Filed 3/13/23 A.S. v. R.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.S., D080062
Plaintiff and Appellant,
v. (Super. Ct. Nos. 20FL010374C
& 21FL011075C)
R.S.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Jinsook Ohta, Judge. Affirmed.
Law Office of Patrick L. McCrary, Patrick L. McCrary; Fleischer and
Ravreby and Myra C. Fleischer for Plaintiff and Appellant.
Law Office of Linda Cianciolo, Linda Cianciolo; Law Offices of Colleen
A. Warren and Colleen Anne Warren for Defendant and Respondent.
In this family law matter, the unmarried parents of three minor
children lived together as a family in a house owned by R.S. (Father). That
was until A.S. (Mother) obtained an ex parte temporary restraining order
(TRO) against Father by alleging that he had engaged in domestic violence.
Father denied the allegations, but the TRO included a kick-out order that
forced him to vacate the residence and live temporarily in a hotel. Father
nonetheless voluntarily paid $4,000 per month to help support the children.
Mother lived with the children in Father’s home for more than six months—
an extended time period due to the COVID-19 emergency—until she elected
to dismiss her restraining order request before any hearing was held. At that
point, Father moved back into the house, but Mother refused to leave. So
they lived together with the children for another six months until the court
ordered Mother to vacate.
In response to a request for order (RFO) filed by Mother, the family
court made orders for custody/visitation and for guideline child support
payable by Father to Mother. At the same time, the court gave Father credit
for past child support payments he voluntarily made and housing expenses
he incurred for the children. Mother appeals, contending that the court’s
order crediting Father for the children’s housing expenses violated her due
process rights, was contrary to the uniform child support guideline, and was
not supported by substantial evidence.
We agree with Father that Mother forfeited her claims of error because
she never objected to the housing expense credit in the family court. Even if
she had objected, we conclude the trial court properly credited Father for the
children’s housing expenses under applicable law and based on substantial
evidence. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Mother have three minor children together. Although they
never formalized their marriage, they held themselves out as a married
couple. According to Mother, she was the “primary caretaker” of the children,
while Father was “the sole financial provider” for the family. Father claimed
2
he “consistently helped care for and raise [their] children during their entire
lives.” Father earned $46,034 a month in 2021 as the chief executive officer
of a multimillion-dollar marketing company. Mother earned $10,580 a month
as a public relations director at the same company and received a household
allowance of $2,000 from Father until November 2020, when Father
“abruptly terminated” both employment and allowance.
In November 2020, Mother filed a request for domestic violence
restraining order, claiming that Father “has a history of being emotionally
and physically abusive toward [her] and [their] children.” A temporary
restraining order was granted on an ex parte basis, and that same month,
Father left his house to stay at a hotel. Father maintained that Mother’s
allegations of abuse were “completely and utterly false.”
In December 2020, Mother filed a petition for dissolution, claiming a
common law marriage under Colorado law. She also requested orders on
child custody and support.1 Beginning that same month, Father (without a
court order) began to provide Mother $4,000 per month in child support. The
court held an evidentiary hearing in June 2021 and determined there was no
common law marriage. It specifically found that Mother’s testimony was not
credible.
In July 2021, Mother withdrew her request for a restraining order and
Father moved back into the house. Also in July, Father reduced his child
support payments to $1,200 a month because Mother refused to vacate the
1 The dissolution case (No. 20FL010374C) was consolidated with the
custody, visitation, and child support case (No. 21FL011075C) and the latter
was designated as the lead case.
3
house, even though she had “no right or title [to the home],” and he was
paying for the mortgage and for all of the housing expenses.
In September 2021, Mother filed another petition for child custody and
support, which superseded the previous petition. A hearing on the issue of
support was set for November 9, 2021. In anticipation of that hearing,
Father filed a declaration requesting “credit for paying the children’s housing
expenses while in [Mother’s] care.” (Italics added.) Father’s attorney also
asked the court at the hearing, “if support goes back retroactive to December
20 of 2020, which is the date that the RFO was filed, we would ask that the
Court order that [Father] receive credit for any payments that he has made
directly to [Mother] or on the behalf of the children during that time. Of
course, counsel—we would have to meet and confer as to that amount. We
have not yet done so.”
The court entered custody orders giving Father a 38 percent timeshare
with the children. Based on his 38 percent timeshare, the court calculated
guideline child support for Father at $6,772 per month retroactive to January
1, 2021, the first of the month following the filing of Mother’s RFO. The court
also ordered Father to pay all arrearages in child support by December 1,
2021.
Pursuant to Father’s request for housing expense credits, the court
stated that he would be credited against the arrearages for 100 percent of fair
rental value (FRV) of the house while Mother and the children occupied the
house exclusively (November 2020 through July 2021), and 50 percent while
they cohabitated together with Father (July through December 2021).2 The
2 The family court also ordered Mother to move out of Father’s house by
January 1, 2022.
4
court further ordered the parties “to meet and confer about any arrearages
for past payments that have not been made up to this amount, but also any
offsets for payments that have already been voluntarily made toward this
amount.”
