Marriage of Tetzlaff CA4/1

Filed 11/30/20 Marriage of Tetzlaff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of KATHLEEN I.
and ROBERT J. TETZLAFF.

D076922
KATHLEEN I. TETZLAFF,

Appellant, (Super. Ct. No. DS20219)

v.

ROBERT J. TETZLAFF,

Respondent.

APPEAL from an order of the Superior Court of San Diego County,
Maryann D’Addezio Kotler, Judge. Affirmed.
Law Office of Patrick L. McCrary and Patrick L. McCrary for
Appellant.
Stephen Temko and Dennis G. Temko for Respondent.
 Kathleen I. Tetzlaff (Kathy1) appeals from findings and an order after
a post-judgment hearing at which, based on a request for an order by her
former spouse, Robert J. Tetzlaff (Robert), the family court found changed
circumstances, terminated child support for the parties’ adult child, J., set
Kathy’s spousal support at $0, and terminated jurisdiction. As we explain,
because Kathy has not established that the court’s findings of fact are
unsupported by substantial evidence, the legal conclusions are erroneous, or
the rulings are beyond the bounds of reason, Kathy has not met her burden of
establishing that the family court abused its discretion. Accordingly, we
affirm.

I. COMBINED FACTUAL AND PROCEDURAL BACKGROUND2
Kathy and Robert married in 1981 and separated more than 20 years
later in 2001. Their daughter, J., was 20 years old at the time of separation
and 38 years old at the time of the filing of the order on appeal.
In 2005, the parties entered into a marital settlement agreement and,
in uncontested proceedings, obtained a judgment of dissolution of their
marriage; the judgment incorporated the settlement agreement. In part, the
agreement provided: Robert must pay Kathy monthly spousal support of
$3,000; and Robert must pay Kathy monthly support of $1,734 for J.,
“pursuant to Family Code § 3910(a)[,] which provides for the payment of

1 For clarity and ease of reading, both parties have used first names in
their appellate briefs. In doing the same in this opinion, we intend no
disrespect.

2 Given the deferential standard of review (see pt. II., post) and no
statement of decision, we recite the facts, especially those where the evidence
conflicts, in a light most favorable to Robert, as the prevailing party. (In re
Marriage of Brooks (2019) 33 Cal.App.5th 576, 589.)

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support for a child of whatever age who is incapacitated from earning a living

and without sufficient means.”3
In 2014, the family court granted Robert’s request to modify Kathy’s
spousal support and lowered the monthly amount to $1,700. In addition, the
court also denied Robert’s request to terminate adult child support for J.,
then almost 33 years old, and set the monthly amount at $2,002.
In 2018, more than 16 years after the parties separated and more than
12 years after the parties divorced, Robert filed a request for orders to
terminate spousal support for Kathy and to modify adult child support for J.,
who was then almost 37 years old (RFO). In support, he submitted a
memorandum of points and authorities, a declaration, and an income and
expense declaration.
With regard to changed circumstances, Robert testified that, in
February 2018 at a time when he was at least 66 years old, he was “forced
into retirement” after having been laid off from his employment; and J. had
become “fully capable of working.” As to the merits of the spousal support
issue, Robert first emphasized that, at the time of the parties’ divorce in
2005, “and at all subsequent hearings,” the family court had given Kathy at

least six “Gavron warnings . . . to become self-supporting.”4 As to the merits

3 Family Code section 3910, subdivision (a) (section 3910(a)) provides in
full: “The father and mother have an equal responsibility to maintain, to the
extent of their ability, a child of whatever age who is incapacitated from
earning a living and without sufficient means.” (Further undesignated
statutory references are the Family Code.)

