APPEAL of an order of the Superior Court of Los Angeles County. Nicholas Taubert, Judge. Affirmed. (Los Angeles County Super. Ct. No. KF003834).
The opinion of the court was delivered by: Zelon, J.
CERTIFIED FOR PUBLICATION
After his petition to modify custody led to a change in child support payments, Appellant Hector Mendoza appealed, claiming that, for purposes of determining child support, income should be attributed to respondent Sara Ramos. Ramos is a recipient of CalWORKs, in compliance with the terms of that program. The trial court properly declined to attribute income to her.
FACTUAL AND PROCEDURAL BACKGROUND
Mendoza and Ramos are the parents of four children, all of whom were minors at the time of the proceedings in the trial court. Although they never married, paternity was established in 2001, the parties stipulated to a custody order in 2003, and the court entered judgment ordering Mendoza to pay child support of $297 per month in July 2005.
In February 2007, Mendoza sought to modify the custody and support orders, asserting that the children in fact spent the majority of their time with him, and wished to continue to do so, although the custody order placed the children with him only 50 percent of the time. Ramos opposed the modification, and asserted that Mendoza was in arrears in payments, and wished to terminate his obligation to provide any child support. In her declaration, she stated she received AFDC, and the child support had, as a result, been assigned to the District Attorney's office.*fn1 She also claimed that the children wished to spend all of their time in her custody, and that Mendoza did not provide for them when they were with him. Finally, she stated that she would be completing an educational program to become a Licensed Vocational Nurse in June, 2007. Her Income and Expense Declaration showed public assistance to be her sole income.
The court heard the matter on September 4, 2008. Mendoza, in his pleadings, requested that neither party pay child support, based on his claim that the calculation should be based on Ramos' ability to earn, rather than her actual income. He reasoned that her pursuit of educational endeavors was voluntary and not in the best interests of the children. Ramos, in her papers and supporting declaration, opposed the request on the grounds that the time-share should not change, and that the support calculation should not include any attributed income. She asserted that Mendoza had made no child support payments for several years.
At the hearing on September 4, 2008, both parties were present and sworn as witnesses, although neither gave any testimony. Although there was significant discussion about Mendoza's actual income, the parties ultimately stipulated to $2,700 per month as the figure to be used for the child support calculation. In response to Mendoza's request to impute earnings at the minimum wage to Ramos, Ramos' counsel objected, explaining that the CalWORKs program requires counseling and educational programming in lieu of full time employment. She also explained that Ramos had not voluntarily left her former employment, but had lost her job when her employer moved out of state, and had been unable to find new employment. Counsel further argued both that Mendoza had also lowered his earnings by becoming self-employed, and that his failure to pay support as ordered had contributed to Ramos' need to seek public assistance. The court determined that it would not attribute income because Ramos was receiving CalWORKs, and ordered Mendoza to pay child support in the amount of $873 per month commencing September 1, 2008. Mendoza timely appealed.
Modification of custody and child support orders "`rests in the sound discretion of the trial court the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown.'" (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1634 (Ilas), quoting Philbin v. Philbin (1971) 19 Cal.App.3d 115,119.) We review the record to determine if the court's order is supported by substantial evidence and if a reasonable court could have made the order. If so, we will affirm. (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.)
Mendoza raises two issues on appeal. First, he claims the court should have attributed earnings to Ramos, relying primarily on Ilas. Second, he asserts that the court ruled without taking testimony on certain issues and that he was improperly denied the right to cross- examine Ramos, citing Elkins v. Superior Court (2007) 41 Cal.4th 1337.
The Court's Refusal to Attribute Income to a Parent Receiving CALWORKS Assistance Was Proper
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. Accordingly, a court may properly consider not only actual income, but earning capacity where a parent becomes unemployed or underemployed, provided doing so is ...