Marriage of B.M. and O.G. CA3

Filed 11/5/26 Marriage of B.M. and O.G. CA3 Opinion following rehearing NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras) In re the Marriage of B.M. and O.G. C104321 B.M., (Super. Ct. No. 24FL47420) Respondent, v. OPINION ON REHEARING O.G., Appellant. O.G. (wife) appeals from a trial court order awarding her temporary child and spousal support. She argues the trial court “improperly applied requirements for retroactivity not imposed by any statute” (emphasis omitted) and abused its discretion in not selecting an earlier date for retroactive support. Finding no error or abuse of discretion, we will affirm the court’s order. I. BACKGROUND1 B.M. (husband) and wife were married in November 2018; they had a child in February 2020. Wife left the family home with the parties’ minor child in May 2024. 1 Husband filed a request for judicial notice in this court, asking this court to take judicial notice of his supplemental declaration in the domestic violence restraining order matter, along with the trial court’s final judgment and statement of decision in the domestic 1 Days later, she filed a request for a domestic violence restraining order (DVRO). In the judicial council form requesting the DVRO, wife checked the boxes indicating she wanted orders for child support and spousal support. The court issued a temporary DVRO on May 28, 2024. On June 3, 2024, husband filed a petition for dissolution. He was served with the temporary DVRO on July 15, 2024. He filed his response nine days later. In his response, husband agreed to an order for guideline child support. With regard to spousal support, husband argued that wife had sufficient funds; she had $83,000 “of community funds,” as well as $15,000 that he “gave” her. On July 25, 2024, the trial court heard wife’s DVRO request. The court said it needed more evidence before it could rule on the DVRO and continued the hearing to November 20, 2024. In the meantime, the temporary orders remained in effect. The court instructed the parties to file any request for order regarding custody and visitation in the “family law” proceedings. Wife filed her response to the petition for dissolution on August 12, 2024. In her response, wife asked for spousal support and guideline child support. On January 28, 2025, wife filed a request seeking initial orders for child support and spousal support. She sought temporary guideline child support (with add-ons) totaling $3,692 per month and temporary spousal support totaling $6,036 per month. She asked the court to make both those orders retroactive to July 15, 2024, the date “when [she] served [husband her] request for support.” In her form request, wife indicated there was a temporary DVRO in effect. violence restraining order matter. These documents are not relevant to the issues raised in this appeal. We deny his request accordingly. (See Roth v. Jelley (2020) 45 Cal.App.5th 655, 678, fn.10 [matters subject to judicial notice must be relevant to issues raised on appeal].) 2  In support of her request that the court issue support orders retroactive to July 15, 2024, wife argued she was “severely in need of financial support” because she “was forced to flee the marital home” with the parties’ minor child. Husband, she argued, created a “deliberate financial dependency” during marriage and had “exclusive control over the parties’ accounts and his substantial income” but was refusing to provide her or their child any support. Meanwhile, wife had to borrow money from friends and family to secure housing, support herself and the parties’ minor child, and obtain legal counsel. Along with her request, wife filed an income and expense declaration where she listed her gross monthly income for the prior 12 months at $0 and her total assets at $38,436.17. Wife also identified her “proposed needs” to be $20,021 per month. This amount included monthly payments on a $4,800 personal loan from a friend, a $9,400 personal loan from family, and a credit card balance that appeared to be $8,511. On the date she signed her income and expense declaration, wife had already paid $86,722 in attorney fees; she still owed her attorney $22,414. She attached the parties’ most recent tax records and a “DissoMaster” report to her request. Husband filed his response to wife’s request for support on February 26, 2025. Husband agreed to pay guideline child support and “guideline temporary spousal support.” He asked the court to impute wife with minimum wage, issue a seek work order, and order her to undergo a vocational evaluation. Husband challenged wife’s claim that he prevented her from working or from accessing money during their marriage. Along with his response, husband filed his own income and expense declaration. He indicated his gross monthly income was $22,466. He listed his total assets at $59,000 and estimated his monthly expenses to be $55,221.83 ($18,505.16 of which was paid “by others”). The trial court heard wife’s request for support orders on April 10, 2025. At the outset, the court noted that it read the parties’ briefs and indicated it intended to set spousal and child support retroactive to February 1, 2025. The court explained: “In 3 department two when the DVRO was heard, or at one of the hearings, it’s my understanding that Judge Sanders put the parties on notice that family law issues would need to be addressed in the family law case. When the [request for order] was filed it was in January of 2025, which was obviously after the DVRO proceedings, so that’s the reason why I’m going to make it retroactive to February 1st, after the filing of the January … request for child support. “The other reason is that when the DVRO request was submitted, there was not contemporaneously submitted an Income and Expense, which the court is going to factor in as well under [California] Rule[s] of Court[, rule] 5.26[0](a)(1).” The court further indicated it intended not to issue a seek work order and not order a vocational assessment. The court would impute wife with part-time minimum wage income. Using the information provided by the parties, the court calculated guideline child support to be $3,372 and temporary spousal support to be $4,450. Following a short break, wife argued that she “understood the court’s position” not to set support retroactive to “the filing of the DVRO” but Family Code section 4009 gave the court discretion to set it retroactive to August 12, 2024, the date she filed her response to the dissolution petition. Recognizing the “strong public policy in favor of adequate child support,” she argued, the court should exercise its discretion and set child support retroactive to August 12, 2024. She also argued that the court had discretion to set spousal support “retroactive to the date of the filing of the initial petition or the other initial filing[,] which [wa]s August 12[, 2024].” The court stuck with its tentative ruling: “I think that the request for order is the appropriate date. The request for order could have been made sooner. And as I mentioned[,] a request for child support under … [California] Rule[s] of Court[, rule] 5.260(a)(1) does require a completed Income and Expense Declaration on a request. So[,] I think as a matter of due process the court is going to keep [the] effective date as indicated in the tentative ruling.” 