4 Named after the rule announced in In re Marriage of Gavron (1988) 203
Cal.App.3d 705, a “Gavron warning” requires that, before a spousal support
order may be terminated or reduced, the supported party must be given fair
notice of the expectation that the supported party become self-sufficient and a
reasonable opportunity to achieve that goal. (Id. at pp. 711-712.) In
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of the adult child support issue, Robert emphasized that, because J. is
capable of working, she is no longer “incapacitated from earning a living”
(§ 3910(a)); and because she is able to earn a living, he no longer has the
section 3910(a) “responsibility to maintain” her. He then argued that, given
his new monthly income of $4,677 and his ongoing monthly expenses of

$6,454,5 he could no longer afford to pay spousal support or adult child
support.
Kathy opposed the RFO. In her responsive declaration, she set forth
her reasons for maintaining the current spousal and adult child support and
requested orders that Robert continue providing health insurance for J.,
reimburse Kathy for half of J.’s uninsured medical expenses, and award
Kathy reasonable attorney fees. She filed a declaration from counsel in
support of the attorney fees request and an income and expense declaration.
At a hearing on September 17, 2018, the court issued the following
“interim orders” on Robert’s RFO, pending a continued hearing in December
2018: On a monthly basis, Robert was to pay “Interim Spousal Support” of
$1,000 and “Interim Child Support” of $1,800; Kathy was to establish a
special needs trust for J.; and Kathy was to apply for Social Security benefits
for both herself and J.

application, where a supported spouse has received a Gavron warning and
“has unreasonably delayed or refused to seek employment consistent with
his/her ability,” that factor may be considered in modification proceedings.
(In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1204.)

5 At the time Robert filed the RFO, his income and expense declaration
established monthly income of $1,588 from “Pension/retirement fund
payments” and $3,089 from “Social security retirement (not SSI)” and
monthly expenses of $6,454.

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 In preparation for the continued hearing in December 2018, Kathy filed
a memorandum of points and authorities and additional declarations from
her and her attorney. Likewise, Robert filed two declarations, one updating
his income and expenses and another replying to the facts in Kathy’s recent
declaration.
The December 2018 hearing was continued until August 6, 2019, at
which time the family court presided over a half-day evidentiary hearing. In
preparation for this hearing, Robert filed an updated income and expense

declaration.6
In January 2020, the family court filed findings and an order after the
hearing on Robert’s RFO (FOAH).
In the FOAH, the court first found that Robert’s forced retirement
constituted a material change in circumstances. The court then
acknowledged that, for purposes of determining whether modification of
spousal support was justified, “it must consider the criteria set forth in

Family Code section 4320”;7 and we have no reason to believe this was not
done. After analyzing some, but not all, of the section 4320 factors, the court
set spousal support at $0 and terminated jurisdiction to order spousal

6 By the time of the evidentiary hearing on the RFO almost a year after
the interim awards, Robert’s current income and expense declaration
disclosed total monthly income of $4,752 (comprised of $1,500 from
“Pension/retirement fund payments” and $3,252 from “Social security
retirement (not SSI)”) and total monthly expenses of $8,677.

7 Section 4320 provides in part: “In ordering spousal support under this
part, the court shall consider all of the following circumstances: [¶] (a) The
extent to which the earning capacity of each party is sufficient to maintain
the standard of living established during the marriage, taking into account
all of the following: [¶] . . . [¶] . . . [¶] (n) Any other factors the court
determines are just and equitable.”

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support. In doing so, the court found in part as follows: “[Robert] paid for
[Kathy’s] education enabling her to find employment as a beauty technician”;
however, “[s]he has never worked outside the home”; although the parties
“separated in 2001 and have been divorced since 2005” and Kathy “has
received approximately six Gavron warnings,” Kathy “chose not to seek
employment for the last 18 years”; during this time, Kathy “has had ample
time and the ability to become self-supporting.” The court further found that,
although Kathy “does need financial support,” she received “approximately

$200,000” at the time of the dissolution of marriage8 and “spousal support for
18 years”; and the court concluded that Kathy “failed to manage her finances
in such a manner to enable her to become self-supporting” (citing In re
Marriage of McElwee (1988) 197 Cal.App.3d 902, 909-910 [“just as lack of
diligence in seeking employment may lead to a refusal to award spousal
support [citation], so too may improvident management of assets, which were
sufficient to provide self-sufficiency in the accustomed lifestyle, justify
termination of support and jurisdiction even though such an order may result
in an alteration in the supported spouse’s lifestyle”]). Finally, consistent with
the evidence in his income and expense declaration, the court also ruled that
Robert “does not have the ability to pay spousal support.”
With regard to adult child support, the family court granted Robert’s
request and terminated Robert’s then-current obligations to provide
section 3910(a) support for J. In principal part, the court relied on Robert’s
testimony that J. was able to earn a living, on the additional evidence that J.
had been denied Social Security benefits on several occasions, and on the

8 At the time of the parties’ divorce, Robert paid Kathy the cash
equivalent of half of his retirement accounts. We do not know whether those
funds are part of the $200,000 payment.

