RUBIN, J.
Alexander Track appeals from the family law court's child support order, contending that the court miscalculated his income. Because the trial court misconstrued the expert testimony upon which it relied to determine Track's income, thereby nearly doubling the actual amount, we reverse the support order and remand for a new hearing on that issue. He also appeals from a portion of the judgment that valued a community property asset — the recording studio he operated — at more than $94,000, contending the evidence shows it was worthless. Because the order is supported by substantial evidence on that issue, we affirm the valuation determination.
Alexander Track and Gina Marie Track were granted a judgment of divorce in November 2006, ending almost nine years of marriage.
Alexander was a gifted musician with a master's degree in music. He operated a recording studio and was a skilled sound engineer and mixer. He had also worked in that capacity on a Grammy-winning record. He was not cooperative during discovery, and despite Gina's many requests and a few discovery motions, he produced no financial records for the business.
Gina hired a forensic accounting expert, Richard Govenar, who testified based solely on records he had to obtain by subpoena from three of Alexander's bank accounts. According to Govenar, during the 22-month period of January 2006 through October 2007, more than $150,000 went in, and then out, of those three accounts. The bank records showed that the money was spent on food, entertainment, rent, and other expenses. After comparing those figures with expenses claimed on Alexander's 2006 and 2007 federal income tax returns, Govenar determined that those amounts jibed with the expenditures shown by the bank records. However, no documentation was provided to show that any of the expenses were in fact business-related.
After adjusting for certain expenses and deductions, Govenar concluded that Alexander had $133,000 in cash flow available as income during the 22-month period shown in the bank records. When annualized, this meant that Alexander had a net monthly income of $6,075.
In the trial court's statement of decision, the court described what it considered to be both the paucity and inconsistency of Alexander's evidence concerning his claim that he earned only around $1,000 a month. The court found that it was "left with no evidence other than" Govenar's testimony that Alexander's income "equals $133,000 per year." Because Alexander did not rebut that testimony, the court found that he had a monthly income of $11,083 available for child support, and used that figure to determine the support amount.
Alexander moved for a new trial on numerous grounds, including the court's error in basing his income on the $133,000 figure derived by Govenar, then dividing it by 12 months, instead of 22 months as Govenar did, thereby raising the figure by nearly $5,000. That motion was apparently denied.
The trial court also found that the recording studio was community property, valued it at $94,260, and ordered Alexander to pay half that amount to Gina.
Alexander contends that both the child support and valuation determinations were wrong and should be reversed.
A statement of decision provides us with the trial court's reasoning on disputed issues and "is our touchstone to determine whether or not the trial court's decision is supported by the facts and the law." (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.) The statement of decision in this case said that the only evidence of Alexander's income came from the testimony of Gina's accounting expert, who determined that Alexander's yearly income was $133,000, meaning he had $11,083 a month available for child support. However, as Alexander points out, the expert in fact testified that Alexander had a cash flow of $133,000 over a 22-month period, which annualized to $6,075 a month.
Because the trial court's finding was contrary to the evidence, we must reverse. (See Vezaldenos v. Keller (1967) 254 Cal.App.2d 816, 830 [trial court finding of description of land subject to sale in specific performance action was contrary to the evidence and had to be reversed].) However, the trial court's error was purely mathematical. Its finding that Govenar supplied the only credible evidence on the issue of Alexander's income is factually supportable.
Alexander testified that the recording studio's equipment and furnishings were owned by his business partners, not by him, and had a resale value of perhaps $6,000. Gina offered in evidence Alexander's 2006 tax return, which listed the studio equipment as his in a schedule of depreciated assets, and assigned them a combined value of $94,260. The trial court found those figures true and adopted them as the value of the studio's assets. Alexander contends that portion of the order must be reversed because in their 2005 bankruptcy action, Gina signed off on a schedule of assets that assigned a value of zero to the studio equipment. As a result, he contends, Gina is judicially estopped from arguing that the studio assets have any value.
