Opinion
D070027
06-20-2017
In re the Marriage of JULIE ANN OSBORN and MILES MUSALMAN. JULIE ANN OSBORN, Appellant, v. MILES MUSALMAN, Respondent.
Julie Ann Osborn, in pro. per., for Appellant. Miles Musalman, in pro. per, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D515334) APPEAL from a postjudgment order of the Superior Court of San Diego County, Ernest M. Gross, Commissioner. Affirmed. Julie Ann Osborn, in pro. per., for Appellant. Miles Musalman, in pro. per, for Respondent.
Appellant Julie Ann Osborn challenged certain provisions in a marital settlement agreement (MSA) she had entered into with her former spouse Miles Musalman, including provisions (1) giving Musalman a $16,500 credit against child support, and (2) diverting child support funds to a trust account earmarked for their children's college and automobile expenses. (In re Marriage of Osborn (May 29, 2015, No. D065329) [nonpub. opn.].) After the family court affirmed those provisions, Osborn appealed and this court reversed and remanded for the family court to enter a new order on child support that eliminated the credit, and did not employ a trust account unless the court made detailed factual findings to support the need for a trust. (Id. at p. 11.) Osborne now appeals from the family court's postjudgment order following this court's remand. She contends the court erred or abused its discretion by determining the child custody sharing percentages; ordering her to pay Musalman $16,500 in debt; not considering her motion for Family Code section 2030 attorney fees; and imputing income to her with an order requiring her to, among other things, make and document ten job contacts each week.
Statutory references are to the Family Code unless otherwise stated.
Musalman has not filed a respondent's brief. We do not treat his failure to do so as a default or an admission that the trial court erred (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1), but instead examine the record for prejudicial error on the basis of Osborn's opening brief. (See In re Bryce C. (1995) 12 Cal.4th 226, 232-233; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 224.) We conclude Osborn's first two contentions are barred by law of the case, and she has not demonstrated error as to her remaining claims. Accordingly, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
We summarized the background facts of the parties' MSA in our prior opinion (In re Marriage of Osborn, supra, D065329), and need not repeat them here. In that appeal, we concluded the family court, Judge Susan D. Huguenor, had erred by declining to invalidate a provision in the MSA creating a trust restricting use of Musalman's child support payments for college and automobile expenses. (Id. at p. 6.) We further concluded the court had erroneously affirmed an MSA provision giving Musalman a credit against child support, observing that " 'a child support obligation cannot be satisfied through the obligor parent's performance of an entirely different (independent) obligation.' " (Id. at p. 7.) We said: "[T]he family court stated Musalman's new child support obligation would 'begin after the credit of the $16,500 is complete and exhausted.' The record indicates the credit was for amounts owed by Osborn to Musalman for legal costs related to a restraining order hearing. Thus, the credit was for an independent debt owed by Osborn. Child support payments are owed to the children, not the parent who receives the payments. Thus, the parties could not use child support to satisfy an unrelated debt between them." (Ibid.) This court also concluded that Osborn had not shown the family court erred by assigning 30 percent as Musalman's time share with their two children, based on the parties' agreement to that effect in the MSA. (Id. at pp. 9-10.) We remanded the matter, directing the family court "to enter a new order on child support that does not employ a trust account unless the court makes detailed factual findings to support the need for a trust. Additionally, the new child support order shall not include a credit for satisfaction of an independent obligation. In all other respects, the order is affirmed." (Id. at p. 11.)
Following issuance of the remittitur, the family court commissioner sought briefing on the trust issue and addressed the $16,500 credit, and set the matter for a further hearing on child support. In the interim, it ordered Musalman to repay Osborn the $16,500 he had originally received as a credit against child support, at $250 per month starting September 1, 2015. At an August 31, 2015 hearing on the matter, the commissioner ordered the parties to update their income and expense declarations, and set the child support matter for an October 2015 hearing. The record contains Musalman's October 16, 2015 income and expense declaration.
In October 2015, the commissioner held the first hearing on Osborn's June 2014 request for an order regarding child support, Musalman's request for sanctions, and this court's remittitur. The commissioner ruled on Musalman's evidentiary objections, considered testimony from both parties, and continued the hearing to December 18, 2015.
