Riverside County Dept. of Child Support Services v. Sanderson CA4/2 (2025) · DecisionDepot
Riverside County Dept. of Child Support Services v. Sanderson CA4/2
California Court of Appeal Sep 17, 2025 No. E083830Unpublished
Filed 9/17/25 Riverside County Dept. of Child Support Services v. Sanderson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RIVERSIDE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, E083830 Plaintiff and Respondent, (Super.Ct.No. RIK1600156) v. OPINION BREANNA N. SANDERSON,
Defendant and Appellant;
JEFFREY MILLARD,
Respondent.
APPEAL from the Superior Court of Riverside County. Sharunne L. Foster,
Temporary Judge. (Pursuant to Cal. Const., art VI, §21.) Reversed with directions.
Breanna Sanderson, in pro. per., for Defendant and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Maureen C. Onyeagbako and Jennifer C. Adams, Deputy Attorneys General, for Plaintiff
and Respondent.
1
No appearance for Respondent.
Defendant and appellant Breanna Sanderson appeals from the family court’s order
requiring her to pay $664 each month in child support. In June 2023, plaintiff and
respondent Riverside County Department of Child Support Services (DCSS) brought a
motion for modification of child support for the three children of Sanderson and Jeffrey
Millard.1 After two hearings, the family court rejected that Sanderson was disabled, and
imputed a full-time minimum wage income to Sanderson and Millard. It set the amount
of child support to be paid by Sanderson to Millard based on this income.
Sanderson claims on appeal as follows: (1) “The court abused its discretion in
claiming lack of evidence of disability and inability to work and imputed income to
calculate child support order”; (2) “The court applied the wrong legal standard”; (3) “The
court’s decision is not supported by the facts”; and (4) “The court used unfair bias.”.
FACTUAL AND PROCEDURAL HISTORY2
Sanderson and Millard have three children born in 2006, 2008 and 2012. On July
27, 2023, a hearing was held on a request for modification of child support, brought by
1 Millard has not made an appearance in this case.
2 The record in this case is limited. Sanderson refers in her “Factual and Procedural History” to events occurring prior to July 27, 2023. She discusses the contents of a supplemental security income (SSI) award letter (SSI Award Letter), which has not been made part of the record on appeal. She also refers to conversations with DCSS and hearings held prior to July 27, 2023, that are not part of the record. The record only pertains to those hearings held on July 27, 2023, and October 12, 2023, and filings from July 31, 2023, through the notice of appeal filed on May 1, 2024. As such, this court will not consider the additional facts included in Sanderson’s briefs that are not supported by the record on appeal.
2
DCSS.3 As described by counsel for DCSS, a current order was in place that Millard pay
$575 in child support each month that had been entered on May 19, 2022. The current
dispute involved Sanderson’s income. Sanderson was paying no child support. Millard’s
counsel alleged that Sanderson should be imputed with full-time minimum wage income,
but Sanderson, who was representing herself, disputed her income. Millard’s counsel
stated that Sanderson claimed to be disabled and unable to work. However, Sanderson
had never provided documents to show her disability nor any application to obtain
disability benefits.
Sanderson responded, “I have paperwork into the Child Support Services that of
my SSI award letter that states that I am disabled completely, one hundred percent
permanently as of November 24th, 2014.” Sanderson provided the SSI Award Letter to
the family court. She was receiving no disability income because of her household
income; she was remarried and had two stepchildren. DCSS affirmed it had received the
letter from 2020 regarding Sanderson’s disability, but had requested an updated letter on
the status of her disability. Sanderson insisted that SSI only recertifies every six years
and she was still considered disabled. Millard’s counsel agreed with DCSS that current
information as to her disability needed to be provided, as Sanderson was able to drive and
take care of their children and her two stepchildren.
3 The request for modification is not part of the record on appeal.
3
The family court reviewed the SSI Award Letter.4 The family court stated on the
record, “I don’t see anything in this letter saying that you’re forever disabled or that you
are currently disabled.” The family court advised Sanderson that she could have brought
a doctor’s note showing that she was still currently disabled. Sanderson advised the
family court that she was able to drive, was attending school with “accommodations,”
and that she cared for her children and stepchildren. However, she was still considered
disabled by the Social Security Administration (SSA).
