T.W. v. M.S. CA4/1

Filed 4/20/23 T.W. v. M.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

T.W., D080542

Plaintiff and Appellant,

v.
(Super. Ct. No. DN188889)
M.S.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County,
Victor M. Torres, Judge. Reversed.

Family Violence Appellate Project, Cory Hernandez, Arati Vasan,
Jennafer D. Wagner, Erin C. Smith; Fenwick & West, Jonathan G. Tamimi
and Catherine Kevane, for Plaintiff and Appellant.
M.S., in pro. per., for Defendant and Respondent.
In 2016, plaintiff/mother T.W. and defendant/father M.S. had a son, C.
Shortly after C.’s birth, the parties became involved in litigation over custody
and visitation of C. that has led to four separate appeals that are currently

pending in this court.1
In this appeal, T.W. seeks reversal of the trial court’s February 28,
2022 order decreasing M.S.’s monthly child support obligation from $485 to
$1. The court issued its February 28 order after receipt of M.S.’s motion for
reconsideration (Motion) of its February 10, 2022 order denying such relief.
On appeal, T.W. claims the trial court erred in reducing M.S.’s child
support obligation because (1) M.S., as a vexatious litigant, failed to obtain
permission before filing his Motion (see Code Civ. Proc., § 391.7, subd. (a));
(2) M.S.’s Motion in any event was untimely, not “based upon new or different
facts, circumstances, or law” (see id., § 1008, subd. (a)), and he failed to
provide a satisfactory explanation for not providing such earlier, in his
original motion; and (3) the evidence on which the court relied was “not

credible,” as it itself noted in the February 10 and February 28 orders.2

1 See also D079500 (M.S.’s appeal from the June 4, 2021 judgment
(Judgment); D079984 (T.W.’s appeal from the June 30, 2021 order denying
her request to permanently renew the domestic violence restraining order
against M.S. issued on June 20, 2018); and D080174 (M.S.’s appeal from the
order denying his own request for a domestic violence restraining order
against T.W.).

2 T.W. also argued she was denied an opportunity to be heard because
the trial court modified the February 10 order without notice. Because we
reverse on other grounds, we deem it unnecessary to reach this claim of error.

2
 As we explain, we agree with T.W. that the trial court erred in reducing
M.S.’s child support obligation after initially denying this relief in its

February 10 order. We therefore reverse the February 28 order.3
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
T.W. and M.S. met in 2015. They briefly dated but never married.
C. was born in August 2016. T.W. initiated proceedings in this case in
September 2016 by filing a petition to establish parental relationship, after
M.S. had signed a declaration confirming paternity on the day C. was born.
Since C.’s birth, a “long history” of litigation has ensued between the parties.
In June 2018, the court issued a domestic violence restraining order
against M.S. protecting T.W. and C. for a three-year term. In February 2019,
the court found M.S. a vexatious litigant based on his continuous and
duplicative filings. And on March 30, 2021, following a four-day bench trial,
the court issued a 24-page final statement of decision and ruling (SOD) that
was subsequently incorporated into the Judgment. The SOD and resulting
Judgment are included in the record in the instant appeal and among other
relief allowed visitation to resume between M.S. and C. after a long no-
contact period.
B. Child Support
Pursuant to a request for order filed by T.W. in June 2018, the trial
court in October 2018 held a hearing covering various subject matters

3 In reversing, we note that the trial court has continuing jurisdiction to
modify a child support order upon a showing of changed circumstances. (See
In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234 (Williams); see
also Cal. Rules of Court, rule 5.260(c) [the party requesting modification of a
prior child support order “must include specific facts demonstrating a change
of circumstances”].)

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including the parties’ child support obligation. At this hearing, as confirmed
by the court in a minute order on December 10, it ordered M.S. to pay child
support in varying amounts dating back to August 2017; set $4,278 as the
amount M.S. owed T.W. in child support arrears from August 1, 2017 to
September 30, 2018; and commencing October 1, 2018, set M.S.’s monthly
child support payment at $485, and ordered him to pay an additional $100
per month toward the amount in arrears until repaid in full. M.S.’s monthly
child support payment of $485 was based on a mandatory, statewide uniform
guideline (discussed post), with him then reporting monthly income of $2,125.
About a month after the October 2018 hearing, M.S. filed a request for
order to reduce his child support obligation. In December 2018, the trial
court denied this request, noting M.S. presented no evidence to “ ‘warrant a
reconsideration of the Court’s recent order regarding child support’ ”; and
that his request, in any event, was untimely under Code of Civil Procedure
section 1008.
In January 2020, M.S. sought a prefiling order to modify his child
support obligation. In February 2020 the trial court denied M.S.’s request,
noting it already had ruled on this “identical issue”; that M.S.’s renewed
request showed why he had been deemed a vexatious litigant; and that his
request constituted “harassment.”
In the March 30, 2021 SOD, the trial court reserved jurisdiction “over
the issue of child support” and directed that the “issues of child support and
travel costs” for visitation between C. and M.S. were “to be addressed by the
assigned independent calendar department, Department 18.” The SOD
directed T.W.’s counsel to prepare a proposed judgment incorporating the
SOD. In the proposed judgment submitted by counsel, under the heading
“Child Support” the court struck paragraph 21 providing: “Child Support

