Marriage of Moss and Carroll CA2/3 ( 2022 )

Filed 8/26/22 Marriage of Moss and Carroll CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of B312983
JACQUELINE MOSS and
WALTER CARROLL. Los Angeles County
Super. Ct. No. YD065980
JACQUELINE MOSS,
Respondent,
v.
WALTER CARROLL,
Appellant;
LOS ANGELES COUNTY
CHILD SUPPORT SERVICES
DEPARTMENT,
Respondent.
APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, Frank W. Chen, Commissioner. Affirmed.
Walter Carroll, in pro. per., for Appellant.
No appearances for Respondents.
_________________________
Walter Carroll (appellant), a self-represented litigant
on appeal and in the trial court, challenges the trial court’s
order denying his request to modify a prior child support order
to recalculate his support payments based on his actual income.
Finding appellant has not demonstrated affirmative error,
we affirm.
BACKGROUND
In accordance with our standard of review, we state the
facts—from what we can discern from the appellate record—
in the light most favorable to the court’s order and draw all
reasonable inferences in favor of it. (In re Marriage of Calcaterra
& Badakhsh (2005) 132 Cal.App.4th 28, 34.)
1. Original child support order
Appellant and Jacqueline Moss were married and have
a minor child. Moss petitioned for divorce in December 2014
and filed a request for child support in September 2018.
Following a hearing on February 6, 2019, the court (Judge Bosley
in Torrance) ordered appellant to pay $1,100 in monthly child
support, plus $275 per month in arrears, based on appellant’s
capacity to earn $9,803 per month. The court’s written
order filed March 13, 2019, includes the DissoMaster report,
calculating a monthly guideline payment at $1,102 based on
appellant’s imputed income of $9,803 per month, Moss’s income
of $6,375 per month, and their child spending 29% of the time
with appellant. The court simultaneously issued an income
withholding order directed to appellant’s then-employer,
2
the International Association of Machinist and Aerospace
Workers (IAMAW).
Appellant apparently had worked for IAMAW since 2015
and earned $9,803 per month as a business representative/
organizer. He declared he had a mental and emotional
breakdown in August 2018 due to job-related stress, went on
medical leave, and filed a worker’s compensation claim alleging
psychological disability. The Worker’s Compensation Appeals
Board (WCAB) denied his claim. In response to Moss’s
September 2018 request for child support, appellant apparently
contended this stress disorder/psychological disability prevented
him from working.
According to Moss’s counsel, appellant presented
documentation at the February 2019 hearing stating he had
been placed off work, but the Torrance court found the evidence
lacking as to the specific nature of appellant’s stress disorder
and how it affected his ability to work.1 Appellant also
apparently had declined his employer’s offer of a reasonable
accommodation. The Torrance court thus apparently determined
appellant’s allegations about his disability and inability to work
were unfounded. Accordingly, when calculating the guideline
support payment, the court imputed earning capacity income
to appellant based on what he had been making at IAMAW.
Appellant immediately filed a motion for reconsideration that
the court rejected.
1 The court apparently wanted detailed information such as
how long appellant could sit or lift his hand.
3
2. Requests to modify child support
A few months later, on June 3, 2019, appellant filed
a request for order (RFO)—in the Torrance court—asking the
court to change the ordered monthly child support and arrears
payment and associated income withholding order. Appellant
asserted his employment ended in May 2019, and his application
for unemployment was pending. In his attached declaration,
appellant attested he had returned to work around February 1,
2019, but was laid off on May 9, 2019, and thus no longer could
afford the $1,375 combined monthly child support and arrears
payment. Appellant averred his current income was zero
pending a determination of his unemployment application. He
asked the court to modify the child support based on whatever
his income was at the hearing date.
On September 11, 2019, appellant filed a reply declaration
in support of his RFO. This time appellant re-asserted that
his stress disorder/disability forced him to take medical leave.
He declared he “tried an unsuccessful return to work” from
February 1, 2019 through the end of April 2019 when he
“went out again on worker’s compensation, as a result of [the]
continuing stress-related disorder.” Appellant asserted the
WCAB reevaluated his stress disorder claim around April 30,
2019, “with a determination pending.”
