Filed 2/24/15 Marriage of Atchison CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of MARVIN J. and ANGELA ATCHISON.
MARVIN J. ATCHIS ON, Appellant,

v. ANGELA ATCHISON, Respondent. D065540

(Super. Ct. No. DN175065)

APPEAL from an order of the Superior Court of San Diego County, Kelly C. Dowlan, Commissioner . Affirmed.

Patrick L. McCrary for Appellant.
Dennis Temko an d Stephen Temko for Respondent.2 INTRODUCTION Marvin J. Atchison (Marvin) appeals from a family court order filed January 16,
2014, awarding Angela Atchison (Angela) 1 interim child support , interim spousal
support , and attorney fees. 2 He contends there wa s insufficient evidence to support the

court ' s finding his monthly self

- employment income was $33,5 2 7. He also contends the
court ruled on Angela ' s request for spousal support without providing him with adequate notice. We are not persuaded by either con tention and affirm the order.
BACKGROUND
Marvin and Angela were married five and a half years and have three young
children. In June 2013 Marvin petitioned for dissolution of the marriage . Along with his dissolution petition, he submitted an income and expense declaration stating he was a

surgeon, he was paid $33 ,000 per month, he had self

- employment income of $29,100 the prior month, and he had average monthly self

- employment income of $27,725. In July 2013 Angela file d a r equest for o rder (request) aw arding her child support according to the statewide uniform child support guideline (Fam. Code, § 4050 et seq.) and an unspecified amount of spousal support. As part of his response to her request,
Marvin filed another income and expense declaration. Thi s declaration stated he was

1 "As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect." ( Rubenstein v. Rubenstein (2 000) 81 Cal.App.4th 1131, 1136, fn. 1.)
2 As Marvin has not raised any issues regarding attorney fees in his opening brief, he has forfeited his appeal of those issues. ( In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1478.)3

paid $15,375 a month, he earned a salary or wages of $18,000 the prior month, his average monthly salary or wages was $15,375 , he had dividend/interest income of $3,225.41 the prior month, and his average monthly dividend/intere st income was $3,225.42

. Following a hearing in August 2013 , the court issued an order awarding Angela
interim monthly child support of $1,807 and interim monthly spousal support of $4,025 , retroactive to August 1, 2013 . The order was based in part on fi ndings Marvin had monthly self

- employment income of $33,527 and other monthly income of $6,000. Following a hearing i n September 2013 , the court issued an order increasing
interim monthly child support to $5,219 a month and reducing interim monthly spousa l support to $3,000. The order was based in part on finding s Marvin had monthly self

employment income of $33,527 and other monthly income of $3,225. T he order reserved jurisdiction to adjust spousal support retroactive to August 1, 2013, after the court
reviewed Marvin ' s year
- to

- date income from all sources. The order directed him to provide year

- to

- date income information and an updated income and expense declaration
to the court and Angela ' s counsel prior to the next hearing. Following a hearing in
O ctober 2013 , the court again ordered Marvin to " provide the Court with his current income information on a year to date statement. "
In November 2013 Marvin submitted a personal declaration stating he receives income from four sources: a medical group, a surgical center, a consulting business, and

as an on
- call trauma surgeon. He stated he had only earned $1,000 in 2013 from the consulting business, but had average monthly income from the other sources totaling4

$31,954. He submitted a companion income and expense declaration also stating he had
self

- employment income of $31,954 per month. Following a hearing the same month , the court issued an order stating in part:

" 1. The Court previously ordered that [ Marvin ] was to provide the Court prio r to each of the last two hearings an updated Income and Expense Declaration with documentation attached, verifying all year to date income from all sources including but not limited to: [¶] (a) A copy of all pay stubs year to date including all checks received for services rendered; (b) Documentation showing all money received from his Medical Practice year to date; [and] (c) Documentation of all dividends received by [ him ] during 2013, year to date.

" 2. [ Marvin ] did not provide an updated [income and expense dec laration] with all of the attachments documenting his entire year to date income from all sources, for this hea r ing.

" 3. The Court orders that [ Marvin ] must provide all of the previously ordered year to date income information from all sources attached t o an updated [income and expense declaration] filed with the Court and served on [ Angela ' s counsel] by no later than December 4, 2013.

