Z.W. v. E.R. CA4/1

Filed 10/21/20 Z.W. v. E.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Z.W., D076224

Respondent,

v.
(Super. Ct. No. DMB01590)
E.R.,

Appellant;

SAN DIEGO COUNTY DEPARTMENT
OF CHILD SUPPORT SERVICES,

Respondent.

APPEAL from an order of the Superior Court of San Diego County,
Enrique E. Camarena, Judge. Affirmed.
E.R., in pro. per. for Appellant.
No appearance for Respondent, Z.W.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney
General, Linda M. Gonzalez, Gregory D. Brown and Jennevee H. De Guzman,
Deputy Attorneys General, for Respondent, San Diego County Department of
Child Support Services.
 Z.W. (Mother) and E.R. (Father) have two children and separated
several years ago. Father appeals from a May 2019 child support
modification order issued after an evidentiary hearing before a superior court
judge. The order required Father to (1) retroactively pay $1,434 monthly
child support from July 1, 2018 through November 30, 2018; and (2)
thereafter pay $1,415 monthly child support on an ongoing basis. The San
Diego County Department of Child Support Services (Department) was a
party at the hearing on behalf of Mother. (See Fam. Code, § 17400 et seq.)1
Father represents himself on appeal. He challenges the May 2019
order, contending: (1) he did not receive notice of an earlier September 2018
hearing; (2) a January 2019 hearing was improper because he objected to a
court commissioner presiding over the hearing; (3) the Department was an
improper party because his children are not receiving public assistance; and
(4) the court improperly calculated his gross income. We find these
contentions to be without merit and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Background
In February 2016, a court commissioner issued an initial child support
order requiring Father to pay $555 in monthly child support.
Two years later on June 29, 2018, at Mother’s request, the Department
filed a petition to increase the child support. The Department served Father
by mailing him the petition to an address in San Diego.
On September 6, 2018, a court commissioner held a hearing on the
Department’s modification motion. Father did not appear at the hearing. At
the hearing, the commissioner ordered, without prejudice to November 8,

1 All unspecified statutory references are to the Family Code.

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2018, that Father pay monthly child support in the increased amount of
$1,249, effective July 1, 2018. The Department mailed a copy of the order to
Father at a different address in San Diego.
Soon after, on October 31 and November 5 and 8, Father filed
objections to the September 6 order. One of his objections was his claim that
the Department failed to serve the June 2018 motion at his correct address.
Father also filed his own motion to lower his child support payments.
The Department agreed a new support modification hearing should be
held, and requested that both parents bring income information, including
tax documents and a current income and expense declaration to the next
hearing.
In January 2019, a court commissioner held a new hearing on the
parties’ child support modification motions. Father was present at the
hearing. During the hearing, the commissioner stated it found Father’s
objections to the September 6, 2018 order valid and was willing to reconsider
this order retroactive to June 2018 (when the Department initially filed its
motion). However, Father objected to the commissioner presiding over the
matter and refused to participate in the hearing. Thus, the commissioner
maintained the order of $1,249 as the child support amount.
Shortly after, Father requested a de novo hearing before a superior
court judge. (§ 4251, subd. (c).) The court (Superior Court Judge Enrique
Camarena) granted Father’s request and held a hearing on the parties’ child
support modification motions on two dates: April 26 and May 23.
April 26 Hearing
At the outset of the first hearing, the court said the hearing would be a
“trial de novo” on all issues, unless Father wanted to limit the issues. The
court told Father he had properly objected to the commissioner presiding over

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the hearing, and therefore “you get a hearing in front of me, a judge. So we’re
doing that hearing over again.”
Father argued the Department did not properly serve the June 2018
modification petition because it was sent to a wrong address, and therefore
he did not have notice of the September 2018 hearing.
The court responded that it found Father’s October 2018 objections to
the September 2018 order to be timely and valid, so the issue of the June
2018 service was no longer relevant. Although it declined to declare the prior
order “void,” the court explained it was assuming the September 2018 order
was not controlling and that Father had properly objected to the
commissioner’s consideration of the issues, and therefore it was intending to
reconsider all issues regarding the proper child support amount from July 1,
2018 until the current date. The court said: “I understand your objection
about the service. And I don’t think we need to get there, and here’s why
procedurally: You timely made your request to vacate. I think it’s fair [to go]
back to the date that it would have gone into effect . . . .”
In addition to challenging the June 2018 service, Father strenuously
and repeatedly objected to the court’s subject matter jurisdiction and the
Department’s participation at the hearing, arguing the dispute was a private
contractual matter between himself and Mother because the children were
not receiving public assistance. The court overruled these objections,
explaining the statutes permit the court to rule on the issues and allow the
Department to participate in child support hearings if requested by a parent,
even if the children are not receiving public assistance. (See § 17404, subd.
(a).) The Department’s counsel said Mother had requested the Department’s
assistance in obtaining an adjustment to her child support.

