Filed 2/19/21 Marriage of Scales CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of KARLA and 

ANTHONY SCALES.

B295037

KARLA SCALES,

Respondent,

v.

ANTHONY SCALES,

Appellant.

(Los Angeles County

Super. Ct. No. YD066091)

APPEAL from an order of the Superior Court of 

Los Angeles County, Joseph Lipner, Judge. Affirmed.

John E. Carlson for Appellant. 

C. Brian Martin for Respondent.

_______________________
2

Anthony Scales appeals the family law court’s 

November 13, 2018 order denying his request to modify his child 

support obligations following his resignation from the Beverly 

Hills Police Department (BPHD). Anthony1 contends the court 

abused its discretion in ruling his resignation did not constitute a 

significant change of circumstances warranting modification and 

imputing to him his preresignation earning capacity. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Anthony’s Child Support Obligations and His Request 

To Modify

Anthony and Karla Scales married in July 1998 and 

separated in July 2014. They have three children: 22-year-old 

Jordan, 20-year-old Maya and 17-year-old Mason.

Karla petitioned for dissolution of the marriage on 

January 14, 2015. On November 8, 2016 the family law court 

entered a judgment of dissolution and provided for spousal 

support, child custody and support, and division of property 

based on a September 12, 2016 stipulated judgment between the 

parties. As pertinent to this appeal, the court ordered Anthony to 

pay a total of $2,344 per month in child support—$672 for 

Jordan, $988 for Maya and $684 for Mason—to continue until 

each child reached age 18 (or up to age 19 if still in high school 

and living at home).2

1 As is customary in family law proceedings, we refer to the 

parties by their first names for clarity.

2 Anthony was also ordered to pay Karla $626 in monthly 

spousal support. The court terminated Anthony’s spousal 

support obligation in November 2018 for reasons unrelated to the 

issues in this appeal.
3

When the parties agreed to Anthony’s child support 

obligation and the court entered its judgment, Anthony was on 

paid administrative leave from BHPD, which was conducting an 

internal investigation into allegations he had committed workers’ 

compensation fraud. Anthony had injured his back sometime in 

2010 and received workers’ compensation benefits while placed 

on injured-on-duty (IOD) status between April 2013 and January 

2014. The internal investigation and Anthony’s administrative 

leave began in January 2014.

On November 14, 2016—less than a week after entry of the 

judgment of dissolution—Anthony was notified the internal 

investigation had concluded and he could return to work. 

Three days later Anthony resigned from BHPD, claiming he 

could not competently or safely do his job because of continued 

back pain. Anthony had not sought any accommodations from 

BHPD prior to resigning.

On April 27, 2017 Anthony filed a request for order (RFO) 

to modify spousal and child support, citing his decreased income 

from his full-time work as a realtor, something he had pursued 

on a part-time basis while a police officer. Anthony requested the 

family law court terminate spousal support and reset his monthly 

child support payments based on the state guideline and his 

current income.3 

3 Anthony reported earning $21,813 in 2016. He filed income 

and expense declarations showing his 2017 and 2018 monthly 

income fluctuated between $1,700 and $3,260, with $1,550 to 

$1,880 in monthly expenses (excluding his support obligations). 

Anthony stated that, at the support levels set forth in the

stipulated judgment, he spent on average $3,240 more than he 

earned each month. 
4

Karla opposed Anthony’s RFO, arguing Anthony was not 

entitled to reduce his support obligations based on quitting his 

job after he had been cleared, both medically and 

administratively, to return to work as a patrol officer. Karla also 

argued Anthony could not demonstrate he lacked the ability or 

opportunity to earn a greater income than reflected on his income 

declaration.

Anthony’s work and injury history, continuing back pain 

and post-resignation employment were the focus of the family law 

court’s consideration of the RFO.

2. Anthony’s Employment and Injury History

Anthony worked as a community service officer for the 

Los Angeles County Sheriff’s Department from 1991 until 1993 

and as a sworn officer for the Los Angeles Police Department 

between 1993 and 1999. In 1999 Anthony became a patrol officer 

with BHPD. His position required that he be able to scale walls, 

run, fight and arrest uncooperative suspects. 

As discussed, in 2010 Anthony injured his back while on 

duty. Anthony was off work for two weeks and then returned 

without restrictions. Anthony did not experience back pain again 

until late 2012. For several months beginning in December 2012

Anthony’s renewed back pain progressively worsened to the point 

he had difficulty getting into and out of a police car while on duty 

and could not sit or stand for long periods. 

In March 2013 Anthony reported to BHPD that he could 

not work due to pain in his back and hip area. BHPD placed 

Anthony on IOD status, and Anthony collected workers’ 

compensation benefits between April 2013 and January 2014.

