Marriage of Kinney CA4/2

• Court: California Court of Appeal
• Decided: April 1, 2022
• Docket: E075065
• Status: Unpublished

Opinion

Filed 4/1/22 Marriage of Kinney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 RACHEL AND WILLIAM KINNEY.

RACHEL LYNN ANN KINNEY, E075065 Respondent, (Super.Ct.No. FAMSS1807599) v. OPINION WILLIAM FREY KINNEY,

Appellant;

SAN BERNARDINO COUNTY CHILD SUPPORT SERVICES,

Respondent.

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

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed.

William Frey Kinney, in pro. per., for Appellant.

1 Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,

Gregory D. Brown and Monique Seguy, Deputy Attorneys General, for Respondent San

Bernardino County Child Support Services.

No appearance for Respondent Rachel Lynn Ann Kinney.

When William and Rachel Kinney dissolved their marriage, they agreed that

William1 would owe no monthly support for the care of their two young children. Less

than seven months later, the San Bernardino County Child Support Services (the

department) filed a motion seeking to modify William’s child support obligation. Over

William’s objection, the family court granted the motion and ordered that he pay $2,226 a

month in child support.

William timely appealed, but he presents no reasoned legal argument in his

opening brief why the family court erred. For instance, he does not inform this court of

the appropriate standard of review or explain why, when applying the facts to that

standard, the family court committed prejudicial error that must be reversed. William

responded to the department’s (represented by the Attorney General) assertion that his

brief is completely deficient. But, to the extent he somewhat expands upon his claim of

error in his reply brief, it was too little too late.

In addition, William raises a vague claim of error about the garnishment of his

pension to pay his child support obligation, but the garnishment started after the family

1 For the sake of clarity, we refer to the parties by their first names. We mean no disrespect. (See In re Marriage of Pletcher (2021) 68 Cal.App.5th 906, 909, fn. 1.)

2 court entered its postjudgment order and it was accomplished by an administrative order

by the department, not by an order or judgment of the family court. Consequently, we

have no jurisdiction to address that claim. The appeal is dismissed.

I.

FACTS AND PROCEDURAL BACKGROUND

On April 23, 2019, the family court entered a stipulated judgment dissolving

William’s and Rachel’s marriage. The parties agreed that Rachel would have sole legal

and physical custody over their two minor children and that William would have no

visitation. They also agreed that the family court should set William’s child support

obligation at zero.

On November 14, 2019, the department filed a motion to modify William’s child

support obligation.2 William opposed the motion claiming that, if his child support

obligation were modified, it should not be in the amount prayed for by the department,

$2,226 a month. Inter alia, he argued the department’s motion failed to properly consider

Rachel’s income and William’s liabilities, to wit, his federal and state taxes, spousal and

child support obligations from prior marriages, and health care premiums.

William, who is incarcerated, made no appearance for the January 24, 2020

hearing on his opposition to the department’s motion. Rachel, who appeared

telephonically, testified William receives a full military retirement of $43,140 annually

and Veteran’s Administration (VA) disability benefits of $1,194 a month. She also

2 William did not list the motion in his amended designation of record on appeal, so it was not included in the clerk’s transcript.

3 testified that she spent $1,170 a month on childcare for the children. Based on William’s

income, counsel for the department argued William’s child support obligation under the

statewide child support guidelines would be $2,226 a month. Counsel asked that the

family court make the obligation effective December 1, 2019. The family court granted

the motion.

In its formal order entered February 3, 2020, the court indicated William’s child

support obligation of $2,226, under the statewide guidelines, reflected a $1,113 hardship

deduction and a $581 health insurance deduction for Rachel. The court found William

was still receiving his pension and VA benefits. On February 7, 2020, the department

served the order on William by mail.

William timely filed a notice of appeal on May 29, 2020.

II.

DISCUSSION

In its brief, the department requests that this court strike William’s opening brief

because it fails to comply with the content requirements set forth in rule 8.204(a) of the

California Rules of Court. (See Cal. Rules of Court, rule 8.204(e)(2)(B) [Court of Appeal

may, in its discretion, strike a noncomplying brief.].) We decline to strike the brief.

