Filed 2/19/21 Marriage of Scales CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of KARLA and B295037
ANTHONY SCALES.
KARLA SCALES, (Los Angeles County
Super. Ct. No. YD066091)
Respondent,
v.
ANTHONY SCALES,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Joseph Lipner, Judge. Affirmed.
John E. Carlson for Appellant.
C. Brian Martin for Respondent.
_______________________
Anthony Scales appeals the family law court’s
November 13, 2018 order denying his request to modify his child
support obligations following his resignation from the Beverly
Hills Police Department (BPHD). Anthony1 contends the court
abused its discretion in ruling his resignation did not constitute a
significant change of circumstances warranting modification and
imputing to him his preresignation earning capacity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Anthony’s Child Support Obligations and His Request
To Modify
Anthony and Karla Scales married in July 1998 and
separated in July 2014. They have three children: 22-year-old
Jordan, 20-year-old Maya and 17-year-old Mason.
Karla petitioned for dissolution of the marriage on
January 14, 2015. On November 8, 2016 the family law court
entered a judgment of dissolution and provided for spousal
support, child custody and support, and division of property
based on a September 12, 2016 stipulated judgment between the
parties. As pertinent to this appeal, the court ordered Anthony to
pay a total of $2,344 per month in child support—$672 for
Jordan, $988 for Maya and $684 for Mason—to continue until
each child reached age 18 (or up to age 19 if still in high school
and living at home).2
1 As is customary in family law proceedings, we refer to the
parties by their first names for clarity.
2 Anthony was also ordered to pay Karla $626 in monthly
spousal support. The court terminated Anthony’s spousal
support obligation in November 2018 for reasons unrelated to the
issues in this appeal.
2
When the parties agreed to Anthony’s child support
obligation and the court entered its judgment, Anthony was on
paid administrative leave from BHPD, which was conducting an
internal investigation into allegations he had committed workers’
compensation fraud. Anthony had injured his back sometime in
2010 and received workers’ compensation benefits while placed
on injured-on-duty (IOD) status between April 2013 and January
2014. The internal investigation and Anthony’s administrative
leave began in January 2014.
On November 14, 2016—less than a week after entry of the
judgment of dissolution—Anthony was notified the internal
investigation had concluded and he could return to work.
Three days later Anthony resigned from BHPD, claiming he
could not competently or safely do his job because of continued
back pain. Anthony had not sought any accommodations from
BHPD prior to resigning.
On April 27, 2017 Anthony filed a request for order (RFO)
to modify spousal and child support, citing his decreased income
from his full-time work as a realtor, something he had pursued
on a part-time basis while a police officer. Anthony requested the
family law court terminate spousal support and reset his monthly
child support payments based on the state guideline and his
current income.3
3 Anthony reported earning $21,813 in 2016. He filed income
and expense declarations showing his 2017 and 2018 monthly
income fluctuated between $1,700 and $3,260, with $1,550 to
$1,880 in monthly expenses (excluding his support obligations).
Anthony stated that, at the support levels set forth in the
stipulated judgment, he spent on average $3,240 more than he
earned each month.
3
Karla opposed Anthony’s RFO, arguing Anthony was not
entitled to reduce his support obligations based on quitting his
job after he had been cleared, both medically and
administratively, to return to work as a patrol officer. Karla also
argued Anthony could not demonstrate he lacked the ability or
opportunity to earn a greater income than reflected on his income
declaration.
Anthony’s work and injury history, continuing back pain
and post-resignation employment were the focus of the family law
court’s consideration of the RFO.
2. Anthony’s Employment and Injury History
Anthony worked as a community service officer for the
Los Angeles County Sheriff’s Department from 1991 until 1993
and as a sworn officer for the Los Angeles Police Department
between 1993 and 1999. In 1999 Anthony became a patrol officer
with BHPD. His position required that he be able to scale walls,
run, fight and arrest uncooperative suspects.
As discussed, in 2010 Anthony injured his back while on
duty. Anthony was off work for two weeks and then returned
without restrictions. Anthony did not experience back pain again
until late 2012. For several months beginning in December 2012
Anthony’s renewed back pain progressively worsened to the point
he had difficulty getting into and out of a police car while on duty
and could not sit or stand for long periods.
In March 2013 Anthony reported to BHPD that he could
not work due to pain in his back and hip area. BHPD placed
Anthony on IOD status, and Anthony collected workers’
compensation benefits between April 2013 and January 2014.