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remains as previously ordered on October 15, 2018”; but let stand in the
Judgment paragraph 22, providing: “The Court reserves jurisdiction
regarding child support.”
C. M.S. Renews His Request to Modify Child Support
In October 2021, M.S. again sought a modification of his child support
obligation. In support, M.S. submitted an income and expense declaration
providing he was a “principal” in a company that, due to the pandemic, was
unable to pay him a salary; that he was earning $75 per month by leasing his
vehicle to a “corporate entity”; that he then was receiving $100 per month in
stimulus payments and had $1,500 in “[c]ash and checking accounts”; that he
paid no rent or utilities to the property owner where he and his daughter
resided in return for his work and “manual labor” on the property; that he
was solely responsible for support of L., with their monthly expenses totaling
$75; and that he owed $220,000 in student loans.
Regarding child support and visitation, M.S. noted C. spent about 10
percent of his time with M.S. and the balance with T.W.; that because C. had
been allowed to move with T.W. to New York, as provided in the SOD, the
court should order her to pay the expenses of bringing C. to San Diego for
court-ordered visitation with M.S.; and that because she earned about $9,500
a month, the court also should order her to pay him “no less than $500 per
month” per the uniform support guideline.
T.W. responded by submitting a declaration attached to “Item 10” of
form “FL-320.” However, the declaration she included in the record is
unsigned and undated. In addition, form “FL-320” is not part of the record.
In any event, T.W. alleges in her declaration that M.S. has never paid
her any child support for C.; that she earns about $9,500 per month in “gross
income”; that because M.S.’s business was unsuccessful and he has an

5
obligation to support C., M.S. needed “to find a new source of income”; that
M.S.’s statement he was supporting himself and L. on $75 per month, or
“$1.97 per day,” was “ludicrous” and “absurd”; that M.S. was hiding his “true
income” and income should be imputed to him; and that he should pay for all
travel costs for visits with C., inasmuch as he was not paying, and had never
paid, child support, in contravention of the trial court’s orders.
D. The February 10 Order and M.S.’s Motion
On February 10, 2022, the trial court issued its order after an
unreported January 24, 2022 hearing. As relevant to this appeal, the court
denied M.S.’s request to modify his child support obligation, finding he “failed
to show a material change of circumstances” that would justify a reduction in
the October 15, 2018 child support order. The court also found M.S.’s
representation that he earns $75 a month “not credible,” as he claimed no
expenses for rent, transportation and similar expenses which he stated were
supplied to him at no cost; and that M.S. also failed to submit a “Profit and
Loss Statement for self-employment income or tax returns” as required by
law. On February 14, the clerk of the court served the February 10 order on
the parties.
On February 24, M.S. filed his Motion. He argued the trial court
already had modified the October 15, 2018 child support order in the SOD
when it struck paragraph 21 from the Judgment, leaving only paragraph 22
in which it “reserve[d] jurisdiction regarding child support.” M.S. stated he
gave T.W. notice of the Motion on February 24 at 5:00 p.m.
E. February 28 Order Modifying M.S.’s Child Support Obligation
In the February 28 order, the trial court noted M.S. had neither
requested nor received permission to file his Motion, which he claimed was
for “ ‘clarification’ and for ‘reconsideration.’ ” The court continued,