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 On the merits, the court asked Father whether he had submitted
documentation of his income, noting it did not see this information in the file.
Father said he works for the San Diego County Airport Authority, but he did
not bring any paystubs or any other income information. Mother replied that
the caseworkers had repeatedly asked Father for his updated income during
the past two years, but Father had refused to provide any responsive
information.
The court decided to continue the hearing for one month to May 23,
providing the parties additional time to submit relevant income information.
The court said at the hearing it would consider the parties’ requests for
support modification retroactive to July 1, 2018, and Father indicated his
agreement with that retroactive date.
The court told the parties to file updated income and expense
declarations with supporting documentation. The court also specifically
directed the parties to provide paystubs “back to and including July 1, 2018.
So if you can print that up off of a system from work or go to the HR, I think
you have enough time to get something to print out, paystubs going back.”
(Italics added.)
May 23 Hearing
Before the May 23 hearing, Father filed a motion to dismiss,
reasserting his arguments that the court does not have personal or subject
matter jurisdiction, and the Department is not a proper party because child
support is a matter of private contract between the parties.
Mother, Father and the Department’s attorney appeared at the May 23
hearing. At the outset, the court said it had read Father’s motion, and then
permitted Father to orally explain his arguments and supporting authorities.

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 After considering Father’s arguments, the court found no legal basis to
dismiss the proceeding. The court said the purpose of the hearing was to
consider anew the issue whether child support should be modified beginning
on July 1, 2018, and that it intended to consider the parties’ evidence as to
the appropriate child support amount. Father agreed regarding the
retroactive date, but said he was participating in the hearing under duress.
As will be discussed in more detail below, the court then examined the
parties’ income and expense declarations and supporting paychecks, and
asked the parties various questions about their income and expenses. The
court concluded it would impute a minimum wage income for Mother for the
time when she was not receiving a paycheck. The court then inputted the
relevant figures into the statutory guideline calculator, and reached the
conclusion that (1) for the period July 1, 2018 through November 30, 2018,
Father’s child support monthly obligation was $1,434; and (2) effective
December 1, 2018, the ongoing child support obligation would be $1,415. The
court made clear in its written ruling that its review was de novo and its
findings were based on the testimony and evidence presented by the parties
at the May 2018 hearing.
DISCUSSION
I. Service of the June 2018 Motion
Father first challenges the court’s May 2019 order based on his
argument that he was not properly served with the Department’s June 2018
motion to modify child support. He argues the Department sent the motion
to an incorrect address, and therefore he was unaware of the September 2018
hearing and unable to appear at the hearing. The Department responds that
Father’s assertions about the incorrect address are not supported by the
record.

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 We need not resolve this dispute because Father’s failure to appear at
the September 2018 hearing had no effect on the court’s ultimate conclusion
in May 2019. Father admits he became aware of the commissioner’s
September 2018 ruling based on a notice mailed to his correct address shortly
after that hearing. In October and November 2018, Father responded by
filing objections to the September 2018 ruling and also affirmatively asked
the court to modify his child support obligations. Father had proper notice of,
and attended, the April and May 2019 hearings at which the parties
presented their evidence and the court ruled on the evidence.
At these April and May 2019 hearings, the court found Father had
timely objected to the court’s September 2018 ruling, and made clear this
prior ruling was not relevant to its consideration of the issues. The court
thus evaluated the child support issues as if they were being raised the first
time at the April and May 2019 hearings, based on the evidence presented at
the May 2019 hearing. Accordingly, Father’s nonappearance at the
September 2018 hearing and the commissioner’s ruling at that hearing, had
no impact on the final outcome of the matter.
On this record, any deficiencies in the service of the June 2018 petition
and/or the notice of the September 2018 hearing date were harmless. Under
the California constitution and statutes, a court cannot reverse an order if
the outcome would have been the same and no miscarriage of justice resulted.
(See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122; Cal. Const. art. VI,
§ 13.) Those circumstances apply here.
County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, relied
upon by Father, is materially different. In Gorham, this court reversed a
default judgment because the court never acquired fundamental personal
jurisdiction over the defaulted party (the appellant). (Id. at p. 1221.) To