6
record which lacked any expert evidence that J. was disabled or otherwise
incapacitated from earning a living.

Kathy appealed from the FOAH.9

II. DISCUSSION10
On appeal Kathy argues that the family court erred: (1) in imputing to
Kathy the ability to become self-supporting; (2) in not making specific
findings as to the standard of living during the parties’ marriage; (3) in
terminating jurisdiction to order spousal support; and (4) in placing on
Kathy, the non-moving party, the burden of proving that circumstances had
not changed for purposes of determining whether adult child support could be
modified. As we explain, because Kathy has not met her burden of
establishing reversible error, we will affirm the FOAH.
We review an order modifying spousal support for an abuse of
discretion. (In re Marriage of T.C. & D.C. (2018) 30 Cal.App.5th 419, 423.)

9 Robert suggests that this court lacks jurisdiction because Kathy
appealed from the non-appealable August 2019 minute order. (See Schneer v.
Llaurado (2015) 242 Cal.App.4th 1276, 1283 [where the court directs the
preparation of a written order, “an appeal may not lie from the minute
order”].) The argument is frivolous, since Robert was served with both
(1) this court’s letter that, upon the submission of a formal order, we would
construe Kathy’s notice of appeal as being from the formal order, and
(2) Kathy’s submission of a formal order—i.e., the FOAH—10 days later.

10 Kathy has not provided a reporter’s transcript (or agreed or settled
statement) from the August 2019 half-day evidentiary hearing. Thus, as
Kathy acknowledges in her opening brief, for any issue that depends on the
adequacy of the evidence presented, her “ ‘[f]ailure to provide an adequate
record . . . requires that the issue be resolved against [her].’ ” (Jameson v.
Desta (2018) 5 Cal.5th 594, 609 (Jameson), italics added.) That is because
the appellant has the burden of establishing reversible error on appeal (ibid.),
and “it is presumed that the unreported . . . testimony would demonstrate the
absence of error” (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain)).

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We review an order terminating spousal support for an abuse of discretion.
(In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 590.) We review an order
modifying adult child support for an abuse of discretion. (In re Marriage of
Drake (2015) 241 Cal.App.4th 934, 939 (Drake).)
“In exercising its discretion the trial court must follow established legal
principles and base its findings on substantial evidence.” (In re Marriage of
Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted [modification of spousal
support].) Because a “proper exercise of judicial discretion requires the
exercise of discriminating judgment within the bounds of reason, and an
absence of arbitrary determination, capricious disposition, or whimsical
thinking” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682-683 [set
aside judgment]), the family court abuses its discretion when, after
considering all of the circumstances, its decision “ ‘has “exceeded the bounds
of reason” or it can “fairly be said” that no judge would reasonably make the
same order under the same circumstances’ ” (In re Marriage of Smith (1990)
225 Cal.App.3d 469, 480 (Smith) [modification of spousal support]).
A. Imputing to Kathy the Ability to Become Self-Supporting
Suggesting that “[t]he normal . . . retirement age here is 66” (citing
In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1276), Kathy argues
that the family court erred in imputing to her the ability to be self-
supporting, essentially requiring her to become employed. According to
Kathy, she is 68 years old and “[n]o one should be compelled to work after
their normal retirement age” (citing In re Marriage of McLain (2017) 7