Appellant declared his “company demoted” him, and
he earned $5,300 per month during the three-month period.2
Appellant again stated IAMAW laid him off on May 9, 2019
2 An exhibit to appellant’s June 2019 declaration includes
his weekly earnings statements for that period. They show
his hourly rate was decreased from $55.05 to $33.23 when he
4
—apparently after he had taken leave. He asserted he
“immediately became eligible for State Disability Benefits”
and began receiving $5,300 per month. Appellant averred he
received doctors’ notes stating he was disabled from April 30
through July 25, 2019; July 26 through July 31, 2019; and
August 1 through September 15, 2019. He also declared he
“subsequently received a determination that [he] was temporarily
totally disabled due to a continuing psychological/psychiatric
stress disorder and . . . would begin receiving these workers
compensation-related benefits on or about May 2019.”
The only exhibit appellant attached to his September 2019
declaration is a form “Certificate of Disability and/or Return
to Work” dated August 1, 2019, and signed by a qualified
medical evaluator (certificate of disability). The form includes
a date range from August 1, 2019 to September 15, 2019, and
under remarks states “Mr. Carroll is temp. totally disabled”
in handwriting. The space next to “[d]iagnosis” is blank.
On May 7, 2020, the Los Angeles County Child Support
Services Department (CSSD) filed a motion to modify child
support (at appellant’s request). That motion apparently was
scheduled to be heard on November 12, 2020 in the Central Civil
West Courthouse. On August 27, 2020, at respondent’s request,
the Torrance court transferred and continued the hearing on
returned to work in February 2019, which translates to $1,329.60
for a 40-hour work week or a little over $5,300 per month.
5
appellant’s June 2019 RFO to the same date in Central Civil
West.3
3. Hearings on request to modify child support
The court convened hearings on the modification request
on November 12, 2020 and February 25, 2021. Appellant
represented himself at both and was sworn in to testify at
the second hearing. At the initial hearing, counsel for CSSD
explained it had filed its May 2020 modification motion at
appellant’s request after he informed CSSD he had “had a
change of income and he was on disability and when it ran out,
he went on unemployment.”
Counsel for Moss described the history of appellant’s
claimed inability to work leading the Torrance court to impute
income to appellant based on his prior job. She asserted
appellant had submitted documentation again stating he
was “unable to work because of . . . stress-related injury.”
Specifically, Moss’s counsel just had received documents from
appellant’s doctors stating he was placed on disability from
May through October 21 (presumably 2020) based on “emotional
and anxiety issues”—“similar to” those he originally had claimed
in February 2019—and he had suffered a shoulder injury on
October 21.
Counsel asked for a continuance to obtain medical records
and records from appellant’s employer as to whether appellant
had a disability, appellant’s specific limitations, and whether
3 The May 2020 motion is not part of the appellate record.
The August 27, 2020 minute order is an exhibit to appellant’s
opening brief but is not part of the Clerk’s Transcript. On our
own motion, we augment the record to include it.
6
any reasonable accommodations existed or had been offered to
appellant. Appellant told the court he had tried but was unable
to go back to work and was on disability. He then injured his
shoulder and could not return to work.4 He would be starting
physical therapy in two weeks.
The court continued the hearing date to February 25, 2021,
to allow Moss to conduct discovery and to give appellant time
to complete some physical therapy and see if he could return
to work. The court asked counsel if there was anything the order
should include “with respect to evidence regarding medical
condition.” CSSD’s counsel asked that appellant provide
evidence concerning his prognosis, diagnosis, ability to work,
and reasonable accommodations.5 The court ordered appellant
—if he claimed disability at the next hearing—to bring evidence
of his inability to work due to his medical condition, such as
a letter from his doctor.
Another judicial officer (Commissioner Chen) presided
over the continued hearing on February 25, 2021. The court
noted appellant also had filed his own RFO that had been
continued and then transferred to be heard with CSSD’s motion.
CSSD’s counsel was unaware the RFO had been filed. Because
4 Appellant said he was an airplane mechanic. His injury
consisted of a “torn rotator cuff and a lacerated bicep tendon.”
5 The November 12, 2020 minute order does not include that
level of detail. The court directed CSSD to prepare an order after
hearing, however, which it did. We presume that formal, written
order included those details; it is not part of the appellate record.
