Marriage of Stone CA5

Filed 7/29/14 Marriage of Stone CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

In re the Marriage of HEATHER R. and BENJAMIN W. STONE.

HEATHER R. STONE, F066479

Respondent, (Super. Ct. No. 08FL0378)

v. OPINION BENJAMIN W. STONE,

Appellant.

APPEAL from a judgment of the Superior Court of Kings County. Julienne L. Rynda, Commissioner.

Benjamin W. Stone, in pro. per., for Appellant. Kahn, Soares & Conway and Cathy J. Westlund for Respondent. -ooOoo- Benjamin W. Stone (Father) challenges a postjudgment order denying two motions. Through these motions, Father sought to modify child support, terminate

spousal support, and obtain relief from the child support arrears based on alleged fraud under Family Code1 section 2120 et seq. Father argues the trial court denied him a meaningful opportunity to be heard by striking his memorandum of points and authorities as being untimely and refusing to hear his oral argument. Father further contends the trial court abused its discretion when it imputed an earning capacity in excess of his actual ability and refused to grant an evidentiary hearing on the parties’ incomes. The trial court did not err or abuse its discretion as alleged by Father. The court properly struck Father’s points and authorities as untimely, and Father did not request argument at the hearing on the motions. Further, the trial court acted within its discretion when it imputed income to Father after finding that he elected to become unemployed by choosing to enroll full-time in law school. Finally, Father’s attempt to obtain relief under section 2120 et seq. was properly denied as being untimely. Accordingly, the order will be affirmed. BACKGROUND Father and respondent Heather R. Stone (Mother) married in 1996. At that time, Father was both a licensed pilot and a naval officer on active duty. Proceedings to dissolve the marriage began in 2008. Early on, the parties agreed that Mother would be the primary custodial parent and would be allowed to move the three minor children to the Chicago area. Temporary child and spousal support amounts were ordered and then modified at various times. On March 19, 2010, following trial, the court set child support at $2,545 per month and permanent spousal support at $400 per month. The court imputed income to Mother higher than her actual earnings. The court also took into consideration a number of factors regarding Father’s income and ability to earn based on his having had several jobs since the beginning of the case.