Marriage of Gash and Ben-Noun CA2/3 ( 2016 )

Filed 5/3/16 Marriage of Gash and Ben-Noun CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Marriage of DRU GASH and LIMOR B258645
BEN-NOUN.
___________________________________ (Los Angeles County
DRU GASH, Super. Ct. No. LD056298)
Appellant,
v.
LIMOR BEN-NOUN,
Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Marshall
Rieger, Judge. Affirmed.
Robert F. Smith for Appellant.
No appearance for Respondent.
___________________________________
Appellant Dru Gash appeals from an order denying without prejudice his request
to modify a child support order. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2011, Gash agreed to pay to his former wife Limor Ben-noun $1,000
per month in child support for their minor daughter. Thereafter, Gash filed a request to
modify the support order and, in January 2013, the court found “a change of income to be
temporary and therefore not a substantial change of circumstance to warrant a change in
support orders from judgment of 7/7/2011.”
On September 13, 2013, Gash, who was in default on his support obligation, filed
the at issue request to modify the child support order. A back injury suffered in 2012 had
gotten “progressively worse,” and friends and family were supporting Gash. According
to Gash’s income and expense declaration, he worked about 20 hours per week and made
$640 per month as a telemarketer. The child spent 95 percent of her time with mother.
Gash then submitted, on July 11, 2014, another income and expense declaration stating
that his job ended on April 1, 2014, and he worked 10 hours per week and made $600 per
month. His financial situation changed significantly because he was “unable to work as
much due to back injury and economy.”
On January 17, 2014, the family court issued a seek-work order requiring Gash to
conduct five job searches per week, 20 percent to be done in person. The parties returned
to court on July 11, 2014, at which time Gash provided his job search record to the court.
The court found Gash’s job search to be deficient: the “Court finds that [Gash] has
sought employment positions which he [cannot] do and there are not enough job searches
on his schedule of job searches to comply with the court order.” The court therefore
denied the modification request without prejudice to refiling after completing appropriate
job searches. The job search order remained in full force and effect.1
1 Gash augmented the record with documents identified as his job search records.
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CONTENTIONS
Gash contends on appeal I. that he should not have been ordered to seek work
because he had a job, that any such order should have been mutual, and that the family
court’s seek-work order form was arbitrary, II. that the court abused its discretion by
denying his request to modify the child support order, and III. the proceeding violated his
due process rights.
DISCUSSION
I. The seek-work order.
Gash contends that the family court’s seek-work order was inappropriate, because
he was not unemployed. Rather, he was self-employed and making $600 per month.
Under Family Code section 4505,2 subdivision (a), a court “may require a parent who
alleges that the parent’s default in a child or family support order is due to the parent’s
unemployment to submit” documentation showing that he or she has applied for work. A
seek-work order is reviewed for abuse of discretion and is subject to reversal on appeal
where there is no reasonable basis for the court’s action. (Barron v. Superior Court
(2009) 173 Cal.App.4th 293, 298-299.) Gash’s contention that the court could not order
him to seek work when he was in fact employed is forfeited, because Gash agreed to the
order. At the January 17, 2014 hearing at which the court issued the order, Gash’s
counsel, after conferring with Gash who was present, said, “Your honor, my client is
accepting of the court’s order.” In any event, there was a reasonable basis for the court’s
order: Gash claimed that his default in his support obligations was due to the “economy”
and not just to his back injury.
Gash next contends that Ben-noun should also have been ordered to seek work.
But Ben-noun, for over five and a half years, operated a “business cart” doing hair
extensions in a mall. She had 90 percent custody of the minor child, and she had an 18-
month child from her new marriage. The court declined to rule on the matter at the initial
2 All undesignated statutory references are to the Family Code.
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hearing in January 2014: “Actually, I think for today I’m going to go forward with what
we have and go over. If she finds a better job, she can talk with her counsel. . . . But if
she has a cart at a mall, my guess is someone owns it. It may be her. And I am not
looking at tax returns, so I don’t know yet. And if it’s just an employment, she can look
for additional work or to get a different job. But as I said before, the economy still isn’t
that good, and I know that jobs are somewhat scarce.
“[Gash’s counsel]: Well, I –
“The court: If you don’t look, you can’t find it. If you want, you can file
something for the next court date.”
It appears that the family court found that mother was employed. Moreover, the
court wasn’t prepared to consider the issue that day. The court therefore invited Gash to
“file something” to raise the issue, but the record does not show he did so. The court
therefore did not abuse its discretion by failing to order Ben-noun to seek work.