7
the June 3, 2019 RFO had no proof of service, the court stated
it would be hearing only the motion filed May 7, 2020.
Counsel for CSSD again summarized the basis for the
request for modification, specifying appellant had stopped
working and gone on disability in March 2020. Counsel added
that, following his October 2020 shoulder injury, appellant
had shoulder surgery and expected to be off work until April
2021. Moss’s counsel asked the court to deny modification
on the ground appellant had failed to provide sufficient medical
documentation, as the court had ordered, and had asked for
modification based on previously rejected medical claims.
Appellant had filed, on February 18, 2021, a declaration
with four attached exhibits.6 Appellant confirmed he filed those
exhibits in response to the court’s order to provide documentation
from a physician regarding his ability or inability to work.
The court, who had examined the exhibits, asked appellant,
“Is that all you have?” Appellant responded he also had “this
return to work, ability to work. This was given to my employer
before.”7
The court explained, “I looked through all the four exhibits
attached to your declaration, and there’s really nothing that
specifically concludes that you’re not able to work.” The court
described the exhibits as “a little bit conflicting” because some
6 They are not part of the appellate record.
7 We presume appellant was referring to the August 1, 2019
certificate of disability that he filed with his September 2019
declaration.
8
of the documentation referred to appellant’s “mental impairment”
and others to his physical impairment.
The court also noted one exhibit conclusorily stated
appellant should be placed off work from February 7, 2021
through April 7, 2021, but no basis was stated for “why that
would be so.” A second document from a different physician,
dated January 29, 2021, stated appellant was “able to work
but may experience some functional limitations.” Appellant
clarified the first letter was from his surgeon and was based
on his professional opinion after repairing appellant’s shoulder.
Appellant said the second document was from his “treating
doctor,” rather than his surgeon. He explained, “[T]hat goes
into when I filed—and the retroactivity was from June of 2019.
This is my treating doctor that is discussing that piece of it.”
Appellant also explained he had new evidence and facts
that had not been available when he appeared before the
Torrance court—and therefore the court could not consider them
—when it imputed his earning capacity to calculate the $1,100-
per-month guideline child support payment. He said he now
had “this report right here”8 from his doctor—dated before the
February 2019 hearing but not provided to appellant—showing
“over 51 percent of what’s going on with me was related [to]
my job.” “From there on,” appellant said the state had awarded
him disability benefits from February 2019 through April 2019,
and he had another worker’s compensation claim “because of it.”
Moss’s counsel argued “nothing ha[d] changed.” She
repeated the details of appellant’s previous claim that the
8 The report presumably was one of appellant’s exhibits.
9
same stress disorder/disability prevented him from working,
and his failure to present sufficient supporting evidence of that
claim at the February 2019 hearing, leading the court to impute
his earning capacity of $9,800 to calculate child support. Counsel
asserted that, as in 2019, appellant still had not provided the
requested documents—“[n]o prognosis, no diagnosis, no ability
to work, no reasonable accommodation.”
Counsel also directed the court’s attention to another one of
appellant’s documents, “the ‘final post-operative,’ ” that described
steps appellant could take three, four, and six weeks after his
shoulder surgery, which appears to have been on November 3,
2020.9 Based on that report, appellant currently was “about 60
days” from the time he could discontinue using a night brace at
six weeks post-surgery after having discontinued his sling and
started “active assist range of motion” at four weeks post-surgery,
and begun “range of motion” at three weeks post-surgery.
The court received into evidence appellant’s February 18,
2021 declaration and the four attached exhibits. The court
confirmed CSSD had brought its motion for modification on
appellant’s behalf and at his request. The court then ruled
as follows,
“The court does not find that the burden has
been met to demonstrate a material change
in circumstances to warrant a modification of
9 The document stated appellant had a shoulder injury on
November 3, 2020, but documents counsel received earlier stated
appellant’s injury occurred October 21, 2020. As the document
is a post-operative report, we can infer the November 3 date
is the date of surgery.
10
child support. The declaration with exhibits
attached, the court has reviewed extensively
but [it] does not satisfy the court’s order
from the last hearing . . . to provide sufficient
evidence from a physician showing the ability
or inability to work. Most of the information
provided is inconclusive and certainly does not
conclude a complete inability to work. [¶] So
the burden has not been met to demonstrate
a material change in circumstances to warrant
a modification of child support at this time.”
