Filed 6/3/21 Marriage of Karney and Schulman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of BENJAMIN B303544
KARNEY and JESSICA
SCHULMAN. Los Angeles County
Super. Ct. No. PD054120
BENJAMIN KARNEY,
Order Modifying
Respondent, Opinion
v.
[No change in judgment]
JESSICA SCHULMAN,
Appellant.
BY THE COURT: *
It is ordered that the opinion filed May 14, 2021 is modified
as set forth below. There is no change in the judgment.
1. On page 26, delete the fourth sentence of the
disposition in its entirety.
2. On page 26, modify the second sentence of the
disposition to read: “The December 31, 2019 order is
reversed to the extent it modifies support for any
period prior to March 15, 2019 and the matter is
remanded with instructions to the trial court to
modify the December 31, 2019 order’s Attachment
to Findings and Order after Hearing in a manner
consistent with this opinion.”
* LAVIN, Acting P. J. EGERTON, J. KALRA, J.* 1
*1Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
2
Filed 5/14/21 Marriage of Karney and Schulman CA2/3 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of BENJAMIN B303544
KARNEY and JESSICA
SCHULMAN. Los Angeles County
Super. Ct. No. PD054120
BENJAMIN KARNEY,
Respondent,
v.
JESSICA SCHULMAN,
Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Dianna Gould-Saltman, Judge. Affirmed in part;
reversed in part; remanded with directions.
Law Offices of William W. Oxley, William W. Oxley; Jeff
Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Appellant.
Ribet & Silver and Claudia Ribet for Respondent.
_______________________________________
INTRODUCTION
This is an appeal from two postjudgment orders in a
marital dissolution case. The orders relate to child support,
spousal support, supplemental support based on income, adult
child support, and the custody schedule.
Appellant Jessica Schulman (Schulman) and respondent
Benjamin Karney (Karney) were married for 14 years and have
two children together, one of whom (Daniella) has several
medical conditions that substantially impact her life. For that
reason, the parties’ Marital Settlement Agreement (Agreement)
provided for ongoing court jurisdiction regarding the duty to
provide adult child support for her under Family Code2 section
3910—a statute that obligates parents to support their adult
children if the children are “incapacitated from work” and
without financial means of self-support. The trial court declined
to require adult support because Daniella, who began taking
college-level courses at the age of 12 and had already earned an
associates degree before she turned 18, is not incapacitated from
work within the meaning of the statute. Schulman contends the
court erred in so ordering.
In addition, Schulman argues the court incorrectly based
its support calculations on Karney’s income as reported on his tax
returns and as stipulated by the parties, improperly excluded tax
refunds and monetary gifts from Karney’s income for purposes of
calculating supplemental support, and erroneously provided
Karney additional custodial time with the parties’ son. All of
Schulman’s arguments are unpersuasive. We agree with the
2 All undesignated statutory references are to the Family Code.
2
parties, however, that the court erred in adjusting child support
retroactively, which is not permitted under section 3651,
subdivision (c)(1). Accordingly, we reverse the court’s orders to
the extent they provide for any retroactive support adjustments.
We affirm in all other respects.
FACTS AND PROCEDURAL BACKGROUND
1. The Parties and the Status Quo Ante
Schulman and Karney married in 1998 and have two
children: Daniella and Gabriel. When she was very young,
Daniella developed several serious medical conditions including a
serious immune disorder (common variable immunodeficiency),
fibromyalgia, scoliosis, and severe, chronic pain. When it became
evident that Daniella had special medical needs, Schulman
stopped working outside the home and spent most of her time
raising the children. Karney has a Ph.D. from and is a professor
at University of California, Los Angeles.
The couple’s divorce became final in 2013. Karney and
Schulman resolved custody, support, and property issues through
the Agreement. In general terms, and as pertinent here, the
Agreement provided that the parties had joint legal custody and
Schulman had primary physical custody of both children. Karney
was required to pay Schulman $4,200 per month for base child
support and, as additional child support, 10 percent of any
income over and above his regular salary.3 Karney also agreed to
3 We refer to the Agreement’s support provisions relating to Karney’s
income over and above his regular salary as the “Ostler-Smith
provision.”
