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Filed 9/27/13 Marriage of Foscalina CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Tehama)

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In re the Marriage of JOEL J. and BRIDGETT L. 

FOSCALINA.

JOEL J. FOSCALINA,

Appellant,

v.

BRIDGETT L. FOSCALINA,

Respondent.

C072148

(Super. Ct. No. FL63924)

Appellant Joel J. Foscalina appeals from two trial court orders, an order denying 

his motion for spousal support and an order denying his motions to compel and for 

reconsideration. Finding none of his claims to have merit, we affirm.
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BACKGROUND

In December 2011, Joel filed a postjudgment motion for spousal support. In 

support of his motion, Joel filed a current income and expense declaration and argued 

there had been “several changes in circumstances” since his last motion for spousal 

support. Joel said he was unemployed, living in his car, and had no income. Joel also 

said he was on the “out-of-work list” with the carpenters‟ union and was getting financial 

support from his parents. In Joel‟s estimation, respondent Bridgett L. Foscalina, had a 

greater ability to earn money than he did based on her training and experience as an x-ray 

technician, and she was no longer supporting their adult son. 

At the hearing on Joel‟s motion, the trial court reminded the parties that the 

hearing on Joel‟s motion was set “only to give each party the opportunity to crossexamine on income and expense information.” The court also told Joel that the court was 

not required to take oral testimony but could, in its discretion, take the matter under 

submission based solely on the written evidence and arguments. Joel then proceeded to 

testify about his unsuccessful efforts to find employment. In response to the court‟s 

questioning, Joel acknowledged that he also was not working when he previously moved 

for spousal support in August 2011. 

Bridgett also testified. Bridgett advised the trial court that, physically, she could 

no longer work as an x-ray technician, she lacked the stamina required to do the job. 

Bridgett was, however, working and making $18 an hour. 

After hearing the parties‟ testimony and considering the income and expense 

declarations on file the trial court found there had been no change of circumstances since 

judgment was entered in September 2011. The court based its decision on the fact that 

Joel was not working when the judgment was entered in September 2011 and he was not 

working at the time of the hearing. The court also noted that, according to the evidence, 

Joel had not even begun looking for work until March 8, 2012, only a month before the 
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hearing. The court “would require a much longer history than that and be convinced that 

jobs are just not available.” 

The trial court further ruled that Joel had an obligation to find any available work, 

not just work in Joel‟s field of expertise. The court “would need to be convinced that 

there are no minimum wage jobs out there at McDonald‟s, Burger King, or anywhere 

else, where [Joel] could work.” Accordingly, the court denied Joel‟s motion. 

On May 22, 2012, Joel filed a motion for reconsideration of the court‟s April 16, 

2012, order denying his motion for spousal support. In support of his motion, Joel 

argued: (1) the trial court failed to consider Family Code section 4320 factors in denying 

his motion; (2) the court erroneously considered Bridgett‟s late filed written evidence; 

and (3) the court erred in limiting his oral evidence to testimony regarding the income 

and expense declarations. 

On June 8, 2012, Joel filed a motion to compel Bridgett to produce her 

employment records for 2011 and 2012, as well as her most recently filed income tax 

returns. Joel argued that he needed this information “to show good cause for spousal 

support motion.” That same day, Joel filed another motion to reconsider the court‟s prior 

order. In support of his motion, Joel filed the same declaration he filed in support of his 

May 22, 2012, motion for reconsideration. This second motion, apparently, was filed to 

correct a service problem with the May 22, 2012 motion. 

The trial court heard Joel‟s motions on July 16, 2012. The court found Joel‟s 

proof of service on the motion to compel to be defective and denied his motion 

accordingly. The court advised Joel that his motion for reconsideration may be untimely 

because it was more than 10 days after the hearing ended. The court nevertheless 

considered the merits of Joel‟s motion because no formal order had ever been prepared or 

delivered to set the time running on a motion for reconsideration. 

In ruling on the merits of Joel‟s motion for reconsideration, the trial court found 

Joel failed to provide any new law or facts to warrant reconsideration of the prior order. 
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The court also found that the April 16, 2012, ruling was supported by the record: “Judge 

Murray made it clear that with regard to the change in circumstances he didn‟t find there 

was a change in circumstances. I can‟t speak for him, but in reviewing this because he is 

unavailable I did note that your income had gone down from the original Income & 

Expense declaration that apparently Judge Scheuler used at the time of trial but so did 

[Bridgett‟s] income. And, they were basically the same as far as a decrease.” 

Accordingly, the court denied the motion for reconsideration.

Joel appeals.

DISCUSSION

A. The Order Denying Joel’s Motion for Reconsideration

An order denying a motion for reconsideration is not an appealable order. (Code 

of Civ. Proc., § 904.1.) Accordingly, Joel‟s appeal from that order is dismissed.

B. The Order Denying Joel’s Motion To Compel Production of Documents

The trial court ruled that the proof of service accompanying Joel‟s motion to 

compel Bridgett to produce financial documents was defective because there was no 

“date of deposit” listed to indicate when Joel put the motion in the mail. 

To effect proper service of a motion, the statutory requirements must be met. 