In November 2015, the commissioner considered Musalman's separate request for an order setting a payment plan for Osborn to repay him the $16,500 in debt that this court had ruled was improperly treated as a credit against child support. Though the commissioner found the money owed, it initially denied Musalman's request for a payment plan as not set out in the MSA. However, it later entered an amended order requiring Osborn to make monthly $200 installment payments to Musalman to satisfy that debt, which, the commissioner observed, both the family court and this court had found was owed by Osborn independent of child support.
In January 2016, the commissioner entered findings and an order after hearing on Osborn's June 2014 request for order, calculating Musalman's child support using the California's Statewide Uniform Child Support Guidelines as reflected in attached DissoMaster reports. In part, the commissioner ordered that Musalman pay Osborn monthly child support at $1,499 from July 2014 to January 2015 and $1,704 from February 2015, based on its finding, among others, that Musalman had a 30 percent visitation timeshare. It further ordered that Musalman make a combined monthly payment to Osborn of $300 for the balance of child support arrears as well as the MSA's $16,500 credit due back to Osborn until paid in full.
"DissoMaster is one of two privately developed computer programs used to calculate guideline child support as required by section 4055, which involves, literally, an algebraic formula." (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523-524, fn. 2; see also In re Marriage of Hall (2000) 81 Cal.App.4th 313, 317-318 [explaining the formula].)
DISCUSSION
I. Calculation of Child Support
Osborn contends the commissioner erred in reaching its child custody sharing percentages because they were not determined based on the actual time sharing with each parent. She argues the 30 percent figure assigned to Musalman was "fictional," and even where the parties stipulate to a child support order, to deviate from the guideline formula, the family court must state its reasons on the record, which the commissioner did not do. She asks us to order the family court to properly apportion the time sharing percentage based on actual physical custody and recalculate it from Judge Huguenor's November 1, 2013 findings and order after hearing. This claim in effect is one challenging the sufficiency of the evidence of the commissioner's decision.
Osborn's claim of error was previously asserted in her appeal from Judge Huguenor's order, and this court rejected it. As summarized above, this court expressly addressed the family court's use of a 30 percent time share for Musalman in calculating child support, observing that Osborn and Musalman had agreed in their MSA for child support purposes to the 70/30 time share percentages. (In re Marriage of Osborn, supra, D065329.) On Osborn's challenge to the family court's order affirming the MSA provision, we held Osborn had not shown the court's determination was an abuse of discretion. (Ibid.) Though we directed the family court on remand to enter a new order on child support, the commissioner's authority was limited to entering a different order eliminating the credit as well as the trust account absent findings to justify it. We otherwise affirmed the court's order, including its child sharing percentage determination ("In all other respects, the order is affirmed"). (Id. at p. 11.) And indeed, the commissioner then used the 30 percent time share for Musalman in its January 2016 findings and order after hearing.
Our conclusion on the matter is law of the case. " 'The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' " (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434 [law of the case "generally precludes multiple appellate review of the same issue in a single case"]; Sefton v. Sefton (2015) 236 Cal.App.4th 159, 172; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.) "The doctrine applies only if the issue was actually presented to and determined by the appellate court" (People v. Yokely (2010) 183 Cal.App.4th 1264, 1273), even when an appellant cites different authorities or asserts different reasons in support of his or her legal claim or theory. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.) And "sufficiency of the evidence is a question of law to which the doctrine applies." (In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 821.) The rule applies to self-represented parties, who are entitled to the same consideration as other litigants and attorneys. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
We acknowledge that "during subsequent proceedings in the same case, an appellate court's binding legal determination 'controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based.' " (People v. Barragan (2004) 32 Cal.4th 236, 246-247.) Thus, the doctrine may not be invoked on remand, where " 'there is a substantial difference in the evidence to which the [announced] principle of law is applied . . . .' " (Ibid.) But here, as to their respective time sharing, there is no indication from the record that either party on remand presented evidence different from what had been presented earlier. This exception therefore does not apply. In sum, the doctrine of law of the case bars consideration of Osborn's claim as to the family court's use of the 30 percent time share in calculating child support.