3
pay Schulman $4,200 per month for base spousal support and 23
percent of any income over and above his regular salary. The
Agreement provided, in addition, that “[w]ith respect to Daniella,
the parties acknowledge that Daniella has special medical needs
and will be incapacitated from earning a living and without
sufficient means at the time she will reach majority and the
parental duty to support her shall extend beyond the age of
majority. As such, the Court shall reserve jurisdiction over the
duty to support Daniella beyond the age of majority pursuant to
Family Code Section 3910 and Marriage of Drake and [Karney]’s
obligation to pay support for Daniella shall continue until further
order of the Court.”4
In 2014, and at Karney’s request, the court reduced his
base support obligations to $3,402 per month for child support5
and $3,500 per month for spousal support because his income had
decreased. The court left the Ostler-Smith provision in force.
2. The 2019 Proceedings
2.1. Karney’s Request for Order
Karney filed a Request for Order (RFO) on March 15, 2019.
Karney sought to reduce his base monthly child support for
Gabriel from $2,126 to $1,684 and for Daniella from $1,276 to
$980, effective April 1, 2019. Karney also proposed that the court
reduce the Ostler-Smith provision relating to child support from
10 percent to 5 percent following Daniella’s 18th birthday.
4 We will refer to this provision as the “adult support provision.”
5The court allocated this amount as $1,276 for Daniella and $2,126 for
Gabriel.
4
In addition, Karney requested that the court reduce his
base spousal support obligation to $0 and eliminate the Ostler-
Smith provision relating to spousal support. Karney represented
that Schulman had been working for the past several years,
unbeknownst to him, and asked that the court recalculate both
base support figures and adjust the Ostler-Smith provision to
reflect her income.
Finally, as pertinent here, Karney asked the court to
eliminate the adult support provision, which would be triggered
in October 2019 when Daniella turned 18. According to Karney,
Daniella had progressed well beyond the parties’ expectations
when they signed the Agreement and she was not incapacitated
for work within the meaning of section 3910. Karney also
requested minor modification of the existing custody schedule for
Gabriel.6
2.2. Schulman’s Request for Order
Approximately two weeks after Karney filed his RFO,
Schulman filed her own RFO. Schulman asserted that Karney
had not fully honored his support and other financial obligations
as provided in the Agreement. Schulman initially contended that
Karney owed child and spousal support arrears of nearly $28,000
and owed additional monies under the Ostler-Smith provision.
2.3. The Parties’ Pre-trial Stipulations
The court consolidated the two RFOs for hearing.
6At the time Karney filed his RFO, Daniella was not spending any
custodial time with Karney at her request.
5
In lieu of live testimony, Daniella submitted a declaration
describing her educational achievements, her medical conditions
and their impact on her life, her daily and occasional activities,
and her future goals. Schulman had also submitted a declaration
providing some details about Daniella’s medical conditions and
her ability to attend school and participate in other activities.
The parties stipulated to the admission of these declarations
prior to trial.
The parties resolved several issues set forth in the RFOs
before the trial began. As relevant here, Schulman stipulated
that Karney had paid her “all amounts due and owing by and for
child and spousal support on his royalties received and speaking
engagements for which he has been compensated and there are
no arrears due or owing … for child or spousal support on his
income received since the entry of the [Agreement].” The parties
also agreed on their income and relevant additions and
deductions for purposes of calculating child support beginning
April 1, 2019.
The parties identified the issues to be resolved at trial.
Those issues included:
◦ Whether any nontaxable income received by
Karney should be used in calculating base child
support;
◦ Whether the Ostler-Smith provision would be
eliminated or adjusted for purposes of child
support and spousal support after April 1, 2019;
◦ Whether the Ostler-Smith provision should be
applied to monetary gifts Karney received from
his family and/or tax refunds;
6
◦ Whether child support should be retroactively
modified to reflect Schulman’s income from 2015
to the present;
◦ Calculation of base child support due after
April 1, 2019;
◦ Calculation of base child support due after
Daniella’s 18th birthday; and
◦ Whether and to what extent Karney would pay
Schulman base spousal support after April 1,
2019.
2.4. Trial
The court conducted a two-day trial in July 2019. The court
heard testimony from Karney and Schulman, as well as a
babysitter who had worked for the family since Daniella was
three or four years old. The parties also stipulated to the
admission of certain evidence, including the moving and
responsive pleadings. At the conclusion of the proceedings, the
court gave its ruling from the bench The court also issued a
detailed minute order containing its findings. Two subsequent
hearings took place in order to clarify portions of the court’s
ruling.
