Filed 12/8/22 O.E. v. John G. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
O.E., B310605
Respondent Los Angeles County
Super. Ct. No. 17STPT00073
v.
John G.,
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael J. Convey, Judge. Affirmed.
John G., in pro. per., for Appellant.
O.E., in pro. per., for Respondent.
____________________
In this family law case, a father, John G., appeals rulings
on parenting time, child support, and sanctions. We affirm.
Undesignated statutory citations are to the Family Code.
I
The father and O.E., the mother, have a daughter, A.E.G.,
who was born in December 2016. The parents were in a
relationship between April 2015 until shortly after A.E.G.’s birth.
A.E.G. has lived with the mother since birth. The father lives
about 45 miles away.
Before trial, in May 2018, the court ordered the father to
appear for a vocational exam.
Trial proceeded in two phases. Phase one was about
custody and parenting time. It lasted four days in December
2018. Phase two was about child support and sanctions. It
lasted three days in July 2020.
Before phase one, the father had A.E.G. for two hours on
Wednesdays and three hours on Saturdays.
The father asked the court for equal parenting time. After
one month of transition, he wanted parenting time from 8:00 a.m.
Sundays until 8:00 p.m. Wednesdays.
The mother requested the father have parenting time
weekly on two weekday afternoons and every other Saturday.
After A.E.G. turned four, the mother asked for the father to have
overnights each Friday.
The father alleged the mother kicked him and this issue
came up during both phases of trial. In phase one, he said the
mother kicked him in May 2017 and this caused a bruise. He
said, “[S]he kicked me very hard.” He played a video of the
incident when cross-examining the mother. The mother
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submitted that video as evidence, but she did not play it at trial.
The father also presented photographs of his arm with a bruise.
The court made factual findings. It distrusted some of the
father’s evidence. As to the father’s contention that the mother
kicked him, the court did not credit the father. The court found
the video showed the mother and father slightly brushed together
and the father had an exaggerated and dramatic reaction.
The court found both parents sometimes acted
inappropriately to try to gain a litigation advantage, but the
court identified more examples of the father’s disingenuous
conduct. The court found the father used written
communications with the mother to manufacture issues. The
father documented A.E.G.’s occasional bumps and bruises as
evidence of abuse by the mother. The court found A.E.G.’s minor
injuries were typical of a toddler. The father made repeated and
unfounded statements about the mother abducting A.E.G. The
father used a scanner to search A.E.G.’s body for recording
devices he thought the mother planted. These searches were
fruitless.
The court found the mother testified credibly that the
father once pushed her in the chest, she fell backwards and lost
her balance, and this happened around A.E.G.
The court ordered joint legal custody and largely granted
the mother’s requests for parenting time. A.E.G. would live
primarily with the mother. The father would have parenting
time on Mondays for three hours, Wednesdays for seven hours,
and three Saturdays a month for ten hours each. On January 1,
2021, after A.E.G. turned four, the father would have overnights
every Friday at 3:00 p.m. to Saturday at 6:00 p.m.
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The court explained its reasoning. A.E.G. had lived with
the mother since birth. A.E.G.’s daycare and doctor are near the
mother. The mother was A.E.G.’s primary contact and primary
bond. Given her stage of development, the court found A.E.G.
should maintain this primary bond in the mother’s home.
The court rejected the father’s request for three and one-
half days of consecutive parenting time per week because it did
not prioritize A.E.G.’s needs. His plan would keep A.E.G. from
her primary attachment for extended overnight periods at an
early stage. It would be detrimental for A.E.G. to be apart from
either parent for long periods of time. Other obstacles to having
equal time were the distance between the parents, which would
make it difficult for A.E.G. to go back and forth more often, and
the parents’ high-conflict communication.
The court gave the mother final decisionmaking authority
if the parents had an impasse. The court explained the mother’s
decisions were more child centered. The father’s decisions were
sometimes based on what he wanted and about opposing the
mother, not about A.E.G.’s best interests.
The second phase of trial was about child support and
sanctions. Before this phase, the father paid $88 per month in
child support.