DISCUSSION
Mother contends the trial court committed three errors. She first
argues that the order crediting Father’s past payments against his
arrearages in child support is inconsistent with the uniform child support
guideline under Family Code section 4053. She also maintains she was not
afforded notice and opportunity to address the credit issue before it was
decided. Finally, she asserts there was no substantial evidence to support
the court’s determination that Father was entitled to credits of 50 percent of
the FRV of the property when Mother, Father, and children resided there and
100 percent when only Mother and children occupied the home. Father
counters that Mother forfeited her claims of error because these objections
were never raised in the trial court.3
A. Forfeited Claims
“Forfeiture” is “the loss of the right to raise an issue on appeal due to
the failure to raise it in the trial court.” (DiPirro v. Bondo Corp. (2007)
153 Cal.App.4th 150, 177, fn. 18.) “ ‘For better or worse, California child
support law now resembles determinate sentencing in the criminal law: The
actual calculation required of the trial judge has been made so complicated
[citation] that, to conserve judicial resources, any errors must be brought to
3 Father also argues that Mother’s opening is brief is not supported by
proper citations to the record. We disagree and conclude the record
submitted, along with the citations provided in the Mother’s briefs, are
sufficient.
5
the trial court’s attention at the trial level while the [theoretical] error can
still be expeditiously corrected.’ ” (In re Marriage of Calcaterra & Badakhsh
(2005) 132 Cal.App.4th 28, 37.) “ ‘This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change
of theory on appeal.’ ” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65
Cal.App.5th 506, 548.) We agree with Father that any claim of error Mother
seeks to assert on appeal was forfeited by her failure to raise it in the trial
court.
Under a section of his declaration entitled “CHILD SUPPORT,”
Father stated, “I believed after the restraining order was dropped that
[Mother] would finally move out of my home, to which she has no right or
title, but she has remained. She must move out, but until she does, I request
credit for paying the children’s housing expenses while in [Mother]’s care.”
(Italics added.) At the hearing, Father again requested credit “for any
payments that he has made directly to [Mother] or on the behalf of the
children” if the court ordered retroactive child support. (Italics added.)
Agreeing with the request, the court ordered that Father be credited against
the arrearages for half the FRV of the house while Father and Mother were
living there together with the children, plus the full FRV while Mother was
living alone with the children. It directed the parties to meet and confer with
regard to the FRV of the house.
Mother said nothing about Father’s request for credit in her reply
declaration. And at no point during the November 2021 hearing did Mother’s
counsel take issue with Father’s request, either before or after the court’s
ruling on the credit issue. Despite asking other questions of the court after
its ruling was announced, counsel made no mention of the housing expense
credit. Nor did Mother file a motion for reconsideration. Now on appeal,
6
Mother claims for the first time that the trial court erred in crediting the
Father for the FRV of the house.
“ ‘It is unfair to the trial judge and to the adverse party to take
advantage of an alleged error on appeal where it could easily have been
corrected at trial.’ ” (Cabrini Villas Homeowners Assn. v. Haghverdian (2003)
111 Cal.App.4th 683, 693.) Here, nothing prevented Mother from raising any
concerns she had about the credit issue at some point in the family court
proceedings, but she did not. Her failure to do so forfeited any claim of error.
(See In re Javier G. (2006) 137 Cal.App.4th 453, 464 [“Generally, issues not
raised in the trial court cannot be raised on appeal.”].)
B. Merits of the Housing Expense Credit
Even if we considered Mother’s arguments on the merits, we are
unpersuaded that the court’s decision to credit Father for the housing
expenses either (1) violated her due process rights; (2) contravened the
uniform child support guideline; or (3) was unsupported by substantial
evidence.
At its most basic level, procedural due process requires notice and the
opportunity to be heard. (See Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 212.) Here, Mother was afforded
sufficient notice based on Father’s request in his declaration for “credit for
paying the children’s housing expenses while in [Mother]’s care.” At the
hearing, the court found “[b]oth parties received notice and opportunity to be
heard,” a finding to which Mother’s counsel raised no objection. Mother could
have responded to the request in her reply declaration, and she had an
additional opportunity to challenge it at the hearing. Due process requires
the opportunity to be heard. It does not protect against lost opportunities.
There was no due process violation.
7
We review child support orders for abuse of discretion. (In re Marriage
of Hein (2020) 52 Cal.App.5th 519, 529.) In conducting this review, we assess
“(1) whether the trial court’s factual findings are supported by substantial
evidence, (2) whether the trial court followed applicable legal principles, and
(3) whether the trial court reasonably exercised its discretionary authority—
that is, whether any judge reasonably could have made such an order.”
(Ibid.)