II. Order Requiring Osborn to Pay the $16,500 Debt
Osborn contends the commissioner erred by ordering her to repay Musalman $16,500, which she asserts "subvert[ed] the aim of the remittitur." (Capitalization omitted.) According to Osborn, there was no evidentiary basis for the debt in the first instance; that Musalman assertedly "manufactured a fictitious debt . . . ." She characterizes our prior opinion as having "struck" the MSA provision requiring the debt be treated as a credit, and that the provision is void ab initio.
Osborn's contention misrepresents our resolution of the credit issue in the prior appeal. As the commissioner correctly noted during arguments on the matter, this court observed there was a factual basis for the $16,500 debt, pointing out it was acknowledged and agreed upon in the parties' MSA, and Musalman had stated in a supporting income and expense declaration that he had the credit "in lieu of legal cost reimbursement for a TRO hearing . . . ." (In re Marriage of Osborn, supra, D065329 at p. 3.) We thus stated that the credit was for "amounts owed by Osborn to Musalman for legal costs related to [that] hearing," but we invalidated the payment mechanism for the debt, because the child support obligation was owed to the children and could not be satisfied through Musalman's performance of an entirely different obligation. (Id. at p. 7.) Because the parties could not use child support to satisfy their unrelated debt, we remanded with instructions that the new child support order "shall not include a credit for satisfaction of an independent obligation." (Id. at p. 11.)
Having affirmed the court's order in all respects with the exception of its affirming the credit and trust provisions of the MSA, Osborn under law of the case has no basis to revisit our conclusion concerning the existence of the $16,500 debt between her and Musalman. She is barred under that doctrine from claiming the commissioner erred by ordering her to pay Musalman $200 per month to satisfy it.
III. Motion for Attorney Fees
A. Background
At the conclusion of the November 2015 hearing on Musalman's request for an order, Osborn's pro hac vice counsel, Yancey Garner, asked the commissioner to order Musalman to fund a family law attorney for her, based on what Garner asserted was a "marked imbalance" in the parties' circumstances as shown on their "FL-150's" (income and expense declarations) and the fact Osborn's other attorney, Stephen Lopez, was not a family law practitioner. The commissioner acknowledged that Osborn had made a request for attorney fees "at the end of [her] points and authorities" but found it "insufficiently pled . . . ." It invited counsel to bring a motion because such a request required presentation of certain information that was not before the court. Attorney Garner responded that a motion for attorney fees could be done "at any time and . . . in an oral motion . . . ." He added, "But really, if we're looking for a resolution to this case, perhaps this is one method to make it happen and happen very quickly." The commissioner replied: "Well, I'm not sure that arm-twisting is the way to settle cases. It sounds like that's what you're suggesting . . . . [¶] . . . [¶] If you want to bring the respondent down to his knees so that the case resolves, I just don't thing that's an appropriate approach. [¶] If you want to make an appropriate request for fees under whatever code section you want to cite, [section] 2030, et seq., then you need to do it the right way." B. Sections 2030 and 2031
Section 2030 generally provides for awards of need-based attorney fees during the pendency of a proceeding for dissolution of marriage or in any subsequent proceeding in the amount reasonably necessary to maintain or defend the proceeding during the pendency of the proceeding. (§ 2030, subds. (a)(1), (c).) The award "shall" be made if the court finds a disparity in access to funds to retain counsel and that one party is able to pay for both parties' legal representation. (§ 2030, subd. (a)(2).)
Section 2031 provides:
"(a)(1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage . . . , or any proceeding subsequent to entry of a related judgment, an application for a temporary order making . . . an award of attorney's fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.
"(2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.
"(b) An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times:
"(1) At the time of the hearing of the cause on the merits.
"(2) At any time before entry of judgment against a party whose default has been entered . . . . The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment." (Italics added.) C. Analysis
Osborn contends the commissioner abused its discretion by not considering her oral motion for section 2030 attorney fees, which she maintains denied her competent counsel. She asserts the commissioner was presented with evidence that she had not received a child support payment in over four years; was unemployed and on food stamps with a husband who had filed for bankruptcy in 2015; and that Musalman, who had an experienced family law attorney, was gainfully employed with a $110,000 yearly salary and $13,500 bonus, as well as sufficient disposable income to fund a 401k in 2014 and 2015. Contending her oral motion was authorized by section 2031, subdivision (b)(1), she argues the commissioner was required to make findings on whether an attorney fee and cost award was appropriate, whether there was disparity in access to funds, and whether one party was able to pay for both parties' representation, and on finding such disparity, was required to award attorney fees and costs. Osborn asks us to order the family court to assess the parties' relative economic strengths to determine what amount Musalman must be ordered to pay in attorney fees "retroactively and prospectively."
