 hours each week; and was

paid $12.50 per hour. She was 48 years old. She averaged $2,040 per month in salary

and $523.88 in spousal support. Her total expenses were $2,522 each month.

2 Wife filed with her maiden name, Tapia.

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 A first hearing was held on June 26, 2017. Husband and Wife were present. The

trial court attempted to clarify the length of the marriage stating that if it was less than 10

years, Wife should only receive support for half of the length of the marriage. The matter

was continued. The matter was heard again on September 25, 2017, and it was set for a

contested hearing on spousal support pursuant to the factors in section 4320. The trial

court advised Wife that if she wanted to claim past-due spousal support, she would have

to file her own request for order.

C. HEARING: TERMINATION OF SPOUSAL SUPPORT

The hearing on the RFO occurred on December 29, 2017. The trial court took

judicial notice of the dissolution judgment. It found the dissolution petition was filed on

August 2, 2000. The date of marriage was December 31, 1990. The date of separation

was July 1999. The marriage length was eight years and seven months. The order of

spousal support for $567 each month was ordered to commence on February 1, 2001.

Wife was called by Husband to testify. She was living in Texas and currently

worked as an optician, which was an assistant to an optometrist. She was paid $13.50 an

hour. In 2007, she had trained for one year to become an optician. Wife was renting an

apartment and her 27-year-old daughter stayed with her. Her nephew was temporarily

living with her and paying $300 each month toward the household expenses; her daughter

did not contribute to the expenses.

Wife had been working in an Amazon warehouse which paid her $12.50 an hour.

She had to leave because it was too physically demanding. She complained that she had

joint problems, bursitis and possibly fibromyalgia.

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 Wife insisted she was making less at the current time than was on her 2016 tax

return because she was no longer getting commission from the optometrist for whom she

worked. She estimated she made $26,000 each year. She insisted she lived paycheck to

paycheck. Wife was considering moving to Las Vegas in order to get better employment.

She had bought a $12,000 motorcycle in April 2017. She believed the spousal support

order should continue until her death or she remarried.

Wife was not represented by counsel and made a statement for her testimony. She

only bought the motorcycle because it was cheaper than making car payments. She did

not have an education or degree; she only was trained as an optician. Wife did not have

time to both work and get an education. She did not have medical insurance and received

no child support for her two children because they were over the age of 18.

Wife was receiving spousal support from Husband’s employer in a total amount of

$261.69 twice monthly. It was not the full spousal support amount. The payments began

in 2007 when she was able to obtain a wage assignment receiving payment directly from

Husband’s employer. The trial court asked Wife if she had received any payment prior to

the wage assignment on August 21, 2006; she stated she had not received any money.

She received her first payment in December 2006.

Husband presented his own testimony at the hearing. He worked at a Walmart

Distribution Center and received an average monthly salary of $2,400. His new wife

owned a three-bedroom home in Apple Valley and the mortgage was $777.64 each

month. His wife made $600 each month. Walmart only scheduled him for 30 hours each

week. He was unemployed for one year between 2014 and 2015.

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 Wife had received a 1990 Mercury Tracer in the dissolution judgment. While

Husband and Wife were married, they did not take vacations except to visit family.

Husband had no degrees and only two years of college. His income at the time of their

separation was $3,000. He had no retirement savings.

Husband was in good health. He described their standard of living at the time of

separation as lower middle class. Husband did not currently own a vehicle. His new

wife had three vehicles, which were paid off, and he borrowed one. He and Wife

struggled financially during their marriage and his current situation was about the same.

Husband and his new wife made $3,000 each month combined.

Wife explained that she and Husband struggled financially during their marriage.

During the marriage, she only worked part time. Neither she nor Husband received any

schooling during the marriage. They never took time off for vacations. Wife complained

Husband was not consistent in paying spousal support and she always had to search for

him when he started new jobs. The trial court asked Wife if she had any evidence of

what payments were missed. Wife argued that Husband was responsible for providing

the history of payments because he was seeking a termination of spousal support and had

attested he had been paying since 2001.

In deciding whether to terminate spousal support, the trial court reviewed the

section 4320 factors. It noted that the standard of living during the marriage was lower

middle class. They struggled financially and had very few assets. They did not take

vacations. As for Wife, she had marketable skills as an optician and a laborer. There was

no contribution to the attainment of education.

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 The trial court noted that Husband had been paying spousal support since at least

2007. Husband was the primary wage earner in his new marriage. The parties struggled

financially during the marriage and continued to struggle. They had been separated for a

period of 18 years. Wife’s health was deteriorating. They were both 48 years old. Their

tax consequences were similar.