The family court stated for the record that based on the income and expense
declaration provided by Sanderson, she had completed high school and two years of
college. The family court also “took judicial notice” of the fact that there were “multiple
minimum wage jobs in our current job market,” including work-from-home jobs and jobs
that could accommodate reasonable “requests for accommodation.” The family court
found that Sanderson had an ability to work in some capacity and there had not been a
sufficient showing of a current inability to work based on disability. Sanderson requested
a continuance in order to provide the necessary paperwork to show she was disabled.
The family court agreed to continue the matter, but it made temporary orders as to child
support.
4 As stated, the SSI Award Letter is not included in the record on appeal.
4
The family court found that both parties were imputed with full-time minimum
wage income. Sanderson was to pay Millard $925 each month commencing on July 1,
2023. This was based on the minimum wage of $15.50 per hour and 40 hours each week.
The trial court agreed to a continuance in order for Sanderson to provide proof of
disability that she could not work in any capacity. Both parties were ordered to file
updated income and expense declarations and Sanderson was ordered to provide
supporting documentation of disability no later than 30 days prior to the continued
hearing. The family court advised Sanderson on how to obtain help with getting the
discovery that she needed and DCSS provided a medical verification form to Sanderson
so she could get it signed by a doctor to show her limitations. DCSS agreed to prepare an
order after hearing.
The family court signed the order after hearing on August 1, 2023 (temporary
order). It included that the family court ordered a child support payment of $925 to be
paid by Sanderson to Millard beginning on July 1, 2023. It further stated, “the court finds
sufficient evidence to impute both parents with full time minimum wage income in
calculating guideline child support. The matter is set for review hearing and the court
reserves jurisdiction to modify support retroactively to 07/01/23.” The review hearing
was set for October 12, 2023.
Sanderson brought a motion to set aside the temporary order. She alleged,
“Temporary Orders were made which went against already established judicial practices
as described in California Judges Benchguide 203: AB 1058 Child Support Proceedings:
Establishing Support chapter 5 (V), section B, subsection 1, which directs how to
5
compute Statewide Uniform Child Support Guideline when either or both parents have
SSI Award. Income for Parent 2 [Sanderson] cannot be imputed and must be set at $0 or
actual amount received by Social Security Administration for Supplemental Security
Income (SSI). Temporary Orders place [Sanderson] in severe financial distress and
possible legal penalties and violate her freedom from discrimination from being
disabled.” She insisted, relying on documents she included with the motion, that she had
been evaluated in 2020 and found to be disabled. She was unable to work in any
capacity. Review of her disability occurred every five to seven years.
Sanderson attached documentation she purported to have obtained from the SSA.
One document was from the SSI home page, 2021 Edition. It addressed who was eligible
for SSI and how to apply for benefits. The document provided, “Social Security
periodically reviews you medical impairment(s) to determine if you continue to have a
disabling condition. If we determine that you are no longer disabled or blind, your
benefits will stop. [¶] We call this review a Continuing Disability Review (CDR). The
law requires us to perform a medical CDR at least once every three years, however, if
you have a medical condition that it not expected to improve, we will still review your
case, once every five to seven years.” The family court denied the motion to set aside the
temporary order.
A second hearing was held on October 12, 2023. DCSS, Millard’s counsel, and
Sanderson were present. Sanderson did not provide any additional documentation of her
disability or limitations to the family court. She stated, “I did turn in paperwork showing
that SSA does a re-evaluation between five and seven years, and it is not my choice as to
6
when that re-evaluation is. Therefore, my SSI paperwork that was turned in is still valid
as it was an award letter.” The family court inquired whether she was collecting
disability payments. She stated, “The amount is $0, but because it is an award letter
stating that I am disabled, it is still valid. It does still qualify.” She admitted she
provided no new documentation, but insisted that the 2020 information that she was
disabled was still valid.
The family court noted that when it imposed the $925 child support payment at the
prior hearing, it had appeared that Millard was not working. Based on the updated
income and expense declaration, it appeared that Millard had started working in July
2023. The family court intended to modify the amount of support to be paid by
Sanderson to $664. The family court found that the evidence of Sanderson’s disability
was “stale.”
Sanderson insisted her income should be set at zero and she should owe no child
support. Millard’s counsel noted that on Sanderson’s income and expense declaration,
she listed her household as herself, her husband and two stepchildren. Their monthly
expenses totaled $5,000, but the household income was $3,000. Millard’s counsel had
asked Sanderson how she came up with the $2,000 and Sanderson refused to disclose the
information to counsel. Sanderson advised the family court that she did not have the
extra $2,000 each month and that she was behind on her bills.
