Opinion
B298533
03-09-2021
In re the Marriage of ULYANA RUBTSOVA and IVAN V. RUBTSOV. ULYANA RUBTSOVA, Respondent, v. IVAN V. RUBTSOV, Appellant.
Ivan V. Rubtsov, in pro. per., for Appellant. Ulyana Rubtsova, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BD484894 APPEAL from a post-judgment order of the Superior Court of Los Angeles County, Michael R. Powell, Judge. Vacated, with directions. Ivan V. Rubtsov, in pro. per., for Appellant. Ulyana Rubtsova, in pro. per., for Respondent.
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Ivan V. Rubtsov appeals from the trial court's post-judgment order requiring him to pay his former spouse Ulyana Rubtsova child support, based on imputed minimum wage income, after he lost his job. He primarily contends the trial court abused its discretion because it did not consider his ability and opportunity to work before imputing income to him. We conclude the trial court did not abuse its discretion when it imputed minimum wage income to Ivan for purposes of calculating his new child support obligation following his job loss. However, we conclude substantial evidence does not support the trial court having changed its originally ordered rate of imputed income of $11 per hour to $13.25 per hour when—after a hearing on Ulyana's request to modify child support—the court corrected what appears to have been a calculation error in its earlier order. We therefore vacate the order and direct the trial court to recalculate Ivan's monthly child support obligation based on the original $11 per hour minimum wage or to conduct further proceedings to determine the correct rate.
For clarity, we will refer to the parties by their first names. We intend no disrespect to them by doing so.
BACKGROUND
1. Original child support order
Ivan and Ulyana have been engaged in a contentious dissolution proceeding since May 2008. The trial court (James D. Endman, Temporary Judge) entered judgment in July 2013. Among other things, the judgment dissolved the couple's marriage and ordered Ivan to pay Ulyana monthly child support of $2,255 for their three then minor children, until they reached the age of majority or age 19 if still in high school at age 18. The judgment incorporated earlier orders concerning custody and visitation.
At the time, the oldest child, born May 1999, resided with Ivan, and the middle and youngest children, born June 2002 and September 2006, lived with Ulyana.
At that time, Ivan was an Internal Revenue agent with the Internal Revenue Service (IRS) and had been since August 2004. He has a master's degree in taxation and qualified as a Certified Public Accountant (CPA). He also earned his law degree in 2009. Ulyana was not employed at the time.
According to the record, Ivan was not a licensed attorney at the time he brought this appeal.
The IRS terminated Ivan's employment on November 9, 2018. Ivan sued the IRS for wrongful termination. At that point, Ivan no longer was required to pay child support for the oldest child, who had reached age 18 in 2017. He also had remarried.
2. Ivan's motion to modify child support
On November 19, 2018, Ivan filed a motion to modify his child support payments, which were $2,011 per month. By this time, the two minor children, who lived with Ulyana, spent only one percent of their time with Ivan.
On January 9, 2019, the trial court (Judge Michael R. Powell) convened a hearing on Ivan's motion. The parties each represented themselves and were sworn in and testified.
Ivan testified that his application for unemployment benefits was denied and that he had gone to 21 job interviews. He said he was required to disclose his lawsuit with the IRS to potential employers and, as a result, no one wanted to hire him. He also planned to take the bar exam. Ivan said he was married and mostly lived with his brother or a friend.
After hearing from both parties, the trial court ruled it would reduce Ivan's child support payment, but would impute minimum wage income to him of $11 per hour. The court recalculated the "presumed child support" to be $109 per month, based on imputed monthly income of $11 per hour, to begin January 15, 2019. The court denied Ivan's request to retroactively apply the new order to when he lost his job in November 2018 and ordered any unpaid support payments from November and December to be treated as an arrearage. The court ordered Ivan to continue to search for employment. The court also indicated the order was subject to modification if circumstances changed.
The court's "child support information and order attachment" indicate a printout of the computer calculation is attached to the order, but no attachment appears.
