Karle v. Peene CA3

Filed 7/22/21 Karle v. Peene 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
LISA KARLE, C092073
Plaintiff and Respondent, (Super. Ct. No. PFL20140577)
v.
ROGER PEENE,
Defendant and Appellant.
Appellant Roger Peene appeals from a post-judgment order increasing his monthly
child support payments to respondent Lisa Karle (formerly Lisa Peene). Roger argues the
trial court misconstrued a stipulation reserving the guideline child support calculation for
an evidentiary hearing as a concession that there had been a material change of
circumstances warranting modification of the existing child support order, thereby
relieving Lisa of her burden of proof. We disagree and affirm.
I. BACKGROUND
Roger and Lisa separated in 2014 after 13 years of marriage. A judgment of
dissolution was entered in September 2016. Roger and Lisa have two minor children.
1
A. The Previous Child Support Order
Roger and Lisa are both employed in the technology sector. Roger originally
agreed to monthly child support payments of $907. The parties agreed to increase
monthly child support to $1,558 pursuant to a stipulation and order entered in May 2017
(the previous child support order). The previous child support order provided that base
child support would be based on the parties’ salaries, with additional child support (or
offsets against such support) for any bonus and commission income they might receive,
over and above their base salaries.1 At the time of the previous child support order, Roger
earned a base salary of approximately $20,000 per month, and Lisa earned approximately
half that amount. The previous child support order further provided that the parties
would reconcile any such additional support payments each January, for bonus or
commission income received in the preceding year.
B. Roger’s New Job
On July 30, 2018, Roger informed Lisa by email that he had accepted a new
position with Micron Technologies. Lisa congratulated Roger and asked that he provide
information concerning his new salary and benefits. Roger did not provide the requested
information.
C. The Request for Order
On August 22, 2018, Lisa filed a request for order to modify child support. She
acknowledged that she had no information regarding Roger’s new salary but theorized
that he was likely making more money. She requested an order requiring Roger to
1 The previous child support order provided that additional child support would be
calculated pursuant to an attached bonus table, which has not been made part of our
record. The parties refer to the missing bonus table as an Ostler-Smith schedule, and we
will do the same. (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 37 [trial
court has discretion to order supporting spouse to pay an additional sum for spousal and
child support based on percentage of future bonuses that he or she receives].)
2
provide information regarding investments and dividends as part of the “January bonus
settle up.” She also requested sanctions for Roger’s refusal to provide information
concerning his new salary and other orders not relevant here.
Roger opposed the request for order. He provided a declaration averring that his
new salary represented only a 3 percent increase over his old salary. He objected to
Lisa’s request for additional financial information as unnecessary, adding that:
“Investment income, and income from interest and dividends was (and should continue to
be) considered as part of base support. Adding income from investments to the bonus
table would result in that income being counted twice for support purposes.” He argued
that a downward modification of child support was warranted to account for changes in
Lisa’s 401(k) contributions, health insurance premiums, and health savings account.
D. The Stipulation
The parties spent several months litigating various discovery disputes. They
appeared before the trial court for a hearing on the request for order on April 29, 2019.2
During the course of the hearing, Roger and Lisa, both represented by counsel, entered
into a stipulation resolving some of their differences and tabling others. As relevant here,
the stipulation provided: “The guideline child support calculation shall be reserved and
deferred to the evidentiary hearing.”
E. The Evidentiary Hearing
An evidentiary hearing was held on October 10, 2019. Lisa submitted a trial brief
in anticipation of the hearing. She argued that Roger had a history of hiding income to
reduce his child support payments. She observed that Roger had repeatedly failed to
produce relevant documents, leading her to believe he was again trying to hide income.
She identified several sources of dividend and interest income that had not been disclosed
2 We have not been provided with a transcript of the hearing.
3
on Roger’s income and expense declarations or included in earlier child support
calculations. Lisa sought an order imputing interest income to other undisclosed assets
and including the imputed income in the Ostler-Smith calculation. Lisa also sought
attorney fees in the amount of $15,000 and sanctions in the amount of $5,000.