6
“Nevertheless, the court finds sua sponte that it made its February 10, 2022
[order] by considering [M.S.’s] Request for Order under the standard of
whether he showed a material change of circumstances to change the 2018
order. Instead, the court will modify its 2/10/2022 order to set Child Support
as follows.”
The trial court reiterated that M.S.’s representation he was earning
and spending only $75 per month was “not credible”; that he “claim[ed] no
expenses for rent, transportation, etc., and claim[ed] that these needs are
supplied at no cost to him, or in exchange for bartered physical labor”; and
that he failed to comply with the law requiring him to submit a “profit and
Loss Statement for self-employment income or tax returns.”
However, based on the evidence from the January 24 unreported
hearing that M.S. had an “actual timeshare of 1 percent” with C., the trial
court revised M.S.’s monthly child support payment obligation to $1 based on
calculations in a DissoMaster report it attached to the February 28 order,
with this new amount commencing on October 21, 2021, the date M.S. filed
his original motion. Although it found M.S. “not credible” in claiming his
monthly earning and expenses were only $75, the court nonetheless used this
figure in creating the DissoMaster report. The court also refused to impute
$2,125 of monthly income to M.S., as previously requested by T.W.
The trial court ruled that M.S. was in arrears $4 for the period between
November 1, 2021 and February 1, 2022. It ordered M.S. to pay T.W. this
amount, plus $1 more, by March 10, 2022. The court concluded any orders
not in conflict with the February 28 order remained in full force and effect,
and “reminded” M.S. that as a vexatious litigant, in the future he must
receive permission to file any new matters as required by Code of Civil

7
Procedure section 391.7, subdivision (a), including “a motion to reconsider
this modification.”
II. DISCUSSION
A. Vexatious Litigants and the Prefiling Requirement
T.W. contends the trial court erred by accepting in the first place M.S.’s
Motion and by reconsidering his child support obligation because as a
vexatious litigant subject to a prefiling order, he was required to obtain
permission before filing the Motion. We agree.
“The vexatious litigant statutes . . . are designed to curb misuse of the
court system by those persistent and obsessive litigants who, repeatedly
litigating the same issues through groundless actions, waste the time and
resources of the court system and other litigants.” (Shalant v. Girardi (2011)
51 Cal.4th 1164, 1169 (Shalant).) Code of Civil Procedure section 391,
subdivision (b) defines “[v]exatious litigant” “as a person who has, while
acting in propria persona, initiated or prosecuted numerous meritless
litigations, relitigated or attempted to relitigate matters previously
determined against him or her, repeatedly pursued unmeritorious or
frivolous tactics in litigation, or who has previously been declared a vexatious
litigant in a related action.” (Shalant, at pp. 1169–1170, citing Code Civ.
Proc., § 391, subd. (b).)
Code of Civil Procedure sections 391 to 391.6 were enacted in 1963,
while Code of Civil Procedure section 391.7, the section at issue in the instant
appeal, was added in 1990. (Shalant, supra, 51 Cal.4th at p. 1169.) “ ‘[T]he
Legislature enacted [Code of Civil Procedure] section 391.7 to provide the
courts with an additional means to counter misuse of the system by vexatious
litigants. [Code of Civil Procedure] [s]ection 391.7 “operates beyond the
pending case” and authorizes a court to enter a “prefiling order” that

8
prohibits a vexatious litigant from filing any new litigation in propria
persona without first obtaining permission from the presiding judge.
[Citation.] The presiding judge may also condition the filing of the litigation
upon furnishing security as provided in [Code of Civil Procedure] section
391.3.” (Shalant, at p. 1170, citing Code Civ. Proc., § 391.7, subd. (b).) Code
of Civil Procedure section 391.7 is “a powerful new tool designed ‘to preclude
the initiation of meritless lawsuits and their attendant expenditures of time
and costs.’ ” (Shalant, at p. 1170.)
Code of Civil Procedure section 391.7, subdivision (c) provides in part
that a vexatious litigant subject to a prefiling order “may not file any
litigation . . . unless the vexatious litigant first obtains an order from
the . . . presiding judge permitting the filing.” Subdivision (d) of this statute
provides that, for purposes of the vexatious litigant statute, the term
“ litigation’ includes any petition, application, or motion other than a
discovery motion, in a proceeding under the Family Code or Probate Code, for
any order.” (Italics added.)
Turning to the instant case, M.S. filed his Motion without first
obtaining leave from the presiding judge, or even the trial court that issued
the February 10 order, in contravention of Code of Civil Procedure section
391.7, subdivisions (c) and (d). Indeed, the court itself in its February 28
order acknowledged that M.S. needed a prefiling order to proceed with the
Motion and had not sought permission to file it.
In addition, the record shows the trial court received the Motion on
February 28 and “sua sponte” modified the February 10 order that same day.
As a result, and because the “clerk mistakenly file[d] the litigation without
the [prefiling] order” (see Code Civ. Proc., § 391.7, subd. (c)), T.W. was
deprived of her statutory right to file and serve a notice “stating that the