3. The Court’s Orders and Appeals
On December 26, 2019, the court entered an order resolving
the custody schedule issues relating to Gabriel. Schulman filed a
timely notice of appeal.
On December 31, 2019, the court entered a further order
resolving all the remaining issues presented in the parties’ RFOs.
With respect to adult child support for Daniella, the court found
7
“[t]here is evidence that she has the need for medical
accommodations but there is no medical evidence that she is
unable to earn a living or that her stipulated medical conditions
are anticipated to prevent her from ever being able to work.” The
court concluded that Daniella was not “incapacitated from
earning a living” as required by section 3910 and, accordingly,
that Karney’s child support obligation ended on Daniella’s 18th
birthday.
After setting forth the parties’ stipulations and the court’s
findings relating to child support, the court modified child
support in several respects. First, for the period January 1, 2015
through December 31, 2018, the court retroactively modified base
child support to reflect Schulman’s previously unaccounted-for
income, resulting in a substantial reimbursement amount owing
from Schulman to Karney. Second, for the period April 1, 2019 to
September 30, 2019, the court ordered Karney to pay base
support of $3,510 per month allocated as $2,016 to Gabriel and
$1,494 to Daniella. And third, for the period October 9, 2019
forward, Karney would pay Schulman $2,008 per month in base
child support for Gabriel.
The court also reviewed its findings under section 4320
regarding spousal support and reduced base spousal support to
$2,000. In addition, the court ordered Schulman to reimburse
Karney $6,000 for spousal support overpayments during the
pendency of the RFO proceedings.
Finally, the court made several rulings regarding the
Ostler-Smith provision. First, as to additional child support, the
court eliminated the Ostler-Smith provision and instead
attributed an additional $800 in taxable monthly income to
Karney. The court left intact the Ostler-Smith provision
8
requiring Karney to pay 23 percent of any income in excess of
$17,445 per month to Schulman as additional spousal support.
But the court ordered that tax refunds and unearned income
(such as occasional monetary gifts from members of Karney’s
family) were properly excluded from the Ostler-Smith
calculations.
Schulman filed a timely notice of appeal from the court’s
December 31, 2019 order.
DISCUSSION
With respect to the December 31, 2019 order, Schulman
contends the court erred by failing to award adult child support
for Daniella, using incorrect income and expense figures in its
base child support calculation, and interpreting the Agreement’s
Ostler-Smith provision to exclude monetary gifts and tax refunds.
None of these arguments has merit. We agree with the parties,
however, that the court erred in retroactively reducing child
support owed between January 1, 2015 and December 31, 2018.
As to the December 26, 2019 order, Schulman has failed to
present a coherent argument supported by relevant legal
authority.
1. The court did not abuse its discretion by failing to
order adult child support for Daniella.
Schulman contends the court erred by failing to order adult
child support for Daniella under section 3910. We disagree.
1.1. Standard of Review
We review a family court’s decision to award, deny, or
modify adult child support for an abuse of discretion. (In re
Marriage of Drake (2015) 241 Cal.App.4th 934, 939 (Drake II).)
9
“In conducting this review, [we] determine whether the trial
court’s factual findings are supported by substantial evidence and
whether the trial court reasonably exercised its discretion—that
is, whether any judge reasonably could have made such an
order.” (In re Marriage of Morton (2018) 27 Cal.App.5th 1025,
1039.) “On review for substantial evidence, we 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.]” (In re
Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151 (Drake I).)
1.2. Legal Principles Regarding Incapacity
Parents have an equal responsibility to maintain a child of
any age “who is incapacitated from earning a living and without
sufficient means.” (§ 3910, subd. (a).) Awarding child support for
such adult children protects the public from the burden of
supporting people whose parents are able to support them.
(Drake II, supra, 241 Cal.App.4th at p. 940; In re Marriage of
Cecilia & David W. (2015) 241 Cal.App.4th 1277, 1286.) Here, as
noted, the parties explicitly addressed the issue of adult support
for Daniella in the Agreement: “With respect to Daniella, the
parties acknowledge that Daniella has special medical needs and
will be incapacitated from earning a living and without sufficient
means at the time she will reach majority and the parental duty
to support her shall extend beyond the age of majority. As such,
the Court shall have jurisdiction over the duty to support
Daniella beyond the age of majority pursuant to Family Code
Section 3910 and Marriage of Drake and [Karney]’s obligation to
pay support for Daniella shall continue until further order of the
Court.”