Finally, it appears that the family court created a form for a party subject to a seek-
work order to fill out. The form, entitled “Employment Search Record,” had, for
example, headings for “Name of business, person, union or other entity,” “Address,”
“Telephone Number,” “Position(s) Applied for,” and “Application submitted in (P)erson
(M)ail (F)ax (I)nternet.” The form also had lines numbered 1 through 5 so that a party
can list the five job searches he or she completed each week. Gash contends that the
form “was not required by the statute and was in fact arbitrary.” True, section 4505 does
not require a form, but the section also does not preclude one. Moreover, we see no
arbitrariness in a court, for its and the parties’ convenience, creating a form to facilitate
the process. (See Code Civ. Proc., § 128, subd. (a)(1), (8) [courts have power to control
process and orders so as to make them conform to law and justice]; Cottle v. Superior
Court (1992) 3 Cal.App.4th 1367, 1376-1377.) The form was a useful and convenient
tool to show job search efforts.
Gash, however, chose not to fill out the form according to the court’s instructions.
Instead of listing all jobs he applied for on the form, he listed only his in-person ones. He
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submitted a separate printout of his on-line applications. Although Gash failed to comply
with the court’s order, the court did not reject Gash’s job search efforts on that ground.
The record instead shows that the court considered Gash’s efforts but concluded they
were deficient. We therefore reject Gash’s suggestion that the court “arbitrarily” rejected
evidence of his job search efforts.
II. The request to modify the child support order.
Gash contends that the family court abused its discretion by denying his
modification request without prejudice. We disagree.
We review an order modifying a child support order for an abuse of discretion.
(In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234; In re Marriage of
Leonard (2004) 119 Cal.App.4th 546, 555.) A reduction in child support will not be
ordered unless there has been a material or substantial change of circumstances since
entry of the previous order. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 392;
In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47.) “ ‘Ordinarily, a factual change
of circumstances is required [for an order modifying support] (e.g., increase or decrease
in either party’s income available to pay child support).’ [Citation.] ‘There are no rigid
guidelines for judging whether circumstances have sufficiently changed to warrant a
child support modification. 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 Leonard, at p. 556; see also In re Marriage of Laudeman (2001)
92 Cal.App.4th 1009, 1015 [“the overriding issue is whether a change has affected either
party’s financial status”].)
In determining income for support purposes, a court may also consider a child
support obligor’s earning capacity, consistent with the best interests of the children. (See
generally § 4058, subd. (b).) A parent may not shirk his or her parental obligations by
reducing earning capacity through unemployment or underemployment. (In re Marriage
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of Hinman (1997) 55 Cal.App.4th 988; In re Marriage of Dacumos (1999)
76 Cal.App.4th 150, 155.)
Implicit in the court’s seek-work order here was a finding that Gash, who based
his modification request on an injury that limited his ability to work and on the poor
economy, failed to establish he was maximizing his earning capacity. The court thus
ordered Gash to seek work so that the court could establish his earning capacity. But the
court found that Gash failed to comply with that order and denied the modification
request on that ground. The record supports that finding. Gash’s printout of his on-line
job searches did not include all information the court requested to enable it to evaluate
Gash’s applications. Gash also applied for jobs (for example café supervisor and
restaurant manager) that he appeared to be unqualified for and did not comply with his
asserted physical limitations. The court thus noted, for example, that “[m]ost of the jobs
that you are trying to get have activity. It doesn’t seem like if you all of a sudden had
pain and couldn’t work that they would keep you. It seems like you are basically
torpedoing having to work.” The court thus suggested that Gash refile his modification
request and support it with additional information from his doctor about the types of
positions he could do. The court could then “limit the scope of what his job searches
would be.”
Gash’s failure to establish his earning capacity, or lack thereof, precluded the
family court from evaluating whether there was a material or substantial change in
Gash’s circumstances warranting a reduction in his support obligations. The court
therefore did not abuse its discretion by denying the modification request without
prejudice.
III. Due process in child support proceedings at Central Civil West.
Gash suggests that because judges at Central Civil West who preside over support
proceedings were once district attorneys in the child support enforcement department, the
process is fundamentally unfair; i.e., it is the same as “having your divorce case decided
by your mother-in-law.” That the judicial officer once was a district attorney and that
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support proceedings are heard in the same building that houses the child support
enforcement office does not show that either the process or the judge was biased against
Gash. Also, “the mere fact a judicial officer rules against a party does not show bias.”
(In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328.)
DISPOSITION
The order is affirmed. No costs on appeal are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, Acting P. J.
We concur:
LAVIN, J.
HOGUE, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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