Cal.App.5th 262 (McLain)).11

11 In passing, Kathy suggests that the FOAH denies her equal protection
of the law, in that the effect of the FOAH allows 68-year-old Robert to retire
whereas 68-year-old Kathy must now become employed. Preliminarily,
neither the evidence from the hearing nor anything in the FOAH requires
8
 Initially, Kathy’s reliance on McLain is misplaced. In McLain, the
court relied on In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373
(Reynolds), and the issue in both McLain and Reynolds was whether the
supporting spouse can be compelled to work past retirement age in order to
maintain the same level of spousal support as when the supporting spouse
was fully employed. (McLain, supra, 7 Cal.App.5th at p. 268, quoting
Reynolds, at p. 1378 [“ ‘we hold that no one may be compelled to work after
the usual retirement age of 65 in order to pay the same level of spousal
support as when he was employed’ ”].) Here, of course, Kathy is the
supported spouse, and the authorities she cites do not speak to the work

obligations of the supported spouse.12
Moreover, and determinative of the issue, the FOAH neither
“imput[es to Kathy] the ability to be self-supporting” nor “requires Kathy

Kathy to work or precludes her from retiring. In any event, Kathy forfeited
appellate review of this constitutional issue on at least two grounds:
(1) Kathy did not raise an equal protection argument in the family court
(In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 958 [“A party typically
forfeits constitutional issues not raised in earlier civil proceedings”]; In re
Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 510 (Brewster
& Clevenger) [on appeal, “ ‘new arguments may be deemed waived, based on
common notions of fairness’ ”]); and (2) in a two-sentence explanation of her
equal protection argument, Kathy presents insufficient legal authorities or
analyses (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830
[“The absence of cogent legal argument or citation to authority allows this
court to treat the contentions as waived”]; see Cal. Rules of Court,
rule 8.204(a)(1)(B)). We thus express no opinion on her constitutional
argument.

12 Thus, to the extent McLain and Reynolds are applicable here, they
support only a ruling that Robert, as the supporting spouse, cannot be
compelled to work past normal retirement age. (McLain, supra, 7
Cal.App.5th at p. 268; Reynolds, supra, 63 Cal.App.4th at p. 1378.)

9
to become employed,” as she tells us. (Some capitalization and bolding
omitted.)
In attempting to convince us otherwise, Kathy argues that, “[a]bsent
support[,] [she] lives on $1,001 per month,” citing the FOAH. However, that
is not what the FOAH says. The court found only that Kathy “receives

[S]ocial [S]ecurity benefits in the amount of approximately $1001/month.”13
(Italics added.) In any event, the court made other findings that fully support
the rulings in the FOAH, regardless whether Kathy believes she must now
seek employment. For example, despite having “received approximately
$200,000 and . . . spousal support for 18 years,” Kathy “failed to manage her

finances in such a manner to enable her to become self-supporting.”14 Also,

13 Although Kathy’s statement about “liv[ing] on $1,001 per month” may
be supported by evidence or inferences from evidence in the record, we do not
consider it here for at least three independent reasons: (1) Kathy has not
cited us to the evidence on which she might be relying; (2) the issue is not
whether the record contains evidence in support of findings the losing party
wishes the court had made, but “ ‘whether there is some evidence that, if
believed, would support the findings’ ” actually made (In re Marriage of
Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703 (Fregoso & Hernandez));
and (3) as the losing party, Kathy is not entitled to the benefit of inferences
from evidence (In re Marriage of Bonds (2000) 24 Cal.4th 1, 35 [“the
reviewing court should draw all reasonable inferences in favor of the
judgment below,” reversing the intermediate appellate court decision that
“incorrectly chose to draw those inferences least in favor of the judgment
below”]).

14 We are aware of, and sympathetic to, Kathy’s explanation of what she
characterizes in her appellate briefing as “her financial woes.” In addition,
we have reviewed the detailed evidence she submitted to the family court in
opposition to the RFO, in which she explains the many causes (mostly out of
her control) that she attributes to her financial situation. However, we do not
consider that evidence for purposes of accepting the family court’s finding
that Kathy mismanaged her finances (or any other finding); we consider only
10
in violation of at least six Gavron warnings (that the court expected her to
become self-sufficient), Kathy “chose not to seek employment for the last 18
years”—even though she “had ample time and the ability to become self-
supporting.” (Italics added.) Finally, due to the change in circumstances
related to his (involuntary) loss of employment, Robert “does not have the
ability to pay spousal support.”
B. Findings Regarding the Marital Standard of Living
Kathy argues that the family court erred when, in ruling on Robert’s
request to modify and terminate spousal support, the court failed to make a