9
plaintiff is a vexatious litigant subject to a prefiling order,” which notice
would have “automatically stay[ed]” the Motion and led to its “automatic[ ]
dismiss[al]” “unless the plaintiff within 10 days of the filing of that notice
obtains an order from the presiding . . . judge permitting the filing of the

litigation as set forth in subdivision (b)” (ibid., italics added).4
Even assuming the trial court had discretion to permit the filing of the
Motion without M.S. first obtaining a prefiling order, we nonetheless
conclude the court erred for the separate reason that the Motion failed to
comply with Code of Civil Procedure section 1008. We turn to that issue
next.
B. Reconsideration
T.W. first contends the Motion was untimely. We disagree.
Code of Civil Procedure section 1008, subdivision (a) provides in part
that a party may file a motion for reconsideration “within 10 days after
service upon the party of written notice of entry of the order.” (Code Civ.
Proc., § 1008, subd. (a).) Under Code of Civil Procedure section 1013,

4 Subdivision (b) of Code of Civil Procedure section 391.7 provides: “The
presiding . . . judge shall permit the filing of that litigation only if it appears
that the litigation has merit and has not been filed for the purposes of
harassment or delay. The . . . presiding judge may condition the filing of the
litigation upon the furnishing of security for the benefit of the defendants as
provided in Section 391.3.” (Code Civ. Proc., § 391.7, subd. (b).)

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subdivision (a), service of an order by mail extends the 10-day period by five

calendar days.5
In the instant case, the clerk of the trial court served the February 10
order on the parties on February 14. M.S. filed his Motion on February 24,
within 15 days from the date of service. Thus, his Motion was timely.
But that does not end our analysis. T.W. also contends the Motion
failed to comply with other requirements of Code of Civil Procedure section
1008. We agree.
A party effected by an order granted by the court may seek
reconsideration of the order based only on “new or different facts,
circumstances, or law.” (Code. Civ. Proc., § 1008, subd. (a); Crotty v. Trader
(1996) 50 Cal.App.4th 765, 771 (Crotty) [“section 1008 gives the court no
authority when deciding whether to grant a motion to reconsider to
‘reevaluate’ or ‘reanalyze’ facts and authority already presented in the earlier
motion” (italics added)].) “The party making the application shall state by
affidavit what application was made before, when and to what judgment,
what order or decisions were made, and what new or different facts,
circumstances, or law are claimed to be shown.” (Code. Civ. Proc., § 1008,
subd. (a).)

5 Subdivision (a) of Code of Civil Procedure section 1013 provides in part
that in “case of service by mail,” “[s]ervice is complete at the time of the
deposit, but any period of notice and any right or duty to do any act or make
any response within any period or on a date certain after service of the
document, which time period or date is prescribed by statute or rule of court,
shall be extended five calendar days, upon service by mail, if the place of
address and the place of mailing is within the State of California.” (See Weil
& Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2022), ¶ 9:326.1 [noting the “10-day deadline for seeking
reconsideration is extended under [Code of Civil Procedure section] 1013 for
service by mail”].)

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 Here, based on our independent review of the Motion, we conclude M.S.
failed to offer “new or different facts” and/or “circumstances” in his request

for reconsideration of the February 10 order.6 (See Code Civ. Proc., § 1008,
subd. (a); In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 (Herr)
[facts of which movant was aware at time of original ruling are not “new or
different” within meaning of statute].)
Indeed, in his original filing on October 5, 2021, M.S. referenced
paragraph 22 of the Judgment, noting the “[r]eason[ ]” he was entitled to
“relief” for child support was “to be addressed by the assigned independent
calendar department, department 18 (see pg[.] 24 of [the SOD], filed
March 30, 2021),” after the trial court struck paragraph 21 of the proposed
judgment. But as we have noted, M.S. relied on these same facts and
circumstances in seeking reconsideration of the February 10 order. And he
admitted as much in his Motion when he stated, “On January 24, 2022
hearing[,] I presented this information to Judge Torres and he refused to look
at it.” (Italics added.)
We thus conclude the trial court abused its discretion by considering
M.S.’s Motion when he presented no “new or different facts” or
“circumstances” in support. (See Code Civ. Proc., § 1008, subd. (a); Crotty,
supra, 50 Cal.App.4th at p. 771; Herr, supra, 174 Cal.App.4th at p. 1468; see
also New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212
[a trial court’s ruling on a reconsideration motion is reviewed under the
abuse of discretion standard].)

