Filed 4/3/23 Marriage of Tyson and Calhoun 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
In re the Marriage of MAUREEN B315029
AMBER TYSON and JOSHUA
RICHARD CALHOUN.
(Los Angeles County
MAUREEN AMBER TYSON, Super. Ct. No. 19STFL02006)
Appellant,
v.
JOSHUA RICHARD CALHOUN,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County. Anne K. Richardson, Judge. Affirmed.
Hersh Mannis, Joseph Mannis, Andrew Stein and Sarah
Luetto for Appellant.
James Karagianides; McAlarnen & Sun and Julie
McAlarnen for Respondent.
**********
Appellant Maureen Amber Tyson appeals from the denial
of her postjudgment motion requesting a modification of child
support, and the court’s award of attorney and accountant’s fees
to respondent Joshua Richard Calhoun.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent married in February 2015.
Appellant is a doctor who owns and operates several medical
related businesses. Respondent is a licensed real estate agent
who also owns a medical transport business. During the
marriage, appellant and respondent had two daughters, M.M.C.
born in January 2016 and C.M.C. born in November 2017.
1. Stipulated Judgment of Dissolution
In early 2019, appellant and respondent separated. A
stipulated judgment of dissolution was entered on December 20,
2019. Both appellant and respondent waived any right to spousal
support. In accordance with the parties’ prenuptial agreement,
appellant paid respondent an equalization payment of $320,000.
The parties agreed to joint legal and physical custody of
their daughters. Under the terms of the stipulated judgment,
appellant is required to pay monthly child support to respondent
in the amount of $17,500. It also requires appellant to pay for
the girls’ health insurance and private school tuition. Appellant
and respondent agreed to be jointly responsible for the girls’
agreed-upon extra-curricular activities, and they would each be
responsible for their own costs related to any childcare services
they might need while the girls were in their custody.
Appellant and respondent acknowledged that “[i]n
accordance with Family Code § 4065,” they were “fully informed
of their rights concerning child support” and agreed to all
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provisions “without coercion or duress,” the child support
provisions are “in the minor children’s best interests,” and their
needs will be “adequately met” by the agreed-upon terms. The
judgment further identifies certain findings regarding the
calculation of child support, including that “A. [Appellant] has
gross monthly taxable income of $219,000 per month” and
“B. Respondent may earn gross annual income up to $100,000
. . . without same being considered in any child support
modification proceeding” (italics added).
2. Postjudgment Motion for Modification of Child
Support
Less than seven months after entry of the stipulated
judgment, appellant filed a motion requesting a downward
modification in her monthly child support obligation to the
statutory guideline. (Fam. Code, § 4055.) She signed a
declaration in support of the motion dated June 30, 2020,
describing in part how her sources of income had changed since
she signed the stipulated judgment some months before on
December 6, 2019. Appellant contended her monthly income had
decreased drastically from $219,000 per month to $44,944 (or as
low as $39,868, depending on whether the court would credit her
with losses on her rental property in Rancho Mirage).
Appellant said her income sources were her medical
practice (Crown City Rehabilitation Institute), her two medical-
related businesses, Precision Connect and Transport Assist, and
several rental properties. Appellant cited the pandemic as the
primary reason her income had decreased. She explained that
her medical practice consisted largely of patients with elective
physical therapy that required in-person visits, and therefore
many patients were choosing not to come in for treatment. The
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pandemic was also causing a significant increase in business
expenses for all three of her businesses, including purchasing
personal protective equipment for employees and patients, and
upgrading computers and providing IT support for employees
working from home. Appellant further reported that Blue Shield,
her main contract for both Precision Connect and Transit Assist,
was making demands as a condition of keeping its business and
those demands were also resulting in an increase in expenses,
including having to purchase her own vehicles for medical
transport instead of relying on subcontractors.
Appellant said the pandemic had also reduced her rental
income. She said her house in Rancho Mirage that was used as a
vacation home during part of the marriage had been a rental
income property since December 2018. Appellant said she cannot
expect to generate much income from this house “in the COVID-
19 world” because it is listed for sale, and because short-term
rentals had dropped off due to the cancellation of the Coachella
and Stagecoach music festivals and bans on short-term rentals.
She said the tenant in her Long Beach residential property was
not working due to COVID-19 and had not paid the rent in June
2020. She said one of the houses she owns on Arden Road in
Pasadena, where respondent had lived until recently (paying
$7,500 per month in rent) had to be prepared for rental, and a
new tenant had to be found. She said she removed another house
on Arden Road in Pasadena from her list of assets because her
mother lives there.
Appellant said nothing in her declaration about the other
real estate holdings in which she owned interests, which she
listed as her sole and separate property less than seven months
earlier in the stipulated judgment. The stipulated judgment
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listed two additional residential properties on Arden Road and
one on Hastings Heights in Pasadena, one on Ocean Drive in
Oxnard, and an undeveloped parcel in Rancho Mirage, about
which appellant provided no information about their income-
producing potential.
Appellant emphasized that she had never received income
and was not currently receiving any income from her status as a
beneficiary of the Tyson Children’s Trust No. 4 (Trust No. 4), a
trust wholly owned and controlled by her mother. Trust No. 4
was identified in the stipulated judgment as part of appellant’s
separate property.