10
As the parties acknowledge, the term “incapacitated” is not
defined and caselaw interpreting that statutory requirement is
limited. (See, e.g., In re Marriage of Cecilia & David W., supra,
241 Cal.App.4th at p. 1286 [“We recognize there is a dearth of
authority applying the incapacity standards, as section 3910
cases are uncommon and generally involve no dispute over
capacity.”].) Often, the child’s incapacity is plain. (See, e.g.,
Drake I, supra, 53 Cal.App.4th at pp. 1139, 1148–1149, 1154
[ordering adult support for child who suffered from progressive
schizophrenia that rendered him unable to care for himself and
who required assistance from a live-in housekeeper and cook to
live independently]; Drake II, supra, 241 Cal.App.4th at p. 937
[ordering adult support for 19-year-old diagnosed with attention
deficit hyperactivity disorder, psychotic disorder (not otherwise
specified), oppositional defiant disorder, and cannabis abuse who
had been required to live in a residential treatment center since
the age of 14].)
In a closer case, where incapacity is disputed, “[t]he term
‘incapacitated from earning a living’ [citation] means ‘an inability
to be self-supporting because of a mental or physical disability or
proof of inability to find work because of factors beyond the
child’s control.’ ” (Drake II, supra, 241 Cal.App.4th at p. 940.) The
court’s analysis in In re Marriage of Cecilia & David W. provides
helpful guidance in the present case. Divorced parents Cecilia
and David had one child, Robert, who was 24 years old when
Cecilia initiated proceedings to compel David to pay adult child
support because Robert was “ ‘not currently capable of earning a
living or being self-supporting’ and it was ‘uncertain he ever will
be.’ ” (In re Marriage of Cecilia & David W., supra, 241
Cal.App.4th at p. 1280.) Robert suffered from Tourette’s
11
syndrome, attention deficit hyperactivity disorder, learning
disabilities, and emotional management issues. Robert’s treating
psychologist testified that these conditions regularly impacted
Robert’s life and resulted in a “ ‘constant struggle’ without
external support, schedules and feedback to help him self-
regulate emotion” and recover from high levels of anxiety and
panic attacks. (Id. at pp. 1280–1282.)
Notwithstanding those conditions, Robert completed high
school on time and attended community college for five years,
during which time he earned two associates degrees and achieved
a 3.3 grade point average. (In re Marriage of Cecilia & David W.,
supra, 241 Cal.App.4th at p. 1281.) He required accommodations
at school, including “intervention by disabled student services,
less distracting test settings, extra time for tasks, and tutors” and
was admitted to the hospital twice during one semester due to
severe panic attacks. (Ibid.)
Robert subsequently enrolled at the University of
California, San Diego (UCSD) and again required
accommodations including disabled student services intervention,
quiet test facilities, flexibility for test completion time, use of a
laptop and tape recorder in class, and private tutoring. (In re
Marriage of Cecilia & David W., supra, 241 Cal.App.4th at
p. 1281.) He was generally maintaining a B-grade point average.
(Ibid.) In addition, Robert was living on campus with roommates
during the week and with Cecilia on weekends, holidays, and
during the summer breaks. (Ibid.) Robert had a car and drove
himself. He also advocated for himself, with ongoing support from
Cecilia. (Ibid.) And although Robert had never applied for a job,
he believed he would do so after completing school. Both Cecilia
12
and David believed and hoped that Robert would eventually be
able to work. (Id. at pp. 1282–1283.)
The trial court, however, was not in agreement. The court
found Robert “incapacitated from employment” under section
3910 because he was unable to work and go to school at the same
time. The court also found Robert’s manner atypical and
concluded he would have difficulty finding a job. Specifically, the
court concluded “ ‘the only evidence is that [Robert] could
potentially get a minimum wage job, maybe, but that would
require ADA accommodations,’ which it viewed as speculative.”
(In re Marriage of Cecilia & David W., supra, 241 Cal.App.4th at
p. 1283.) In addition, for reasons not pertinent here, the court
found Robert was “without sufficient means” under section 3910
and therefore found him to be entitled to adult child support.