" 4. The Court continues to reserve on the issues of Modification of Interim Child Support and Interim Spousal Support b ased on the actual year to date income of [ Marvin ]. "

In December 2013 Marvin submitted a notice of lodgment with 10 exhibits . The
exhibits includ ed : an itemization of compensation checks he rec eived from July 1, 2012
to June 15, 2013; deposit details f or one bank account; statements from three other bank5

a ccounts; federal income tax returns for 2010 through 2012; and state income tax returns
for 2011 and 2012. 3 Following a hearing the same month, the court issued an order increasing interim monthly c hild support to $5,380 and interim monthly spousal support to $4,000 , retroactive to November 1, 2013

. The court based its order in part on findings Marvin had monthly self

- employment income of $33,5 2 7 and other monthly income of $3,225.
The court explai ned , " The Court had requested [ Marvin ] to provide his year

- to

- date
income. [ He ] failed to provide this for the Court[.] Therefore, the Court could only use the prior income of $33,527 .00 that [ he ] previously testified and submitted to the Court in August as his current income. "
DISCUSSION
I
Marvin ' s Monthly Income
Marvin contends there was insufficient evidence to support the court ' s finding his monthly self

- employment income was $33,527. Rather, he contends the evidence
show ed his monthly income was $ 31,954. We review support orders for abuse of discretion. ( In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398; In re Marriage of Alter (2009) 171 Cal.App.4th 718 , 730 .)

" In so doing, we determine ' " whether the court ' s factual determinations are su pported by

3 It is not clear from the record whether the court admitted these documents into evidence. The record shows the court received the notice of lodgment; however, the record does not show the court filed the notice of lodgment.6

substantial evidence and whether the court acted reasonably in exercising its discretion. " [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judg e reasonably could have made such an order. ' " ( I n re Marriage of Alter , supra , at pp. 730

- 731. )
In this case , Marvin is precluded from challenging the sufficiency of the evidence underlying the court ' s finding because he has not provided a record of the oral proceedings where the court made the finding. ( Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4 th 121, 132; see Krueger v. Bank of Am

. (1983) 145 Cal. App.3d 204, 207 [An appeal without a record of the oral proceedings " is considered to be upon the judgment roll alone. [Citations.]

. . . The trial court ' s findings of fact and conclusions of law therefore are presumed to be supported by substantial evidence and are binding upon us, unless the judgment is not supported by the findings or reversible error appears on the
face of the re cord. " ].) Moreover, the disputed order states the court based its finding on Marvin ' s sworn testimony at an earlier hearing because he repeatedly failed to provide his year

- to

- date
financial information to the court and Angela ' s counsel. Although Marvin contends he provided the requested information, the record belies this contention and instead shows he provided conflicting, incomplete, and dated information about his income. Marvin , therefore, has not shown the court exercised its discretion unreasonab ly. Finally, even assuming the court erred by basing its determination on Marvin ' s prior sworn testimony rather than the documents he provided , he has not established the

error resulted in a miscarriage of justice

. (Cal. Const., art. VI, § 13 [ " No judgme nt shall7

be set aside

. . . in any cause, on the ground of

. . . the improper admission or rejection of
evidence

. . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. " ]; Code Civ. Proc., § 475; In re Marriage of Khera & Sameer , supra , 206
Cal. A pp.4th at p. 1484 .) As Angela points out in her brief , the documents supplied by
Marvin show ed his average monthly income actually excee ded $33,527. Thus, Marvin
has not established it is reasonably probable the court would have ordered him to pay less
interim child or spousal support absent the claimed error

. II Notice of Amount of Spousal Support Request
Marvin contends the order award ing Angela interim spousal support is void
because she failed to specify the amount of spousal support she was seeking in her request, depriving him of adequate notice. Angela contends Marvin failed to establish he preserved this issue for appeal. She fu rther contends he waived this issue by litigating the matter on the merits. We agree with both of Angela ' s contentions

. Nothing in the record shows Marvin ever objected to the absence of notice of the amount of spousal support Angela sought. " ' Typicall y, constitutional issues not raised in earlier civil proceedings are waived on appeal. ' " ( Fourth La Costa Condominium
Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 585.) Further, the record show s Marvin opposed Angela ' s request for interim spousal

s upport on the merits and participated in multiple hearings on the matter

. " ' It is well settled that the appearance of a party at the hearing of a motion and his or her opposition8

to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal

. . . that he had no notice of the motion or that the notice was insufficient or
defective. ' " ( Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 ; Arambula v. Union Carbide Corp . (2005) 128 Cal.App.4th 333, 342

- 343. )
DISPOSITION
The order after hearing filed January 16, 2014, is affirmed. Respondent is
awarded costs on appeal

.

M C CONNELL, P. J.
WE CONCUR:

HUFFMAN, J.

AARON, J.