In January 2014 a lieutenant informed Anthony that
BHPD had initiated an internal investigation based on an
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allegation that Anthony had engaged in workers’ compensation
fraud. BHPD placed Anthony on administrative leave during the
investigation. While on administrative leave between January
2014 and November 2016, Anthony did not work but still
collected his salary.
a. Anthony’s physical examinations
Following an MRI examination shortly after being placed
on IOD status, Anthony was told he had a perforated left hip
flexor and herniated discs in his lower back. Over the next
eight months Anthony had multiple physical examinations. On
April 16, 2013 a physician’s progress report prescribed physical
therapy and approved Anthony’s return to modified work with
restrictions on lifting and squatting. The report indicated, if light
duty work was unavailable, “patient is considered to be
temporarily totally disabled and should not resume regular
work.” Subsequent progress reports following examinations on
April 23, April 30 and May 14 contained the same modified work
restrictions. According to Anthony, BHPD had only one light
duty position: a seniority- and merit-based desk job that was
already filled by a senior officer.
A May 28, 2013 physician’s progress report instructed
Anthony to remain off work until June 11, 2013, pending an
appointment with an orthopedist. Numerous post-examination
reports from two different orthopedic practices categorized
Anthony as temporarily totally disabled between August 2013
and January 2014.
An orthopedist cleared Anthony to return to work on
January 20, 2014 with work restrictions on prolonged sitting and
standing “if available.” By that time Anthony was no longer
receiving physical therapy through any medical practice. He
5
continued to do stretches and exercises on his own at home and
in the gym.
A May 5, 2014 post-examination report indicated Anthony’s
thoracic spinal range of motion was normal and his hip had no
swelling, atrophy or deformity and had a normal range of motion.
A July 28, 2014 report stated Anthony’s “symptoms had improved
with conservative care and his home and gymnasium exercise
routines.” According to this report, Anthony had told the
physician “he went on to full recovery with no physical
limitations.” “The patient has resumed his usual and customary
work duties as a police officer, and I feel that he is capable of
continuing to do so. Restrictions on his work activities are not
indicated at this time. [Anthony] is not considered medically
eligible for vocational rehabilitation at this time.”
The next physician reports provided in connection with
Anthony’s RFO were from January and May 2016 and stated
Anthony “may return back to work with full duty” and “no
limitations or restrictions.” One report suggested that Anthony
prophylactically use lightweight equipment while on duty, but
Anthony never discussed that possible accommodation with
anyone at BHPD.
b. Testimony regarding Anthony’s physical condition
Anthony testified at the RFO hearing that he had
experienced back and hip pain on a daily basis since 2013. While
the pain was initially intense, Anthony began to feel better over
time.
However, the report from an orthopedic examination on
February 22, 2017, three months after Anthony’s resignation,
stated Anthony’s back pain persisted and indicated Anthony and
the orthopedist had discussed “the frail nature of [Anthony’s]
6
back” and the “potential of accelerating his spinal degenerative
abnormality, ultimately requiring major surgical reconstruction.”
The orthopedist’s report “endorse[d]” Anthony’s decision to resign
from BHPD. In addition, Anthony testified he experienced a
further relapse in August 2017, which forced him to sleep on the
floor for at least three weeks. Anthony testified, as of the time of
the hearing, he still did not feel capable of safely sprinting or
fighting.
For her part, Karla testified she recalled Anthony had been
injured in 2012 but knew he continued to go to the gym and ride
his bicycle. Karla described Anthony’s injury as serious at first,
but understood the pain diminished over time. While attending
one of their children’s recent sporting events, Karla had observed
Anthony move very quickly to catch a falling bag. After Karla
commented on Anthony’s action, he acknowledged that a few
years earlier he would not have been able to move as he had.
Karla also testified Anthony told her that he decided to
resign because he felt other BHPD patrol officers did not like him
and were going to make his work environment difficult.
c. Anthony’s post-resignation employment
After resigning from BHPD, Anthony worked full-time as a
realtor. Anthony obtained his real estate license in 2000 and had
worked part-time as a realtor while employed by BHPD. As a
full-time realtor Anthony reported he earned “about minimum
wage” and estimated his annual income at $30,000. While a
BHPD employee, Anthony had ultimately earned approximately
$120,000 a year before overtime.