(Ibid.)
The court of appeal reversed the support order. (In re
Marriage of Cecilia & David W., supra, 241 Cal.App.4th at
pp. 1285–1288.) Regarding incapacity, the court of appeal
emphasized that courts must not focus solely on the adult child’s
conditions; they must consider the child’s ability to find work or
become self-supporting in light of such conditions. (Id. at p. 1286.)
The medical and anecdotal evidence demonstrated that Robert
required accommodations at school and that his medical
conditions might pose challenges for him in the workplace,
particularly a stressful one. At the same time, however, Robert
was able to function independently in many settings and was
earning a college degree, living in a dormitory part-time, driving,
13
and seeing his psychologist.7 (Id. at pp. 1287–1288.) Moreover,
Robert, his psychologist, and both his parents believed he would
be able to work after he completed college. (Id. at p. 1288.) The
court also noted that the absence of a vocational evaluation made
it difficult to establish that Robert was incapacitated from
employment due to his medical conditions.8 (Ibid.)
1.3. Analysis
Substantial evidence supports the court’s finding that
Daniella is not incapacitated from employment within the
meaning of section 3910.
It was not seriously disputed that Daniella has several
medical conditions that substantially impact her daily life and
ability to be productive. She receives weekly infusions to manage
her immune disorder. She also has a severe form of scoliosis and
7Citing In re Marriage of Cecilia and David W., supra, Schulman
asserts that “[f]ocusing on a child’s ability to attend and complete
school is not a relevant inquiry and can be cause for reversal of an
order regarding support of an incapacitated adult.” As noted, however,
the court of appeal did consider such evidence relevant to the extent it
demonstrated Robert’s present ability to function outside of his
mother’s care and supervision using skills that might also be
applicable in the workplace.
8Schulman also claims the court could not make a finding regarding
Daniella’s capacity to work without a vocational evaluation. In the
same vein, she urges that Karney’s testimony and the court’s
conclusions were speculative because they were not based on a
vocational evaluation. Neither In re Marriage of Cecilia and David W.,
supra, 241 Cal.App.4th at p. 1288 nor In re Marriage of Cryer (2011)
198 Cal.App.4th 1039, 1054, requires a vocational evaluation, as
Schulman asserts.
14
wears a back brace which is uncomfortable. She may ultimately
need surgery to correct the spinal curvature. In addition,
Daniella has been diagnosed with fibromyalgia, a condition that
causes her chronic pain and fatigue—both of which require her to
take frequent breaks during the day to rest. Daniella says that it
is difficult for her to concentrate due to the pain and fatigue she
experiences and, as a result, she sometimes has difficulty
completing school assignments quickly.
When Daniella was young, she was home-schooled due to
her medical needs. Daniella is extremely intelligent, however,
and began taking college level courses at a local community
college at the age of 12. Before she turned 18 years old, she had
graduated from high school and earned an associates degree in
History. She earned mostly A, and some B, grades during that
time.
Although Daniella is unable to attend school full time due
to fatigue, chronic pain, and other aspects of her medical
conditions, at the time of trial, she was able to take two in-person
classes and one online class each quarter while maintaining top
grades. At that time, she planned to continue her studies and
earn a bachelor’s degree, but believed it would take her
substantially longer than the typical four to five years. Daniella
believes, however, that she cannot work or attend school full time
due to her disabilities.
Daniella is able to participate in many activities with her
family and her peer group. For example, Daniella travelled with
Karney to Israel and New York City and travelled with Schulman
to Florida and Hawaii. She has also attended sleep-away camp
without either parent. Daniella occasionally babysits her younger
brother. Schulman noted that Daniella “has a meaningful life.
15
She is socially connected, independent in thought, and she is a
member of several clubs.” Although Daniella does not drive yet,
she often travels independently to school using a rideshare
service. And at the time of the trial, Daniella hoped to get a
driver’s license “soon.”
Daniella has some physical limitations and sometimes
needs assistance from “walking sticks” to walk. And Daniella
attested that she is only able to stand for a total of one hour per
day and can, in addition, walk slowly and in short spurts for less
than one hour per day. Although some physical activities such as
snorkeling are possible, other activities, such as hiking,
waterskiing, and horseback riding, are too painful and
exhausting for her to undertake.