On January 9, 2019, the court entered its minute order ordering Ivan to pay $109 per month in child support, but did not file its findings and order after hearing with attached child support information and order until February 11, 2019. That order indicates the court based its determination on Ivan's imputed income of $11 per hour, Ulyana's gross monthly income of $2,136, and the children spending 1% of their time with Ivan.
Ivan was ordered to prepare the written order after hearing. For ease of reference, we refer to the trial court's order requiring Ivan to pay $109 per month in child support as the January 2019 or January 9, 2019 order.
3. Ulyana's request to modify child support
On April 5, 2019, Ulyana filed a request for order (RFO) to modify the January 9, 2019 child support order and to change Ivan's visitation of the two minor children from unmonitored to monitored. Ulyana asserted the court should change the January child support order that lowered Ivan's payment from $2,011 to $109 because: "The figure of $109 per month is far below the guideline (which would be approximately $750 per month) and very far below [Ivan's] earning ability as a tax preparer during tax season. The modification was not in our children's best interest." She asked the trial court to modify child support "to guideline according to [Ivan's] income ability as a Certified Public Accountant and Enrolled Agent." Ulyana's concurrently filed income and expense declaration lists $2,142 as her gross monthly salary as a pet groomer making $13.25 per hour, and $3,909 in monthly expenses.
In April 2018, the trial court ordered Ivan could have unmonitored visitation once per month for six hours with his son, the couple's youngest child, and unmonitored visitation with his daughter, the middle child, when she wanted to visit. Ulyana had full custody of the children. Ulyana's motion to modify the visitation order is not the subject of this appeal.
Ivan filed a responsive declaration to the RFO and a new income and expense declaration. He indicated he remained unemployed. He confirmed he had MS Taxation, JD, and LL.M degrees and was a CPA/EA [Enrolled Agent]. Ivan declared $2,761 in monthly expenses. He stated he received $150 in self-employment income as a consultant the prior month, but averaged -$250 in income per month. He also indicated his 19-year old daughter lived with him.
In his responsive declaration to the RFO, Ivan asked the court to maintain the January 9, 2019 child support order. He also asked that custody of the two minor children be changed to joint legal and physical custody and that his visitation be increased. The responsive declaration directs the court to "see declaration and FL-150 attached" for supporting facts.
FL-150 refers to the income and expense declaration Ivan filed with his responsive declaration. No supporting declaration of facts is attached to Ivan's responsive declaration to the RFO in this appellate record. Ivan's attached declaration is included, however, in the appellate record filed in his related appeal from the trial court's August 9, 2019 custody and visitation order, Case No. B301702. We consider the record in Case No. B301702 to the extent it is relevant to this appeal.
Ulyana filed a rebuttal declaration. With respect to her request for child support modification, Ulyana declared Ivan remained unemployed since his termination from the IRS on November 9, 2018, but had no incentive to seek employment. She asserted Ivan had "solid prospects of gainful employment" given he holds two professional licenses—CPA and Enrolled Agent—but the current $109 per month support order created an incentive for him to remain unemployed. Ulyana contended Ivan's employment status would not change without court intervention.
Ulyana also declared Ivan had no incentive to become employed because he and his wife receive about $14,000 per month for fostering seven children. The declaration does not include facts establishing her personal knowledge of that information, however.
The court called the matter for hearing on May 16, 2019. At first the court ruled it would not modify the January 2019 child support order because there was no evidence of a substantial change in circumstances—Ivan remained unemployed and his income and expense declaration showed no change. Ulyana argued it was not fair to the children for Ivan to claim zero income even though tax season had just finished. She asserted there was no $11 per hour minimum wage in California and that she was a minimum wage employee. The court replied that it had imputed minimum wage to Ivan. After Ulyana said she never received the paperwork, the court recalled there was a problem with the DissoMaster in January, and it had not printed out. The court recessed the proceedings to go over the figures again.
The parties spent most of the hearing time arguing about visitation. The trial court ordered a parenting plan assessment (PPA) in order for a court evaluator to interview the youngest child and continued the hearing on Ulyana's RFO to change visitation to August 2019.
