Filed 10/13/22 Marriage of Freeman CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re the Marriage of EDWARD SHELDON and
JEWEL BIANCA FREEMAN.
EDWARD SHELDON FREEMAN, F083654
Respondent, (Super. Ct. No. FL-20-000995)
v.
OPINION
JEWEL BIANCA FREEMAN,
Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Jack M.
Jacobson, Judge.
Jewel Bianca Freeman, in pro. per., for Appellant.
No response for Respondent.
-ooOoo-
* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.
Appellant Jewel Bianca Freeman (mother) challenges the decision in the trial court
ordering her to pay $537 monthly in child support for her three children with Edward
Sheldon Freeman (father) and denying her request for attorney’s fees. Our review of the
record and the relevant legal standards leads us to conclude the decision of the trial court
must be upheld. The order is affirmed.
PROCEDURAL AND FACTUAL SUMMARY
The record on appeal consists of a clerk’s transcript containing some of the
documents filed in the trial court addressing the request to modify child support, and a
settled statement prepared in lieu of a reporter’s transcript.
On August 23, 2021, mother filed a request for an order seeking child support for
her three children and attorney’s fees. This is the first document we are provided in a
proceeding that was initiated in April 2020 by father with a petition for dissolution of
marriage. In the income and expense declaration supporting the request, mother states
she was employed between May 2020 and January 2021, but now earns “$0” per week.
Mother further stated she shares 50/50 custody of the children with father. Mother’s
request for attorney’s fees was for future fees she anticipated incurring while litigating
this matter.
In response to mother’s request for an order, father submitted his own income and
expense declaration. Father listed his average monthly income as approximately $3,300
with monthly expenses of approximately $3,500. Seven weeks of pay stubs were also
provided to support the estimate of his monthly income. Father stated in a declaration
that the children were with him 85 percent of the time, and with their mother just 15
percent of the time. Father also stated in a separate declaration that as of September 9,
2021, he had been awarded sole legal and physical custody of the children with mother
having the right to visit two nights per week and two weekends per month.
Following a hearing held in October 2021, the trial court entered an order directing
mother to pay father $537 in monthly child support. The court also denied her request for
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attorney’s fees. Immediately thereafter, mother filed a motion to reconsider the award of
child support to father by challenging the income and expense declaration he filed and the
amount of time she was credited with spending with her children. Mother also noted in
her papers that father failed to show there was an available job in her community that
would pay her a minimum wage, and the evidence did not demonstrate a willful intent to
avoid her financial obligations. Mother’s motion for reconsideration was denied on
December 2, 2021.
DISCUSSION
I. The Record Provided in this Appeal
Again, the record on appeal consists of a clerk’s transcript with a selection of
documents filed in this matter, and a settled statement in lieu of a reporter’s transcript.
We are limited in our review because there is a brief summary of the hearing at the core
of this appeal. (Cal. Rules of Court, rule 8.137.) A more complete record and summary
of the testimony from that hearing would have been beneficial to our review. (See
Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229
Cal.App.3d 633, 637–639.)
An order of the lower court is presumed correct unless the appellant affirmatively
demonstrates there is prejudicial error. (Herrera v. Doctors Medical Center of Modesto,
Inc. (2021) 67 Cal.App.5th 538, 546) All “intendments and presumptions are indulged to
support it on matters as to which the record is silent.” (Ibid., citing Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.)
II. The Applicable Standard of Review
Child support awards are reviewed for an abuse of discretion. (In re Marriage of
Hein (2020) 52 Cal.App.5th 519, 529.) When engaging in this review, “appellate courts
consider (1) whether the trial court’s factual findings are supported by substantial
evidence, (2) whether the trial court followed applicable legal principles, and (3) whether
the trial court reasonably exercised its discretionary authority—that is, whether any judge
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reasonably could have made such an order.” (Ibid.; see Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711 [“abuse of discretion standard is not a unified standard; the
deference it calls for varies according to the aspect of a trial court’s ruling under
review”].) Because child support awards are subject to statewide uniform guidelines,
“the only discretion trial courts possess is the discretion provided by statute or rule.”
(Hein, at p. 529; see Fam. Code,1 § 4055.)
III. The Statutory Guidelines on Awards of Child Support Govern Here
“Child support awards in California are governed by the legislation that
established a statewide uniform child support guideline. (See §§ 4050–
4076.) ‘The court shall adhere to the statewide uniform guideline and may
depart from the guideline only in the special circumstances’ identified in
the statute. (§ 4052.) The child support guideline is an algebraic formula
set forth in section 4055. The amount generated by the formula ‘is intended
to be presumptively correct in all cases, and only under special
circumstances should child support orders fall below the child support
mandated by the guideline formula.’ (§ 4053, subd. (k); see § 4057,
subd. (a).) The presumption ‘affect[s] the burden of proof’ and may be
rebutted with evidence of the factors set forth in section 4057,
subdivision (b).” (In re Marriage of Hein, supra, 52 Cal.App.5th at
p. 527.)