Anthony did not apply for other employment after
resigning from BHPD because he had already decided to move
into real estate full time. Anthony did not look into, and did not
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know, whether other job opportunities were available to him
within BHPD that would not have required him to perform
physical tasks he could not do. Despite having previously worked
in security, Anthony made no effort to identify other jobs he
might be qualified for based on his long law enforcement career.
When asked why he did not try to find a different job, Anthony
answered that his real estate career transition was “working for
me.”
3. The Family Law Court’s Order
After conducting a trial on September 13, 2018 and
October 5, 2018, the court issued a 14-page order on
November 13, 2018 denying Anthony’s request to reduce his child
support obligations. The court found that Anthony’s health and
physical condition had not changed between the time he had
agreed to the support levels specified in the judgment of
dissolution and his resignation from BHPD shortly thereafter. In
addition, the court pointed out, Anthony could have requested
language in the stipulated judgment allowing for support
modification in the event he left his job at BHPD, but did not
do so.
The court also ruled Anthony had failed to carry his burden
to show his former BHPD salary should not be imputed to him,
noting a parent’s voluntary decision to leave his or her
employment is not a proper ground to reduce that parent’s
support obligations. While Anthony continued to feel discomfort
from his earlier injuries, the court concluded, he had not
demonstrated he suffered from a disability that prevented him
from working as a BHPD patrol officer when he chose to resign.
The court did not find credible Anthony’s testimony there was “no
way” he could go back to work in November 2016, and Anthony
8
did not provide medical evidence supporting his belief he could
not work as a patrol officer in late 2016. To the contrary, the
documentary evidence supported the conclusion that Anthony
was healthy enough to return to his regular patrol work as early
as 2014.
Finally, the court ruled Anthony had failed to establish a
lack of ability or opportunity to earn his former salary in a
different position. Anthony did not inquire whether BHPD could
accommodate his perceived limitations in a different position and
did not explore possible alternative law enforcement or security
opportunities. In fact, Anthony did not apply to any kind of job
after resigning from BHPD, having already decided to move into
real estate.
DISCUSSION
1. Governing Law and Standard of Review
As a general rule, a party seeking modification of a child
support order must establish that circumstances have changed
since the underlying order was made. (In re Marriage of Usher
(2016) 6 Cal.App.5th 347, 357; In re Marriage of Cryer (2011)
198 Cal.App.4th 1039, 1048; In re Marriage of Leonard (2004)
119 Cal.App.4th 546, 556.) The burden of proof to justify a
downward modification rests with the supporting party.
(In re Marriage of Cryer, at p. 1054; In re Marriage of Leonard,
at p. 556.)
“‘“Change of circumstances” means a reduction or increase
in the supporting spouse’s ability to pay and/or an increase or
decrease in the supported spouse’s needs. It includes all factors
affecting need and the ability to pay.’” (In re Marriage of
Shimkus (2016) 244 Cal.App.4th 1262, 1272-1273.) “‘There are
no rigid guidelines for evaluating whether circumstances have
9
sufficiently changed to warrant a child support modification.’”
(In re Marriage of Usher, supra, 6 Cal.App.5th at p. 358.) “‘The
ultimate determination of whether the individual facts of the case
warrant modification of support is within the discretion of the
trial court.’” (Ibid.; see In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1484 [“‘A modification of spousal support
cannot be granted in the absence of proof of a change in
circumstances. However, the converse is not true; a showing of
changed circumstances does not necessarily mandate a
modification of spousal support’”].)
We generally review an order granting or denying a request
to modify child support for abuse of discretion. (In re Marriage of
Usher, supra, 6 Cal.App.5th at p. 357.) Under that standard,
“‘[W]e do not substitute our judgment for that of the trial court,
but confine ourselves to determining whether any judge could
have reasonably made the challenged order.’” (In re Marriage of
Macilwaine (2018) 26 Cal.App.5th 514, 527.)4 However, “[t]o
4 To the extent an appellant challenges the factual basis for
the family law court’s decision to deny modification of support,
rather than arguing it abused its discretion in determining the
facts as found do not warrant modification, the question for the
reviewing court is not whether substantial evidence supported
the family law court’s findings, but whether the evidence
compelled findings in favor of the appellant as a matter of law:
“‘In the case where the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry
the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment.’ [Citation.] ‘Thus, where the
issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a
10
decide whether the trial court followed established legal
principles and correctly interpreted the child support statutes, we
apply the independent standard of review.” (In re Marriage of
Alter (2009) 171 Cal.App.4th 718, 731.)