When the court reconvened, it acknowledged, "[U]nfortunately I did not have the inputs that were supposed to be in the Disso[Master]. But I did order the $109 for the support at that time. I'm going to recalculate that based on what I believe to be the correct numbers." After confirming Ulyana was making minimum wage at $13.25 per hour, the court imputed that same minimum wage to Ivan to calculate his gross income at $2,142 per month. Ivan argued California minimum wage was $11 per hour, but the court explained $13.25 was the minimum wage in Los Angeles County.
Ivan argued the court should credit his support of their older daughter, but the court informed him it could not consider her support in the calculation. Ivan also wanted to argue with the court about receiving additional visitation. With only five minutes of hearing time left, the court had to cut Ivan off to make the DissoMaster computation. It printed out the DissoMaster based on imputation of income, which calculated Ivan's child support payment at $720 per month.
In response to Ivan's questioning the basis of the imputation, the court responded, "[T]he basis of the imputation is that you're trained as a CPA and you're showing that you have zero income. That you made $150 once in the last year. The court does not believe that to be credible. The court will impute income based on the fact that I do not show any income at all. You look healthy. You have a place to reside even if it's at your brother's or somewhere temporary. You're remarried. I do not believe that you cannot at least get a temporary job at minimum wage." Ivan retorted, "How do you determine that I'm healthy?" The court explained the matter was not up for discussion and ordered Ivan to pay $720 per month beginning June 1, 2019. The court made the order retroactive to the April 5, 2019 RFO filing date and ordered Ivan to pay arrearages of $1,520 at $20 per month until paid off.
Ivan also complained that the order was unfair as the court had not made the January 2019 reduced child support order retroactive to the date he had filed his motion. He contended he would be unable to pay the increased child support, which would result in the suspension of his license and that in turn would prevent him from having the ability or opportunity to work.
The court stopped Ivan from arguing and explained it had "instituted its orders based on the filings of the parties and the information that [it] discern[ed] from that"; it could not let Ivan talk anymore because it had another case to handle; and Ivan had the ability to take public transportation to a part-time or full-time job. The court continued, "Right now you're not working. As far as I could tell, you have not worked for quite some time. And somebody who's a CPA does not have to necessarily get around. So as far I'm concerned, I think that you could take a bus to get to where you need to get to work." The court then ordered the parties to return in the morning to process their paperwork and to receive orders concerning the PPA.
The court's May 16, 2019 minute order states its findings were made "pursuant to the DissoMaster printout filed this date." On June 17, 2019, Ivan filed a timely notice of appeal from the May 16, 2019 order.
DISCUSSION
Ivan contends the trial court abused its discretion when it imputed minimum wage income to him for purposes of calculating child support and assessing arrears without first considering his ability and opportunity to work. He also appears to argue the trial court violated his due process rights by denying him the opportunity to argue, but permitting Ulyana to do so, due to lack of time and to preserve judicial efficiency. Finally, Ivan contends the trial court acted unfairly by denying Ivan's request for retroactivity, but applying retroactivity for Ulyana who did not request it.
1. Applicable law and standard of review
California has established a mandatory, statewide uniform guideline to determine court-ordered child support. (See Fam. Code, §§ 4050-4076.) "[T]he uniform guideline statutes require that, in determining the appropriate amount of child support (whether pendente lite, permanent, or on a request for modification of an existing order), all California courts must adhere to the guideline formula." (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1013.) In so doing, courts are to adhere to the principle 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).)
Undesignated statutory references are to the Family Code.
Family Code section 4055 sets out the mathematical formula to be applied to parents' incomes. (§ 4055, subds. (a), (b).) 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.) The guideline calculation of child support based on the parties' incomes—using the approved DissoMaster software to apply the statutory formula—is presumptively correct. (§ 4057, subd. (a); In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359.)
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, "permits the court, in its discretion, to substitute actual income with earning capacity if consistent with the child's best interests." (State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1125 (Vargas).) Thus, a court does not deviate from the presumptively-correct guideline formula when it imputes income based on earning capacity to a parent under section 4058 rather than use the parent's actual income for purposes of the support calculation. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1336-1337; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 6:499.6.)