The court denied the motion, but “welcome[d]” any party to file
an RFO or motion to seek modification of child support “if and
when there is evidence to support it.”
Finally, the court stated appellant’s June 2019 RFO was
“considered consolidated” with CSSD’s May 7, 2020 motion based
on the Torrance court’s August 27, 2020 minute order. The court
directed CSSD to prepare the Order after Hearing. The Order
after Hearing, filed March 2, 2021, states, “Respondent’s request
for modification is denied. All existing orders remain in full force
and effect.”
Appellant filed a notice of appeal on April 22, 2021,
purporting to appeal from the order entered February 25, 2021.
The minute order entered on that date is not appealable. (Cal.
Rules of Court, rule 8.104(c)(2) [“The entry date of an appealable
order that is entered in the minutes is the date it is entered
in the permanent minutes. But if the minute order directs
that a written order be prepared, the entry date is the date the
signed order is filed.”].) Seeing no prejudice to Moss, we liberally
construe appellant’s notice of appeal to include the March 2, 2021
11
Order after Hearing denying the request for modification.10
(See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal to
be liberally construed in favor of its sufficiency]; In re Marriage
of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 252 [broadly
construing notice of appeal to include order of dismissal where
appellant clearly was seeking review of the dismissal, the
notice of appeal was timely, and the opposing party was not
prejudiced].)
DISCUSSION
1. Applicable law and standard of review
“California has a strong public policy in favor of adequate
child support.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th
269, 283.) California thus has established a mandatory,
statewide uniform guideline to determine court-ordered child
support. (See Fam. Code, §§ 4050–4076.)11 In determining
child support under the guideline, courts must adhere to
certain principles, including that “[a] parent’s first and principal
obligation is to support the parent’s minor children according
to the parent’s circumstances and station in life” (§ 4053,
subd. (a)), and “[e]ach parent should pay for the support of
the children according to his or her ability” (§ 4053, subd. (d)).
(See also In re Marriage of Cheriton, at p. 283.) California’s
guideline support thus places the interests of the children
as “the state’s top priority.” (§ 4053, subd. (e).)
10 Appellant attached that order to his Civil Case Information
Statement filed in this court, but it is not part of the Clerk’s
Transcript. We augment the record to include it on our own
motion.
11 Undesignated statutory references are to the Family Code.
12
Section 4055 sets out a complicated mathematical formula
to determine child support. (§ 4055.) “Although this formula
is referred to as the statewide uniform ‘guideline’ (§ 4055),
‘guideline’ is a misleading term” as the “formula support amount
is ‘presumptively correct’ in all cases.” (In re Marriage of Cryer
(2011) 198 Cal.App.4th 1039, 1047–1048; § 4057, subd. (a).)12
Under the guideline, child support is calculated based on
“each parent’s actual income and level of responsibility for
the children.” (§ 4053, subd. (c); § 4055, subd. (b)(1).) Section
4058, subdivision (b), however, grants trial courts discretion
to set child support based on a parent’s earning capacity
rather than actual income if doing so is consistent with the
best interests of the child. “So long as a parent has an earning
capacity, that is, the ability and the opportunity to earn income,
the trial court may attribute income.” (In re Marriage of Destein
(2001) 91 Cal.App.4th 1385, 1392; see also In re Marriage of
McHugh (2014) 231 Cal.App.4th 1238, 1246 [earning capacity
is comprised of “ ‘ “the ability to work, including such factors
as age, occupation, skills, education, health, background, work
experience and qualifications . . . and . . . an opportunity to
work” ’ ” (italics omitted)].) Thus, a court is limited in imputing
income to a parent only to the extent the parent has no earning
capacity or relying on earning capacity would be contrary to the
child’s best interests. (In re Marriage of McHugh, at p. 1246.)
12 Because section 4055 “involves, literally, an algebraic
formula,” trial courts may use a computer program called
DissoMaster to make the guideline child support calculation.
(In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523–524,
fn. 2.)
13
“A child support order may be modified when there
has been a material change of circumstances. [Citation.]