The trial court noted that no warning was given to Wife in 2001 that the goal of a

supported party was to become self-supporting. The trial court noted that for a marriage

less than 10 years, the length of spousal support was half the time of the marriage.

The trial court then reviewed the income of both Wife and Husband. Wife was

making her best effort to become self-supporting. The trial court then ruled, “There will

be no future spousal support. This is an 8-year, 7-month marriage. Support has already

been paid, or has been ordered, in excess of 16 years. However, the court finds that there

is an amount due and owing of $39,429. The Court orders that this will be payable at the

rate of $550 a month, commencing January 1, 2018. It will be paid for a period of 6

years, 72 months. With the final payment on the 72nd month of $379. If any payment is

missed, the entire amount shall become due and payable and begin yielding interest, or

will have interest attached to it at the rate of 10 percent per annum. Once the $39,429 is

paid, there shall be no further spousal support, and the Court’s jurisdiction to award

spousal support shall terminate.”

Husband’s counsel argued that the arrearages were not properly before the trial

court because Wife never filed her own request for order. The trial court felt that it could

review the matter because in order for Husband to request a modification of spousal

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support he must have “clean hands” and he admitted to missing payments. Based on

Wife’s testimony, the trial court found that Husband had missed payments between 2001

and 2006. The matter was continued to allow each party to provide documentation as to

the arrearages.

D. PAST-DUE SPOUSAL SUPPORT

On May 7, 2018, Wife filed a request seeking past-due spousal support. She

attached disbursement statements of money paid to her by Husband from Walmart

starting in October 2006. She received $261.69 every two weeks continuing through the

end of December 2008. There was further evidence of payments to her in December

2009, and payments between February 2010 through May 16, 2014, all from the County

of Los Angeles. Also attached were wage assignments from Walmart starting in October

2016 through April 2018.

Wife provided a declaration of payment history for spousal support. She stated

that the total arrearages were $61,997.86. The interest was $6,199.79. She was owed

$68,197.65. She provided her own summary of what Husband had paid each year

between 2001 and 2018.

Husband submitted his own calculation of the amount he had paid in spousal

support. Husband calculated that between 2005 and 2018 he had paid $68,684.21.

Husband provided year-end pay stubs, which included the payment of spousal support

from 2005 through 2018.

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 The matter was heard on November 5, 2018. The trial court calculated that the

total amount of support that needed to be paid was $111,132, which was the monthly

payment of $567 multiplied by the number of months he owed spousal support. The trial

court determined Husband had made a total amount of payments of $68,684.21. A

balance of $42,447.79 was owed to Wife. Wife interrupted, “Excuse me.” The trial court

responded, “Yes, ma’am.” She stated, “Your Honor, I had account math and—.” The

trial court stated, “Ma’am, I’m making findings and orders now. It’s done. You argued

that he paid $44,704.36 or that he owed $44,704.36.” Wife contested, “No, I did not. I

have what he ordered. He paid.” The trial court ruled, “I’ve made those findings now.

[Husband] owes $42,447.79.” Wife tried to make another comment but the trial court

would not hear any further argument as the ruling had been made.

The final ruling of the trial court was that Husband owed Wife $42,447.79 which

he was to pay at $550 each month beginning November 1, 2018. If two full payments

were missed, the entire balance was due and owing at a rate of 10 percent interest. Wife

complained the $550 per month was less than the original support of $567. Further, the

trial court’s finding of the amount that Husband had paid was incorrect. The trial court

directed her to file an appeal.

Wife filed a notice of appeal on December 31, 2018, prior to the notice of entry of

judgment, which was entered on March 26, 2019. This court construed the notice of

appeal to be from the November 5, 2018, finding on arrearages and the December 29,

2017, termination of spousal support.

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 DISCUSSION

A. TERMINATION OF SPOUSAL SUPPORT

Wife contends on appeal the trial court abused its discretion by terminating the

spousal support order issued in 2001 based solely on the length of the marriage. She also

complains that she did not receive a warning in 2001 that she had to become self-

supporting, the trial court ignored her failing health, and there was no change in

circumstances for either Wife or Husband to justify a change to the original support

order.

“ ‘ Modification of spousal support, even if the prior amount is established by

agreement, requires a material change of circumstances since the last order [Citations.]