Nevertheless, income may only be imputed to a parent who has "earning capacity." (Vargas, supra, 70 Cal.App.4th at p. 1127.) " ' "Earning capacity is composed of . . . the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications . . . and . . . an opportunity to work." ' " (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1246; see also In re Marriage of Simpson (1992) 4 Cal.4th 225, 234 [earning capacity "represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities"].) Opportunity to work " 'exists when there is substantial evidence of a reasonable "likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income." ' " (McHugh, at p. 1246.)
Thus, a court first must determine whether the parent has "the current ability and opportunity to return to work," before imputing income to assess child support payments. (Vargas, supra, 70 Cal.App.4th at pp. 1126-1127 ["definition of earning capacity is satisfied when the payor has both the ability and opportunity to work"].) If either ability or opportunity "is not established, earning capacity cannot be substituted for actual income." (Id. at p. 1127.) "To rely on earning capacity in lieu of actual income '[t]he dispositive question is whether the evidence will sustain the inference that the party charged with support could, with reasonable effort, obtain employment generating the postulated (higher) income.' " (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 930.)
We review a child support order for abuse of discretion. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) We also review a "trial court's decision to impute income to a parent for child support purposes based on the parent's earning capacity . . . under the abuse of discretion standard." (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.)
In our review for an abuse of discretion, we determine "whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (In re Marriage of De Guigne, supra, 97 Cal.App.4th at p. 1360.) We must " '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.]' [Citation.] 'We do not reweigh the evidence or reconsider credibility determinations. [Citation.]' " (In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 34.) Nor do we "substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order." (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.) Nevertheless, " 'the trial court's discretion is not so broad that it "may ignore or contravene the purposes of the law regarding . . . child support." ' " (Ibid.)
2. The court's modification of Ivan's child support obligation due to his job loss
The Family Code permits a trial court to modify or terminate a child support order "at any time as the court determines to be necessary." (§ 3651, subd. (a).) A party seeking modification of a child support order must " 'introduce admissible evidence of changed circumstances.' " (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234.) "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 (2011) 198 Cal.App.4th 1039, 1054.)
a. The court did not abuse its discretion when it imputed minimum wage income to Ivan
Ivan appeals from the trial court's May 16, 2019 order issued after the initial hearing on Ulyana's RFO, but it was Ivan who first moved to reduce his child support payment. Accordingly, Ivan bore the burden of proof to modify the child support order based on his job loss. (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556 ["The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse."].) It was in response to Ivan's motion and his presentation of evidence that the trial court first imputed a minimum wage income to Ivan—instead of his actual income of zero—to calculate child support. Thus, it was up to him to demonstrate he lacked the ability or opportunity to secure employment. (E.g., In re Marriage of Eggers (2005) 131 Cal.App.4th 695, 701 [supporting father who lost job had "the burden to prove that he either lacked the ability to find employment or had no reasonable opportunities to obtain employment"]; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:442.13 [in practice, courts "often impute minimum wage earning capacity to an unemployed parent, placing the burden on that parent to demonstrate why he or she cannot get a minimum wage job"].)
At the January 2019 hearing on Ivan's motion, the trial court concluded Ivan had met his burden to show a reduction in his child support payment was warranted. However, the trial court did not find Ivan unable or without opportunity to work. Rather than calculate child support based on Ivan's income of zero, the trial court imputed to Ivan minimum wage income of $11 per hour. It thus implicitly found Ivan had the ability to work and the opportunity to make at least minimum wage.
Although Ulyana's RFO asked that the child support order be modified again because the January order was below both the guideline amount and Ivan's "earning ability as a tax preparer during tax season," the trial court did not actually grant Ulyana's request, so much as it corrected its calculation error made in reaching the $109 per month payment in January. "[A] trial court has inherent authority to correct an erroneous ruling on its own motion." (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 ["If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief."].) As we will discuss, because the court entered the May child support order to correct its error in its prior ruling, the court's decision to impute minimum wage income to Ivan was based on its earlier findings, in consideration of Ivan's motion, in January. We thus first consider whether the trial court correctly imputed minimum wage income to Ivan when he moved to modify the child support order. We conclude substantial evidence supports the trial court's implicit findings supporting its imputation of minimum wage income rather than applying Ivan's actual income of zero to calculate child support.