Daniella sees herself, as her parents do, as exceptionally
creative and artistic. She makes clay figurines and near the time
of trial was working on an animated story with lessons she
learned in her Hebrew class. She hopes to put those skills to use
as an animator after she graduates from college.
In sum, Daniella was, at the time of trial, an impressive
young woman with many talents and skills, who was precocious
in school, and who was unfortunately burdened with serious
medical issues that significantly restricted her ability to be as
active and agile as a typical teenager. And although Daniella
receives accommodations at school and requires some assistance
from her mother as well as a reduced workload, nothing in the
record suggests that she is, or is likely to become, incapacitated
from working within the meaning of section 3910. That she may
in the future require workplace accommodations relating to her
medical and physical needs does not categorically render her
incapacitated from working, as Schulman seems to imply. And
16
insofar as Daniella continues to pursue her college education, the
Agreement provides for the payment of her tuition, housing, and
related expenses.9
Although Schulman acknowledges that we review the
court’s ruling for substantial evidence and that we construe the
evidence in the light most favorable to the judgment, she fails to
apply those principles. Schulman urges, for example, that
although Karney’s testimony supports the court’s ruling, his
testimony was “outdated” because Daniella had not lived with
Karney for several months prior to trial. She also claims Karney’s
testimony was “speculative” in comparison to the medical
evidence summarized in her own declaration. She then recites in
detail the evidence she presented in support of her contention
that Daniella is incapacitated from employment. But the question
before us is not whether the record contains evidence that would
support a ruling contrary to the court’s decision. Rather, our
power “begins and ends with the determination as to whether, on
the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support” the trial court’s findings.
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics
omitted.) We do not determine credibility or reweigh the evidence
on appeal. (Katsura v. City of San Buenaventura (2007) 155
Cal.App.4th 104, 107.)
Schulman also complains that the court placed the burden
of proof on her, rather than on Karney. She notes, correctly, that
where a party is seeking to modify a support order, the burden of
9An adult child is not entitled to parental support while attending
college. (See Jones v. Jones (1986) 179 Cal.App.3d 1011.)
17
proof generally lies on the party seeking modification. (See, e.g.,
In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1054 [“The
party seeking the modification [of a child support order] bears the
burden of showing that circumstances have changed such that
modification is warranted.”].) Here, Schulman urges, Karney
sought to modify the contractual obligation to provide adult
support to Daniella and therefore had the burden of proof. But
even if Karney had the burden of proof to demonstrate a change
in Daniella’s circumstances, he did so and, as we discussed,
substantial evidence supports the court’s finding that Daniella is
not, and is not likely to become, incapacitated from working
under section 3910. (See Navigators Specialty Ins. Co. v.
Moorefield Construction, Inc. (2016) 6 Cal.App.5th 1258, 1287–
1288 [“If substantial evidence supported the implied finding
[made by the trial court], then the trial court’s misallocation of
the burden of proof would be harmless because there would be no
reasonable probability the court’s decision would have been
different in absence of the error.”].)
We also note that the adult support provision states, “the
Court shall have jurisdiction over the duty to support Daniella
beyond the age of majority pursuant to Family Code Section 3910
and Marriage of Drake … .” This language is broad and
authorizes the court to determine whether, and to what extent, a
duty to provide adult child support exists in the first instance.
Schulman also argues the court was bound by the factual
recitals in the Agreement concerning Daniella’s special needs.
She apparently contends the court lacked jurisdiction to consider
Daniella’s current medical conditions and was permanently
bound by the language of the Agreement. We are unpersuaded.
First, Schulman provides no relevant legal analysis supporting
18
her position. Her citation to Evidence Code section 622, relating
to burden of proof, is inapposite. Second, and in any event, the
adult support provision contradicts Schulman’s position. As
noted, the Agreement expressly preserves the court’s jurisdiction
to consider the issue of adult support, stating, “the Court shall
have jurisdiction over the duty to support Daniella beyond the
age of majority pursuant to Family Code Section 3910 and
Marriage of Drake.” The Agreement does not state, for example,
that Karney (or Schulman) is obligated to pay adult support for
Daniella’s lifetime and that the court would have jurisdiction to
consider only the amount of that support in future proceedings.