(Silver v. McNamee (1999) 69 Cal.App.4th 269, 279.) Code of Civil Procedure section 

1013a requires a proof of service include, among other things, “the date and place of 

deposit in the mail, the name and address of the person served as shown on the envelope, 

and also showing that the envelope was sealed and deposited in the mail with the postage 

thereon fully prepaid.” Here, as noted by the trial court, Joel‟s proof of service did not 

include a date of deposit. Accordingly, Joel failed to perfect service of his motion. 

We affirm the trial court‟s ruling.

C. The Order Denying Joel’s Motion for Spousal Support

Joel raises several issues regarding his motion for spousal support. Joel first 

contends the trial court denied him due process by preventing him from submitting “any 
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additional evidence” in support of his motion. The record does not support Joel‟s 

contention. 

Prior to the April 2012 hearing, both parties submitted current income and expense 

declarations. At the April 2012 hearing, the trial court permitted both sides to conduct 

direct and cross examinations, but noted its prior limitation on evidence: “The hearing 

will be only to give each party the opportunity to cross-examine on income and expense 

information.” Joel was permitted to cross-examine Bridgett and, contrary to his claim on 

appeal, he was permitted to recite each of the jobs for which he had submitted 

applications prior to the hearing. Accordingly, Joel was permitted to submit evidence in 

support of his motion. 

To the extent Joel is claiming the trial court should have permitted him to submit 

more evidence, that claim fails as well. “Trial courts are afforded discretion to work 

within existing guidelines to determine the admissibility of evidence. [Citation.] The 

reviewing court will not disturb their findings absent an „ “ „ “arbitrary, capricious, or 

patently absurd determination. . . .” ‟ ” ‟ [Citation.]” (In re Nada R. (2001) 89 

Cal.App.4th 1166, 1176.) We conclude it is not “arbitrary, capricious, or patently 

absurd” to limit the admissible evidence on a motion for spousal support to evidence 

related to the parties‟ income and expense declarations. 

Joel further contends the trial court failed to reconsider the Family Code section 

4320 factors in denying his motion for support. Again, the record does not support Joel‟s 

contention. 

“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. [Citation.]” (In re Marriage of 

McCann (1996) 41 Cal.App.4th 978, 982.) “A trial court considering whether to modify 
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a spousal support order considers the same criteria set forth in Family Code section 4320 

as it considered in making the initial order. [Citation.]”1 (In re Marriage of West (2007) 

152 Cal.App.4th 240, 247.) 

 

1 Family Code section 4320 states: “In ordering spousal support under this part, the 

court shall consider all of the following circumstances: 

“(a) The extent to which the earning capacity of each party is sufficient to 

maintain the standard of living established during the marriage, taking into account all of 

the following: 

“(1) The marketable skills of the supported party; the job market for those skills; 

the time and expenses required for the supported party to acquire the appropriate 

education or training to develop those skills; and the possible need for retraining or 

education to acquire other, more marketable skills or employment. 

“(2) The extent to which the supported party‟s present or future earning capacity is 

impaired by periods of unemployment that were incurred during the marriage to permit 

the supported party to devote time to domestic duties. 

“(b) The extent to which the supported party contributed to the attainment of an 

education, training, a career position, or a license by the supporting party. 

“(c) The ability of the supporting party to pay spousal support, taking into account 

the supporting party‟s earning capacity, earned and unearned income, assets, and standard 

of living. 

“(d) The needs of each party based on the standard of living established during the 

marriage. 

“(e) The obligations and assets, including the separate property, of each party. 

“(f) The duration of the marriage. 

“(g) The ability of the supported party to engage in gainful employment without 

unduly interfering with the interests of dependent children in the custody of the party. 

“(h) The age and health of the parties. [¶] . . . [¶] 

“(j) The immediate and specific tax consequences to each party. 

“(k) The balance of the hardships to each party. 
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Here, the trial court found there was no change of circumstances from the 

judgment to the date of the hearing on Joel‟s motion. In reaching its decision, the trial 

court noted that Joel was not working at the time of judgment and still was not working. 

The court also noted that Joel had not even begun to look for work until just before the 

hearing and even then Joel limited his job search to jobs related to his trade. Therefore, 

the court was not persuaded that Joel‟s failure to get a job in between the judgment and 

the hearing was evidence that jobs were not available to Joel. 

Thus, while the court did not expressly refer to the Family Code section 4320 

factors, we can see from the statements made by the court that the court‟s decision was 

not made without due consideration of the relevant facts. Indeed, absent evidence to the 

contrary, we must presume the court followed the law and performed its duty. (See Evid. 

Code, § 664 [it is presumed that official duty has been regularly performed]; see also 

Brewer v. Simpson (1960) 53 Cal.2d 567, 583 [we must adopt all inferences in favor of 

the judgment].) Accordingly, we find no error.

 

“(l) 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 duration as described in Section 

4336, a „reasonable period of time‟ for purposes of this section generally shall be onehalf 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. 

[¶] . . . [¶]

“(n) Any other factors the court determines are just and equitable.”
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DISPOSITION

The orders of the trial court are affirmed. Costs on appeal, if any, are awarded to 

Bridgett L. Foscalina. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

 NICHOLSON , J.

We concur:

 BLEASE , Acting P. J.

 MAURO , J.