Roger submitted a declaration from his trial counsel entitled, “Declaration of Craig
C. Weaver re Calculation of Guideline Child Support.” Weaver asserted that Lisa had
been contributing bonus income to her 401(k) and opined that changes in her pretax
benefits should result in a downward modification of base child support, from $1,558 to
$1,328. Weaver further opined that interest income should not be included in the
calculation of base child support but should instead be subject to an Ostler-Smith
percentage. This was an about-face from the view expressed in Roger’s responsive
declaration to Lisa’s request for order. But Lisa would also soon undergo a change in
position on this issue.
The hearing began with appearances on the record, followed by an off-the-record
discussion in chambers. The trial court then went back on the record, indicating that the
parties would be submitting closing arguments in writing.
Lisa was represented at the hearing by attorney Aaron B. Dosh. During opening
statements, attorney Dosh argued: “Per our discussions in chambers, the primary focus
today is going to be on the income available for support over and above the parties’—or
[Roger’s], specifically, base salary through his employment.” Dosh argued that Roger
failed to disclose “a significant amount” of dividend and interest income and failed to
account for assets that could be earning interest, all of which, he said, should be included
in the base child support calculation.
Attorney Weaver agreed with opposing counsel’s characterization of the issues in
dispute, stating, “Your Honor, I agree with Mr. Dosh—Mr. Dosh’s characterization that
really we’re here about interest and dividend income, and that’s really what we’re here
for.” Weaver went on to argue that base child support should be reduced to $1,328.
4
However, Weaver continued, when interest and dividend income were considered, that
amount would return to $1,558. Accordingly, Weaver concluded, “my client’s position is
there simply has not been a change in circumstance since the last order was issued.”
During the hearing, attorney Dosh presented evidence that Roger earned dividend
and interest income from several previously undisclosed sources, adding an average of
nearly $7,000 to his new base salary of $21,667 per month. This was considerably more
than suggested by Roger’s income and expense declaration, which showed that he
received dividend and interest income in an average monthly amount of $2,060.
Attorney Dosh additionally presented evidence that Roger had recently purchased
undeveloped land, paying the $550,000 purchase price in cash, and that Roger made an
interest-free loan to his girlfriend in the amount of $336,000. Dosh presented evidence
that Roger had inherited shares of a dividend-paying stock that were held in a Canadian
bank account.3 Dosh also presented evidence that Lisa had incurred $25,000 to $30,000
in attorney fees seeking financial information from Roger.
Attorney Weaver presented evidence that Roger’s total interest and dividend
income from all sources ranged from $9,111 to $32,289 per year for each year following
the date of separation, an average of $759 to $2,690 per month. This evidence was
comprised almost entirely of Roger’s testimony and a chart that Roger had prepared to
elucidate his testimony. Roger explained that he was anticipating a stock market
correction and had recently shifted his investment focus from equities to real estate and
private equity loans.
Attorney Weaver examined Roger on the parties’ respective net worths at the date
of separation and ultimate division of marital assets. These questions drew relevance and
3 Roger testified the shares had been sold and the account closed, but bank records
indicated that he still had an open account.
5
Evidence Code section 352 objections from attorney Dosh, prompting the following
exchange with the trial court:
“THE COURT: Is there a large area you’re going into here, because I don’t —
everybody’s income fluctuates and hopefully increases over the length of their
employment, so what’s happened in 2016 doesn’t make a lot of difference to me now.
The last six months is what we typically use for the income, or the last year, unless
there’s a pattern, and if there is a pattern, then we use the pattern. You guys know this.
[¶] And so I don’t know what 2016, in saying there hasn’t been a change of
circumstances, if that’s what you’re stating, then it would be—there would be no change
in the current orders. [¶] Is that going to be the argument?
“MR. WEAVER: That’s correct, Your Honor.
“THE COURT: Go ahead. Answer the question.
“MR. DOSH: Your Honor, I still maintain my objection, because there’s no
requirement in a child support modification that there be a material change in
circumstances. The court is required to make a guideline finding when there is a request
made.
“THE COURT: I understand that, and he’s welcome to make his argument. He
can put it in legal form and support it with any evidence that he has. I understand the
law, and I know exactly what I will do with it so—
“MR. DOSH: All right. Thank you.
“THE COURT: I’m just giving him the time to present his case. I think he’s
entitled to do that. I think you’re both entitled to do that. [¶] So go ahead. Ask your
question.”
Weaver then continued his examination of Roger.