However, because William presents no reasoned argument why this court should

conclude the family court erred and why such error is reversible, we dismiss the appeal.

“‘A judgment or order of the lower court is presumed correct. All intendments

and presumptions are indulged to support it on matters as to which the record is silent,

and error must be affirmatively shown. This is not only a general principle of appellate

4 practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v.

Superior Court (1970) 2 Cal.3d 557, 564, first italics in original, second italics added; see

Cal. Const., art VI, § 13 [reviewing court may reverse the superior court only if it finds

“the error complained of has resulted in a miscarriage of justice.”]; Code Civ. Proc.,

§ 475 [“There shall be no presumption that error is prejudicial, or that injury was done if

error is shown.”].)

The sine qua non of an appellate brief is cogent legal argument. “Each brief must:

[¶] . . . [¶] State each point under a separate heading or subheading summarizing the

point, and support each point by argument and, if possible, by citation of authority . . . .”

(Cal. Rules of Court, rule 8.204(a)(1)(B), italics added; see id., rules 1.5(b)(1) [“‘Must’ is

mandatory.”], 8.7 [“The rules of construction stated in rule 1.5 apply to these rules.”].)

As the leading practice guide on California civil appeals explains, “Written briefs

comprise the heart of the appellate process. While the appellate record provides the

context for arguing an appeal . . . , the appellate briefs are the primary vehicle for

presenting the argument and persuading the court that your . . . position is correct.”

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021)

¶ 9:1, p. 9-1.) “The primary role of an appellate brief is to convince the reviewing court

of the merits of your . . . position . . . .” (Id. ¶ 9:3, p. 9-1; accord, 1 Appeals and Writs in

Criminal Cases (Cont.Ed.Bar 3d ed. 2021) § 4.40, p. 4-53 [“A brief is an exercise in

persuasion”].)

5 “‘One cannot simply say the court erred, and leave it up to the appellate court to

figure out why.’” (Jewish Community Centers Development Corp. v. County of Los

Angeles (2016) 243 Cal.App.4th 700, 716.) “The reviewing court is not required to

develop the parties’ arguments or search the record for supporting evidence and may

instead treat arguments that are not developed or supported by adequate citations to the

record as waived.” (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th

657, 684.) When an appellant fails to cite relevant legal authority in support of his or her

claim of error, “we may ‘treat the points as waived, or meritless, and pass them without

further consideration.’” (In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 561.)

Moreover, “‘[F]ailure of an appellant in a civil action to articulate any pertinent or

intelligible legal argument in an opening brief may, in the discretion of the court, be

deemed an abandonment of the appeal justifying dismissal.’” (Flores v. Department of

Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.)

The same rules apply to appellants appearing in propria persona. “A self-

represented party is to be treated like any other party and is entitled to the same, but no

greater, consideration than other litigants having attorneys.” (Elena S. v. Kroutik (2016)

247 Cal.App.4th 570, 574.)

Minus the certificate of interested entities or persons, tables of contents and

authorities, and the proof of service, William’s opening brief is seven pages long. Under

the heading “Nature of Action and Appealability,” William states the family court failed

to consider his opposition to the department’s motion, considered things it should not

have when it calculated his child support obligation, and failed to consider other things.

6 He then states, without any citation to appropriate legal authority, “For all of the above

reasons, the Appellant considers the Superior Court’s judgment in this case to be

appealable.”3 Last, under the heading “Specific Relief Sought From the Superior Court,”

William sets forth what he expects the family court to do on remand if this court reverses

the postjudgment order. But, other than the bare assertion that the family court should or

should not have considered certain things when calculating his child support obligation,

William does not explain how that amounted to error and, if it was an error, how he was

prejudiced by that error such that we must reverse the order.