DCSS responded that Sanderson was not receiving any money from SSI. She may
have other income. Further, SSI was not permanent, and it was the understanding of
DCSS that it was reevaluated every three years except under certain circumstances. The
7
family court inquired of Sanderson if she had provided evidence that she qualified for the
five to seven year reevaluation. Sanderson responded that the letter she received in 2020
did not state when she would be reevaluated.
The family court inquired, “So if you keep representing that you are not going to
be re-evaluated for five to seven years, how do you know that?” Sanderson responded,
“When I went to the SSA.gov site, to find out what—how they—when they did re-
determination, it stated five to seven years.” The family court stated DCSS represented
that a reevaluation was every three years and asked how Sanderson knew she was not in
that category. Sanderson responded, “I have not gotten any information from SSI.” She
insisted that she had contacted SSI and asked for updated information on her disability
and they claimed they could not provide further information.
The family court found that no new information was presented that required it to
reverse the finding of Sanderson’s income at the previous hearing. It ordered that
Sanderson pay Millard $664 in monthly child support commencing on July 1, 2023.
DCSS stated it would prepare an order after hearing and it would be sent to Sanderson.
The family court signed the order after hearing on January 5, 2024 (permanent
order). Attached was the computer printout of the parents’ income and the percentage of
time each parent spent with the children. Sanderson was ordered to pay $664 in child
support payments each month to Millard commencing July 1, 2023. The printout
provided that Sanderson’s net disposable income was $3,201. With the payment of
support, she would have an income of $2,537. The three children spent 71 percent of
their time with Millard. There was no SSI income listed for Sanderson.
8
On October 27, 2023, Sanderson filed a request for a statement of decision relying
on Code of Civil Procedure section 632 and California Rules of Court 3.1590,
subdivision (d). Sanderson sought a statement of decision from the family court
explaining what evidence or exhibits were admitted at the hearing that were considered in
deciding there was a need for modification of the 2022 child support order; what changes
the family court considered were made by Sanderson; what factors the family court used
to determine that her income had changed or she was no longer disabled; and what
evidence was presented to dispute the SSI Award Letter. According to the Register of
Actions, the request for a statement of decision was denied on November 16, 2023.
On March 13, 2024, Sanderson brought a motion to set aside the permanent order.
In her declaration in support of the motion, she stated that she was not provided a copy of
the order after hearing from DCSS until March 12, 2024. She received no entry of
judgment. She insisted that she had advised DCSS that she objected to part of the
permanent order, which did not match the minute orders, but it was not corrected or
addressed. She also insisted that Millard’s counsel had made an unauthorized change to
the permanent order before it was sent to the family court to sign. She sought to have the
permanent order set aside and that sanctions be imposed against DCSS and Millard’s
counsel for their actions.
A minute order from April 29, 2024, is included in the clerk’s transcript. On that
day, a hearing was held on Sanderson’s motion to set aside the permanent order. The
motion to set aside was denied. On May 1, 2024, Sanderson filed her notice of appeal
from the January 5, 2024, permanent order.
9
DISCUSSION
Sanderson claims the family court abused its discretion in finding there was a lack
of evidence of her disability and inability to work. She insists the family court
improperly imputed full-time minimum wage income to calculate the child support order.
She makes a similar claim in Argument III, that the family court’s decision was not
supported by the facts and it erroneously determined she had the capacity to seek and
hold full-time minimum wage employment.
“Parents have the obligation to support their minor children. Even when, after a
child support order is made, the income of the parents changes, that obligation
continues.” (Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 684-685 (Mendoza).)
Here, the family court was reviewing DCSS’s claim that there should be a
modification to the existing child support orders. Family Code section 3651,5
subdivision (a), provides, in relevant part, that “a support order may be modified or
terminated at any time as the court determines to be necessary.” Sanderson does not raise
a claim on appeal that there were no grounds to modify child support, but rather that the
family court abused its discretion in imputing income to her despite no facts being
offered to support her ability or opportunity to work, and her showing that she was
disabled and unable to work.
5 All further statutory references are to the Family Code unless otherwise indicated.
10
Pursuant to section 4052, in determining child support, “The court shall adhere to
the statewide uniform guideline and may depart from the guideline only in the special
circumstances set forth in this article.” Pursuant to section 4052.5, subdivision (a), “The
statewide uniform guideline, as required by federal regulations, shall apply in any case in
which a child has more than two parents. The court shall apply the guideline by dividing
child support obligations among the parents based on income and amount of time spent
with the child by each parent, pursuant to Section 4053.” Section 4053 sets forth the
principles to be followed by the family court in implementing the statewide uniform
guideline. Subdivision (a), of section 4053 provides, “A parent’s first and principal
obligation is to support the parent’s minor children according to the parent’s
circumstances and station in life.” In addition, both parents are mutually responsible for
the support of the children. The guideline takes into account each parent’s actual income
and the amount of responsibility for the children. (§ 4053, subds. (b), (c).)