Change of circumstances means a reduction or increase in the supporting spouse’s ability

to pay and/or an increase or decrease in the supported spouse’s needs. [Citations.] It

includes all factors affecting need and the ability to pay.’ ” (In re Marriage of Dietz

(2009) 176 Cal.App.4th 387, 396.)

Section 4320 provides numerous factors that the trial court should consider when

deciding on an award of spousal support. Some of these factors include marketable skills

of the supported party; the needs of each party based on the standard of living established

during the marriage; the assets and obligations of each party; the duration of the

marriage; the ability of the supported party to engage in gainful employment; the age and

health of the parties; and balance of hardships to each party. Section 4320, subdivision

(l), provides a further factor as follows: “The goal that the supported party shall be self-

supporting within a reasonable period of time. Except in the case of a marriage of long

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duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this

section generally shall be one-half the length of the marriage. However, nothing in this

section is intended to limit the court’s discretion to order support for a greater or lesser

length of time, based on any of the other factors listed in this section, Section 4336, and

the circumstances of the parties.” Further, section 4320, subdivision (n), provides a

catch-all provision, “Any other factors the court determines are just and equitable.”

“ ‘A trial court considering whether to modify a spousal support order considers

the same criteria set forth in . . . section 4320 as it considered in making the initial

order.’ ” (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 396.)

In balancing the statutory factors, it is up to the trial court “to determine the

appropriate weight to accord to each” factor. (In re Marriage of Cheriton (2001) 92

Cal.App.4th 269, 304.)

We review the termination of spousal support for an abuse of discretion. (In re

Marriage of Minkin (2017) 11 Cal.App.5th 939, 957.) “We presume the court’s decision

is correct and the appealing party must affirmatively show error.” (Ibid.)

Here, as recognized by Wife, the trial court extensively reviewed the various

factors in section 4320. Despite this extensive review of the factors involved, Wife

insists that the trial court terminated spousal support on the sole basis of the length of

their marriage.

The record does not support that the trial court only relied on the length of the

marriage in terminating spousal support. Undoubtedly, this was a proper factor to

consider in terminating support. (§ 4320, subds. (f), (l).) Wife complains that

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consideration of this factor was erroneous because Husband failed to pay the spousal

support. However, based on the calculations by Husband and Wife, he had paid the total

amount for at least seven years. Further, Husband was ordered to pay past-due spousal

support. The trial court did not abuse its discretion in considering the number of years of

the marriage in deciding to terminate spousal support.

Here, there was another significant change in circumstance that Wife had become

self-supporting since the first spousal support order. When the initial spousal support

order was made, Wife was receiving $426 in food stamps, and Husband had a monthly

income of $3,000. Wife in her response to the RFO included her income and expense

declaration, which showed she was earning over $2,000 each month. Husband called

Wife to testify at the hearing on the RFO. She had trained to be an optician and had

gotten a job with an optometrist making $13.50 per hour. She had left her previous job at

Amazon working in the warehouse because it was too physically demanding. Her 2016

income tax return showed she made $32,000.

Again, in making its ruling, the trial court reviewed several section 4320 factors.

It noted that one of those factors was that Wife had marketable skills as an optician. The

trial court specifically referred to the income of both parties and that Wife was making

her best effort to be self-supporting. It then ruled that there would be no further spousal

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support. The record supports that the trial court considered the changed circumstance

that Wife had become self-supporting in terminating spousal support.3

Wife also appears to claim that the trial court could not terminate spousal support

because she was never advised at the time of the dissolution judgment that she was

expected to become self supporting.

In In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron), after being

married for 25 years, husband and wife divorced and husband was ordered to pay $1,100

each month in spousal support until further order of the court. Six years after the entry of

the order, Husband filed a request for order to reduce the spousal support to $500 for one

year and then terminate support. (Id. at pp. 707-708.) The trial court ordered one year of

payments at the same amount and then termination of spousal support. (Id. at p. 708.)

According to the testimony at the hearing, wife had few marketable skills and never

worked for an extended period of time. She had medical problems that impacted her

ability to work. However, she had numerous assets. The trial court granted the request

for order concluding in part that wife had made no effort to be employed. (Id. at pp. 709-

710.)

The appellate court noted, “ ‘To obtain a modification of a previous spousal

support order, the moving party must show a material change of circumstances since the

time of the prior order.’ ” (Gavron, supra, 203 Cal.App.3d at p. 710.) The court noted

3In her appellant’s reply brief, Wife appears to complain that the RFO did not
properly plead change of circumstances. As noted, Husband also presented evidence at
the hearing showing that Wife had become self-supporting, to support the change in
circumstances.