In assessing these claims, we apply settled principles of appellate review. We presume the family court commissioner's order is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support it. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "Where findings of fact are challenged on a civil appeal, we are bound by the 'elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Furthermore, Osborn has the burden to affirmatively demonstrate error and also provide an adequate record on appeal to allow this court to assess any purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822; Guess v. Bernhardson (2015) 242 Cal.App.4th 820, 826; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) If the record is inadequate for meaningful review, we will affirm the lower court. (Gee, at p. 1416.) "[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record [s]he provide[d] [to] the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.) If the record on appeal does not contain all of the documents or other evidence considered by the family court, this court "will 'decline to find error on a silent record, and thus infer that substantial evidence' supports the trial court's findings." (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434, fn. 9.)
As stated, Osborn's oral request for attorney fees was made at the November 2015 hearing on Musalman's request for an order. But the record on appeal includes in the clerk's transcript only some of the documents and other papers presented to the commissioner on Musalman's request. The request for order itself is not included in the record, nor are any supporting memorandum of points and authorities or documentary evidence, which we presume Musalman (who was represented by counsel) filed with his request. Absent an affirmative showing to the contrary, we conclude Osborn omitted these documents from the record on appeal, and also presume they included evidence favorable to Musalman on any attorney fee question. In short, Osborn has not provided an adequate record on appeal that includes all material evidence before the commissioner when the commissioner considered her oral motion for attorney fees. Therefore, Osborn has waived her assertion on appeal.
Moreover, although Osborn argues the commissioner erred by not considering the oral motion for attorney fees, she does not show, and the record does not support a conclusion, that her motion satisfied section 2031's exception to the general rule requiring written motions for attorney fee awards. Osborn does not argue or demonstrate that her oral motion was made "[a]t the time of the hearing of the cause on the merits." (§ 2031, subd. (b)(1).) The record on appeal shows Osborne's oral motion for fees was made at the conclusion of the hearing on Musalman's November 2015 request for order regarding a payment plan for the parties' debt and for sanctions. We question whether those constitute merits-based issues within the meaning of the statute. And, in November 2015, the parties were awaiting the continued hearing on Osborn's June 2014 request for an order regarding child support. We may presume in favor of the family court's order that it determined Osborn was seeking attorney fees for the upcoming continued December 2015 hearing on her request, and thus her motion manifestly was not made at the time of the hearing of the cause on the merits. We need not finally resolve the point, as Osborne does not argue it. Indulging all presumptions in favor of the commissioner's order and Osborn having not affirmatively shown error, we cannot conclude she demonstrated the commissioner erred by ruling she was required to file a written motion with notice for an order for temporary attorney fees. (§ 2031, subd. (a).) Osborn simply has not shown she fell within the statutory exception to the general rule requiring written motions to permit her to make an oral motion.
Even assuming arguendo Osborn was authorized to make an oral motion for attorney fees at the November 2015, hearing, we would conclude she has not affirmatively shown the commissioner abused its discretion by denying her motion when it refused to consider it. As the moving party, Osborn had the burden of establishing need for Musalman to pay for her legal representation. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 824, quoting Straub v. Straub (1963) 213 Cal.App.2d 792, 799.) And section 2032 requires that need-based attorney fees awards, even those sought under section 2031, be based (among other factors) on the parties' relative financial circumstances. (§ 2032, subds. (a), (b); In re Marriage of McLain (2017) 7 Cal.App.5th 262, 272.) However, Osborne—who at the time of her oral request was represented by two attorneys—has not provided a record on appeal demonstrating she had a need for an award of attorney fees at the time of the hearing or showing the relative financial circumstances of her and Musalman at that time. Although the record contains Musalman's October 16, 2015 income and expense declaration, the record on appeal does not contain an income and expense declaration filed by Osborne within three months of the November 2015 hearing. Osborne's current income and expense declaration was required for any request for attorney fees. (Cal. Rules of Court, rule 5.92(b)(2).) Thus, "although there is some evidence pertaining to [Musalman's] income, there is no evidence in the portion of the record . . . before the trial court . . . that shows the parties' relative financial positions. Indeed, on the record we have, had the court chosen to make the [order Osborne] sought, [the order] would have been subject to reversal for insufficiency of the evidence. Thus, [Osborne] has failed to affirmatively demonstrate that the trial court abused its discretion in refusing to order the attorney's fees she requested." (In re Marriage of Falcone & Fyke, at p. 824.) We conclude the family court commissioner did not err by denying Osborn's oral motion for attorney fees.
