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In Re the Marriage of Ted Brocklehurst and Kimberly Masbad. v. Kimberly Masbad

December 12, 2012

IN RE THE MARRIAGE OF TED BROCKLEHURST AND KIMBERLY MASBAD. TED BROCKLEHURST, RESPONDENT,
v.
KIMBERLY MASBAD, APPELLANT.



(Super. Ct. No. 04FL03062)

The opinion of the court was delivered by: Hull , J.

Marriage of Brocklehurst and Masbad CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Kimberly Masbad (mother) appeals from an order modifying child support. On appeal, mother claims the trial court violated her right to due process in ordering her to pay child support and erred by failing to consider Ted Brocklehurst's (father) earning capacity in calculating child support.

Mother has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) On the face of this record, no error has been established. Accordingly, we affirm the trial court's order.

FACTS AND PROCEEDINGS

The limited record we have establishes that on August 26, 2011, father filed a motion to modify child support. In support of his motion, father argued that although he and mother previously agreed neither of them would pay child support, because the agreement set child support "below guidelines," child support was modifiable at any time. Father also filed an income and expense declaration with his motion, stating his income to be $6,205 per month; he attached several pay stubs to his declaration.

Mother opposed father's motion. In support of her opposition, mother argued father failed to show a material change in circumstances that would warrant a modification of the current order for support. Mother also argued that father's income had been reduced as a result of misconduct at work, and he should be imputed with income "based on his earning capacity per Family Code 4058(b)." Mother filed her own income and expense declaration, declaring her income to be $7,997 per month.

Father's motion was heard by the trial court on March 1, 2012. At that hearing, the court ordered mother to pay to father $259 in child support each month, beginning March 1, 2012. The parties also stipulated that "if [father] prevail[ed] in his action for reinstatement [with] back pay [mother would be] entitled to recalculation of all support paid as if [father] were making the higher income (except all periods of industrial disability where he would not be entitled to loss pay) and if [father] does not get back pay, [mother] may reinstate her motion requesting court to attribute income to him at . . . higher proved amount for whatever months it would be . . . ."

Mother appeals from the trial court's order.

I Applicable Appellate Rules

On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error "appears on the face of the ...


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