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obtain fundamental personal jurisdiction over a nonappearing party, the
record must show the party was served with a summons and a complaint.
(Id. at pp. 1226-1227.) However, the undisputed evidence established the
process server had committed perjury in claiming he had served these
documents on the appellant. (Id. at p. 1230.) The Gorham court concluded
that without proper service of the summons to initiate the case, the trial
court had no power to make any rulings affecting the party who had never
appeared in the proceedings. (Id. at pp 1230-1231.)
Unlike the absent party in Gorham, Father made an appearance in the
case and had ample notice and a full opportunity to present evidence and
argue his points. The court had personal jurisdiction over Father since at
least 2016 when it first issued the child support order. In June 2018, the
Department moved to modify the prior order and scheduled a September
2018 hearing. Even assuming this initial notice was sent to the wrong
address, Father admits that the next month, he received notice of this ruling
and filed written objections. He then received notice of, and participated in, a
de novo hearing before a superior court judge. On this record, the court had
jurisdiction to rule on the issues raised by the parties.
II. Commissioner’s Authority
Father next challenges the commissioner’s authority to rule on the
child support modification issues.
Generally, cases filed by a local child support agency are referred to a
child support commissioner. (§ 4251, subd. (a); County of Orange v. Smith
(2002) 96 Cal.App.4th 955, 961.) However, where (as here) a party timely
objects before and after the commissioner rules on the issues, a party is
entitled to a de novo hearing before a superior court judge. (§ 4251, subd. (c);
County of Sacramento v. Llanes (2008) 168 Cal.App.4th 1165, 1172-1173;

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Smith, at p. 961.) A de novo hearing means that the court considers the
issues independently and is not bound by the commissioner’s factual or legal
conclusions. (Llanes, at p. 1173.)
In this case, Judge Camarena found Father had properly and timely
objected to the commissioner presiding over the case. Judge Camarena then
reviewed the issues independently and gave the parties the opportunity to
present new evidence. Judge Camarena evaluated each party’s evidence
without deferring to the commissioner’s rulings at the September 2018 or
January 2019 hearings. On this record, we find unavailing Father’s
challenges to the commissioner’s rulings as those rulings were superseded.
III. Department’s Participation in the Case
Father next contends the May 2019 order must be reversed because the
Department initiated the petition and was a party at the proceeding.
In return for receiving federal funding, states are required to provide
services related to the establishment, modification and enforcement of child
support. (42 U.S.C. § 654(4)(A).) The California Legislature enacted a
comprehensive statutory scheme to comply with this federal statute.
(§ 17000 et seq.; see County of Lake v. Palla (2001) 94 Cal.App.4th 418, 421-
422.) Under this scheme, a county agency (such as the Department) is
empowered to seek a child support order or to modify a child support order “if
the child is receiving public assistance . . . .” (§ 17400, subd. (a).)
Additionally, “if requested,” the agency “shall take th[ese] same actions on
behalf of a child who is not receiving public assistance . . . .” (Ibid., italics
added; accord Plumas County Dept. of Child Support Services v. Rodriquez
(2008) 161 Cal.App.4th 1021, 1027.) In the latter circumstances, the request
must generally be from the child or a parent of the child. (§ 17404, subd. (a);
Plumas, at p. 1028.)

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 Father contends the Department was not a proper party because his
children “are not receiving Government assistance.” However, as set forth
above, state law specifically provides for a local agency to petition on a
parent’s behalf, if requested to do so, even if the children are not receiving
governmental aid. (§ 17400, subd. (a).) Mother specifically requested the
Department’s assistance in this case.
Father contends that even if permitted by statute, the Department’s
involvement in his case was unconstitutional. He contends that when Mother
requested services from the Department, this “force[d] [him] to contract with
[the Department] without his consent.” He argues the statutory scheme is
“unconstitutional” because he is “under duress and forced to participate in
the State program.” He claims the Department is “infring[ing] on [his]
parental rights, ‘under color of law.’ ”
In support, he relies on Blessing v. Freestone (1997) 520 U.S. 329
(Blessing) and Troxel v. Granville (2000) 530 U.S. 57 (Troxel). Neither of
these decisions supports his arguments.
Blessing was a civil rights action brought by five Arizona mothers
seeking to compel their state agency to follow federal law and enforce their
spouses’ child support obligations. (Blessing, supra, 530 U.S. at pp. 332-333,
337.) The United States Supreme Court held the parents did not have a
broad right to compel the state to comply with Title IV-D (the law requiring
states to create and establish child support enforcement systems), but
remanded the case for the district court to address whether the plaintiffs
were entitled to enforce certain specific rights within the federal scheme. (Id.
at pp. 345-346.) This holding does not support Father’s claim that the
Department was not a proper party to seek a child support modification on

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behalf of Mother, or that the court’s order was unconstitutional because child
support is solely a matter of private contract between parents.
In Troxel, supra, 530 U.S. 57, the United States Supreme Court
recognized a parent’s fundamental right to make decisions concerning the
care, custody, and control of their children, and applied this principle to
conclude that a state law providing a trial court discretion to decide if
paternal grandparent visitation was in a child’s best interests, without
requiring the court to give special weight to the parent’s wishes, constituted
an unconstitutional interference with the parent’s rights. (Id. at pp. 67-73.)
Unlike the grandparent visitation scheme at issue in Troxel, the child
support modification order here did not improperly interfere with Father’s
right to care for his children. The Family Code codifies the general obligation
of both parents to support their minor children, and the statewide child
support guidelines implement this principle. Numerous courts have rejected
constitutional challenges to orders requiring a noncustodial parent to pay
monthly child support to the custodial parent. (See, e.g., City and County of
San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 850; In re Marriage of
Tavares (2007) 151 Cal.App.4th 620, 628; City and County of San Francisco v.
Thompson (1985) 172 Cal.App.3d 652, 659.)2
IV. Amount of Child Support
Father contends the monthly child support amount was incorrect
because the court “miscalculated [his] gross monthly income.”

