Marriage of Huang and Pabianova CA2/2 ( 2022 )

Filed 9/26/22 Marriage of Huang and Pabianova CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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). 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of FANG B316284
HUANG and MARIE
(Los Angeles County
PABIANOVA.
Super. Ct. No. BD615033)
_____________________________
FANG HUANG,
Appellant,
v.
MARIE PABIANOVA,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Angela J. Davis, Temporary Judge. (Pursuant
to Cal. Const., art. VI, § 21.) Affirmed.
Law Office of Noelle M. Halaby, Noelle M. Halaby and
Maria D. Houser for Appellant.
No appearance for Respondent.
_____________________________________________
Following the dissolution of his marriage to Maria
Pabianova (Mother), Fang Huang (Father) appeals from an order
modifying his child support obligation. Father argues that by
imputing to him $6,515 in monthly income, the family court
failed to properly place the burden on Mother to show he had the
ability and opportunity to earn the imputed amount. We
conclude the court did not abuse its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Original Child Support Order
Mother and Father were married in 2010. They have two
minor children. During the marriage, the couple supported their
family with earned income. In October 2014, the couple
separated.
In February 2015, Father petitioned for dissolution of
marriage. A marital settlement agreement provided for equal
custody and equal time share of the children, and Father’s
monthly child support obligation of $886. Father’s $886 payment
was a statutory guideline amount (DissoMaster1 ) based on
Father’s monthly income of $14,219 and Mother’s monthly
income of $7,083. On January 26, 2018, the family court entered
a stipulated judgment of dissolution. The judgment required
1 The DissoMaster is a privately created computer program
used to calculate child support pursuant to the algebraic formula
set forth in Family Code section 4055 as the guideline amounts.
(In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523, fn. 2.)
It appears from the record that the family court consistently
calculated Father’s child support obligations in accordance with
the statute’s mandatory formula, and Father does not contend
otherwise.
2
Father to pay $886 in monthly child support as stated in the
agreement.
2. Father’s First Modification Request
In April 2019, Father requested to modify his monthly child
support obligation to “zero.”2 In support of his request, Father
asserted he had lost his job and had no other source of income.
Father further asserted he intended to apply for unemployment
compensation and to search for a new job.
Mother filed a response, objecting to the requested
modification.
The family court heard the matter on May 24, 2019. The
court imputed $81,000 of severance pay to Father, which the
court annualized to $6,750 of monthly income for 12 months.
Based on the statutory guideline, the court reduced Father’s
monthly child support obligation to $1,020.3 The court ordered
Father to “make good faith” employment search efforts and to
provide documentation of his efforts to Mother on a biweekly
basis. (See Fam. Code, § 4505.) The modification order was not
appealed.
3. Father’s Renewed Modification Request
On July 27, 2020, Father again requested to reduce his
monthly child support obligation to zero. In support of his
request, Father asserted it had been more than a year since the
2After Mother lost her job, the parties stipulated on
November 8, 2018, to an increase of Father’s monthly child
support payment from $886 to $1,896.
3 Judge Anne Richardson presided over the May 24, 2019
hearing. While the record is not entirely clear, it appears her
ruling was made on that date, although it was not filed until
August 20, 2019.
3
last modification order annualizing his $81,000 in severance pay
and his income had severely diminished. Father stated he had
been “diligently” job searching but was still unemployed and had
no immediate employment prospects. His sole income was
unemployment insurance. Father stated he had undergone
reconstructive shoulder surgery on August 27, 2019, “which
rendered [him] unable to work until [he] could fully recover.”
According to Father, Mother canceled his health insurance in
October 2019, which delayed his recovery because he could not
pay for physical therapy sessions. As a result, Father was not
cleared to work until February 2020.
In her opposition, Mother argued Father did not meet his
burden to show changed circumstances, including a lack of ability
and opportunity to earn the same income since the last
modification order. Mother contended Father had made few
attempts to gain new employment, he had paid for physical
therapy out-of-pocket when necessary, and he had taken multiple
lengthy ski trips when he was supposedly on disability. Mother
also requested guideline support based on her current monthly
income of $2,495 and Father’s income exceeding $400,000 in
2019, his current liquid assets exceeding $300,000 and his
reduced time share of the children. Mother included subpoenaed
employment and financial records to substantiate her claims.
4. Evidentiary Hearing
The family court conducted a two-day hearing on the
matter.4 Mother and Father were the sole witnesses. Mother
was represented by counsel; Father was self-represented.
4 Commissioner Angela J. Davis presided over the two-day
hearing and entered the final order at issue in this appeal.
4
Counsel for the Los Angeles County Child Support Services
Department (CSSD) also appeared. CSSD had become involved
when Father stopped paying child support in January 2020.
At the conclusion of the hearing’s second day, the family
court stated its tentative would be to adopt a statutory guideline
close to a calculation of Father’s monthly living expenses. The
court added the modification would reflect the six months of
Father’s 5 percent time share of the children. The court ordered
the CSSD attorney to prepare separate child support guideline
computations, using proposed incomes provided by the parties.
The court also ordered the parties to submit written closing
arguments.