The record clearly shows Ivan's ability to work. At the time, Ivan—at 47 years old—was still of working age, had worked fulltime for the IRS for 14 years—until he was fired in November 2018—and was or had been a CPA. He also had a master's in taxation, had obtained a preparer's tax identification number, and had restored his Enrolled Agent license. And, he had obtained his law degree in 2009.
Ivan argues he was not really a CPA because his license had been suspended due to his inability to pay child support. Even so, Ivan was capable of working as a CPA.
Ivan testified that he had been unable to find work in his field, however. He testified he went on 21 job interviews, but no firm wanted to take him on because he had sued the IRS. The court questioned him about doing something other than represent clients with pending tax issues before the IRS. Ivan responded that it took time to get clients and "nothing [was] happening" due to the federal government furlough.
Ivan's testimony is insufficient to show he lacked the opportunity to work. As we said, Ivan held a master's in taxation and professional licenses. Thus, his inability to find a tax firm that would hire him did not preclude the court from finding he had an opportunity to work. (See, e.g., In re Marriage of Cohn, supra, 65 Cal.App.4th at p. 930 [finding evidence of opportunity where attorney could not find salaried employment but set up his own practice].) And, based on Ivan's testimony, it was his choice to sue the IRS for wrongful termination that resulted in his inability to find employment with a firm. (Cf. In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218, fn. omitted [" ' "[payor does] not have the right to divest himself [or herself] of his [or her] earning ability at the expense of . . . minor children" ' "].) Moreover, the furlough of federal workers would not have stopped the need for taxpayers to file federal tax returns. We can infer the court concluded the furlough would not have prevented Ivan from looking for clients who needed tax advice or help preparing their returns. Finally, Ivan presented no evidence to show that he could not, with reasonable effort, find a temporary minimum wage job while he built up his client base, nor did he argue he was unable to obtain a minimum wage position in some other field. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 998 [recognizing consensus in case law " 'that the only limitations against imputing income to an unemployed or underemployed parent is where the parent in fact has no "earning capacity" . . . or relying on earning capacity would not be consistent with the children's best interests' "].)
The appellate record does not include Ivan's motion to modify the child support order, his concurrently filed income and expense declaration, Ulyana's responsive declaration and income and expense declaration, or Ivan's reply to Ulyana's response. While we are mindful Ivan 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 bound 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) 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.) If the record does not include all of 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 all of the court's findings. (Ibid.) Based on these principles, we infer the documents filed with the court support its implicit finding that Ivan had the earning capacity of at least minimum wage.
Ivan argues that, at the May 2019 hearing, the trial court did not allow him to be heard on the issue of imputing minimum wage income to him. He contends that had he been "allowed . . . to be heard," the court would have learned he had a "podiatric disability that made him permanently limp" and that this disability requires him to rest frequently and prevents him from maintaining a job that requires constant sitting or standing. First, despite Ivan's contention that the trial court did not consider whether he had the ability and opportunity to work, as we discussed, the trial court did so at the January 2019 hearing. It was at that hearing that the trial court established Ivan had the ability and opportunity to earn minimum wage. Although he apparently has had this alleged disability since 2008, nothing in the record demonstrates that Ivan relied on that disability as evidence of his ability to work when he moved to reduce his child support obligation. He certainly did not mention it at the January 2019 hearing. And, at the May 2019 hearing, the trial court did not find credible Ivan's inability to "at least get a temporary job at minimum wage."
We note, Ivan's April 2019 declaration—included in the record for Case No. B301702—merely states, "It should be noted that unfortunately nothing has changed since the Court Order of January 2019 regarding my income[,] and my income has not changed and no circumstance and/or any facts has changed since that date."
Moreover, even if the court should have allowed Ivan to continue to argue at the May 2019 hearing about the recalculated $720 per month child support order, Ivan has not demonstrated how he was prejudiced. An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) 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.) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Ibid.) Ivan apparently worked fulltime for the IRS with his disability for 10 years. We can infer that had the court heard Ivan's testimony about his disability, it would not have been persuaded that Ivan was unable to work.