In family law, courts are required to calculate child support in
accordance with the uniform child support guideline. (See Fam. Code,
§ 4055; see also In re Marriage of Williamson (2014) 226 Cal.App.4th 1303,
1312.) There is no dispute the $6,772 per month in retroactive child support
the court ordered is consistent with the guideline. Notably, Mother does not
argue the family court deviated from the guideline by crediting Father for
“past child support payments,” namely the $1,200 and $4,000 monthly
payments he voluntarily made. Mother contends rather that “the court
deviated from guideline support by reducing the amount of support payable
by [Father] based upon the rental value of the home.” Mother again cites no
authority for treating the children’s housing expenses that Father incurred as
a “reduction” to the child support payment, as opposed to credit for the child
support Father provided prior to the court order. (See Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [an appellant bears the
burden of establishing error by citing to the appropriate authority].)
Nor do we see a material or legal distinction between credit for the
monetary payments Father made and credit for the housing expenses he
incurred in this circumstance. (See also Maughan v. Google Technology, Inc.
(2006) 143 Cal.App.4th 1242, 1249 [“ ‘In the absence of a clear showing that
its decision was arbitrary or irrational, a trial court should be presumed to
8
have acted to achieve legitimate objectives and, accordingly, its discretionary
determinations ought not be set aside on review.’ ”].) It was well within the
trial court’s discretion to consider whether “a parent has satisfied his or her
support obligation in a manner other than direct financial payments” (In re
Marriage of Tavares (2007) 151 Cal.App.4th 620, 626, italics added), which in
this case includes the children’s housing expenses that Father incurred
concurrently with and in addition to the financial payments he voluntarily
made. (See also Y.H. v. M.H. (2018) 25 Cal.App.5th 300, 307 [It is within the
court’s discretion to “ ‘give credit for past overpayment’ ” or “ ‘take into
consideration “whether the debtor had satisfied or otherwise discharged the
obligation imposed by the original order” ’ ” (italics added)].)4 We therefore
conclude the court’s consideration of Father’s housing expenses as credit does
not amount to an impermissible deviation from the guideline.5 (See Keith G.
v. Suzanne H. (1998) 62 Cal.App.4th 853, 858–860; In re Marriage of
Trainotti (1989) 212 Cal.App.3d 1072, 1075–1076; see, e.g., In re Marriage of
4 Mother concedes she “does not raise the issue on this appeal of whether
the court may give credit against a child support order for providing housing
for the children.”
5 “Whenever a trial court orders a child support amount that differs from
the guideline amount it is required to state, either in writing or on the record,
‘[t]he reasons the amount of support ordered differs from the guideline
formula amount’ and why ‘the amount of support ordered is consistent with
the best interests of the [child].’ ” (S.P. v. F.G. (2016) 4 Cal.App.5th 921, 935,
citing Fam. Code, § 4056, subd. (a)(2), (3).) Mother contends the trial court
failed to explain its reasoning, as required by Family Code section 4056, for
deviating from the guideline. Because we reject the underlying premise that
the trial court deviated from the guideline, Family Code section 4056 was not
triggered and the trial court had no obligation to explain a nonexistent
deviation.
9
Braud (1996) 45 Cal.App.4th 797, 807, 819 [concluding that it was not an
abuse of discretion for the trial court to credit the husband, as a result of his
loss of use of the house that he and his wife co-owned, for up to 50 percent of
the net FRV against his child support obligation].)
Finally, contrary to Mother’s assertion, substantial evidence supports
the court’s decision to credit Father for either 50 or 100 percent of the FRV,
depending on whether he was living in the home with Mother and the
children. Both parties agree in their declarations that Father moved out of
the house to live in a hotel in November 2020, when Mother filed her
temporary restraining order, until July 2021, when he moved back into the
house because the temporary restraining order was dismissed. Father also
attests he owns the house and was paying $4,271 for the mortgage, $1,116 for
property taxes, and $700 in other housing-related expenses. Mother’s
attorney readily conceded at the November 2021 hearing that her client was
still living at the house. Father only sought credit against the arrearages
because Mother refused to vacate the house.
“The term ‘substantial evidence’ means such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion; it is
evidence which is reasonable in nature, credible, and of solid value.” (In re
J.K. (2009) 174 Cal.App.4th 1426, 1433.) The evidence offered by Father on
this point is not merely reasonable in nature, credible, and of solid value—
Mother does not dispute it. Accordingly, we cannot say the family court’s
decision to credit father for the housing expenses he incurred lacks
substantial evidence.
Mother asserts there was no evidence to support the percentages
chosen by the court to calculate Father’s credits. But the evidence consisted
of the foundational facts. Father paid the mortgage and all other expenses on
10
a house he owned and could not live in for several months. Thereafter,
Mother (who claimed to be the primary caretaker for the children) refused to
vacate Father’s home despite his request that she do so. We understand the
court could have chosen a different percentage for the period of time both
parties cohabitated with the children, but we cannot say the choice of 50
percent was unreasonable, and Mother offers no reasoned argument to
explain why it is. When it comes to matters of discretion, “[a]n appellate
tribunal is neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.” (Estate of Gilkison (1998) 65 Cal.App.4th
1443, 1449.)6
DISPOSITION
The judgment is affirmed. Father is entitled to costs on appeal.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
6 Because we concluded there was no error, we need not and do not reach
the question of prejudice.
11