California Rules of Court, rule 5.92(b)(2)(B) requires that the income and expense declaration (Form FL-150) be current as described in California Rules of Court, rule 5.260. "Current" is defined as being completed within three months prior to the hearing, provided no facts have changed. (Cal. Rules of Court, rule 5.260(a)(3).)
IV. Order Imputing Income and Requiring Disclosure of Job Contacts
In its January 2016 findings and order after hearing, the commissioner imputed $10 in hourly income to Osborn, finding "Osborn's and . . . Musalman's first and principal obligation is to financially support their minor children according to the parent's circumstances and station in life. Both parents are mutually responsible for the financial support of their children. Each parent should pay support according to their ability and opportunity to work, which means imputing income if unemployed. [¶] The court will calculate child support using the guidelines adopted by the Superior Court of the County of Santa Clara, California . . . . The court may take into account a parent's earning capacity and level of responsibility for the children, consistent with the best interests of the children."
The commissioner also included an order under the heading "Job Contacts," requiring Osborn to "make and document ten job contacts each week beginning on or about February 15, 2016. Written proof of the contact has to come from the potential employer. [Osborn] shall also mail copies of the written proof of those contacts to . . . Musalman every thirty days. [Osborn] shall also advise [Musalman] in writing, within forty-eight hours, if and when she obtains employment, including the name, contact information (address, telephone number and e-mail address) for her employer and amount of her compensation."
Osborn contends the family court commissioner abused its discretion by imputing income to her and by issuing the job contacts order. Citing the rule that a family court's determination of earning capacity must be consistent with the children's best interest, Osborn asserts the commissioner here made no finding that the children's best interests were served by imputing income to her and reducing the money available for their support, or that their interests were served by having her work outside the home. She asserts she "now spends less time with the children and has less mental and physical energy to dedicate to them" and that the children have "suffered from this order." Osborn also maintains the job contacts order is overly burdensome, "abusive," and only gives Musalman the "satisfaction of controlling [her] conduct," pointing out that though she is not in default on any support order, the order requires her to report four times as many contacts as required by section 4505, permitting courts to require defaulting parents to submit specified job search information to a designated entity or the court.
"It has long been the rule in this state that a parent's earning capacity may be considered in determining . . . child support." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 642; see also In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 301.) " ' " '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.]' " ' [Citation.] Use of the earning capacity standard is inappropriate where a party lacks either the ability or the opportunity to work." (In re Marriage of Cohn, at pp. 927-928.) For child support purposes, the consideration of a party's earning capacity to impute income must be in the children's best interest, and the court must make such a finding. (§ 4058, subd. (b); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301, 308; In re Marriage of Cohn, at p. 927; In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 18-19; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051, fn. 3; In re Marriage of Mosely (2008) 165 Cal.App.4th 1375, 1389.) Whether earnings should be imputed to an unemployed parent is a matter addressed to the court's sound discretion (§ 4058, subd. (b); Cryer, at p. 1051, fn. 3) and we review its order for an abuse of that discretion, determining whether its factual determinations are supported by substantial evidence and whether it acted reasonably in exercising its discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.)