Respondent opposed the motion, arguing that appellant has
substantial assets besides income from her medical practice and
businesses, including millions of dollars in real estate holdings
and substantial assets in Trust No. 4 which, according to the
parties’ prenuptial agreement had assets valued at
approximately $37.4 million. Respondent’s forensic accountant,
Jason P. Wegis, attested to various discrepancies and omissions
in appellant’s financial documentation, and opined that appellant
was deflating her actual income and her ability to access
nonincome producing assets.
The hearing on appellant’s motion was continued several
times. The parties filed supplemental income and expenses
declarations as well as supplemental declarations with updated
information, in the months leading up to the July 2021 hearing.
The parties’ respective forensic accountants also provided
supplemental declarations.
Between the time she filed her motion in July 2020 and the
hearing a year later, appellant filed five supplemental
declarations. In her supplemental declaration filed June 21,
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2021, appellant reported that her monthly income had declined to
just over $7,000. Blue Shield had cancelled its contracts with
her, and both Precision Connect and Transit Assist were being
closed down. As for her rental properties, appellant said she had
taken her property in Rancho Mirage off the market due to lack
of interest and was attempting to rent it again, while also
considering updates to the home to improve her chances of
eventually selling it. She was able to obtain a short-term tenant,
but just for two months at $15,000 per month and had a new
tenant in one of her Pasadena properties. Appellant said she
anticipated her monthly income might rise to approximately
$12,000 in light of the additional monies from her rental
properties. Appellant’s forensic accountant, JB Rizzo, also filed a
supplemental declaration, disagreeing with Mr. Wegis’s analysis
and supporting appellant’s assertion of a significant decline in
income.
The hearing on appellant’s motion and respondent’s
request for fees was held on July 14, 2021. During the hearing,
the court said it had concerns about appellant’s credibility and
did not believe she had met her burden for obtaining a
modification. The parties argued at some length, focused
primarily on the issue of whether, notwithstanding any decrease
in income from appellant’s medical practice and businesses, she
nonetheless had access to substantial assets, including her real
estate holdings and her beneficial interest in Trust No. 4.
The court said it believed there was a “huge disparity”
between the parties due to appellant’s real estate holdings alone.
“[T]he children are clearly living one lifestyle with mom and
living a completely different lifestyle with dad. I just don’t see
how that is in the children’s best interest.” Appellant was placed
under oath to testify in support of her request for relief from the
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court. Appellant agreed with the court that she can access her
real estate holdings and try to increase her earnings as a doctor
in order to maintain her standard of living and provide support
for her children. But, she emphasized that was not enough, and
she received no income, and could not access any income or
monies, from Trust No. 4 that was controlled by her mother.
3. The Court’s Orders
The court issued a minute order denying appellant’s motion
for a modification for failure to demonstrate changed
circumstances and ordered respondent to submit a written order
for signature by the court. The court took respondent’s fee
request under submission.
On August 3, 2021, the court issued its order granting in
part respondent’s request for fees. Respondent had requested
total fees in the approximate amount of $391,000. The court
ordered appellant to pay respondent attorney fees in the amount
of $150,000 and accountant’s fees in the amount of $100,000. The
court recited its findings in support of its award of fees to
respondent. Among other things, the court found that even
without relying on the millions of dollars in Trust No. 4 “which
may or may not be beyond [appellant’s] current ability to access,”
and without considering the value of appellant’s residence,
appellant still had “by her own admission” other real estate
holdings from which she could obtain the funds necessary to pay
the fee award.
On December 2, 2021, the court entered its written order
denying appellant’s request for a modification of child support.
The order included specific findings that appellant was not
credible, had made the request for modification “in bad faith,”
and had not satisfied her burden of proof on the issue of changed
circumstances. The court ordered appellant to continue paying
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monthly child support in the amount of $17,500 in accordance
with the parties’ stipulated judgment of dissolution entered in
December 2019.
The court subsequently denied appellant’s request for
findings in accordance with Family Code section 4056, stating it
had denied appellant’s motion on the ground she did not
demonstrate changed circumstances, and therefore no statutory
findings were required.
Appellant appealed from both orders. We consolidated the
appeals under No. B315029.
DISCUSSION
1. Appellant’s Postjudgment Motion for a Modification
of Child Support.
We review an order denying a postjudgment request to
modify child support under the deferential abuse of discretion
standard. (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357
(Usher); accord, In re Marriage of Rosenfeld & Gross (2014)
225 Cal.App.4th 478, 485.) A trial court’s exercise of discretion
with regard to child support must be informed by the statutory
requirements which are intended to effectuate California’s strong
public policy in favor of adequate child support. (Usher, at p. 357;
accord, In re Marriage of Williams (2007) 150 Cal.App.4th 1221,
1234; see also Fam. Code, §§ 4050–4076.)