“[A] court may properly consider not only actual income, but earning capacity
where a parent becomes unemployed or underemployed, provided doing so is consistent
with the best interests of the children.” (Mendoza, supra, 182 Cal.App.4th at pp. 684–
685; see also § 4058, subd. (b)(1)(A) [“In a case when a parent’s annual gross income is
unknown, the court shall consider the earning capacity of the parent”].)6 “To rely on
6 “Effective September 1, 2024, the statute [§ 4058, subd. (b)(1)(A)] states the court ‘shall consider the earning capacity of the parent’ ‘when a parent’s annual gross income is unknown.’ ” (Mercado v. Superior Court (2024) 106 Cal.App.5th 1143, 1155- 1156.) In Mercado, as here, “At the time of the trial court’s orders, section 4058 did not distinguish between ‘known’ versus ‘unknown’ annual gross income. In all [footnote continued on next page]
11
earning capacity in lieu of actual income, ‘[t]he dispositive question is whether the
evidence will sustain the inference that the party charged with support could, with
reasonable effort, obtain employment generating the postulated . . . income.’ ” (In re
Marriage of Cohn (1998) 65 Cal.App.4th 923, 930.)
A. SANDERSON’S EVIDENCE OF INABILITY TO WORK
Sanderson contends in Argument I that the family court abused its discretion by
rejecting her evidence that she was considered disabled by the SSA and was unable to
work.
A “fundamental principle of appellate procedure [is] that a trial court judgment is
ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the
basis of the record presented to the appellate court, that the trial court committed an error
that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle
of appellate practice but an ingredient of the constitutional doctrine of reversible error.’
[Citation.] ‘In the absence of a contrary showing in the record, all presumptions in favor
of the trial court’s action will be made by the appellate court.” (Jameson v. Desta (2018)
5 Cal.5th 594, 608-609.) “ ‘Consequently, [the appellant] has the burden of providing an
adequate record. [Citation.] Failure to provide an adequate record on an issue requires
that the issue be resolved against [the appellant].’ ” (Id. at p. 609; see also Ballard v.
circumstances, it provided: ‘The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.’ ” (Id. at p. 1156.) Here, the family court imputed income based on earning capacity.
12
Uribe (1986) 41 Cal.3d 564, 574. [“[A] party challenging a judgment has the burden of
showing reversible error by an adequate record”].)
Here, Sanderson repeatedly contends that the SSI Award Letter showed that she
had been disabled since 2014, that it was accepted by the court in 2022 in setting child
support, and it was effective as of 2020. She claims the family court had “undisputed
information” from the letter itself that she was disabled as of the time that DCSS asked
for modification of child support and that her disability was not expected to expire within
any time frame. She also concludes that in 2022, the SSI Award Letter satisfied the
conditions to show she had a permanent disability, resulting in her not being ordered to
pay child support; her disability was only reviewed by the SSA every five to seven years.
However, the SSI Award Letter is not included in the record on appeal. While the parties
agree that it was issued in 2020, there is no stipulation between the parties as to the
wording of the letter. In fact, the family court stated in court that “I don’t see anything in
this letter saying that you’re forever disabled or that you are currently disabled.”
Moreover, the records of what occurred in 2022 regarding the findings on child support
are not included in the record in this appeal and cannot be relied upon by Sanderson to
show that she was found disabled at that time based on the SSI Award Letter, and could
not work. This court must accept that the family court properly interpreted the SSI
Award Letter to conclude that it was not evidence that Sanderson was disabled at the time
of the request by DCSS to modify child support. As such, the family court had the
discretion to impute income to Sanderson.
13
Sanderson also relies on her evidence that she presented from the SSA that
reevaluations took place every five to seven years. She insists she had a permanent
disability, which qualified for reevaluation every five to seven years. However, there is
no evidence in the record as to the type of disability that Sanderson was suffering from, if
that disability was permanent, or the extent of her limitations. As stated, the SSI Award
Letter is not part of the record. Sanderson cannot rely on the language of the letter to
support her claim on appeal that it provided she was permanently disabled, and that the
trial court erred by finding she was able to work. As such, the trial court reasonably
could determine that Sanderson had failed to show a disability that limited her ability to
work.