Accordingly, we do not find the trial court abused its discretion by imputing minimum wage income to Ivan instead of basing his child support obligation on his actual income of zero.
b. The court recalculated Ivan's child support obligation to correct its calculation error made in January 2019
In her RFO, Ulyana asked the trial court to modify Ivan's child support payment "to guideline according to [Ivan's] income ability as a Certified Public Accountant and Enrolled Agent." Thus, Ulyana wanted the court to impute a salary to Ivan that would be much higher than minimum wage. The court correctly ruled that it could not do so, as there was no evidence of a change in circumstances warranting it. (See, e.g., In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079-1080) [court did not abuse discretion when it refused to impute income to husband based on high salary husband earned at previous job without evidence he could earn a similar amount in the future, such as analysis of qualifications and currently available opportunities].) The court realized, however, that it had made an error in calculating Ivan's monthly support payment at $109 based on imputed minimum wage income. It acknowledged it did not include the required information in the DissoMaster program in January and thus needed to recalculate the number.
Because Ulyana was moving to modify the January 2019 child support order to consider Ivan's ability to earn a higher salary, she bore the burden of proof to demonstrate changed circumstances, such as Ivan having obtained a new job. (E.g., In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556 ["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)."].)
That a calculation error occurred is clear. At the May hearing, the trial court calculated Ivan's gross monthly income based on a $13.25 per hour minimum wage as $2,142, using the formula: $13.25 x 40 hours per week x 52 weeks/12 months. (Based on our calculation, a straight application of that formula yields a monthly income of $2,296.66. Ulyana, however, had declared she made $2,142 per month based on a $13.25 hourly rate. The court used the $2,142 figure for both parties.) Applying that same formula, gross monthly income based on an $11 hourly wage would be $1,907. ($11 x 40 = $440 per week x 52 = $22,880 per year/12 = $1,906.666). The difference between the two gross monthly incomes is $235 (or, about $390 if one uses the $2,296.66 figure), yet the difference between the monthly support payments based on those gross income amounts (and the same allocation of time the children spent with Ivan—1 percent) is $611.
Thus, we reasonably can infer the trial court did not modify the child support order to impute minimum wage income to Ivan based on evidence Ulyana presented—it already had done so, albeit at $11 per hour rather than $13.25 per hour—but exercised its inherent authority to correct the mistake it made in January in calculating Ivan's monthly child support payment under the guidelines based on imputed minimum wage.
Ivan appears to concede that the $109 per month child support order was below the guideline amount. Moreover, nothing in the record suggests the trial court intended to deviate from the guidelines when it modified the child support order to $109 per month. Whenever a trial court makes a child support order that deviates from the guideline amount, section 4056, subdivision (a) requires "the court shall state, in writing or on the record, . . . [¶] (1) The amount of support that would have been ordered under the guideline formula[;] [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount[; and] [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children." (§ 4056, subd. (a).) "The statutory findings are mandatory." (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183.) The trial court made no such findings at the January 9, 2019 hearing or in its later-filed findings and order after hearing, however, further supporting our conclusion that the trial court sought to rectify its calculation error.
Because we have found the court did not err when it imputed minimum wage income to Ivan, its recalculation of guideline child support based on the imputed minimum wage income using the DissoMaster software is presumptively correct. (§ 4057, subd. (a).)
Ivan does not contend the calculation leading to the $720 per month child support payment is incorrect.