6
A short time later, attorney Weaver showed Roger a DissoMaster report he had
prepared to calculate guideline child support.4 The report reflected a “zero” value for
other taxable income. Weaver asked Roger whether he believed the trial court should
assign a zero value for his investment income in calculating guideline support. Roger
responded, “No. I mean, the current guideline has a dividend interest component. I think
this should too. It just comes down to what do we all agree is the right number?” Roger
then testified that he expected to earn $20,000 in dividend and interest income in 2019,
and believed that an average of $2,200 per month should be included in the calculation of
guideline child support.
The hearing came to an end shortly thereafter. The trial court directed the parties
to submit post-trial briefs addressing, “what I should believe is the evidence for the
computation of support.” Lisa and Roger both submitted closing briefs.
F. The Parties’ Closing Briefs
Lisa’s posttrial brief framed the case as follows: “The primary issue with regard
to child support is [Roger’s] Income from Interest/Dividends and Income he can/should
be earning on non-income producing assets.” Lisa argued the evidence showed that
Roger earns nearly $7,000 per month in dividend and interest income, over and above his
base salary of $21,666. Lisa also argued that additional income should be imputed to
Roger for the undeveloped property and no-interest loan. Lisa argued for a 6 percent rate
of return, resulting in imputed income of nearly $4,430 per month. Lisa also argued that
an additional $668 should be imputed to Roger for the income producing assets held in
Canada.
4 DissoMaster is a computer software program widely used by courts and the family law
bar in setting child and spousal support pursuant to the statewide unform guideline set by
Family Code section 4055. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn.
3.)
7
Roger’s posttrial trial brief proposed a different framing. Roger argued the May
2017 child support order could only be modified upon a showing of changed
circumstances, and Lisa failed to show that any such change had occurred. According to
Roger, the evidence established an absence of any change in circumstances, as the parties
had each received small raises, resulting in proportionate increases in their base salaries.
If anything, Roger argued, the evidence showed that Lisa was now contributing more to
her 401k and health savings account, which would warrant a downward modification of
child support, from $1,558 to $1,508.
Roger acknowledged that his investment portfolio had changed but dismissed the
issue as a “[r]ed [h]erring,” arguing that “the amount of income he earns from those
investments has remained largely unchanged.” Roger estimated that he receives an
average of $2,200 per month in dividend and interest income, some $723 less than the
estimate reflected in the previous child support order. This difference, Roger argued,
“represents a fraction of one percent (1%) of the total income of the parties and therefore
should not be viewed as a material change of circumstances.” Roger further argued that
Lisa failed to lay a foundation for imputing a rate of return on his non-income producing
assets and failed to establish a basis for attorney fees. Roger concluded that the request
for order should be denied, “as the current order is an accurate representation of a
guideline support order and because there has not been a material or substantial change of
circumstances since the current order was issued.”
Lisa submitted a reply to Roger’s closing brief. Responding to Roger’s
contention that she failed to show a change in circumstances, Lisa argued that (1) it was
undisputed that Roger had changed jobs, and (2) financial records obtained through
discovery showed that he received more income from investments than previously
disclosed. Lisa noted that Roger had never before raised any question about changed
circumstances and suggested the argument was made in bad faith.
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Roger also submitted a reply brief. Roger argued, again, that there had been no
change in circumstances that would provide the trial court with a basis to modify the
previous child support order. Roger asserted that the increase in his salary was
immaterial, and changes in his dividend and interest income were a “non-issue.” 5
G. The Trial Court’s Ruling
The trial court issued a ruling on submitted matters on March 9, 2020. The trial
court began by stating, “The court has carefully observed the witnesses’ demeanor,
manner of answering or evading the questions asked, and whether their testimony was
consistent and credible. This in-courtroom observation was essential in judging the
credibility of the witnesses and in deciding how much weight, if any, to give to the
witness’s proffered statements.”