The father was born in 1969. He has a bachelor’s degree in
economics. He has worked for about 20 years as a caregiver to
his disabled sister for $589 a month. The sister lives separately
from the father. He mostly cares for her from his own home. The
father said this work takes approximately 32 hours a week and it
is not on a fixed schedule. The father makes online purchases,
does wellness checks, and takes his sister to appointments.
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The father said his assets included about $180,000 from
two accident settlements and $30,000 in real and personal
property. He lives with his mother and does not pay rent.
The expert who conducted the vocational exam testified.
On May 14, 2018, the expert met with the father. On May 31,
2018, the father received the expert’s report, which found the
father had the ability and opportunity to earn and listed
potential jobs and positions.
The expert’s report said the father characterized himself as
“computer literate.” The father “knows the keyboard” and uses
Microsoft Word, email, and the internet.
The vocational expert testified the father has an earning
capacity of $37,000 per year as an administrative assistant. The
expert identified four potential positions in this field based on
updated research from a day or two before the testimony.
The father thought the court should disregard the expert
because the father was not interested in being an administrative
assistant, he lacked experience, and the expert did not
“guarantee” him a position.
The father told the expert he had injuries that prevented
him from performing some types of work. The father did not
provide corroborating evidence about his assertion. The expert
did not opine about whether the father was too injured to work
full time, but he explained that if this were true, the father would
qualify for social security disability benefits. The father could
separately earn up to about $14,000 in income and remain
eligible for those benefits.
The father did not offer documentary evidence that he was
unfit to work. As of phase two, the father had not applied for
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social security disability benefits despite receiving the vocational
report that discussed these benefits.
The mother and father offered competing testimony about
sanctions. The mother said she asked the father to pick up
A.E.G. from daycare for his Monday and Wednesday parenting
time so the mother would not lose time at work. The mother
offered compromises, including giving the father extra parenting
time or doing the pick-up at a grocery store, but the father
refused. The mother incurred attorney fees to resolve this issue.
The mother testified that “[s]everal times” the father refused to
talk directly to her and insisted he could only talk to her lawyer.
The father also took extra time in phase one to litigate the issue
of the mother allegedly kicking him.
The father asserted he was accommodating and the mother
was uncooperative. He said he offered “heart felt proposals” to
resolve the issue of the pick-up location and he “begg[ed]” the
mother and her attorney to work with him to resolve the issue.
He cross-examined the mother again about the alleged kicking
incident. Despite the court’s findings in phase one, the father
continued to assert the mother kicked him. He asked the mother,
“[H]ow is it sanctionable that being kicked by you puts me at
fault?” The mother responded that she never kicked the father.
The court found it was in A.E.G.’s best interests to impute
income to the father of $37,000 per year. The court admonished
the father to seek work immediately.
The court calculated child support based on the imputed
income and the percentage of time the father spent with A.E.G.
The father owed $376 per month until January 2021, when he
would increase his time with A.E.G. and would begin owing $112
per month.
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The court imputed income for the father effective the day
after phase two of trial ended, August 1, 2020. The court did not
set a later date because the father made no effort to get a job
even though he had received the expert’s vocational report in
2018. The mother had asked for an earlier date of December
2018, but the court found this would be unfair to the father and
against A.E.G.’s best interests.
The court imposed $10,000 in sanctions against the father
for three actions that delayed resolution of the case and caused
unnecessary expenditures. First, the father was uncooperative
about changing A.E.G.’s pick-up location to her daycare. Second,
the father insisted on talking to the mother’s attorney instead of
the mother about co-parenting issues. Third, the mother had to
prepare for and contest the father’s discredited claim that the
mother kicked him.
II
A
The court’s custody order was proper. On appeal, the
father says it was an abuse of discretion not to grant his request
for equal parenting time. This is incorrect.
When making custody orders, courts’ primary concerns are
children’s health, safety, and welfare. (§ 3020, subd. (a).)
Children should have frequent and continuing contact with both
parents and parents should share child rearing responsibilities
unless this is not in their children’s best interests. (Id., subd.
(b).)
We review custody orders for an abuse of discretion.