2. Earning Capacity Versus Actual Income
When a parent’s income changes following entry of a child
support order,5 the family law court may properly consider “not
only [that parent’s] actual income, but earning capacity where a
parent becomes unemployed or underemployed, provided doing so
is consistent with the best interests of the children.” (Mendoza v.
Ramos (2010) 182 Cal.App.4th 680, 684-685.)
finding in favor of the appellant as a matter of law.’” (Juen v.
Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979;
accord, Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838.) “‘Specifically, the question becomes
whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.”’” (Juen, at p. 979; accord, Glovis America, Inc.
v. County of Ventura (2018) 28 Cal.App.5th 62, 71; see In re R.V.
(2015) 61 Cal.4th 181, 201 [where a party fails to carry its burden
on an issue in the trial court, “the inquiry on appeal is whether
the weight and character of the evidence . . . was such that the
[trial] court could not reasonably reject it”].)
5 The court need not find the supporting spouse acted in bad
faith to consider earning capacity rather than actual income.
“‘“While deliberate avoidance of family responsibilities is a
significant factor in the decision to consider earning capacity
[citation], [Family Code section 4058, subdivision (b),] explicitly
authorizes consideration of earning capacity in all cases,”
consistent with the child’s best interests.’” (In re Marriage of
McHugh (2014) 231 Cal.App.4th 1238, 1245-1246.)
11
“‘Earning capacity is composed of (1) the ability to work,
including such factors as age, occupation, skills, education,
health, background, work experience and qualifications; (2) the
willingness to work exemplified through good faith efforts, due
diligence and meaningful attempts to secure employment; and
(3) an opportunity to work which means an employer who is
willing to hire. . . . [¶] . . . When the ability to work or the
opportunity to work is lacking, earning capacity is absent and
application of the standard is inappropriate. When the payor is
unwilling to pay and the other two factors are present, the court
may apply the earnings capacity standard to deter the shirking of
one’s family obligations.’” (Mendoza v. Ramos, supra,
182 Cal.App.4th at p. 685; accord, In re Marriage of McHugh
(2014) 231 Cal.App.4th 1238, 1245-1247; In re Marriage of Lim &
Carrasco (2013) 214 Cal.App.4th 768, 775-776.)
Where the payor parent “‘seeks a reduction in court-ordered
support based on the changed circumstances of lack of income, it
will be the payor parent, as moving party, who bears the burden
of showing a lack of ability and opportunity to earn income.’”
(In re Marriage of McHugh, supra, 231 Cal.App.4th at pp. 1246-
1247; accord, In re Marriage of Bardzik (2008) 165 Cal.App.4th
1291, 1304.) “This rule is grounded in the commonsense
proposition that you can lead someone to a want ad but you can’t
make them apply for the job. . . . Readers need only use a little
imagination to think of all the ways that a parent with both
ability to do a job and the opportunity to get it could subtly
sabotage a job application or interview.” (In re Marriage of
Bardzik, at p. 1305; accord, In re Marriage of McHugh, at
pp. 1251-1252.)
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3. The Family Law Court Did Not Abuse Its Discretion in
Determining Anthony Failed To Show Changed
Circumstances Justifying Modification of His Child
Support Obligations
The family law court acted well within its discretion in
determining Anthony’s decision to resign from BHPD when his
administrative leave terminated did not constitute changed
circumstances warranting a reduction in his child support
obligations. As discussed, Anthony resigned nine days after
entry of the judgment of dissolution, which incorporated the
stipulated terms for child support. No evidence suggested
Anthony’s medical condition had changed in the intervening
period. The only change was BHPD’s closure of its internal
workers’ compensation fraud investigation and, with it, the end of
Anthony’s administrative leave. Anthony was certainly aware
that, if exonerated, he would be expected to return to patrol duty
and, given the nearly three years that had elapsed since
commencement of the fraud investigation, should have
anticipated that could occur at any time. The court reasonably
observed that the stipulated judgment could have, but did not,
include language modifying Anthony’s support obligations in the
event he left BHPD. Given his unchanged physical condition, it
does not matter whether Anthony was physically able to return
to active police work and intended to do so when he agreed to the
terms of the stipulated judgment or he had already decided to
resign as soon as his paid administrative leave ended and was
attempting to conceal that plan. Neither alternative justifies a
modification of support.