Nonetheless, since this court finds, post, that the family court’s finding imputing
income to Sanderson is not supported by substantial evidence, and we remand for a new
hearing on child support, it is reasonable for Sanderson to be able to again address, on
remand, that she is unable to work due to her disability.
B. BURDEN OF PROOF FOR EARNING CAPACITY
In Argument III, we find that Sanderson has sufficiently raised the claim that there
was not substantial evidence to support the trial court’s finding regarding her earning
capacity.7 She insists the trial court “did not have any evidence” of her ability or the
opportunity to work.
7 Sanderson has not provided an extensive argument or legal authority on this issue. However, DCSS does not contend that her argument on appeal is insufficient and has responded to this claim at length, insisting the trial court’s determination on imputed income was supported by substantial evidence.
14
“ ‘ “Earning capacity is composed of (1) the ability to work, including such factors
as age, occupation, skills, education, health, background, work experience and
qualifications; (2) the willingness to work exemplified through good faith efforts, due
diligence and meaningful attempts to secure employment; and (3) an opportunity to work
which means an employer who is willing to hire.” ’ [Citation.] If a parent is unwilling to
work despite the ability and the opportunity, earning capacity may be imputed.” (In re
Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338 (LaBass).)
The moving party seeking to have income imputed bears the burden of
demonstrating the other party’s “ability and opportunity to earn that imputed income.”
(In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1294.) “[I]ncome cannot be
imputed based upon a party’s earning ‘capacity’ absent proof of both ability and
opportunity to earn the income on a going-forward basis.” (In re Marriage of Berger
(2009) 170 Cal.App.4th 1070, 1079.) The party must present “competent evidence” that
the other party had both an ability and an opportunity to earn the attributed income
sought to be imputed to the party. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th
1317, 1329; see also Mendoza, supra, 182 Cal.App.4th at pp. 685-686 [“It is not
sufficient to demonstrate only what the party had been making before the loss of income;
the moving party must also adduce evidence of vocational abilities and employment
opportunities”].) “[F]igures for earning capacity cannot be drawn from thin air; they
must have some tangible evidentiary foundation.” (In re Marriage of Cohn, supra, 65
Cal.App.4th at p. 931.)
15
“We review an order establishing or modifying child support based upon earning
capacity for an abuse of discretion. [Citations.] ‘[W]e consider only “whether the court’s
factual determinations are supported by substantial evidence and whether the court acted
reasonably in exercising its discretion.” [Citation.]. . . “[W]e do not substitute our own
judgment for that of the trial court, but determine only if any judge reasonably could have
made such an order.” ’ ” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1247
(McHugh); see also In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.)
There was no substantial evidence to support the family court’s finding regarding
Sanderson’s earning capacity. While we assume the family court properly found that
Sanderson was no longer considered disabled, as stated ante, there was no evidence
presented by DCSS, or even Millard’s attorney, as to Sanderson’s ability and opportunity
to find a full-time job making minimum wage. The family court never considered
Sanderson’s skills, and there was no evidence presented about the local job market. The
family court “took judicial notice” of the fact that there were “multiple minimum wage
jobs in our current job market,” including work-from-home jobs and jobs that could
accommodate reasonable “requests for accommodation.” There is nothing in the record
to support how the family court obtained this information. Sanderson’s own income was
zero at the time DCSS sought to have the child support amount modified, so there was no
evidence of what she could potentially earn. There was also no evidence of prior jobs or
even what type of skills Sanderson possessed to be able to obtain a job. While we can
surmise that a person who graduates from high school could obtain a minimum wage job,
the burden was on DCSS to present “competent evidence” that Sanderson had both an
16
ability and an opportunity to earn the attributed income sought to be imputed to her. (In
re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1329.)
DCSS recognizes that the family court can rely on “opinion testimony” to find that
“someone with the party’s credentials could secure employment.” It also recognizes that
in reviewing the family court’s factual determinations, this court considers whether they
are supported by substantial evidence. DCSS insists that relying on the income and
expense declaration, the family court correctly concluded that she had completed high
school, had some college, and there “were multiple minimum-wage jobs available that
could allow for accommodations or work from home.” However, DCSS points to no
evidence presented to support that there were multiple minimum-wage jobs available,
Sanderson’s qualifications, or the specifics of the accommodations.
