Mortensen v. Lichtenwalter CA6, H047460

Background

Appellant Eva Mortensen appealed a family court order setting child support for two children of Mortensen and respondent Brian Lichtenwalter; Santa Clara County DCSS intervened.
The court resolved incomes and timeshares across four periods (June 2017–Dec 2017; Jan 2018–Oct 2018; Nov 2018–Feb 2019; March 2019 onward) and deferred some calculations to an August 2019 hearing.
Mortensen’s April 2019 declaration reported ~ $27,000/month income and claimed very large mortgage, tax, and extracurricular expenses; Lichtenwalter reported ~$9,110/month (with a period of unemployment) and lower housing costs.
Mortensen sought downward deviations from guideline child support based on disparity in housing-costs-as-a-percent-of-income and asked that children’s extracurricular expenses be included in guideline calculations; the court denied downward deviations except it reduced support for one period by $1,000.
Mortensen attached numerous documents to her appellate briefs that were not in the clerk’s appellate record; the Court of Appeal refused to consider materials outside the record and rejected multiple due-process and procedural complaints, affirming the order.

Issues

Issue	Mortensen's Argument	Lichtenwalter's Argument	Held
Whether the trial court erred by refusing to deviate downward from guideline child support based on Mortensen’s higher housing costs as a percentage of income	Mortensen argued section 4057 and rule 5.260 permit deviation where parents have substantially equal timeshare and one pays a much larger percentage of income for housing, making guideline support unjust	The court (respondent) argued the decision to deviate is discretionary and Mortensen’s higher income meant guideline support was still appropriate	Abuse-of-discretion review; court’s denial affirmed — disparity in housing % alone did not compel a downward deviation and trial court reasonably found guideline amounts not unjust or inappropriate
Whether the court abused its discretion by including Mortensen’s extracurricular payments in guideline support calculations	Mortensen asked that monthly extracurricular expenses be treated as part of support inputs or ordered as additional child support	Respondent and court pointed to statutory scheme limiting additional support to educational or special needs and that extracurriculars are not automatic inputs to the guideline formula	Affirmed — extracurricular costs are not part of the guideline calculation and Mortensen offered no showing they qualified as "educational or other special needs" under § 4062(b)
Whether the court denied Mortensen due process via procedural rulings (failure to require opposing trial brief or meet-and-confer, late documents, insufficient time to present evidence, Smith‑Ostler table process, health-insurance orders, treatment of pro per litigant)	Mortensen argued the court should have enforced briefing and meet-and-confer rules, ensured timely exchange of documents and time to object, and provided more protections as a self-represented litigant	Respondent and DCSS pointed out no rule required the court to order trial briefs or court-ordered meet-and-confer, Mortensen suffered no shown prejudice from alleged late disclosures, and the court permitted her to participate	Affirmed — no due-process violation found; record does not show prejudice or that the court abused discretion in managing procedure
Whether appellant may rely on documents attached to appellate briefs but not included in the appellate record	Mortensen relied on numerous exhibits appended to her briefs that were not in the clerk’s transcript or reporter’s transcript	Respondent argued the appellate record is the exclusive basis for review and extraneous exhibits cannot be considered	Affirmed — exhibits not in the appellate record cannot be considered; appellant bore the burden to properly designate/augment the record

Key Cases Cited

Denham v. Superior Court, 2 Cal.3d 557 (1970) (appellate courts presume correctness of lower court orders and error must be shown by adequate record)
Ballard v. Uribe, 41 Cal.3d 564 (1986) (appellant bears burden to show reversible error with an adequate record)
Vermeulen v. Superior Court, 204 Cal.App.3d 1192 (1988) (absent adequate record, appellate court must assume facts supporting judgment)
Lona v. Citibank, N.A., 202 Cal.App.4th 89 (2011) (appellate review limited to matters in record; parties should not base briefs on extra-record facts)
In re Marriage of de Guigne, 97 Cal.App.4th 1353 (2002) (statutory framework makes downward deviations rare; trial court has discretion)
In re Marriage of Schlafly, 149 Cal.App.4th 747 (2007) (child support orders reviewed for abuse of discretion; evaluate reasonableness of court’s exercise of discretion)
In re Marriage of Cheriton, 92 Cal.App.4th 269 (2001) (discusses upward deviation for extraordinarily high income; distinguishable from downward-deviation requests)