Anthony contends his self-assessment that he could not
safely return to patrol work fully justified his resignation.
However, as discussed, after placed on IOD status in March 2013,
13
Anthony was medically cleared to return to his patrol officer
duties in 2014 with no medical restrictions. Physician reports
from 2016 reaffirmed Anthony’s clearance to return to work with
full duty and no limitations or restrictions. The only physician
report arguably supporting Anthony’s contention that he could
not safely return to patrol work given his medical condition
resulted from a February 2017 follow-up exam three months after
Anthony had resigned from BHPD. This report merely
“endorse[d]” Anthony’s decision to resign after the fact.
In short, Anthony’s evidence in support of his argument
was neither uncontradicted nor of such character and weight as
to compel a finding in his favor that Anthony’s medical condition
prevented him from continuing his employment as a BHPD
patrol officer at the time he chose to resign. (See Juen v. Alain
Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 979.)
To be sure, Anthony is correct that, as a factual matter, his
income decreased and his economic situation had changed as a
result of his resignation. However, a “‘[c]hange of circumstances’”
means a change in a supporting parent’s ability to pay, or a
change in the supported spouse’s needs. (In re Marriage of
Shimkus, supra, 244 Cal.App.4th at pp. 1272-1273.) Anthony’s
BHPD resignation did not necessarily reduce his ability to pay
child support. Anthony might have easily obtained another job
with an equivalent salary if he had made any effort to do so.
Moreover, Anthony’s contention ignores that a parent’s showing
of changed circumstances does not mandate support modification.
As discussed, whether the facts presented warrant modification
of support remains within the broad discretion of the family law
court. (Ibid.; accord, In re Marriage of Khera & Sameer, supra,
14
206 Cal.App.4th at p. 1484.) That discretion was reasonably
exercised here.
4. The Family Law Court Did Not Abuse Its Discretion in
Determining Anthony Failed To Show Lack of Ability or
Opportunity To Earn Income at His Previous Level
Even if the court had found Anthony was physically
incapable of returning to active patrol officer duty in November
2016, as the parent seeking support modification, Anthony had
the burden to prove he lacked the ability or opportunity to earn a
comparable income in a different job. (In re Marriage of McHugh,
supra, 231 Cal.App.4th at pp. 1245-1247.) The family law court
reasonably determined Anthony failed to carry this burden.
As discussed, after resigning from BHPD, Anthony made
no effort to find other employment, preferring instead to expand
his work in real estate from part-time to full-time. Anthony had
earned approximately $140,000 a year at BHPD. During
four years working full-time as a real estate agent, Anthony
reported annual earnings of $30,000 or less. Yet Anthony stated
his career transition was “working for [him].”
Although Anthony acknowledges that income can be
imputed based on earning capacity, he contends his resignation
from BHPD and decision not to seek comparable employment
should not be considered “voluntary,” arguing his physical
limitations precluded not only his return to BHPD as an active
patrol officer but also his employment in security-related
positions with other public or private employers, notwithstanding
his extensive experience in law enforcement. Yet he introduced
scant evidence that, in light of his purported disability, he had
neither the ability nor the opportunity to obtain such
employment and with it a salary commensurate with the one on
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which his child support obligations were based. The family law
court’s credibility findings—its disbelief of Anthony’s self-
description of the extent of his pain and its impact on his ability
to work and its acceptance of Karla’s testimony that Anthony’s
physical limitations diminished after 2013—amply support its
rejection of this argument.
Simply put, Anthony did not have the right to divest
himself of his earning ability at the expense of his minor
children. (In re Marriage of McHugh, supra, 231 Cal.App.4th at
p. 1253; see Moss v. Superior Court (1998) 17 Cal.4th 396, 424;
In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218; In re
Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1639.) “Instead, ‘a
child support obligation “‘must be taken into account whenever
an obligor wishes to pursue a different lifestyle or endeavor. . . .
[It is] an overhead which must be paid first before any other
expenses.’”’” (In re Marriage of McHugh, at p. 1253.)
In sum, the family law court did not abuse its discretion
when it ruled Anthony had failed to carry his burdens to
establish a reduction in his child support obligations was
justified.
DISPOSITION
The order denying modification of child support is affirmed.
Karla is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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