The party seeking the modification bears the burden of showing
that circumstances have changed such that modification is
warranted. [Citation.]” (In re Marriage of Cryer, supra, 198
Cal.App.4th at p. 1054; see also § 3651, subd. (a).) Thus, where
the payor parent “ ‘seeks a reduction in court-ordered support
based on the changed circumstances of lack of income, it will
be the payor parent, as moving party, who bears the burden
of showing a lack of ability and opportunity to earn income.’ ”
(In re Marriage of McHugh, supra, 231 Cal.App.4th at pp. 1246–
1247.) “ ‘The ultimate determination of whether the individual
facts of the case warrant modification of support is within the
discretion of the trial court. [Citation.] The reviewing court
will resolve any conflicts in the evidence in favor of the trial
court’s determination.’ ” (In re Marriage of Cryer, at p. 1054.)
Thus, we will affirm the trial court’s order regarding
a request to modify child support unless the court abused its
discretion, and will reverse the order “ ‘only if prejudicial error
is found from examining the record below.’ ” (In re Marriage
of Williams (2007) 150 Cal.App.4th 1221, 1233–1234.) In our
review for abuse of discretion, “we do not substitute our judgment
for that of the trial court, and we will disturb the trial court’s
decision only if no judge could have reasonably made the
challenged decision.” (In re Marriage of Cryer, supra, 198
Cal.App.4th at pp. 1046–1047.) Nevertheless, “ ‘the trial court’s
discretion is not so broad that it “may ignore or contravene
the purposes of the law regarding . . . child support.” ’ ” (In re
Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.)
14
“ ‘To the extent [the appellant] challenges the trial court’s
factual findings, our review follows established principles
concerning the existence of substantial evidence in support of
the findings. 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 prevailing
party as true and discard contrary evidence.’ [Citation.] ‘We do
not reweigh the evidence or reconsider credibility determinations.
[Citation.]’ [Citation.]” (In re Marriage of Calcaterra &
Badakhsh, supra, 132 Cal.App.4th at p. 34.) And, in a case
where the trial court concluded the party bearing the burden
of proof did not meet that burden—as is the situation here—
the question is not so much whether substantial evidence
supports the court’s findings, but “ ‘whether the evidence
compels a finding in favor of the appellant as a matter of law.’ ”
(Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972,
978–979 [specifically, whether appellant’s evidence was
uncontradicted, unimpeached, and “ ‘ “of such a character
and weight as to leave no room for a judicial determination
that it was insufficient to support a finding” ’ ”].)
2. Appellant has failed to show the trial court abused
its discretion
Appellant asks us to reverse the court’s order denying his
request for modification13 and to enter a new order calculating
13 Although CSSD technically filed the May 2020 motion,
in effect it was appellant’s request for modification. The trial
court treated it as such, as do we.
15
guideline child support based on his actual income (or lack
thereof) received from June 3, 2019 through July 23, 2021.
Appellant initially contends the trial court—in entering
the March 2019 child support order—used “an erroneous
dissomaster with [his] income based on $9,803.00 monthly,
instead of $5,300.00 monthly from EDD State Disability, EDD
Unemployment, and Unemployment which caused Child Support,
Arrears, and Interest to be calculated erroneously in the amount
of approximately $27,000.” However, appellant’s appeal is not
from the March 2019 child support order, but from the order
denying his request to modify that order. As appellant never
appealed from the March 2019 child support order, it cannot be
challenged now, and the issues determined by it are res judicata.
(In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637–638;
§ 3554 [appeal may be taken from an order under the statutory
division governing child support].)
When the court made the March 2019 order, it imputed
income to appellant based on his earning capacity of $9,803
per month—appellant’s income at IAMAW before he took
medical leave in 2018 for a claimed stress disorder and filed
an unsuccessful worker’s compensation claim. As discussed,
in doing so, the Torrance court apparently rejected as insufficient
the evidence appellant submitted to show he was unable to
work due to that stress disorder/disability. As appellant never
challenged the March 2019 order, we must presume that, in
calculating guideline child support based on appellant’s earning
capacity, rather than his actual income, the court found—
based on substantial evidence—appellant had the ability
and opportunity to work and earn that level of income, despite
his asserted stress disorder/disability. (See In re Marriage
16
of McHugh, supra, 231 Cal.App.4th at p. 1246–1247 [calculation
of child support based on earning capacity is appropriate
unless parent has no earning capacity, meaning no ability
or opportunity to work, or not in the child’s best interests].)