5. Family Court’s Ruling
In its July 27, 2021 ruling, the family court determined
that relying on evidence of Father’s earning capacity was in the
children’s best interest. The court gave reasons it was compelled
by the evidence to reject Father’s claims he was unable or
without the opportunity to work at his prior income level. The
court concluded Father “could qualify for any number of well-paid
positions across manifold industries,” as demonstrated by his
intellect and abilities, experience, and earnings history. Rather
than reducing his support to zero, the court imputed to Father a
monthly income of $6,515. The court explained this figure
approximated Father’s before-tax earnings and corresponded to
average monthly credit card expenditure of $5,459.
Neither party objected to the ruling. The family court
directed the CSSD to give notice of the July 27, 2021 ruling to the
parties. Father represents he did not receive notice of the ruling
until October 2021. He filed a timely notice of appeal. (Cal.
Rules of Court, rule 8.104(a)(1)(C).)
5
DISCUSSION
Father contends the family court’s imputation of income to
him was prejudicial error. He does not challenge the $6,515
valuation by arguing it was miscalculated or erroneously based
on his living expenses. Instead, Father maintains the income
imputation was “without the appropriate legal basis.” According
to Father, (1) the court improperly placed the burden on him
rather than on Mother to prove Father’s ability and opportunity
to work; and (2) Mother failed to meet the burden of proof that
should have been allocated to her. As we discuss, this argument
reflects a fundamental misunderstanding of the allocation of the
burden of proof in this case.
A. Applicable Law
1. Standard of review
A party seeking to modify child support bears the burden of
showing a material change in circumstances sufficient to justify
the requested modification. The trial court must determine
whether that modification is justified based on the specific facts
before it; a reviewing court will not disturb the trial court’s
determination unless abuse of discretion is shown as a matter of
law. (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238,
1247.) Thus, “ ‘[t]he ultimate determination of whether the
individual facts of the case warrant modification of support is
within the discretion of the trial court.’ ” (In re Marriage of
Williams (2007) 150 Cal.App.4th 1221, 1234.)
“A family law court abuses its discretion if it applies
improper criteria or makes incorrect legal assumptions.” (Ellis v.
Lyons (2016) 2 Cal.App.5th 404, 415; see Farmers Ins. Exchange
v. Superior Court (2013) 218 Cal.App.4th 96, 106 [“[i]f the court’s
decision is influenced by an erroneous understanding of
6
applicable law or reflects an unawareness of the full scope of its
discretion, the court has not properly exercised its discretion
under the law”].)
Where, as here, the appellant fails to bring to the family
court’s attention any ambiguities or omissions in its factual
findings, we must presume the court made all factual findings
necessary to support its order. (Fladeboe v. American Isuzu
Motors, Inc. (2007) 150 Cal.App.4th 42, 48.)
B. The Family Court Properly Allocated the Burden of
Proof
To determine a parent’s income in calculating guideline
child support, a family court “may, in its discretion, impute to
that parent an income different from his or her actual income—
i.e., an income amount that corresponds with that parent’s
earning capacity.” (In re Marriage of Sorge (2012) 202
Cal.App.4th 626, 642.) “Earning capacity” means the income that
the parent “ ‘ “is reasonably capable of earning” ’ ” according to
the parent’s “ ‘ “age, health, education, marketable skills,
employment history, and the availability of employment
opportunities.” ’ ” (In re Marriage of Lim & Carrasco (2013) 214
Cal.App.4th 768, 775.) “[I]ncome cannot be imputed based upon
a party’s earning ‘capacity’ absent proof of both ability and
opportunity to earn the income on a going-forward basis.” (In re
Marriage of Berger (2009) 170 Cal.App.4th 1070,1079.)
Father contends because Mother also sought imputation of
income to Father when she opposed his renewed modification
request, it was Mother’s burden to prove Father had the ability
and the opportunity to earn. Father is just plain wrong.
“On an application to modify support by imputing income to
a parent based on earning capacity, the burden of proof as to
7
ability and opportunity to earn imputed income changes
depending on which parent—the payor or the payee—is seeking
to change the status quo. For example, ‘where the payor parent
loses his or her job and 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.’
[Citations.] In contrast, when the payee parent seeks to increase
the amount of court-ordered support by imputing to the payor
parent a greater income than the court previously found, the
payee parent, as the moving party, bears the burden of proof to
show the payor parent has the ability and opportunity to earn
that imputed income.” (In re Marriage of McHugh, supra, 231
Cal.App.4th at pp. 1246–1247.)
The family court did not misallocate the burden of proof.
Here, it was Father, not Mother, who first moved for a change in
the existing child support order. As the payor spouse seeking to
reduce payments because of a life change, he had the burden to
prove he either lacked the ability to find employment or had no
reasonable opportunities to obtain employment. (See In re
Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1304, 1308; In
re Marriage of Eggers (2005) 131 Cal.App.4th 695, 701.) Instead,
Father’s primary focus was Mother’s current and past income
and employment. Moreover, the court discounted Father’s
testimony that he was unable to secure employment during his
purported disability and his earning capacity was “zero dollars”
unless he qualified again for unemployment compensation. By
failing to produce credible evidence that he lacked the ability or
opportunity to earn a comparable income, Father cannot fairly
complain the family court wrongly imputed income to him. He
8
did not meet his burden, and Mother had no obligation to come
forward with evidence regarding the availability of jobs at the
$6,515 income level. There was no abuse of discretion in this
case.
DISPOSITION
The July 27, 2021 order is affirmed. Fang Huang is to bear
his own costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
9