We reject his contention. Judicial estoppel is a judge-made doctrine aimed at preventing a litigant from taking a position inconsistent with one she took in the same or a previous proceeding. It is designed to prevent litigants from "playing fast and loose" with the courts. However, merely taking inconsistent positions is not enough to trigger the doctrine. It does not apply when the prior position was the result of a good faith mistake. The inconsistent position must be attributable to intentional wrongdoing intended to mislead the court. (Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 509-510.) Alexander does not discuss or analyze these elements, and has therefore waived the issue. (EnPalm, LCC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 775.)
Second, application of the doctrine presents a factual question, and a trial court's finding on the issue will be affirmed on appeal if it is supported by substantial evidence. Because an evaluation of the facts is necessary, any claim of judicial estoppel should be raised by a motion for summary judgment or at trial. (Haley v. Dow Lewis Motors, Inc., supra, 72 Cal.App.4th at p. 510.) However, the bankruptcy records were not introduced during the trial, and neither was a claim of judicial estoppel. Instead, Alexander included the bankruptcy records as part of his new trial motion, contending that they were newly discovered evidence which called for the application of judicial estoppel. Because he did not raise the issue during trial, it was also waived. (Meza v. H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 983.)
Finally, Alexander contends in his reply brief that the trial court erred by denying his new trial motion to the extent it was based on the judicial estoppel issue. The trial court did so because it found that Alexander failed to show that he could not have discovered the evidence sooner and acted with reasonable diligence in ferreting out the records.
In his opening appellate brief, Alexander contends the trial court failed to issue a statement of decision, thereby compelling us to reverse the judgment. However, he also contended that the statement of decision was insufficient because it did not address all the controverted issues. As for his contention that no statement of decision was prepared, the trial court in fact did so. As for the contention that the statement of decision was inadequate, his opening appellate brief makes this argument in only the most conclusory way, without analysis, discussion or citation to authority, and it is therefore waived. (EnPalm, LCC v. Teitler Family Trust, supra, 162 Cal.App.4th at p. 775.)
For the first time in his reply brief, Alexander attempted to specifically address the asserted deficiencies in the statement of decision. Because those issues were not raised until the reply brief was filed, we deem them waived. (Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at p. 219, fn. 4.)
Alexander complains that the trial court imposed a discovery sanction that precluded him from conducting discovery. However, the May 8, 2008 order to which he refers was in fact a stipulated order after the discovery cut-off date had run whereby the parties agreed to continue the trial date without re-opening discovery.
Alexander contends that Gina failed to file preliminary and final income and expense declaration, as required by Family Code sections 2104 and 2105. He is wrong yet again about the facts. The record shows that Gina submitted an initial financial declaration on April 11, 2006, just weeks after she filed for divorce. She filed another income and expense declaration on December 17, 2007, and yet another on September 18, 2008, on the day trial began.
He also contends Gina failed to submit copies of her income tax returns along with the income and expense declarations. However, the relevant provisions concerning income and expense declarations do not mention the parties' tax returns. Instead, Family Code section 3552 provides that the parties' tax returns are discoverable and that a party may not refuse to submit copies. (Fam. Code, § 3552, subds. (a), (b).) Alexander does not contend, and the record does not show, that he ever sought discovery of Gina's tax returns.
The form income and expense declarations that Gina submitted state that the party should bring copies of their recent pay stubs and tax returns to "the hearing." Even if this meant Gina did not comply with the income and expense disclosure requirements, Alexander was still required to show prejudice as a result. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 526-528.) Apart from unsupported assertions that Gina lied or failed to disclose all her income and assets, Alexander has failed to demonstrate the required prejudice. Accordingly, we reject his contentions.
Finally, we alternatively conclude that Alexander has waived all issues related to Gina's financial disclosures because he did not bring a motion to set aside the judgment on that ground within one year from the date he discovered, or should have discovered, the defects.
The order is reversed as to only the amount of child support, and the matter is remanded to the trial court with directions to hold a new hearing to redetermine the amount of Alexander's child support obligations, including any arrearages, based on a monthly income of $6,075. The order is affirmed as to the valuation of the community property recording studio. Each party shall bear its own appellate costs.
WE CONCUR.
BIGELOW, P. J.
FLIER, J.
Alexander contends the trial court did not apply the support guidelines, but the record shows that the trial court in fact did so. We are confident that the trial court will adhere to those guidelines again upon remand, including any adjustments that are proper based on the income of Gina's new husband.