Mother contends father was required to provide evidence establishing her ability
to pay. In fact, “[b]oth parents are mutually responsible for the support of their children,”
and “[e]ach parent should pay for the support of the children according to the parent’s
ability.” (§ 4053, subds. (b), (d).) Furthermore, a court may consider “the earning
capacity of a parent in lieu of the parent’s income, consistent with the best interests of the
children,” while also considering the overall “needs of the children, and the time that
parent spends with the children.” (§ 4058, subd. (b).)
A determination of earning capacity considers the ability to work, including
factors such as age, occupation, skills, education, health, background, work experience
1 All further statutory references are to the Family Code.
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and qualifications, and the opportunity to work. (Mendoza v. Ramos (2010) 182
Cal.App.4th 680, 685.) The finding a parent has the “opportunity to work” must be
supported by substantial evidence of a reasonable likelihood the parent, using reasonable
efforts with the above referenced level of skill, education, etc., could produce income.
(In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1246 (McHugh).)
In this appeal, mother contends earning capacity can only be considered when “the
parent has demonstrated a willful intention to avoid fulfilling financial obligations
through deliberate misconduct.” In the settled statement submitted to this court in lieu of
a reporter’s transcript, mother states:
“[I]t was never her intent to avoid helping with the expenses of the minor
children, however being that [father] made more money and received all of
their stimulus monies and even county help for food for our children
[mother] didn’t see how her help would even be necessary let alone
required.”
“ ‘ “While deliberate avoidance of family responsibilities is a significant factor in the
decision to consider earning capacity [citation], the statute explicitly authorizes
consideration of earning capacity in all cases,” consistent with the child’s best interests.
[Citations.]’ ” (McHugh, supra, 231 Cal.App.4th at p. 1246.) The parent seeking to
impute income does not bear the burden of showing the other parent would have obtained
employment if it had been sought. (Id. at p. 1247.) Under section 4058, subdivision (b),
the trial court has the authority to consider a parent’s earning capacity “in lieu of” actual
income. That calculation, however, must be consistent with the children’s best interests,
taking into consideration their overall welfare and needs. (In re Marriage of Lim &
Carrasco (2013) 214 Cal.App.4th 768, 775.) As long as an ability and opportunity to
work exists, the trial court has the authority under the statutory scheme to consider a
parent’s earning capacity. (McHugh, at p. 1246.)
Mother engages in a lengthy argument challenging the evidence she believes the
trial court relied upon to make an award of child support. Mother specifically states the
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evidence consisted of hearsay and deviated from the statutory guidelines. The hearsay
mother references consisted of father’s income and expense statement and a summary in
the settled statement she prepared in which she stated father and/or his attorney argued
mother had an ability to earn income. Yet, in opposition, mother simply states she does
not have an income. In fact, many of the allegations of “facts” she is arguing to this court
are actually arguments that appear either in the clerk’s transcript or the settled statement.
Again, we are limited to and by the record we have been provided. In addition, we
cannot conclude the income and expense statements provided by either party to the court,
and signed under penalty of perjury, are hearsay.
The income and expense declaration mother submitted to the court shows she was
employed between May 2020 and January 2021, that she had both a high school diploma
and six years of college classes, but no degree. The declaration also states she filed
income tax returns in both California and Colorado for the 2020 tax year. Significantly,
the declarations submitted by mother and father fail to show that health insurance is being
paid by either party.2 Father’s income and expense declaration also shows a breakdown
that suggests he often spends more each month than he earns.
In the summary of the hearing presented in the settled statement, mother admits
she was asked by the court why she was not currently working, and acknowledges there
were discussions about what would be a fair amount for her to pay toward child support
as the second parent. Mother also acknowledges the court proposed a calculation based
on her obtaining a minimum wage job. We believe this shows the court was trying to
determine mother’s earning capacity considering the overall welfare and needs of her
children. (See § 4058, subd. (b).) If mother believed this calculation resulted in an award
2 Mother does state that she signed the children up for some form of health
insurance provided by the county. However, there is no documentation of this fact in the
record.
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that was unjust or inappropriate given her circumstances, she was required to provide
evidence to the court supporting her claim. (§ 4057, subd. (b).)
The summary provided in the settled statement fails to show any evidence was
presented addressing factors laid out in section 4057 establishing any award of child
support to father would be unjust or inappropriate. Nor does the settled statement
demonstrate the trial court failed to consider all the factors that were required under the
statutory scheme. To demonstrate the absence of substantial evidence, mother was
required to provide the appellate court with an adequate record of the evidence presented
in the trial court. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) The settled
statement provided to this court failed to provide an adequate record, consisting only of
an abbreviated summary of what the trial court considered.
Based on our obligation to uphold a lower court’s order unless there is an
affirmative showing of prejudice, and because the record that has been provided to this
court fails to show prejudicial error in the application of the statutory guidelines
governing the award of child support, we will not overrule the decision of the trial court
to award father monthly payments of $537 from mother, and denying mother’s request
for attorney’s fees.
DISPOSITION
The order of child support is affirmed. No costs are awarded in this appeal.
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