Schulman also claims, without citation to any legal
authority, that the court’s ruling should be reversed because
neither Daniella nor minor’s counsel was present during the trial.
Because Schulman has not provided any legal analysis on this
point, she has forfeited the issue. (Keyes v. Bowen (2010) 189
Cal.App.4th 647, 655–656 (Keyes) [observing that matters not
properly raised or that lack adequate legal discussion will be
deemed forfeited]; Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 867 [noting “an appellant must present
argument and authorities on each point to which error is asserted
or else the issue is waived”].) And for the record, Daniella
submitted a lengthy declaration concerning the issues relating to
adult support and the court both admitted and considered that
evidence in making its final determination.
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2. The court did not err in calculating base support or
additional support under the Ostler-Smith provision.
2.1. Standard of Review
“We review a child support order for abuse of discretion.
(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) In so
doing, we determine ‘ “whether the court’s factual determinations
are supported by substantial evidence and whether the court
acted reasonably in exercising its discretion.” [Citation.] We do
not 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 Schlafly (2007) 149 Cal.App.4th 747,
753 (Schlafly).) In exercising its discretion, however, the trial
court must follow established legal principles. (Ibid.) To decide
whether the trial court followed established legal principles and
correctly interpreted the child support statutes, we apply the
independent standard of review. [Citation.]” (In re Marriage of
Alter (2009) 171 Cal.App.4th 718, 730–731.)
2.2. The court properly ordered base child and
spousal support based on the income and other
figures to which the parties stipulated.
Schulman asserts that the court’s December 31, 2019 order
“should be reversed because the inputs in the trial court’s support
calculations were not supported by substantial evidence.”
Specifically, she claims that “Karney provided and the trial court
accepted, Karney’s wages as reported in Box 5 ‘Medicare wages’
on his W-2s instead of relying on the larger, ‘gross income’
number from payroll statements.”
Although Schulman does not identify which portion(s) of
the court’s order are impacted by this purported error, we
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presume from her use of the term “inputs” and one reference to
child support that she refers to the court’s base child support
calculation. It is evident from the record, however, that the court
calculated base child support using the income numbers to which
the parties stipulated. The stipulation constitutes substantial
evidence supporting the court’s order.
2.3. The court properly construed the Ostler-Smith
provision.
Section 4053 provides, in pertinent part, 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” and that “[c]hildren should share in the standard of living of
both parents.” (§ 4053, subds. (a) & (f); see also In re Marriage of
Ostler & Smith (1990) 223 Cal.App.3d 33, 54 [awarding
supported children percentage of noncustodial father’s future
bonuses ensures they will share in his standard of living].)
Consistent with these principles, the Agreement requires
Karney to pay Schulman, over and above base support, 10
percent (child support) and 23 percent (spousal support) of “the
gross amount any additional income from any source including,
but not limited to, bonus, commission, overtime, or any other
compensation from his employment, consultation, or other
private services that Karney may provide or may have provided
including speaking engagements, public appearances or other
such personal efforts, business interests, or other distributions
that he may receive including but not limited to income,
dividends, royalties, residuals or any other such rights to any
work, book, textbook, article, or other work of intellectual
property that Karney has created or may in the future create or
have any interest in or to.” As noted, Karney sought to eliminate
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supplemental spousal support and reduce by half the
supplemental child support following Daniella’s 18th birthday.
The court eliminated the Ostler-Smith provision with respect to
child support (instead crediting Karney with $800 per month of
additional income) but left the spousal support provision intact
and unmodified. But the court rejected Schulman’s argument
that Karney’s income, for purposes of Ostler-Smith calculations,
should include, among other things, unearned income such as
monetary gifts received from family members and tax refunds.
Schulman claims that the court “erred in excluding at least
$198,000 in income for purposes of Ostler-Smith.” Specifically,
she contends the court improperly concluded that “income,” as
used in the Agreement, did not include the following gifts to
Karney from his family: a $60,000 wire transfer from a cousin in
2014, a $2,000 monthly allowance Karney received from his
parents in 2014, 2015, and 2016, and $66,000 in gifts Karney
received from his mother in 2017 and 2018.