factual finding as to the marital standard of living.15 In support of her
argument, Kathy relies on section 4332, which provides in part: “In a
proceeding for dissolution of marriage . . . of the parties, the court shall make
specific factual findings with respect to the standard of living during the
marriage[.]” Here, the FOAH makes no mention of the marital standard of
living, and on that basis Kathy contends the FOAH must be reversed and the
matter remanded for a new trial on spousal support.
However, not all error is reversible error. As we explain, even if we
assume without deciding that the family court erred, because Kathy has not
established that she suffered prejudice as a result of the lack of section 4332

the evidence in support of the finding actually made, and if it is substantial,
we must accept the finding, regardless whether there is other evidence, even
weightier evidence, that is contrary to the court’s finding. (Fregoso &
Hernandez, supra, 5 Cal.App.5th at p. 703.)

15 “The marital standard of living is ‘a general description of the station in
life the parties had achieved by the date of separation,’ rather than a
‘mathematical standard.’ ” (In re Marriage of Grimes & Mou (2020) 45
Cal.App.5th 406, 424.) It is not “ ‘the absolute measure of reasonable need,’ ”
but “ ‘merely a threshold or reference point against which all of the statutory
factors may be weighed.’ ” (Id. at pp. 424-425.)

11
findings, she has not met her burden of establishing that the FOAH be
reversed.
“We begin with the understanding that a procedural error by itself is
generally insufficient to set aside a judgment or order.” (In re Marriage of
Kent (2019) 35 Cal.App.5th 487, 496.) That is because “the presumption in
the California Constitution is that . . . ‘. . . any error as to any matter of
procedure,’ is subject to harmless error analysis and must have resulted in a
‘miscarriage of justice’ in order for the judgment to be set aside.” (In re
Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Goddard); see Cal. Const.,

art. VI, § 13; Code Civ. Proc., § 475.16) In this regard, the burden is on the
party challenging the order, here Kathy, to “demonstrate the error was
prejudicial, that is, that it is reasonably probable a result more favorable to
that party would have been reached in the absence of the error.” (In re
Marriage of Jackson (2006) 136 Cal.App.4th 980, 997 (Jackson).)
Because Kathy does not mention, let alone attempt to establish,
prejudice, she necessarily failed to demonstrate reversible error. (Goddard,
supra, 33 Cal.4th at p. 56; Jackson, supra, 136 Cal.App.4th at p. 997.)
In any event, because “the marital standard of living takes on less
significance with the postseparation passage of time” (Hogoboom & King, Cal.

16 Article VI, section 13 of the California Constitution provides in part:
“No judgment shall be set aside . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.”
Code of Civil Procedure section 475 provides in part: “No judgment . . .
shall be reversed . . . , unless it shall appear from the record that such error
. . . was prejudicial, and also that by reason of such error, . . . the said party
complaining or appealing sustained and suffered substantial injury, and that
a different result would have been probable if such error . . . had not occurred
or existed.”

12
Practice Guide: Family Law (The Rutter Group 2020) ¶ 17:156.2, p. 17-66),
we have no difficulty concluding that the record on appeal establishes a lack
of prejudice in the family court’s failure to make a finding as to the marital
standard of living. The parties in this appeal separated in 2001, more than
18 years prior to the FOAH. During those 18 years, Robert began paying
Kathy temporary spousal support in 2001; and as of and after the judgment
in this action, the court ordered permanent spousal support (of $3,000/mo. in
2005) and twice modified it downward (to $1,700/mo. in 2014 and to
$1,000/mo. in 2018) without any section 4322 findings regarding the marital
standard of living. Very simply, if findings regarding the marital standard of
living were not at issue over the course of 18 years and at least four rulings
awarding spousal support, Kathy is not prejudiced by the failure to find the
standard in this fifth ruling. Finally, we find further support for our ruling
that Kathy suffered no prejudice, because regardless of the marital standard
of living almost 20 years ago, today Robert “does not have the ability to pay
spousal support.”
C. Terminating Jurisdiction to Order Spousal Support
Kathy argues that the family court erred in terminating jurisdiction to
order spousal support. Emphasizing that the parties here had a long-term

marriage,17 Kathy relies on the following language from our Supreme Court
regarding the retention of jurisdiction:

17 Section 4336 provides that, for purposes of retaining jurisdiction to
order spousal support, “the court retains jurisdiction indefinitely in a
proceeding for dissolution of marriage . . . where the marriage is of long
duration,” and “there is a presumption . . . that a marriage of 10 years or
more, from the date of marriage to the date of separation, is a marriage of
long duration.” (§ 4336, subds. (a), (b).) That said, subdivision (c) directs that
nothing in this statute “limits the court’s discretion to terminate spousal
support in later proceedings on a showing of changed circumstances.”

13
 “A trial court should not terminate jurisdiction to extend a
future support order after a lengthy marriage, unless the
record clearly indicates that the supported spouse will be
able to adequately meet his or her financial needs at the
time selected for termination of jurisdiction. . . . If the
record does not contain evidence of the supported spouse’s
ability to meet his or her future needs, the court should not
‘burn its bridges’ and fail to retain jurisdiction.” (In re
Marriage of Morrison (1978) 20 Cal.3d 437, 453 (Morrison),
italics added.)
According to Kathy, because the record does not contain evidence that she,
the supported spouse, “will be able to adequately meet . . . her financial needs
at the time selected for termination of jurisdiction” (ibid.), the FOAH must be

reversed.18 We disagree.
After the statement from Morrison on which Kathy relies, the Supreme
Court continues, explaining that the above-quoted ruling “will not require a
trial court to retain jurisdiction in every case involving a lengthy marriage.”
(Morrison, supra, 20 Cal.3d at p. 453.) To the contrary, the family court
continues to maintain the discretion to award—as the court did here—“no
support . . . without a retention of jurisdiction.” (Ibid., italics added.) “Where
jurisdiction has been retained in the original order, future modification
hearings may well reveal that the supported spouse . . . has delayed seeking
employment, or has refused available employment. At that time, the court
may appropriately consider such factors in deciding whether or not to modify
its original order.” (Ibid., citing In re Marriage of Rosan (1972) 24 Cal.App.3d

18 Because Kathy did not provide a reporter’s transcript, we normally
presume that the unreported testimony from the evidentiary hearing
contains evidence that Kathy is able to meet her financial needs. (Jameson,
supra, 5 Cal.5th at p. 609; Fain, supra, 75 Cal.App.4th at p. 992.) However,
since the court expressly found that Kathy “does need financial support,” we
will not base our decision on the presumption.

14
885, 896 [in modification proceedings, the family court may consider evidence
that the supported party “has unreasonably delayed or refused to seek
employment consistent with his or her ability”].)
Very simply, the general rule disfavoring termination of jurisdiction on
which Kathy relies (i.e., after a lengthy marriage, a family court should not
terminate spousal support unless the supported spouse is able to meet his or
her financial needs) is subject to an exception, in the court’s discretion, where
the supported spouse has refused to seek employment. (Morrison, supra, 20
Cal.3d at p. 453.) Here, the court applied this exception after finding that
Kathy “chose not to seek employment for the last 18 years,” despite the fact
that “[Robert] paid for [Kathy’s] education enabling her to find employment
as a beauty technician.”
D. Burden of Proving Changed Circumstances to Modify Adult
Child Support
As part of its ruling terminating adult child support for J., the family
court stated: “Insufficient evidence was presented for the court to find that

[J.] is a disabled adult child per Family Code section 3910(a).”19 Based on
this statement, Kathy contends that the court erred in placing the burden on
her to establish whether J. qualified as “a child . . . who is incapacitated from
earning a living and without sufficient means” for purposes of section
3910(a). As we explain, we reject this contention, because that is not what
the family court did. As we explain first, we also reject Kathy’s argument
that the court’s earlier awards of section 3910(a) support precluded the court
from revisiting the issue of whether J. currently qualified for support under
section 3910(a).