Nevertheless, we conclude substantial evidence does not support the trial court's decision to change the imputed minimum wage from $11 to $13.25 per hour when it corrected its January 2019 order. Ulyana did not present evidence demonstrating a change in circumstances warranting the change in the minimum wage rate. Ulyana introduced evidence that she was paid minimum wage at the rate of $13.25 per hour. As the court said, that was the minimum wage rate at the time for Los Angeles County—in unincorporated areas for employers of 26 or more employees. (L.A. County Code, § 8.100.040, subd. A.1.c.) Ulyana presented no evidence, however, that Ivan should be deemed to make $13.25 per hour as opposed to the $12 per hour rate for Los Angeles County employers of fewer than 26 employees or the state minimum wage rate of $11 for employers of fewer than 26 employees that the court originally had set. (Lab. Code, § 1182.12, subd. (b)(2)(B); L.A. County Code, § 8.100.040, subd. A.2.b.) Even if the court believed it erred in applying the state rate instead of the higher Los Angeles County rate, no evidence was presented to demonstrate Ivan was more likely to obtain work for an employer of 26 or more employees versus an employer of 25 or fewer employees.
The state minimum wage rate at the time for employers of 26 or more employees was $12 per hour. (Lab. Code, § 1182.12, subd. (b)(1)(C).) The minimum wage rates for the City of Los Angeles and the City of Santa Monica, Ivan's mailing address, follow the Los Angeles County rates. (See L.A. Mun. Code, § 187.02, subds. B.3, C.2; Santa Monica Mun. Code, pt. 4.62.015, subds. (b)(3), (c)(2).)
Accordingly, we vacate the order and remand the matter with directions for the trial court to recalculate Ivan's monthly guideline child support payment based on the $11 per hour minimum wage rate that it originally ordered or to conduct further proceedings to determine the correct minimum wage rate to apply as of April 5, 2019.
3. The court's retroactive application of the May 2019 order
Ivan contends the trial court demonstrated bias and acted unfairly when it did not retroactively apply its January 2019 order to the date Ivan filed his motion to modify child support in November, but retroactively applied its May 2019 order to the date Ulyana filed her RFO in April 2019, requiring Ivan to pay arrearages. A trial court's decision whether to make an order for child support retroactive is reviewed for abuse of discretion. (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 555.)
Section 3653, subdivision (b) requires the court to make retroactive an order modifying or terminating child support due to a parent's unemployment "to the later of the date" the motion to modify the order was served or "the date of unemployment, . . . unless the court finds good cause not to make the order retroactive and states its reasons on the record." (See, e.g., In re Marriage of Leonard, supra, 119 Cal.App.4th at pp. 559-563 [trial court did not abuse discretion when it did not retroactively apply modified child support order where retroactivity would harm children as a result of payee parent's inability to meet expenses].) Ivan, however, did not appeal from the trial court's January 9, 2019 child support order that did not retroactively apply the reduced child support payment. He appealed only from the court's May 16, 2019 order requiring him to pay $720 per month in child support. (Code Civ. Proc., § 904.1(a)(2); In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1250, fn. 3 ["order determining arrearages and compelling payment of support is an appealable order"]; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173 [liberal construction of notice of appeal does not apply "if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all"].) We thus consider only whether the court abused its discretion when it retroactively applied the May 16, 2019 order to April 5, 2019, the date Ulyana filed her RFO, thus ordering Ivan to pay $1,520 in arrearages.
The May 2019 order was not entered due to Ivan's unemployment, but to correct the January 2019 order that modified the governing child support order due to Ivan's unemployment. We thus find section 3653, subdivision (a), rather than subdivision (b), is more applicable here. Under subdivision (a), an order modifying child support "may be made retroactive" to the date the motion to modify the order was served "or to any subsequent date." (§ 3653, subd. (a).) We cannot conclude the court abused its discretion by making the May order retroactive to the date Ulyana served her motion in April 2019. The court determined it had erred in calculating Ivan's payment at $109 per month. It was reasonable for it to retroactively apply the order correcting its error.
Because we have concluded the court must recalculate the monthly support payment Ivan owes, however, it also must recalculate the $1,520 total arrearage it found due.
DISPOSITION
The May 16, 2019 child support order is vacated with directions to the court to enter a new order after recalculating the amount of monthly guideline child support based on imputed minimum wage income to Ivan V. Rubtsov of $11 per hour, or to conduct further proceedings to determine the correct minimum wage rate to impute to him, as of April 5, 2019, for purposes of calculating child support. The court is to recalculate the amount of arrears incurred based on its new calculation. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.