DCSS also claims, relying on LaBass, supra, 56 Cal.App.4th at p. 1339, and
McHugh, supra, 231 Cal.App.4th at p. 1251, that “The party urging use of the earning
capacity standard has no burden to convince the court that the other party has the ability
and opportunity to work, rather, the burden is on the party resisting imputed employment
income to demonstrate that they lack the ability to find employment.” This conclusion is
not supported by the cited cases and, in fact, holds that the initial burden of showing the
ability and opportunity to earn such income is with the person who seeks to have another
party imputed with income.
In McHugh, supra, 231 Cal.App.4th 1238, the court noted that “the parent seeking
to impute income to the other parent need only show the other parent had the ability to
perform the job earning the income to be imputed and the job was available. The parent
17
to whom the income would be imputed bears the burden to show he or she could not
secure the job despite reasonable efforts.” (Id. at p. 1251.) In that case, which involved a
mother seeking to have income imputed to the father, who had lost his job, the court
found that the mother needed to show that the father had the ability to perform the job,
and the job was available. Extensive evidence was presented regarding the history of the
father’s job and his ability to obtain the job. (Id. at pp. 1244-1245.) Such evidence of
Sanderson’s qualifications and the availability of jobs matching her qualifications was
lacking in this case.
In LaBass, supra, 56 Cal.App.4th 1331, a father sought to modify an existing child
support order by imputing a full-time teacher’s salary to the mother despite her currently
only working as a part-time teacher. The father presented evidence that the mother had a
teaching credential, the local school district had multiple openings for full-time teachers,
which met the mother’s experience and provided the salary for a full-time teacher with
the mother’s level of education and experience. The evidence presented to the court was
the mother’s degree, help wanted ads soliciting candidates for teaching positions, and pay
scales from the school district. (Id. at pp. 1335-1336, 1338.) The trial court imputed the
full-time teaching salary to the mother, and she appealed, arguing that there was no
guarantee that she would secure the job. The appellate court initially made clear that
there was an initial burden on the moving party to present evidence of the ability and
opportunity to earn the imputed income. (Id. at p. 1339.) The appellate court rejected the
mother’s argument regarding securing a job, finding that the father “bore no burden to
convince the court that [the mother] would have secured a full-time job had she applied.
18
Rather, it was incumbent upon [the mother] to show that, despite reasonable efforts, she
could not secure employment despite her qualifications.” (Id. at p. 1339, italics omitted.)
LaBass did not hold, as stated by DCSS, that the party to whom income should be
imputed had the burden of proving first that he or she is unable to work. Rather, as
stated, the initial burden is on the party seeking to impute income to provide evidence of
the ability and opportunity to make the imputed income.
Here, it was DCSS seeking to modify the child support. It argued Sanderson was
no longer disabled and should be imputed income. However, DCSS never met its initial
burden of presenting evidence that Sanderson had the ability and opportunity to earn that
imputed income. The family court never considered Sanderson’s qualifications, nor was
it presented with any evidence of the current job market related to her qualifications. The
family court’s order imputing full-time minimum wage income to Sanderson is not
supported by substantial evidence.
Since we reverse the family’s court order, and direct that a new hearing be
conducted on the modification of child support, we need not address Sanderson’s
additional claims that the family court applied the wrong legal standard, was biased
against her, and failed to issue a statement of decision, as we presume the family court
will conduct the new hearing in conformance with this opinion.
DISPOSITION
The permanent order entered January 5, 2024, is reversed. The matter is remanded
to the superior court with directions to reconsider the request by DCSS regarding
19
modification of child support consistent with this opinion. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
20
AI Brief
AI-generated · verify before citing
Holding. The appellate court reversed the child support order because the trial court lacked substantial evidence to support the imputation of full-time minimum wage income to the appellant. The moving party failed to meet its burden of providing competent evidence regarding the appellant's specific ability and opportunity to secure employment.
Issues
Did the trial court abuse its discretion by imputing full-time minimum wage income to the appellant without sufficient evidence of her ability and opportunity to work?
Did the trial court err in its determination regarding the appellant's disability status based on the provided documentation?
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“The moving party seeking to have income imputed bears the burden of demonstrating the other party’s “ability and opportunity to earn that imputed income.””
“[I]ncome cannot be imputed based upon a party’s earning ‘capacity’ absent proof of both ability and opportunity to earn the income on a going-forward basis.”
“There was no substantial evidence to support the family court’s finding regarding Sanderson’s earning capacity.”