19 Under section 3910(a), the family court considers two factors: “is the
adult child incapacitated from earning a living”?; and “does the adult child
have sufficient means”? (Drake, supra, 241 Cal.App.4th at p. 940.)
15
 As part of their 2005 marital settlement agreement, which is attached
to and incorporated into the judgment, the parties agreed (and the court
ordered) that Robert pay Kathy monthly support of $1,734 for J., “pursuant
to Family Code § 3910(a)[,] which provides for the payment of support for a
child of whatever age who is incapacitated from earning a living and without
sufficient means.” In 2014, the court denied Robert’s request to terminate
section 3910(a) support for J. From these two rulings, Kathy argues that the
family court erred in terminating support, because “the issue [whether J. is
an adult dependent child for purposes of section 3910(a)] is ‘res judicata.’ ”
Once again, however, for at least two reasons, Kathy has forfeited appellate
review of this res judicata argument: (1) Kathy did not raise this argument
in the family court (Brewster & Clevenger, supra, 45 Cal.App.5th at p. 510;
and (2) the above-quoted statement is Kathy’s entire presentation—i.e., one
without legal authorities or analyses (Falcone & Fyke, supra, 164
Cal.App.4th at p. 830; see Cal. Rules of Court, rule 8.204(a)(1)(B)).
Even if we were to consider the argument, however, the result would be
no different. That is because “[t]he court retains the power to modify its
award [of adult child support] if circumstances change.” (Rebensdorf v.
Rebensdorf (1985) 169 Cal.App.3d 138, 143 [under statutory scheme prior to
§ 3910(a)].) This is not a new concept. (See Paxton v. Paxton (1907) 150 Cal.
667, 672 [under statutory scheme prior to § 3910(a), “changed conditions in
the future should justly demand a modification”].) Indeed, the doctrine of
res judicata is the reason for requiring a showing of changed circumstances
before modifying a final support order. (In re Marriage of Cohen (2016) 3
Cal.App.5th 1014, 1025 [child support].) That is because without a change of
circumstances, a modification motion would be “ ‘ “ ‘ “nothing more than an

16
impermissible collateral attack on a prior final order.” ’ ” ’ ” (In re Marriage of
Usher (2016) 6 Cal.App.5th 347, 357 [child support].)
Initially, with regard to the change of circumstances, we reject Kathy’s
argument that a reversal is necessary, because “there has been no evidence to
show that there was a change in circumstances concerning the dependency of
the adult child.” (Italics added.) As Kathy acknowledges, because she did not
provide a reporter’s transcript, we must presume that the unreported
proceedings contain substantial evidence to support all findings expressly or
impliedly made. (Jameson, supra, 5 Cal.5th at p. 609; Fain, supra, 75
Cal.App.4th at p. 992.)
In any event, Kathy concedes: “It is not contested that there has been a
‘change in circumstances’ as Robert has retired.” In addition, and not
acknowledged by Kathy, is the following testimony from Robert: “[J.] is
capable of working and has done so throughout the years. She is capable of
taking care of herself. . . . She is . . . being treated for her schizophrenia and
bi-polar [disorder]. These do not preclude her from working and being self-
supporting.” Together, this constitutes substantial evidence of both a
material change in circumstances and a basis on which to conclude that J.
was no longer “incapacitated from earning a living” for purposes of awarding
adult child support.
Kathy suggests that, because the FOAH provides that “ ‘[i]nsufficient
evidence was presented for the court to find that [J.] is a disabled adult child
per Family Code section 3910(a),’ ” the court (improperly) placed the burden
on Kathy to prove no change in circumstances. We disagree. In the FOAH,
the court identified the issue as “[Robert’s request] to find [J.] is not disabled
pursuant to Family Code section 3910(a)”; and from the evidence set forth in
the preceding paragraph and the presumptions from the unreported

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proceedings, the record contains substantial evidence in support of Robert’s
request. There is no indication that the court placed any burden on Kathy
other than providing responsive evidence to rebut Robert’s prima facie
showing that J. was no longer disabled for purposes of section 3910(a). In
context, the court’s statement is easily understood to mean that, in
attempting to meet her burden in response to Robert’s showing that J. no
longer qualifies for section 3910(a) support, Kathy did not persuade the court
to the contrary.
III. DISPOSITION
The January 27, 2020 findings and order after hearing is affirmed.
Robert is entitled to his costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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