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that the circumstances had not changed since the original order. (Id. at p. 711.) Also, it

noted that at the time of issuance of the original spousal support order, there was no

warning to the wife that she was to make efforts to become self- sufficient. (Id. at pp.

711.) The Gavron court noted, “It is particularly appropriate here that there should have

been some reasonable advance warning that after an appropriate period of time the

supported spouse was expected to become self-sufficient or face onerous legal and

financial consequences.” (Id. at p. 712.) The trial court’s order was reversed. (Ibid.)

After Gavron, the Legislature enacted section 4330, subdivision (b), which states,

“When making an order for spousal support, the court may advise the recipient of support

that the recipient should make reasonable efforts to assist in providing for their support

needs, taking into account the particular circumstances considered by the court pursuant

to section 4320, unless, in the case of a marriage of long duration as provided by Section

4336, the court decides this warning is advisable.”4 Subdivision (c) of section 4336,

provides, “Nothing in this section limits the court’s discretion to terminate spousal

support in later proceedings on a showing of changed circumstances.”

Here, based on the record, at the time that the original spousal support order was

issued in 2001, support was to continue until the death of either party, remarriage of Wife

or by agreement off the parties. There is no indication in the record that Wife was

advised she should endeavor to become self-supporting. However, the warning in section

4 Section 4336, subdivision (b) provides in pertinent part, “[t]here is a
presumption affecting the burden of producing evidence that a marriage of 10 years or
more, from the date of marriage to the date of separation, is a marriage of long duration.”

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4330 is discretionary and not mandatory. No warning was required in order for the trial

court to later conclude that changed circumstances warranted termination of spousal

support. Moreover, this case is unlike the situation in Gavron as Wife actually become

self-supporting and gained job skills.

The trial court reviewed the factors in section 4320 and concluded that based on

the length of the marriage and a change of circumstances, it was appropriate to terminate

spousal support. Further, even though Wife was not warned at the time of the dissolution

judgment that she should endeavor to become self-supporting, she gained marketable job

skills and was self-supporting. Although Wife had health problems, which required her

to leave her warehouse job, she obtained skills as an optician, and no evidence was

presented that she was unable to perform that job. The trial court did not abuse its

discretion by terminating spousal support.

B. SUBSTANTIAL EVIDENCE OF PAST-DUE SPOUSAL SUPPORT

Wife contends there was no substantial evidence that the principal past-due

spousal support totaled $42,447.79. She first contends this amount improperly excluded

interest, which we will discuss, post. She additionally relies on her own calculation of

the past-due support referring to an exhibit attached to the appellant’s opening brief. She

claims such calculation was based on her documentation submitted in the trial court.

Initially, the exhibit attached to the opening brief includes a tally of the payments

missed and the resulting interest. This was not presented to the trial court and we will not

consider it for the first time on appeal. (See In re Zeth S. (2003) 31 Cal.4th 396, 400, 405

[an appellate court may not consider evidence that was not presented in the trial court].)

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 Further, there was substantial evidence presented to support the trial court’s

determination as to the amount that Husband had paid in spousal support, in the form of

the year-end pay stubs submitted by Husband. These year-end pay stubs were provided

for the years 2005 to 2018. The trial court could reasonably rely on this evidence in

determining the amount that Husband had paid in calculating the past-due spousal

support.

Wife presented several different amounts owed to her by Husband. In her

response to the RFO, she presented that Husband owed her $48,237. In her declaration of

payment history for spousal support, she reported that Husband had past-due spousal

support of $61,997.86. Finally, on appeal, Wife contends the amount owed by Husband

is $66,817.86.

The trial court reasonably relied on the documentation submitted by Husband in

calculating past-due spousal support. Wife did not present a decisive number that

Husband owed to her, instead presenting three different calculations to the trial court.

Despite the pay stubs provided by Husband providing substantial evidence of the

support paid by him, the calculation by Husband’s counsel—and apparently relied upon

by the trial court—is incorrect. Husband’s counsel provided a summary of the of the

year-end pay stubs showing that he paid a total of $68,684.21 in spousal support. The

trial court relied on this number in calculating the arrearages, by taking the total support

owed, which was $111,132, and subtracting $68,684.21, to reach the amount of

$42,447.79.

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 However, in reviewing the year-end pay stubs, the summary provided by

Husband’s counsel incorrectly listed the payment in 2011 as $8,631.31 rather than

$6,631.31, and the 2013 payment as $6,904 when it was $6,804. The appropriate

calculation was $66,584.21, leaving an arrearages of $44, 547.79. We will order the trial

court to correct the amount owed for past-due spousal support.