4  At wife’s request, the court ordered husband to pay the three months of arrears in a lump sum, due May 15, 2025. The court explained its ruling: “I’m weighing a few things. One is that the retroactive date … of February 1st, [wife] has been out of the home for an extended period of time with the child on her own, and I think that she is due this money as quickly as possible.” The trial court then received evidence on husband’s income, adjusted the support calculations accordingly, and ordered husband to pay $2,551 in child support and $2,897 in temporary spousal support retroactive to February 1, 2025. The findings and order after hearing, prepared by counsel and signed by the court, offered the following: “Child and spousal support orders are effective February 1, 2025, pursuant to the filing date of the Request for Order, which was filed on January 28, 2025. [¶] Child support shall be retroactive to February 1, 2025[,] instead of retroactive to the date of the filing of the [DVRO] based on the following: [¶] During the DVRO proceedings, where [wife] requested child support and spousal support, Judge Sanders put the parties on notice that family law issues would need to be addressed in the family law case, not in the DVRO proceedings. [¶] The Request for Order seeking child support retroactive to the filing of the DVRO was filed in January 2025, which was after the DVRO proceedings. [¶] The DVRO was not accompanied by a completed Income and Expense Declaration pursuant to California Rule[s] of Court[, rule] 5.260(a)(1). “Child support shall be retroactive to February 1, 2025[,] instead of retroactive to the date of the filing of the response to the Petition for Dissolution on August 12, 2024[,] based on the following: (1) the response to the Petition for Dissolution was not accompanied by a completed Income and Expense Declaration pursuant to California Rule[s] of Court[, rule] 5.260(a)(1); and (2) due process.” Husband “shall pay all arrears for child and spousal support, totaling $16,344.00 for February, March, and April 2025, to [wife] in full by May 15, 2025.” 5  II. DISCUSSION A. Standard of Review “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We review awards of temporary spousal support and child support for abuse of discretion. (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) This “ ‘is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (In re Marriage of Walker (2012) 203 Cal.App.4th 137, 146.) B. Legal Error Wife argues the trial court “improperly applied requirements for retroactivity not imposed by any statute.” (Emphasis omitted.) We disagree. “An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading.” (Fam. Code, § 4009.) Similarly, “[i]n making initial temporary spousal support orders, the trial court has discretion to issue its orders retroactive to the date of the petition.” (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 512; accord In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165-166.) A trial court may award spousal support or child support in a DVRO proceeding. (Fam. Code, § 6341; In re Marriage of J.Q. & T.B. (2014) 223 Cal.App.4th 687, 701.) Absent evidence to the contrary, we presume the trial court knew the law and applied it correctly. (See In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526; see also McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103.) 6  Here, wife asked the trial court to issue support orders retroactive to the date she served husband with her DVRO application or the date she filed her response to the dissolution petition. After considering her argument, the trial court issued its support orders retroactive to February 1, 2025. Contrary to wife’s claim on appeal, the court did not say it could not select an earlier start date for retroactive support. Rather, the court demonstrated it was exercising its discretion to choose a later date. The court explained it chose February 1, 2025, as the effective date of its support orders because it was the date wife filed her request for those orders and the date she filed her income and expense declaration. The court also said there may be due process concerns (without further clarification) and indicated the parties were previously advised that family law issues would be resolved in the family law proceedings, not the DVRO proceedings. The court noted that wife could have filed her request sooner but also ordered husband to pay the three-month arrears in a lump sum payment within a month of the hearing. The court said it was “weighing a few things” and concluded wife needed the money sooner rather than later because she and the child had been without support for several months. The court’s explanation included a reference to the California Rules of Court and due process; and it is true that a motion to modify support can only be issued retroactive to the date the request for an order is filed2, but the court’s explanation for setting the original support orders retroactive to February 1, 2025, is not evidence the court misunderstood the law and “improperly applied requirements for retroactivity not imposed by any statute.” We thus presume the court knew the law and applied it 2 “An order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause or to modify or terminate.” (Fam. Code, § 3603.) 7 correctly. (In re Marriage of Davenport, supra, 194 Cal.App.4th at p.1526; McDermott Will & Emery LLP v. Superior Court, supra, 10 Cal.App.5th at p.1103.) C. Abuse of Discretion Wife contends the trial court abused its discretion by not selecting an earlier date for retroactive support. She argues the trial court “improperly failed to consider the parties’ child’s needs in determining retroactivity for child support.” (Emphasis omitted.) She also argues the trial court “improperly failed to consider the parties’ economic needs and abilities when determining retroactivity for spousal support.” (Emphasis omitted.) We disagree. The parties presented the trial court with evidence of wife’s needs, their child’s needs, and husband’s ability to pay. The court determined that guideline child support of $2,551 and temporary spousal support of $2,897, totaling $5,448 per month, ordered retroactive to February 1, 2025, with arrears to be paid in a lump sum, was an appropriate exercise of its discretion. The court offered a brief explanation for its decision that did not include reference to the child’s needs or the parties’ respective needs and abilities to pay. Wife argues this is evidence the court failed to consider those factors. The trial court, however, was not required to expressly address every factor. (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 602.) Accordingly, on this record, we find no abuse of discretion. 8  III. DISPOSITION The court’s orders are affirmed. Husband is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).) /S/ RENNER, Acting P. J. We concur: /S/ MESIWALA, J. /S/ WISEMAN, J.* * Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 9