The trial court then explained that, “The issues set for trial included a modification
of child support, income for support calculation, reimbursement of certain expenses for
the children, attorney’s fees and sanctions.” We are concerned here with the trial court’s
treatment of the first issue; modification of the child support order. The trial court ruled:
“A motion for modification of support may only be granted if there has been a material
change of circumstances since the last order. ([Khera v. Sameer] (2012) 206 Cal.App.4th
1467.) This is consistent with Roger’s argument that there is a need for changed
circumstances to modify a child support order. However, his argument is disingenuous
as the parties specifically preserved this issue for trial in their Stipulation filed April 29,
2019, wherein it states: [¶] ‘[] The guideline child support calculation shall be reserved
& deferred to the evidentiary hearing.’ ”
5 Roger also took issue with Lisa’s attempts to impute or otherwise quantify his dividend
and interest income. Roger renews some of these arguments in his reply brief. We need
not reach any of these arguments, as we do not consider arguments raised for the first
time in a reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325,
335, fn. 8.)
9
The trial court then quoted from In re Marriage of Joseph (1990) 217 Cal.App.3d
1277 (Joseph) and In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1021(Goodarzirad), excerpting passages expressing the public policy against agreements
divesting courts of jurisdiction over child support. (See Joseph, supra, at pp. 1284-1285
[“The rule is repeated in case after case: parties to a divorce cannot abridge the court’s
ability to act on behalf of the children, either by direct attempts to terminate the court’s
power, or by attempts to deny attorney’s fees where needed to institute or defend against
actions for modification of child custody or support orders”]; Goodazirad, supra, at p.
1026 [“stipulations between parents involving the minor children which attempt to divest
the court of jurisdiction are void and the doctrine of estoppel does not apply”].)
The trial court continued: “However, as noted above, the Court need only look to
the plain language of the parties[’] Stipulation from April 29, 2019[,] to have jurisdiction
to modify support as that issue was specifically reserved to the evidentiary hearing.
Counsel’s arguments that a change of circumstances is required is made moot by the
Stipulation referred to and entered into by the parties herein.”
The trial court then considered factors for the base child support calculation,
adopting Lisa’s proposed income amounts as the rulings of the court. Based on these
amounts, the trial court ordered Roger to pay Lisa $2,737 per month from August 22,
2019, through October 31, 2019, and $2,773 per month thereafter. The trial court also
awarded Lisa $20,000 in attorney fees. Neither party appears to have requested a
statement of decision.
This appeal timely followed.
II. DISCUSSION
A. Standard of Review
“Child support orders are subject to an abuse of discretion standard of review.
[Citation.] As is standard in this type of review, 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
10
have reasonably made the challenged decision. [Citation.] We review factual findings
by determining whether they are supported by any substantial evidence. [Citation.]
Since we are reviewing a child support order, however, we are mindful that
‘determination of a child support obligation is a highly regulated area of the law, and the
only discretion a trial court possesses is the discretion provided by statute or rule.’ ” (In
re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1046-1047 (Cryer).)
As always, it is “ ‘appellant’s burden to affirmatively show error.’ ” (Multani v.
Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.) Furthermore, “error alone does not
warrant reversal. ‘It is a fundamental principle of appellate jurisprudence in this state
that a judgment will not be reversed unless it can be shown that a trial court error in the
case affected the result.’ [Citation.] ‘ “The burden is on the appellant, not alone to show
error, but to show injury from the error.” ’ [Citation.] ‘Injury is not presumed from
error, but injury must appear affirmatively upon the court’s examination of the entire
record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be
deemed prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not
found ‘unless it appears reasonably probable that, absent the error, the appellant would
have obtained a more favorable result.’ ” (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 822-823.)
B. The Changed Circumstances Rule
“As a general rule, courts will not modify child or spousal support unless there has
been a material change of circumstances following the previous determination.” (In re
Marriage of Usher (2016) 6 Cal.App.5th 347, 357 (Usher); see also Cryer, supra, 198
Cal.App.4th at p. 1048.) “ “ ‘[T]he reason for the change of circumstances rule is to
preclude relitigation over the same facts” and to bring finality to determinations
concerning financial support.’ ” (Usher, supra, at p. 357; see also In re Marriage of
Rosenfeld & Gross (2014) 225 Cal.App.4th 478, 490 [“ ‘Without a changed
circumstances rule, “ ‘dissolution cases would have no finality and unhappy former
11
spouses could bring repeated actions for modification with no burden of showing a
justification to change the order’ ” ” ”].)
The party seeking modification of a child support order bears the burden of
showing changed circumstances sufficiently material to support the modification.
(Usher, supra, 6 Cal.App.5th at pp. 357-358; Cryer, supra, 198 Cal.App.4th at p. 1048.)