In seeking modification of that order, therefore, appellant
had the burden to present evidence showing his circumstances
had changed since then—namely, that he no longer had the
ability and opportunity to earn $9,803 per month.14 Essentially,
appellant asserted his inability to work due to his ongoing stress
disorder/disability and his October 2020 shoulder injury and
subsequent surgery demonstrated changed circumstances
requiring the court to modify his child support obligation
based on his actual income rather than his earning capacity.
In an apparent response to the court’s order at the
November 2020 hearing to produce evidence from his healthcare
provider showing his ability or inability to work, appellant filed,
on February 18, 2021, a declaration and four exhibits. The
court “extensively” reviewed the declaration and exhibits, and
received them into evidence. In response to the court’s query
as to whether appellant had any other evidence that complied
14 Appellant appears to have argued below that he did not
have the ability to work, rather than no opportunity to work.
He does not address that issue on appeal; we thus do not consider
it. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784–785 [“When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to
authority, we treat the point as [forfeited].”]; Munro v. Regents
of University of California (1989) 215 Cal.App.3d 977, 988 [party
“may not raise on appeal issues not raised in trial court”].)
17
with its order, appellant referred the court to “this return to
work, ability to work. This was given to my employer before.”
We presume appellant was referring to the August 1, 2019
certificate of disability attached to his September 2019
declaration.
The court found appellant’s February 2021 declaration
and exhibits did not satisfy the court’s earlier order “to provide
sufficient evidence from a physician showing the ability or
inability to work.” We can infer the court similarly rejected the
August 2019 certificate of disability—that we infer appellant
presented at the hearing—as it does not state appellant’s
diagnosis or the basis for the temporary disability. The
court noted most of the information appellant provided was
“inconclusive and certainly does not conclude a complete inability
to work.” It thus found appellant failed to meet his burden
to establish a material change in circumstances to warrant
modifying the child support order at that time.
Appellant’s February 2021 declaration and exhibits are not
part of the appellate record. While we are mindful appellant is
representing himself on appeal, he “is to be treated like any other
party and is entitled to the same, but no greater consideration
than other litigants and attorneys.” (Barton v. New United Motor
Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) He
thus is required to follow the most fundamental rule of appellate
review: the judgment or order challenged on appeal is presumed
to be correct, and “it is the appellant’s burden to affirmatively
demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573.) “All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error
must be affirmatively shown.” (Denham v. Superior Court (1970)
18
2 Cal.3d 557, 564.) To overcome this presumption, an appellant
must provide a record that allows for meaningful review of the
challenged order. (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 187.) “ ‘Failure to provide an adequate
record on an issue requires that the issue be resolved against
[the] [appellant].’ ” (Ibid.) If the record does not include all
the evidence and materials the trial court relied on in making
its determination, we will not find error. (Haywood v. Superior
Court (2000) 77 Cal.App.4th 949, 955.) Rather, we will infer
substantial evidence supports the court’s findings. (Ibid.)
The reporter’s transcript describes some of the evidence
appellant proffered, as we discussed, summarized here:
• The August 1, 2019 certificate of disability stating
appellant was temporarily totally disabled from August 1,
2019 to September 15, 2019.
• A doctor’s report (apparently prepared before the March
2019 order but unavailable to appellant) stating “over
51 percent of what’s going on with me [presumably,
his stress disability] was related [to] my job.”
• A letter from appellant’s “treating doctor” dated
January 29, 2021, stating appellant was able to work
but might experience some functional limitations.
• A letter from appellant’s shoulder surgeon stating
appellant should be placed off work from February 7, 2021
through April 7, 2021.
• A “ ‘final post-operative’ ” report from appellant’s surgeon
stating appellant had a shoulder injury on November 3,
2020, presumably the surgery date, and noting appellant
could start range of motion activity three weeks post-
surgery, could discontinue his sling and progress to
19
“active assist range of motion” four weeks post-surgery, and
could discontinue his brace at night six weeks post-surgery
(which counsel stated would have been December 15, 2020).