2 We have reviewed each of the additional decisions cited by Father in
his appellate briefs, and find they do not support his arguments.

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 A. Relevant Facts
At the May 2019 hearing, the court used a child support guideline
calculator to determine whether the 2016 child support order should be
modified. Before doing so, the court calculated numerous components of each
party’s income and expenses. One of those components was monthly gross
income (both taxable and nontaxable).
To determine Father’s monthly taxable gross income for 2019, the court
used the sole paystub submitted by Father, which was dated April 25, 2019.3
The paystub showed that from January 1 to April 25, 2019, Father earned a
gross taxable income of $19,521.91. Based on this figure, the court
mathematically determined that Father’s monthly taxable gross income for
2019 was $4,773. When Father questioned how the court reached the $4,773
figure, the court said it entered the $19,522 (rounded-up) figure into its
calculator, and the calculator divided that number to reach a monthly sum
(taking into account that the figure was less than a full four months because
it reflected pay to April 25, 2019).
Father then said he earned a lower amount in 2018. The court
responded that it “need[ed] to see a pay stub from the end of 2018 . . . .”
Father said he did not have a paystub for 2018. The court then asked, “In all
the paperwork you have, you don’t have a pay stub from 2018? Or even
better, a W-2 for 2018? Your taxes for 2018?” Father responded, “Right now,
sir, I do not,” and asked the court to “take my testimony as being true . . .
[referring to his statement that he earned less in 2018 than in 2019].”

3 Although this paystub is not in the appellate record, we describe the
amounts on the paystub based on statements made by the court and the
parties at the hearing.

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 Mother responded by noting that Father has “been given the
opportunity” numerous times over the past several years “to provide his pay
stubs,” but he had repeatedly refused to provide this information. She said,
“he’s been given that opportunity at least 10 to 15 times over the last two
years to provide his pay stubs, and each time [he has] ignored [these
requests].”
The court replied, “I agree with you on that account.” The court then
decided it was appropriate to conclude that Father’s gross income for 2018
was the same as for 2019.
Using these figures and determining the other relevant amounts for the
income and expenses of Mother and Father, the court entered the amounts
into the calculator and then determined that Father was obligated to pay
monthly child support of $1,434 from July 1, 2018 to November 30, 2018; and
$1,415 from December 1, 2018 on an ongoing basis.
B Analysis
Father contends the court “miscalculated child support guidelines”
because it “miscalculated [his] gross monthly income.” Although not entirely
clear, it appears he is primarily complaining that the court used his 2019
paycheck to determine his 2018 income.
In calculating child support, courts use a statutory formula, one
component of which requires computation of each parent’s “annual gross
income.” (Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407, 1415, italics
omitted; see In re Marriage of Hein (2020) 52 Cal.App.5th 519, 527.) A trial
court’s determination of a parent’s income will be upheld if it is based on
legally appropriate factors and “is within the range of the evidence
presented.” (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)

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 The record supports the court’s determination of Father’s monthly
income. At the April 2019 hearing, the court specifically told the parties to
bring to the May 2019 hearing documentary evidence (in the form of
paychecks or paystubs) showing their income beginning in July 2018 through
the current date. Father brought only a single April 2019 paystub, reflecting
only 2019 income. The evidence showed Father had repeatedly refused to
provide the Department with information about his income.
On this record, the court had an appropriate basis to infer that Father’s
income was the same in 2018 and 2019. Father had notice and the
opportunity to present evidence to support his claim that his income was
lower in 2018. By failing to do so, the court could reasonably reject this
contention.
In his appellate briefs, Father also refers to a $5,163 figure on the
court’s calculation-results sheet reflecting Father’s taxable and nontaxable
gross income. He argues this figure was incorrect, but does not direct us to
any evidence in the record supporting this contention.
“[I]t is a fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to the appellate
court, that the trial court committed an error that justifies reversal of the
judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609, italics added.)
Father did not meet this burden. There is no evidence in the record to
support Father’s argument that the court’s determination of his gross
monthly income (taxable and nontaxable income) was incorrect.

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 DISPOSITION
Order affirmed. Appellant to bear respondents’ costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.

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