“ ‘The ultimate determination of whether the individual facts of the case warrant
modification of support is within the discretion of the trial court.’ ” (Usher, supra, at p.
358.)
“ ‘There are no rigid guidelines for evaluating whether circumstances have
sufficiently changed to warrant a child support modification.’ ” (Usher, supra, 6
Cal.App.5th at p. 358.) “Each case stands or falls on its own facts, but the overriding
issue is whether a change has affected either party’s financial status.” (In re Marriage of
Laudeman (2001) 92 Cal.App.4th 1009, 1015; see also In re Marriage of Leonard (2004)
119 Cal.App.4th 546, 556 [“ ‘So long as the statewide statutory formula support
requirements are met (Fam. [Code,] § 4050 et seq.), the determination is made on a case-
by-case basis and may properly rest on fluctuations in need or ability to pay’ ”]; In re
Marriage of McCann (1996) 41 Cal.App.4th 978, 982 [“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”].)
“When modifying a support order, the trial court must provide a statement of
decision explaining its ruling if requested by either parent.” (In re Marriage of McHugh
(2014) 231 Cal.App.4th 1238, 1248; see Fam. Code, § 3654 [“At the request of either
party, an order modifying, terminating, or setting aside a support order shall include a
statement of decision”].) “Under the doctrine of ‘implied findings,’ when parties waive a
statement of decision expressly or by not requesting one in a timely manner, appellate
courts reviewing the appealed judgment must presume the trial court made all factual
findings necessary to support the judgment for which there is substantial evidence.” (In
12
re Marriage of Condon (1998) 62 Cal.App.4th 533, 549, fn. 11; In re Marriage of
McHugh, supra, at p. 1248.)
C. The Record Does Not Affirmatively Show That the Trial Court Excused Lisa from
Satisfying Her Burden of Proof
Roger argues the trial court erroneously excused Lisa from satisfying her burden
of proving a material change of circumstances warranting modification of the existing
child support order. He advances two variations on this theme. First, he argues the trial
court misconstrued the stipulation as a concession that there had been a material change
of circumstances warranting a child support modification. Second, he argues the trial
court relied on an improper presumption that such a change occurred. Both of these
theories rest on the premise that the trial court viewed the stipulation as dispositive on the
merits. We are not persuaded.
A party seeking modification of an existing support order has the initial burden of
making a prima facie showing of changed circumstances to obtain an evidentiary hearing
on the matter. (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 591-593, citing In re
Marriage of Brown & Yana (2006) 37 Cal.4th 947, 962.) The changed circumstances
rule can thus be seen as encompassing a jurisdictional or quasi-jurisdictional hurdle on
the path to an evidentiary hearing on the merits. (See, e.g., In re Marriage of Leonard
(2004) 119 Cal.App.4th 546, 556 [“Statutory procedures for modification of child support
‘require a party to introduce admissible evidence of changed circumstances as a
necessary predicate for modification’ ”]; In re Marriage of Mulhern (1973) 29
Cal.App.3d 988, 991-992 [“a trial court is without authority to modify an award for
spousal support in the absence of a substantial change of circumstances occurring
subsequent to the entry of the decree”].) The trial court’s ruling is best viewed as a
determination that the stipulation foreclosed any argument with respect to this threshold
jurisdictional issue.
13
Though hardly a model of clarity, the ruling leaves no doubt that the trial court
understood Roger to be raising a jurisdictional challenge to Lisa’s request for child
support modification. The trial court made a point of quoting from cases “regarding . . .
attempt[s] to limit the court’s power to modify child support,” and found “the Court need
only look to the plain language of the parties[’] Stipulation from April 29, 2019[,] to have
jurisdiction to modify support as that issue was specifically reserved to the evidentiary
hearing.” The ruling as a whole makes clear that the trial court understood Roger to
argue that the court lacked jurisdiction to modify child support because Lisa failed to
make a threshold showing of changed circumstances, “ ‘a necessary predicate for
modification.’ ” (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556.) It was
this argument, and not any argument on the merits, that the trial court rejected as
“disingenuous” and “moot” in view of the stipulation. We do not disagree with the trial
court’s determination that the stipulation foreclosed any jurisdictional or quasi-
jurisdictional challenge to the evidentiary hearing and note that Roger does not attempt to
assert any such challenge on appeal.