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)
The court did not abuse its discretion by denying the
father’s request for equal parenting time. The court properly
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accounted for A.E.G.’s young age, her primary bond with her
mother, and the location of A.E.G.’s daycare and doctor near the
mother. The court validly considered the distance between the
parents and the parents’ issues with communicating. It
appropriately found A.E.G. should not go three and one-half days
at a time without seeing the mother.
The court’s plan gave the father frequent and continuing
contact. He had 20 hours of parenting time weekly across three
days for most weeks until 2021, when he started having 37 hours
of parenting time weekly across four days. The order gave the
father ample time with A.E.G.
B
The court properly imputed income to the father.
To recap, the court imputed $37,000 in income effective the
day after phase two of trial ended. The court used this imputed
income to calculate child support payments of $376 per month for
five months, then $112 per month based on the father’s increased
share of parenting time.
We review child support orders that consider a parent’s
earning capacity in lieu of the parent’s income for an abuse of
discretion. (See In re Marriage of Simpson (1992) 4 Cal.4th 225,
234.)
Parents’ first and principal obligation is to support their
children. (§ 4053, subd. (a).)
In calculating gross income, courts may impute income by
considering parents’ earning capacity in lieu of their income, if
this is consistent with their children’s best interests. (§ 4058,
subd. (b).) When deciding whether to apply earning capacity,
courts may consider children’s welfare, their developmental
needs, and the time they spend with their parents. (Ibid.)
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Earning capacity is the ability and opportunity to earn
income. (In re Marriage of Berger (2009) 170 Cal.App.4th 1070,
1079.) Ability factors include age, qualifications, skills,
education, work experience, and health. (In re Marriage of
Hinman (1997) 55 Cal.App.4th 988, 995.) Opportunity means an
employer who is willing to hire. (Ibid.) A court may consider a
parent’s earning capacity irrespective of the parent’s subjective
reasons not to earn income. (See id. at p. 998.) When the ability
or the opportunity to work is lacking, earning capacity is absent
and application of the standard is inappropriate. (In re Marriage
of Cohn (1998) 65 Cal.App.4th 923, 928–930 (Cohn) [child support
order based on projected salary, rather than self-employment,
was error, where despite training, skill, and earnest efforts to
secure employment, payor spouse was unable to obtain job offer].)
The court properly imputed income.
The father has ability and opportunity. He has a bachelor’s
degree and basic computer skills. Yet he earns less than $10,000
a year. The vocational expert testified the father had an earning
capacity of $37,000 as an administrative assistant. The expert
identified potential positions in this field based on recent
research. The court’s imputation of income was sound.
The father’s arguments against imputing income lack
merit.
The father disputes his ability. He contends the expert
said the father needed job training to be an administrative
assistant, but this is incorrect. With our emphasis, the expert
testified the father “has the ability to be an administrative
assistant now.”
The father also contests the ability element by arguing he
lacks experience, lacks computer proficiency, and experiences
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pain if he sits for too long. The father raised these issues when
he met with the vocational expert and he argued them at trial.
The expert offered contrary evidence, including the father’s self-
described computer literacy. Notwithstanding the father’s
claimed lack of ability, the expert said the father qualified for
various administrative assistant positions. The court properly
credited the expert.
The father complains he lacks the opportunity to work
because the expert could not guarantee him a job. The father
misunderstands the opportunity element. Opportunity does not
require a job offer. It requires a “substantial likelihood” that
parents, with “reasonable effort,” could apply their education,
skills, and training to produce income. (Cohn, supra,
65 Cal.App.4th at p. 930; see In re Marriage of Mosley (2008)
165 Cal.App.4th 1375, 1391 [no burden to convince court
opposing parent would have secured job had opposing parent
applied]; In re Marriage of LaBass & Munsee (1997)
56 Cal.App.4th 1331, 1335, 1338–1339 [newspaper want ads
soliciting applications from people with parent’s qualifications
sufficient to prove opportunity].) The expert’s opinion that the
father qualified for jobs and his identification of several positions
sufficed.