Appellant also testified the state awarded him disability benefits
from February 2019 through April 2019 based on his doctor’s
report; he had a second worker’s compensation claim—as far as
we can discern—due to his need to stop work at the end of April
or beginning of May 2019, based on the same stress disorder;
and he currently was in physical therapy for his shoulder and
“getting better” so he could “get back to work.” 15
Appellant argued the documentation he submitted showed
he continued to be unable to work due to his stress disorder/
psychological disability after the entry of the child support order,
and he could not return to work as an airplane mechanic—his
most recent position—due to his shoulder injury and surgery.
Although the evidence may show appellant was not working,
we cannot conclude it compels a finding that he lacked the ability
to work and thus no longer had the earning capacity attributed
to him in the March 2019 child support order.
As the trial court noted, the evidence was contradictory.
While appellant’s treating doctor apparently concluded appellant
was able to work in January 2021, his surgeon placed him
off work from February 2021 through April 2021. Nor does
the documentation, as the court also noted, provide a basis
for appellant’s inability to work. And, as Moss’s counsel added,
15 The record does not include documentation, other than
appellant’s declaration, concerning his disability award or
worker’s compensation claims.
20
according to the surgeon’s instructions, plaintiff would have
been sling free, even at night, for the two months preceding
the February 2021 hearing.
Although appellant explained these inconsistencies, we
can infer the trial court did not credit appellant’s explanations,
and resolve the apparent conflict in the evidence in support of
the court’s determination. (In re Marriage of Cryer, supra,
198 Cal.App.4th at p. 1054 ; In re Marriage of Calcaterra &
Badakhsh, supra, 132 Cal.App.4th at p. 34.) Certainly, on the
record before us, appellant’s evidence was neither uncontradicted
nor of such character and weight as to compel a finding in
his favor that his stress disorder or injury prevented him
from working at all. (See Juen v. Alain Pinel Realtors, Inc.,
supra, 32 Cal.App.5th at p. 979.)
Moreover, the fact appellant’s doctor may have placed
him off work due to his stress disorder or injury does not compel
a finding that appellant had no ability to work, and thus had
no earning capacity. True, appellant’s economic situation had
changed, but he bore the burden to show he lacked the ability
or opportunity to continue to earn income at the same level—
for example, with a reasonable accommodation or in a temporary
position. The court reasonably determined he did not. As Moss’s
counsel noted, appellant did not provide documentation, as
the court had ordered at the November 2020 hearing, from
his healthcare provider as to his diagnosis, prognosis, or ability
to work,16 or information from his employer about whether a
16 Moss’s counsel noted appellant failed to provide specifics as
to his ability to work for the February 2019 child support hearing
as well. As we discussed, the documentation in the record does
21
reasonable accommodation existed or had been offered. Nor
is there any indication that appellant asked for a reasonable
accommodation or to work in a different position that would not
have aggravated his disability or injury. And, he apparently had
declined an accommodation before the court entered the original
child support order. Given the actual documentation the court
considered is not part of the appellate record, we must infer
it supported the court’s implicit finding that it was insufficient
to show appellant’s earning capacity had changed due to his
continuing stress disorder/disability or shoulder injury. (See
In re Marriage of McHugh, supra, 231 Cal.App.4th at pp. 1246–
1247 [payor parent must show “ ‘lack of ability and opportunity to
earn income’ ” to demonstrate changed circumstances to warrant
modification of child support order based on earning capacity].)
As we discussed, whether the individual facts presented
warrant modification of child support remains within the broad
discretion of the trial court. (In re Marriage of Cryer, supra, 198
Cal.App.4th at p. 1054.) On this record, we cannot say no judge
reasonably could have found appellant failed to meet his burden
to prove changed circumstances required modifying the initial
child support calculation to appellant’s then-current income
rather than his earning capacity. (Id. at pp. 1046–1047.)
Accordingly, appellant has not demonstrated the trial court
erred in denying his request to modify the child support
and income withholding orders.
not provide a basis for, or the specific effects of, appellant’s
disability. We presume the exhibits omitted from the record
also did not, as the court found.
22
In reaching our conclusion, we do not suggest appellant
did not have a stress disorder or a shoulder injury. Rather,
appellant failed to demonstrate with sufficient evidence the
impact his disability and injury had on his earning capacity
and ability to pay child support. We note the trial court invited
any party to move to change the child support order when there
was evidence to support its modification.