Roger instead insists the trial court relieved Lisa of her burden of proof. The
record does not affirmatively show that the trial court misunderstood or misallocated the
burden of proof. To the contrary, the trial court’s ruling makes clear that, “A motion for
modification of support may only be granted if there has been a material change of
circumstances since the last order.” The ruling thus accurately states the legal standard
for modification of child support. (Usher, supra, 6 Cal.App.5th at p. 357.)
The ruling goes on to say that, “Counsel’s arguments that a change of
circumstances is required is made moot by the Stipulation referred to and entered into by
the parties herein.” But the ruling does not say that the stipulation made moot Roger’s
substantive argument that no material change in circumstances had occurred because his
base salary and investment income remained the same. Nothing in the ruling suggests the
trial court thought the stipulation foreclosed any such substantive argument, or otherwise
14
understood the stipulation to operate as a concession on the merits. Likewise, nothing
suggests the trial court improperly relieved Lisa of her burden of proof. Although the
trial court participated in a confusing colloquy regarding the requirements for
modification of child support, the court correctly stated those same requirements in the
ruling, and the presumption of correctness, requires us to presume that the court properly
allocated the burden of proof to Lisa. (See In re Marriage of Arceneaux (1990) 51 Cal.3d
1130, 1133 [A “judgment or order of a lower court is presumed to be correct on appeal,
and all intendments and presumptions are indulged in favor of its correctness”].) The
doctrine of implied findings likewise requires us to presume that the trial court made all
factual findings necessary to support the order; namely, that a material change in
circumstances warranted modification of the existing child support order. (Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [doctrine of implied findings
allows appellate court to infer that the trial court made all factual findings necessary to
support its order].)
Roger argues the doctrine of implied findings does not apply. Relying on Reid v.
Moskovitz (1989) 208 Cal.App.3d 29, he argues an appellate court cannot imply a finding
the trial court refused to make. (Id. at p. 32 [recognizing an exception to the doctrine of
implied findings “when a trial court expressly refuses to make a finding”].) The Reid
exception does not help Roger. Contrary to Roger’s suggestion, the trial court never
expressly refused to make any finding here. The trial court rejected Roger’s argument
that no change of circumstances occurred, but said nothing to preclude an implied finding
that a material change in circumstances warranted modification of the previous child
support order. Roger’s reliance on Reid is unavailing.
Roger also tries to avoid the presumption of correctness. His argument proceeds
in two parts. First, Roger argues the presumption does not apply because dividend and
interest income should have been included in the Ostler-Smith calculation, rather than the
calculation of base child support. Roger offers no authority for the proposition that
15
dividend and interest income must be included in the Ostler-Smith calculation (an
argument he only sometimes made in the trial court), and our own research suggests
otherwise. (See In re Marriage of Ostler & Smith, supra, 223 Cal.App.3d at pp. 41-42
[basing support order on husband’s income from salary and dividends and allocating
future bonus income as a percentage interest].) We need not resolve this question,
however, as we conclude Roger fails to demonstrate error, and therefore, fails to
overcome the presumption of correctness. (In re Marriage of Arceneaux, supra, 51
Cal.3d at p. 1133.) Second, Roger argues that, even assuming additional dividend and
interest income were properly allocated to base child support, the presumption of
correctness should not apply because there was evidence, in the form of his own
testimony, that there had been no material change in such income. This argument, too,
lacks merit. Lisa presented extensive evidence, both documentary and testimonial, that
Roger received an average of almost $7,000 per month in dividend and interest income
and held additional assets on which interest income could be imputed. The trial court
obviously found Lisa’s evidence more credible than Roger’s and made no secret of the
fact that the relative credibility of the witnesses played an important role in the case. We
do not second-guess the trial court’s credibility determinations or reweigh the evidence.
(Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.) On the record before us, we conclude that
substantial evidence supports the trial court’s implied finding that Roger’s enjoyed a
substantial increase in dividend and interest income and controlled assets on which
additional interest could be imputed, which together constituted a material change in
circumstances warranting modification of the previous child support order. No abuse of
discretion appears.
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III. DISPOSITION
The order is affirmed. Respondent Lisa Karle shall recover her costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) &(2).)
/S/
,
RENNER J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
MURRAY, J.
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