In this case, both the October and December 2015 hearings at which the commissioner considered the issue of child support went unreported. However, in the commissioner's January 2016 findings and order after hearing, the commissioner expressly acknowledged that any accounting for a parent's earning capacity must be "consistent with the best interests of the children." On this record, we must presume the commissioner took into account and considered the children's best interests absent a showing otherwise, which Osborn has not made. And, because we do not know what testimony or evidence was presented or accepted at the evidentiary hearings, " '[the] question of the sufficiency of the evidence to support the findings is not open.' " (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.) We presume the parties presented evidence of Osborn's ability, willingness and opportunity to work, and that the evidence supported the commissioner's decision.
To the extent Osborn argues the commissioner erred by not making an express finding on the children's best interests, Osborn does not cite authority requiring an express finding, and in fact such an express finding is not required. (See In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 301 [pointing out that in that case "the trial court made no express or implied finding that imputing earning capacity to [the parent] would be in the children's best interests," italics added].) In re Marriage of Ficke, supra, 217 Cal.App.4th 10, relied upon by Osborn, does not hold an express finding is required. Nor does it hold that income may never be imputed to a custodial parent. (Id. at p. 13 ["We do not say, of course, that a court may never impute income to a 'custodial' parent . . . ."].) The case is entirely distinguishable in any event. And indeed, Family Code section 4058 does not require the court to make a finding in writing or on the record. (Compare Welf. & Inst. Code, § 361.2, subd. (c) [requiring the court to "make a finding either in writing or on the record of the basis for its determination . . . ."]; In re J.S. (2011) 196 Cal.App.4th 1069, 1078.) The statute simply provides that a 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." (Fam. Code, § 4058, subd. (b).) We conclude that by imputing income to Osborn in its January 2016 findings and order after hearing, the commissioner implicitly found that imputation was in the children's best interests. Osborn does not establish error in that aspect of the commissioner's order.
In In re Marriage of Ficke, supra, 217 Cal.App.4th 10, the family court imputed average monthly income of $13,333 to a mother who had 95 percent custody, even though the evidence showed that her "hard" monthly income was only $251. (Id. at p. 16 & fn. 5.) The Court of Appeal held that for purposes of the guideline formula, income may not be imputed to a custodial parent absent a finding that the imputation is in the best interests of the children (id. at p. 13), and it held the family court abused its discretion, pointing out that "[n]owhere in the statement of decision or the trial judge's remarks do we find any reference to the interests of the children." (Id. at pp. 13, 17; see also id. at p. 22.) Here, in contrast, the commissioner expressly acknowledged its obligation to consider the children's best interests, and we presume it found it was in their best interest that Osborn enhance her income through employment absent a showing to the contrary.
As for the court's job contacts order, Osborn fares no better. We review the court's order for abuse of discretion. (See Barron v. Superior Court (2009) 173 Cal.App.4th 293, 298-299.) Such discretion "must be controlled by fixed legal principles and exercised in the spirit of the law, in a manner to serve the ends of substantial justice. [Citation.] A trial court's discretion is limited by the legal principles governing the subject of its action and is subject to reversal on appeal where no reasonable basis for the action is shown." (Ibid.) Osborn has not demonstrated such an error. She merely compares the requirements of her job contacts order to purported assertions made by Musalman about his own unemployment (as recounted in a 2013 declaration of Osborn's), and makes footnoted collateral arguments accusing Musalman of deception in the process. Such assertions have no relevance to whether the commissioner abused its discretion. Absent reasoned legal argument and authority to support Osborn's claim of error, we treat it as forfeited. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Moreover, we are not persuaded by Osborn's comparison of the commissioner's order with the sort of order required in section 4505. Because we do not know what evidence and testimony was presented to or considered by the commissioner, we must presume there was a rational basis for the job contacts order. In short, Osborn has not shown the commissioner erred in that aspect of the order.
Notably, the minutes of the October 2015 hearing indicate the commissioner considered Musalman's numerous written evidentiary objections to statements made in Osborn's declaration, sustaining all but one objection on grounds the statements lacked personal knowledge and foundation. Osborn does not include Musalman's evidentiary objections in the appellate record, however, and the minutes do not specify to which declaration the objections were directed. We therefore presume, absent a showing otherwise, that the commissioner ruled inadmissible the portions of Osborn's declaration on which she relies. --------
DISPOSITION
The postjudgment order is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.