6 In his Motion, M.S. did not assert any “new law” warranting
reconsideration of the February 10 order. (See Code Civ. Proc., § 1008, subd.
(a).)

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 Finally, when M.S. filed his original motion on October 21 he clearly
was aware of the facts and circumstances concerning child care and
paragraphs 21 and 22 of the proposed judgment. Assuming arguendo they
were “new or different” facts or circumstances (despite our conclusion
otherwise), M.S. failed to give a “satisfactory explanation” why he did not
present them earlier in his original motion. (See Glade v. Glade (1995)
38 Cal.App.4th 1441, 1457 [a party seeking reconsideration “must provide not
just new evidence or different facts, but a satisfactory explanation for the
failure to produce it at an earlier time”]; Mink v. Superior Court (1992)
2 Cal.App.4th 1338, 1342 [same].) His failure to satisfactorily explain why he
waited to provide these allegedly “new or different” facts or circumstances
provides a separate basis for reversal of the February 28 order.
C. Child Custody
As we have noted, in modifying the February 28 order, the trial court
recognized M.S. was a vexatious litigant and had failed to obtain a prefiling
order for his Motion; and which Motion we also have determined did not
comply with Code of Civil Procedure section 1008. The court nonetheless
“sua sponte” reduced M.S.’s child support obligation. T.W. separately
contends this was error because in so doing the court relied on evidence it
found “not credible.” We agree.
“The duty of a parent to support the parent’s child or children is a
fundamental parental obligation.” (Moss v. Superior Court (1998) 17 Cal.4th
396, 405.) California has established a mandatory, statewide uniform
guideline to determine court-ordered child support. (See Fam. Code,
§§ 4050–4076.) “[T]he uniform guideline statutes require that, in
determining the appropriate amount of child support (whether pendente lite,
permanent, or on a request for modification of an existing order), all

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California courts must adhere to the guideline formula.” (In re Marriage of
Laudeman (2001) 92 Cal.App.4th 1009, 1013.)
Courts must adhere to certain principles when calculating child
support, including: “A parent’s first and principal obligation is to support his
or her minor children according to the parent’s circumstances and station in
life” (Fam. Code, § 4053, subd. (a)); “Both parents are mutually responsible
for the support of their children” (id., subd. (b)); “The guideline seeks to place
the interests of children as the state’s top priority” (id., subd. (e)); and
“Children should share in the standard of living of both parents. Child
support may therefore appropriately improve the standard of living of the
custodial household to improve the lives of the children” (id., subd. (f)).
Family Code section 4055 sets out the mathematical formula to be
applied to determine each parent’s monthly “net disposable income” for
purposes of the guideline. (Fam. Code, § 4055, subd. (b)(2).) Because this
section “involves, literally, an algebraic formula,” trial courts use the
DissoMaster computer program to calculate the guideline child support. (In
re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523–524, fn. 2.) This
calculation is presumptively correct. (Fam. Code, § 4057, subd. (a); In re
Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359.)
The statutory scheme also permits a trial court to modify or terminate
a child support order “at any time as the court determines to be necessary.”
(Fam. Code, § 3651, subd. (a).) A party seeking modification of a child
support order has the burden to “ ‘introduce admissible evidence of changed
circumstances.’ ” (Williams, supra, 150 Cal.App.4th at p. 1234; see Cal. Rules
of Court, rule 5.260(c) [the party requesting modification of a prior child
support order “must include specific facts demonstrating a change of
circumstances”]; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1054

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[“The party seeking the modification bears the burden of showing that
circumstances have changed such that modification is warranted.”].)
Turning to the instant case, the trial court in its February 28 order
repeated its conclusion from the February 10 order that M.S.’s representation
he was supporting himself and his daughter on $75 per month was “not
credible.” The court in both orders noted this amount “happen[ed] to coincide
with his listed monthly expenses of $75.00 (consisting of $60 for groceries and
household supplies and $15.00 for telephone, cell phone and email).” The
court nonetheless relied on the $75 figure when it generated the DissoMaster
report attached to the February 28 order, and ruled M.S.’s child support
should be reduced accordingly to $1 starting from the date of his original
filing of the motion.
Because the trial court found this evidence “not credible,” we conclude
there is no substantial evidence to support the DissoMaster input data that
M.S.’s monthly income was $75, which report in turn was the basis for the
court to reduce M.S.’s child support obligation. For this separate reason, we
reverse the February 28 order.

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 III. DISPOSITION
The February 28 order is reversed. The parties to bear their own costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.

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