Concurring and Dissenting.—I concur insofar as we reverse the judgment in this case. I write separately, however, to explain why I believe the resolution of this judgment roll appeal should be based on factual grounds apparent on the face of the court’s statement of decision. I disagree with the majority holding legislative policy limits the trial court’s discretion to apply the earning capacity standard in this case.
California Rules of Court, rule 1274(g)(2) (rule 1274(g)(2)) states: “The court may, in its discretion, consider the earning capacity of a parent in lieu of that parent’s income, consistent with the best interests of the child.” Under a plain reading of the rule, “the best interests of the child” provide the only limitation on the court’s discretion. The trial court was correct in applying the “best interests” test to Rickey M., the child for whom support was sought under Welfare and Institutions Code section 11350. It found “nothing in the record that indicates that it would be to Rickey’s detriment or that it would not be in his best interests, if you will, that Ms. Garcia work.” In an appeal on the judgment roll, the evidence is conclusively presumed to support the court’s findings. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 522 [258 Cal.Rptr. 506].)
The majority holds the trial court’s discretion to consider that parent’s earning capacity in determining support under rule 1274(g)(2) is also limited by the legislative policy which exempts from registration for manpower services, training and employment individuals with “primary responsibility for personally providing care to a child under the age of three years.” (Welf. & Inst. Code, § 11310.) It bases this holding on two rationales. First, the majority says the policy behind the workfare exemption takes- precedence over the policy which undergirds various statutory efforts to enforce support obligations. The latter policy seeks recoupment of benefit payments “to alleviate the burden on taxpayers and to ensure that as the number of needy children [rises] benefits to each child [will] not be reduced.” (City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652, 658 [218 Cal.Rptr. 445]; see also In re Marriage of Shore (1977) 71 Cal.App.3d 290, 298 [139 Cal.Rptr. 349]; Welf. & Inst. Code, §§ 11350 and 11477.) Second, the majority states a finding that a parent exempted under Welfare and Institutions Code section 11310 has earning capacity would “effectively compel employment.” I question both rationales.
The majority offers no authority to support its conclusion the policy that single parents with very young children should be allowed to decline work outside the home takes precedence over the policy favoring efforts to preserve the public fisc. The fact the workfare exemption policy is reflected in federal statutes and regulations governing the Aid to Families with *1785Dependent Children (AFDC) program proves nothing more or less than a shared legislative concern for the well-being of young children.
Indeed, the majority fails to mention long-standing legislative policy which affirms the parents’ duty to support their minor children. Civil Code former section 4720.1, which directed the Judicial Council to adopt the child support guidelines set forth in rule 1274, states in relevant part: “(2) It is the intention of the Legislature that the courts shall adhere to the guidelines adopted by the Judicial Council pursuant to this section and shall depart from them only in exceptional circumstances. 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. In this regard, the Legislature recognizes that a parent’s circumstances and station in life are dependent upon a variety of factors, including his or her earned and unearned income; earning capacity, assets; and the income of his or her subsequent spouse or nonmarital partner, to the extent that the obligated parent’s basic living expenses are met by the spouse or other person, thus increasing the parent’s disposable income.” (Civ. Code, former § 4720.1, subd. (a)(2), italics added; see also Civ. Code, former § 196.)
Rule 1274(g)(2) grants the trial court discretion to consider a parent’s earning capacity when calculating the support obligation. Competing legislative policies affecting earning capacity do not limit that discretion, but simply add to the mix of factors properly considered by the court in determining whether the earning capacity standard should be applied in a particular case.
Earning capacity is defined as “. . . the income the [parent] is reasonably capable of earning based upon the [parent’s] age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234 [14 Cal.Rptr.2d 411, 841 P.2d 931].) Where, under substantive law, a fact is essential to the plaintiff’s claim for relief, the burden of pleading and proving that fact is on the plaintiff. (Evid. Code, § 500.) Here, the county had the burden of establishing the elements of earning capacity before the court could use earning capacity standard to determine the amount of child support reimbursement Garcia was required to pay.
In my view, a custodial parent’s exemption from workfare is a fact relevant to the element of employment opportunity. The legislative policy which supports that exemption in no way limits the court’s discretion to consider the exemption along with other facts which might affect earning capacity.
*1786I also question the majority’s conclusion an order pursuant to Welfare and Institutions Code section 11350 “would effectively compel employment of single AFDC parents with very young children . . . (Maj. opn., ante, at p. 1778.) By using this rationale, the majority attempts to bring the case within the scope of Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1332 [262 Cal.Rptr. 405]. Anderson differs from the case before us. In Anderson, the five plaintiffs were AFDC recipients, three of whom had preschool age children. They challenged family court orders requiring them to satisfy their child support obligations by undertaking job searches or voluntarily enrolling in California’s work program, Greater Avenues for Independence (GAIN). (Id. at pp. 1324-1326.) On appeal, the court ruled the family court had violated plaintiffs’ due process rights because it failed to give adequate notice of its procedures in imposing the job search orders., (Id. at pp. 1330-1331.) In a concurring opinion, the author of the majority opinion stated his view the family court lacked the power to issue job search orders to AFDC recipients who are exempt from work requirements under both federal and state law. (Id. at pp. 1334-1335 (cone. opn. of Wiener, J.).)
Here, the court did not order Garcia to go to work. Unlike the orders in Anderson, which required plaintiffs to relinquish their federal and state exemptions from work requirements or risk reduction of AFDC benefits (Anderson v. Superior Court, supra, 213 Cal.App.3d at p. 1327), the trial court order in this case subjects Garcia to a civil money judgment. A judgment pursuant to Welfare and Institutions Code section 11350 may not be enforced by contempt. (Crider v. Superior Court (1993) 15 Cal.App.4th 227, 234 [18 Cal.Rptr.2d 757].) Nor may such a judgment be levied against AFDC benefits. (Code Civ. Proc., § 704.170.) As a practical matter, the judgment may be unenforceable.
Having concluded the trial court had discretion under rule 1274(g)(2) to consider Garcia’s earning capacity, I would reverse on grounds the court’s findings, as they appear on the face of the statement of decision, do not support its determination Garcia had the opportunity to work. On that question, the court stated: “I have no evidence whatsoever about the opportunity that Ms. Garcia had to get a minimum wage job.” (Italics added.) The court continued, “But I have been presented with no authority which would indicate that the court cannot assume that there is some opportunity for a minimum wage job absent some showing by the defendant that that opportunity doesn’t exist. []j] The court can’t ignore the fact that day in and day out in this court I deal with people who are struggling with the consequences of our present recession and struggling with the consequences of unemployment, and yet they are attempting to get minimum wage jobs, and I never hear the argument that those jobs don’t exist.” In the absence of proof of *1787opportunity, the court improperly shifted the burden of proof of lack of opportunity to Garcia.
In addition, the court appears to take judicial notice of other proceedings to support its statement, “I never hear the argument that those jobs don’t exist.” What the court heard is irrelevant. The question is whether Garcia had employment opportunities available to her, that is, “an employer who [was] willing to hire.” (In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372 [263 Cal.Rptr. 243].)