3. The court did not err when it did not separately hear
appellant’s June 2019 RFO
Appellant appears to contend the trial court should have
considered his June 2019 RFO because CSSD knew of the
June 3, 2019 RFO through minute orders it had received,17
and appellant’s RFO sought to modify the child support order
retroactive to June 3, 2019. As we discussed, the court did not
hear the June 2019 RFO because there was no proof of service
showing it had been served and considered it consolidated with
the May 2020 motion. Although CSSD may have been aware
that appellant filed his own RFO, nothing in the record
demonstrates CSSD ever was served with the RFO nor does
appellant contend he served CSSD.
Even if the court also should have heard the June 2019
RFO, however, appellant has failed to show prejudice from
the purported error. An appellant has the burden not only
to show error but prejudice from that error as well. (See Cal.
17 The clerk served CSSD with notice of the August 27, 2020
minute order that continued and transferred appellant’s RFO
to be heard with CSSD’s motion, and the November 12, 2020
and February 25, 2021 minute orders identify the nature of
the proceedings as appellant’s June 3, 2019 RFO.
23
Const., art. VI, § 13 [miscarriage of justice required for reversal].)
If an appellant fails to satisfy that burden, his argument will
be rejected on appeal. (Century Surety Co. v. Polisso (2006)
139 Cal.App.4th 922, 963; see also see also In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 [miscarriage
of justice will not be found “ ‘unless it appears reasonably
probable that, absent the error, the appellant would have
obtained a more favorable result’ ”].)
As the May 2020 motion for modification was for
appellant’s benefit and filed at his request, we can infer
it included the information appellant provided in support
of his own RFO. We similarly can infer appellant’s February
2021 declaration reiterated the statements he made in his
2019 supporting and reply declarations about his ongoing stress
disorder/psychological disability, his worker’s compensation
claims, disability award, and unemployment. We thus can
presume the court considered that information despite hearing
only the May 2020 motion. And, as discussed, we can infer
the court considered the certificate of disability attached to
appellant’s September 2019 declaration and found it insufficient
because it did not state the basis for appellant’s temporary
total disability.
At the hearing, no one mentioned appellant’s reduced
pay rate for three months when he temporarily returned to work
for IAMAW on February 1, 2019, or his subsequent termination
on May 9, 2019. That evidence was included in appellant’s 2019
declarations, although the termination letter from his employer
is not part of the appellate record.
Even if that evidence were not included with CSSD’s
motion, however, the court’s consideration of it would not have
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reasonably led the court to rule differently. Again, that
appellant’s income was reduced—or even eliminated—does not
necessarily demonstrate an inability to earn income. Appellant
does not explain why his hourly rate was reduced, for example,
or the circumstances surrounding his termination. (See, e.g.,
In re Marriage of McHugh, supra, 231 Cal.App.4th 1241–1242
[discretion to set child support based on earning capacity includes
imputing income based on earnings at a prior job, “without
evidence the parent has the current opportunity to earn at that
same level, if the parent left or otherwise lost the job in a manner
reflecting a voluntary and deliberate divestiture of financial
resources required to pay child support obligations”].)
In short, as the evidence appellant submitted with his
June 3, 2019 RFO does not compel a finding that he lacked the
ability to work and to earn income at the level imputed to him in
the March 2019 child support order, appellant was not prejudiced
by any purported error on the trial court’s part in not hearing
the June 3, 2019 RFO. And, as we have concluded the court
did not err in denying the request for modification, appellant’s
desire to have any child support modification made retroactive
to June 3, 2019, is moot. (§ 3653, subd. (a) [order modifying
child support “may be made retroactive” to the date of filing
notice of motion].)
Finally, appellant appears to argue, without citation to
the record, that he was denied the ability to enter exhibits into
evidence. The record does not support appellant’s contention.
The trial court received appellant’s February 18, 2021 declaration
and attached exhibits into evidence. Nothing in the record
demonstrates appellant asked the trial court to receive any other
25
exhibits into evidence or that the court declined to do so. (See,
e.g., Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154
Cal.App.4th 547, 557 [ordinarily, errors not reflected in the
trial record cannot sustain reversal on appeal].)
DISPOSITION
The March 2, 2021 order is affirmed. Because respondents
elected not to file briefs in this court, there are no costs on appeal
to award.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KIM, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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