C. INTEREST

Wife contends that the trial court erred by failing to award interest on the past-due

spousal support. Based on the record, it is clear the trial court erroneously did not award

interest on the past-due spousal support in calculating the amount owed to Wife.

“ ’The interest on arrears accrues and is payable as a matter of law. Consequently,

notwithstanding the obligor’s detrimentally changed financial circumstances, trial courts

are without authority to waive or forgive interest accrued on past-due child support

amounts, just as courts cannot retroactively modify or terminate the arrearages

themselves.’ ” (In re Marriage of Cordero (2002) 95 Cal.App.4th 653, 667 (Cordero).)

Code of Civil Procedure section 685.020, subdivision (b) provides “Unless the

judgment otherwise provides, if a money judgment is payable in installments, interest

commences to accrue as to each installment on the date the installment becomes due.”

Family Code section 290 provides “A judgment or order made or entered pursuant to this

code may be enforced by the court by execution, the appointment of a receiver, or

contempt, or by any other order as the court in its discretion determines from time to time

to be necessary.” “[T]here is nothing in the text of the Family Code that allows courts to

consider a laches defense.” (Cordero, supra, 95 Cal.App.4th at p. 665.)

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 “The legal rate of interest is 10 percent.” (Cordero, supra, 95 Cal.App.4th 653,

657, citing to Code of Civ. Proc. § 685.010, subd. (a).) “With regard to child and spousal

support orders, that means 10 percent interest accrues when each installment becomes

due and remains unpaid.” (Cordero, at pp. 657-658; see also In re Marriage of Hubner

(2004) 124 Cal.App.4th 1082, 1089 [“Statutory interest on unpaid child support payments

accrues as a matter of law as to each installment when each installment becomes due . . . .

[¶] Accrued arrearages are treated like a money judgment for purposes of assessing

statutory interest. Unless otherwise specified in the judgment, interest accrues as to each

installment when each installment becomes due and continues to accrue for so long as the

arrearage remains unpaid,” fns. omitted].)

Despite Wife’s delay in seeking past-due spousal support, the trial court did not

have discretion to refuse to award interest on the past-due spousal support. Wife was

entitled to 10 percent interest, which started to accrue as to each installment on the date

the installment became due. (Code of Civ. Proc, § 685.020, subd. (b).)

Husband claims that interest was not owed because the trial court had the authority

to forgo paying interest pursuant to section 155. Husband does not provide any legal

authority that section 1555 applies nor does he make any attempt to distinguish Cordero.

5 Section 155 provides “For the purposes of Section 685.020 of the Code of Civil
Procedure, only the initial support order, whether temporary or final, whether or not the
order is contained in a judgment, shall be considered an installment judgment. No
support order or other order or notice issued, which sets forth the amount of support owed
for prior periods of time or establishes a periodic payment to liquidate the support owed
for prior periods, shall be considered a money judgment for purposes of subdivision (b)
of Section 685.020 of the Code of Civil Procedure.”

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We will not make such argument for Husband and find that by failing to support his

claim by proper legal authority and argument, he has waived the claim on appeal. (Cahill

v. San Diego Gas & Electric, Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ When an

appellant fails to raise a point, or asserts it but fails to support it with reasoned argument

and citations to authority, we treat the point as waived’ ”].) We will remand for the trial

court to calculate interest on the past-due spousal support by determining which

payments were missed and award interest at the statutory rate on each from the due date.

(In re Marriage of Perez (1995) 35 Cal.App.4th 77, 81.)

Wife has further contended the trial court erred by disallowing her argument at the

hearing on November 5, 2018, that the amount of past-due spousal support was

incorrectly calculated and that the trial court erred by failing to award interest. We have

found in Wife’s favor in finding that the trial court erred by failing to award interest.

Moreover, we have increased the principal amount owed by Husband. Regardless, Wife

had ample opportunity to present to the trial court the proper amount of past-due spousal

support that she was owed, and presented documentary evidence, but the trial court

properly determined that Husband had presented the most reliable evidence.

DISPOSITION

The termination of spousal support is affirmed. The March 26, 2019, order of

past-due spousal support is reversed and the matter is remanded to the trial court to enter

a new order that the past-due spousal support is $44,547.79. Further the trial court is

directed to calculate the interest on the past due spousal support in accordance with this

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opinion, with that amount to be included in the new order. The parties shall bear their

own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.

We concur:

CODRINGTON
J.

RAPHAEL
J.

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