For instance, William does not inform us what is the appropriate standard of

review we must apply, and he does not explain why—when the facts of the case are

applied to that standard of review—we must conclude the family court erred

prejudicially. We review an order modifying a child support obligation for abuse of

discretion and may reverse only if we find prejudicial error. (In re Marriage of

Rodriguez (2018) 23 Cal.App.5th 625, 633.) “As long as the trial court exercised its

discretion along legal lines, its decision will be affirmed on appeal if there is substantial

evidence to support it.” (Ibid.) “‘On review for substantial evidence, we examine the

evidence in the light most favorable to the prevailing party and give that party the benefit

of every reasonable inference. [Citation.] We accept all evidence favorable to the

3 The family court’s February 3, 2020, order is appealable. (Code Civ. Proc., § 904.1, subd. (a)(2) [appeal may be taken from an order made after an appealable judgment], (a)(10) [appeal may be taken from “an order made appealable by . . . the Family Code”]; Fam. Code, § 3554 [orders and judgments in support cases may be appealed “as in other civil actions.”]; see In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554.)

7 prevailing party as true and discard contrary evidence. [Citation.]’ [Citation.] ‘We do

not reweigh the evidence or reconsider credibility determinations.’” (In re Marriage of

Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) Those standards of review

require that we give deference to the family court’s ruling and its express and implied

findings of fact. Because William has not articulated why the family court’s order fails

under those standards, we simply cannot reverse the order.

In response to the department’s request that we strike William’s opening brief, he

states that he did, in fact, comply with the content requirements of rule 8.204 of the

California Rules of Court. To the extent William’s reply brief contains some attempt to

develop his claims of error, “it is too late. We disregard issues not properly addressed in

the appellant’s opening brief.” (Aviel v. Ng (2008) 161 Cal.App.4th 809, 821.)

Finally, to the extent William argues error in the department’s enforcement of his

child support obligation by garnishing his pension, we have no jurisdiction to consider

that claim.4 This court’s appellate jurisdiction is limited to reviewing final judgments

and appealable orders of the superior court. (Cal. Const., art. VI, § 11, subd. (a); Code

Civ. Proc., §§ 901, 904, 904.1 & 906; see Cal. Rules of Court, rules 8.10(4)-(5),

8.100(a)(1).) The garnishment of William’s pension was not accomplished by an order

or judgment of the family court. Instead, it was an administrative order by the

4 In his reply brief, William purports to “concede[] the Attorney General’s point that his claim [about the garnishment] is not properly before the Appellate Court,” but he proceeds to explain why his argument has merit.

8 department in furtherance of its statutory duty to collect and enforce child support

obligations. (Fam. Code, §§ 17400, subd. (a), § 17500, subd. (a); see Code Civ. Proc.,

§ 706.030, subd. (b)(1) [a local child support agency is deemed to be the “levying

officer” when it “issues a withholding order for support” under Fam. Code, § 17522].)

William’s initial remedy to challenge the department’s garnishment order was to

utilize the complaint resolution procedures set forth in Family Code sections 17800 and

17801. (See Cal. Code Regs., tit. 22, div. 13, ch. 10, art. 2, § 120001 et seq.) And, his

exclusive judicial remedy was to petition the superior court for a writ of administrative

mandamus and, if still dissatisfied, to appeal from that proceeding to this court. (Fam.

Code, § 17803; Code Civ. Proc., § 1094.5; L.K. v. Golightly (2011) 199 Cal.App.4th 641,

644.) The record does not reflect that he did either of those things. Unless and until

William exhausts his administrative remedies and appeals from an order of the superior

court denying him mandamus relief, this court has no jurisdiction whatsoever to consider

his claim about the garnishment order.5

5 Moreover, even if the garnishment of William’s pension had been accomplished by a subsequent judgment or appealable order of the family court, we would still lack jurisdiction to consider his claim of error because his notice of appeal is clearly and unambiguously limited to the family court’s February 3, 2020 postjudgment order that did no more than grant the department’s motion. “‘“Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.’” (In re J.F. (2019) 39 Cal.App.5th 70, 75.)

9 III.

DISPOSITION

The appeal is dismissed. In the interests of justice, the parties shall bear their own

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

MILLER J.

CODRINGTON J.