The father’s contentions about his lack of opportunity are
hypothetical and unfounded. He never applied for work. He did
not negate evidence of opportunity. (Cf. Cohn, supra,
65 Cal.App.4th at pp. 929–931 [parent lacked opportunity for
salaried position when he applied to jobs across several counties
but got zero offers].)
The father, with reasonable effort, could apply his skills to
produce income. He has the opportunity to work.
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The father had fair notice the court might impute income.
The court discredited the father’s stated ignorance about his
obligation to make diligent efforts to provide for his daughter. In
May 2018, the court ordered the father to appear for a vocational
exam, the father met with the vocational expert, and the father
received the expert’s report. The report found the father had the
ability and opportunity to earn and listed potential jobs and
positions. This gave the father sufficient notice. The father
responded to the report with over two years of inaction. The
court’s decision to set the effective date of August 1, 2020, rather
than an earlier date, was generous to the father.
The father cites In re Marriage of Schmir (2005)
134 Cal.App.4th 43, but that case does not help him. There, a
couple dissolved their 23-year marriage and the ex-husband paid
the ex-wife monthly spousal support. (Id. at pp. 53–54.) When
the ex-wife was 61 years old, the ex-husband sought to terminate
support. A vocational expert said she could get a job. Two
months after the ex-wife received the expert’s report, the court
imputed income to her, and substantially decreased support
effective three weeks later. (Id. at pp. 54, 57.) The Court of
Appeal found no error in the order, but found it was an abuse of
discretion to terminate support without reasonable advance
notice and an opportunity to secure employment. (Id. at p. 58.)
Schmir does not control. First, the spousal support and
child support contexts are different. Parents’ first and principal
obligation is to support their minor children, consistent with the
children’s best interests. (§ 4053, subd. (a).) A.E.G. was born in
December 2016 and the father knew he needed to support her.
Three and one-half years later, he had not attempted to increase
his earnings. Second, the father knew the mother sought to
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impute income and he received the vocational expert’s report in
May 2018. The court began imputing income more than two
years later. This is unlike the timeline in Schmir.
The father had notice. The court’s order was proper and
the father must heed it. (See Moss v. Superior Court (Ortiz)
(1998) 17 Cal.4th 396, 423 [court may impose contempt sanction
or criminal penalty for violation of support order based on
earning capacity where parent’s failure to seek and accept
employment causes inability to comply with order].)
C
The court did not abuse its discretion when it imposed
$10,000 in sanctions.
The Family Code permits courts to award attorney fees and
costs as a sanction if a party’s uncooperative conduct hinders
settlement. (§ 271, subd. (a).) Courts cannot impose sanctions
that cause an unreasonable financial burden. (Ibid.)
We review an order for sanctions for an abuse of discretion.
(In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)
We affirm unless, considering all evidence in favor of the trial
court’s order, no judge could reasonably make the order. (Ibid.)
Evidence supported the order. The mother testified the
father refused her requests and compromises about A.E.G.’s pick-
up location and he insisted on speaking only to her lawyer. The
father disagrees and claims he was cooperative. The mother’s
testimony supported the court’s order, however, and the court did
not abuse its discretion by accepting her account.
The father’s manufactured claim about the mother kicking
him was another ground for sanctions. On appeal, the father
incorrectly contends he proved the mother kicked him and caused
a bruise. The video matches the trial court’s description: The
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mother’s foot brushed the father. The court properly treated the
father’s conduct and the photos of bruises with distrust. The
father consumed time in both phases of trial litigating this false
claim. Together with the father’s other conduct, the court
reasonably ordered sanctions.
The sanctions are not an unreasonable financial burden on
the father because he had accounts with over $180,000.
D
The father has waived two issues for lack of briefing. First,
in the fact section of his brief, he asserts he was “improperly
impeached.” The father does not provide legal support for his
claim, nor does he raise the issue in his brief’s argument section.
Second, the father asks us to dismiss and vacate the seek work
order. He mentions this order once in his brief without legal
argument. The father has therefore waived contentions about
these two issues. (See Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.)
DISPOSITION
The judgment is affirmed. Costs are awarded to O.E.
WILEY, J.
We concur:
STRATTON, P. J. GRIMES, J.
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