In conducting our review of the court’s order, we resolve
any evidentiary conflicts in favor of the trial court’s
determination and defer to its credibility determinations. (In re
Marriage of Bodo (2011) 198 Cal.App.4th 373, 384; In re
Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) We
reverse only where prejudicial error is affirmatively
demonstrated. (Bodo, at p. 384.) A trial court abuses its
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discretion if its order was arbitrary, capricious, whimsical, and
outside the bounds of reason.
Appellant contends the court abused its discretion by
disregarding both state and federal law regarding the
modification of child support orders. Appellant insists the court’s
order was “a child support order” and as such, the court was
required to first calculate guideline support and also to state
findings to justify a deviation from the guideline amount which is
otherwise presumed correct.
But the court did not issue a new child support order or
modify the existing order. The court denied appellant’s motion on
the ground she had not affirmatively demonstrated a material
change in circumstances—a necessary predicate for the court to
consider whether a modification of the existing support order was
warranted. In denying appellant’s motion, the court expressly
acknowledged the existing support order from the parties’ 2019
stipulated judgment remained in effect.
Appellant cites no authority for the proposition the court
must calculate guideline support pursuant to Family Code
section 4050 before determining whether the moving party has
even established changed circumstances. Neither of the
two cases appellant cites, Rojas v. Mitchell (1996) 50 Cal.App.4th
1445 and Wilson v. Shea (2001) 87 Cal.App.4th 887, 891,
supports her argument. Both cases accurately state that a court
making a child support order must calculate guideline support.
But neither case concerns a denial of a modification request on
the grounds the moving party failed to demonstrate changed
circumstances.
Our task here is to determine whether the court abused its
discretion in concluding that appellant failed to demonstrate
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changed circumstances. It is well established that courts will not
modify child support “unless there has been a material change of
circumstances following the previous determination.” (Usher,
supra, 6 Cal.App.5th at p. 357; accord, In re Marriage of
Brinkman (2003) 111 Cal.App.4th 1281, 1292 [“party seeking a
modification must present evidence that establishes a change of
circumstances”]; In re Marriage of Laudeman (2001)
92 Cal.App.4th 1009, 1016 (Laudeman) [stipulated agreement to
pay support above guideline formula cannot be modified
downward unless moving party “presents admissible evidence of
changed financial circumstances”].)
“ ‘There are no rigid guidelines for evaluating whether
circumstances have sufficiently changed to warrant a child
support modification.’ ” (Usher, supra, 6 Cal.App.5th at p. 358.)
“Each case stands or falls on its own facts, but the overriding
issue is whether a change has affected either party’s financial
status.” (Laudeman, supra, 92 Cal.App.4th at p. 1015.) Where,
as here, the existing child support order was the result of a
stipulated agreement between the parties, the trial court is
required to give effect to the parties’ intent and reasonable
expectations as expressed in the agreement in resolving whether
a material change in circumstances has occurred. (Usher, at
p. 358.)
Respondent argued, and the trial court agreed, that
notwithstanding any decrease in appellant’s income from her
medical practice and businesses, she still had substantial assets
upon which she could rely. In Usher, the supporting father
experienced a significant drop in monthly income from
approximately $350,000 to just over $70,000. (Usher, supra,
6 Cal.App.5th at p. 352.) He therefore sought a modification of
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his monthly child support obligation which he, like appellant
here, had agreed to in a stipulated judgment. The trial court
granted father a reduction in child support but the appellate
court reversed, concluding the court had abused its discretion in
finding changed circumstances because of the evidence of father’s
overall wealth from sources other than employment income. The
court said, “[w]e conclude that substantial evidence did not
support a finding that [father’s] reduction in employment income
constituted a material change in his ability to provide the level of
child support he had agreed was ‘in [the] best interest’ of his son.”
(Id. at p. 363.)
The same is true here. The record does not contain
substantial evidence that appellant’s decrease in income
materially impaired her ability to pay the child support to which
she agreed. Appellant has failed to show the court abused its
discretion in denying her request for a modification for failing to
show the required changed circumstances.
2. The Award of Fees
Appellant also contends the trial court abused its discretion
in awarding respondent $150,000 in attorney fees and an
additional $100,000 for accountant’s fees. Appellant says the fee
award is unsupportable for the same reasons as the court’s denial
of her request for a modification of her child support obligation.
She says the court improperly imputed income to her from Trust
No. 4 and failed to acknowledge the loss of income she
experienced due to the pandemic, including the closure of her
two companies, Precision Connect and Transit Assist.
Family Code section 2030, subdivision (a)(1) provides in
relevant part that “the court shall ensure that each party has
access to legal representation” and may order one party to pay
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the other party “whatever amount is reasonably necessary for
attorney’s fees and for the cost of maintaining or defending the
proceeding.” An award of fees should be “just and reasonable
under the relative circumstances of the respective parties.”
(§ 2032.)
The court made specific findings on the parties’ relative
financial disparity and the fact that appellant had substantial
assets from which to pay fees. Appellant has not demonstrated
the court awarded fees in contravention of the statutory scheme
or otherwise committed error.
DISPOSITION
The postjudgment order denying appellant Maureen Amber
Tyson’s motion for a modification of child support is affirmed.
The order awarding $250,000 in fees to respondent is also
affirmed.
Respondent Joshua Richard Calhoun shall recover costs of
appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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