In support of her contention that these monetary gifts
should be considered income, Schulman cites In re Marriage of
Alter, a case holding that regular recurring gifts may, at the
court’s discretion, be considered income under certain
circumstances. (In re Marriage of Alter, supra, 171 Cal.App.4th at
pp. 736–737.) To the extent it is relevant, this case supports an
argument that Karney’s income, for purposes of calculating
support, should have included the $2,000 monthly allowance from
his parents. It is unclear why Schulman relies on this case,
however, because Karney did pay a percentage of his monthly
allowance as supplemental child and spousal support under the
Ostler-Smith provision.
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As to the one-time monetary gifts identified, Schulman
offers no legal authority or argument suggesting that such gifts
must be included as income in this situation. She has therefore
forfeited the issue. (Keyes, supra, 189 Cal.App.4th at pp. 655–656
[observing that matters not properly raised or that lack adequate
legal discussion will be deemed forfeited]; Kurinij v. Hanna &
Morton, supra, 55 Cal.App.4th at p. 867 [noting “an appellant
must present argument and authorities on each point to which
error is asserted or else the issue is waived”]; and see In re
Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1314
[“[T]he question of whether gifts should be considered income for
purposes of the child support calculation is one that must be left
to the discretion of the trial court.”].)
Finally, Schulman contends the court erred by excluding
tax refunds from Karney’s income. She notes, correctly, that tax
refunds should be considered income in calculating mandatory
child support under section 4059. (In re Marriage of Morton,
supra, 27 Cal.App.5th at p. 1041.) That rule makes sense because
child support calculations must be based on a parent’s net
income, excluding that parent’s tax liability.10 When a support
10 Section 4059, subdivision (a) provides in pertinent part: “The annual
net disposable income of each parent shall be computed by deducting
from the parent’s annual gross income the actual amounts attributable
to the following items or other items permitted under this article: [¶]
(a) The state and federal income tax liability resulting from the parties’
taxable income. Federal and state income tax deductions shall bear an
accurate relationship to the tax status of the parties (that is, single,
married, married filing separately, or head of household) and number
of dependents. State and federal income taxes shall be those actually
payable (not necessarily current withholding) after considering
23
calculation is based on the net amount of a parent’s pay after tax
withholding and a parent later receives a tax refund, that refund
is properly considered part of the parent’s net income for the
relevant period. That is not the case with the parties’ Ostler-
Smith provision, however, which is calculated as a percentage of
Karney’s gross income over a certain threshold. Because Karney’s
tax withholding does not reduce his income for purposes of the
Ostler-Smith calculation, any tax refund he receives should not
be used to increase his income. Accordingly, we find no error in
the court’s exclusion of tax refunds from the Ostler-Smith
calculations.
3. The court lacked jurisdiction to modify child support
for the period before Karney filed his RFO seeking
such relief.
As noted ante, the December 31, 2019 order purports to
modify base child support retroactively for the period January 1,
2015 to December 31, 2018. Schulman contends the court lacked
jurisdiction to make any order adjusting support for the period
prior to March 15, 2019, the date on which Karney filed his RFO
seeking support modification. Karney concedes the point. We
agree. Section 3651, subdivision (c)(1) explicitly provides, with
narrow exceptions not applicable here, that “a support order may
not be modified or terminated as to an amount that accrued
before the date of the filing of the notice of motion or order to
show cause to modify or terminate.”
appropriate filing status, all available exclusions, deductions, and
credits.”
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4. Schulman failed to establish error regarding the
court’s custody order.
Finally, Schulman asserts that the court’s December 26,
2019 order regarding Gabriel’s custody schedule should be
reversed. But she fails to cite the court’s order, fails to offer a
coherent explanation of the purported error, and fails to provide
any legal analysis to support her views. We therefore decline to
consider the issue. (Keyes, supra, 189 Cal.App.4th at pp. 655–656
[observing that matters not properly raised or that lack adequate
legal discussion will be deemed forfeited].)
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DISPOSITION
The December 26, 2019 order is affirmed. The
December 31, 2019 order is reversed to the extent it modifies
support for any period prior to March 15, 2019. The December 31,
2019 order is otherwise affirmed. The matter is remanded with
instructions to the trial court to modify the December 31, 2019
order’s Attachment to Findings and Order after Hearing by
striking the second sentence of paragraph 1, and paragraph 4 in
full. Respondent Benjamin Karney shall recover his costs on
appeal.11
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
KALRA, J.
11 Karney’s January 6, 2021 request for judicial notice is denied.
Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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