In January 2014 a lieutenant informed Anthony that 

BHPD had initiated an internal investigation based on an 
5

allegation that Anthony had engaged in workers’ compensation 

fraud. BHPD placed Anthony on administrative leave during the 

investigation. While on administrative leave between January 

2014 and November 2016, Anthony did not work but still 

collected his salary.

a. Anthony’s physical examinations

Following an MRI examination shortly after being placed 

on IOD status, Anthony was told he had a perforated left hip 

flexor and herniated discs in his lower back. Over the next 

eight months Anthony had multiple physical examinations. On 

April 16, 2013 a physician’s progress report prescribed physical 

therapy and approved Anthony’s return to modified work with 

restrictions on lifting and squatting. The report indicated, if light 

duty work was unavailable, “patient is considered to be 

temporarily totally disabled and should not resume regular 

work.” Subsequent progress reports following examinations on 

April 23, April 30 and May 14 contained the same modified work 

restrictions. According to Anthony, BHPD had only one light 

duty position: a seniority- and merit-based desk job that was 

already filled by a senior officer. 

A May 28, 2013 physician’s progress report instructed 

Anthony to remain off work until June 11, 2013, pending an 

appointment with an orthopedist. Numerous post-examination 

reports from two different orthopedic practices categorized 

Anthony as temporarily totally disabled between August 2013 

and January 2014. 

An orthopedist cleared Anthony to return to work on 

January 20, 2014 with work restrictions on prolonged sitting and 

standing “if available.” By that time Anthony was no longer 

receiving physical therapy through any medical practice. He
6

continued to do stretches and exercises on his own at home and 

in the gym. 

A May 5, 2014 post-examination report indicated Anthony’s 

thoracic spinal range of motion was normal and his hip had no 

swelling, atrophy or deformity and had a normal range of motion. 

A July 28, 2014 report stated Anthony’s “symptoms had improved 

with conservative care and his home and gymnasium exercise 

routines.” According to this report, Anthony had told the 

physician “he went on to full recovery with no physical 

limitations.” “The patient has resumed his usual and customary 

work duties as a police officer, and I feel that he is capable of 

continuing to do so. Restrictions on his work activities are not 

indicated at this time. [Anthony] is not considered medically 

eligible for vocational rehabilitation at this time.” 

The next physician reports provided in connection with 

Anthony’s RFO were from January and May 2016 and stated 

Anthony “may return back to work with full duty” and “no 

limitations or restrictions.” One report suggested that Anthony 

prophylactically use lightweight equipment while on duty, but 

Anthony never discussed that possible accommodation with 

anyone at BHPD.

b. Testimony regarding Anthony’s physical condition 

Anthony testified at the RFO hearing that he had

experienced back and hip pain on a daily basis since 2013. While 

the pain was initially intense, Anthony began to feel better over 

time. 

However, the report from an orthopedic examination on 

February 22, 2017, three months after Anthony’s resignation, 

stated Anthony’s back pain persisted and indicated Anthony and 

the orthopedist had discussed “the frail nature of [Anthony’s] 
7

back” and the “potential of accelerating his spinal degenerative 

abnormality, ultimately requiring major surgical reconstruction.” 

The orthopedist’s report “endorse[d]” Anthony’s decision to resign 

from BHPD. In addition, Anthony testified he experienced a 

further relapse in August 2017, which forced him to sleep on the 

floor for at least three weeks. Anthony testified, as of the time of 

the hearing, he still did not feel capable of safely sprinting or 

fighting.

For her part, Karla testified she recalled Anthony had been

injured in 2012 but knew he continued to go to the gym and ride 

his bicycle. Karla described Anthony’s injury as serious at first,

but understood the pain diminished over time. While attending 

one of their children’s recent sporting events, Karla had observed 

Anthony move very quickly to catch a falling bag. After Karla 

commented on Anthony’s action, he acknowledged that a few 

years earlier he would not have been able to move as he had.

Karla also testified Anthony told her that he decided to 

resign because he felt other BHPD patrol officers did not like him 

and were going to make his work environment difficult.

c. Anthony’s post-resignation employment

After resigning from BHPD, Anthony worked full-time as a 

realtor. Anthony obtained his real estate license in 2000 and had 

worked part-time as a realtor while employed by BHPD. As a 

full-time realtor Anthony reported he earned “about minimum 

wage” and estimated his annual income at $30,000. While a 

BHPD employee, Anthony had ultimately earned approximately

$120,000 a year before overtime.

Anthony did not apply for other employment after 

resigning from BHPD because he had already decided to move 

into real estate full time. Anthony did not look into, and did not 
8

know, whether other job opportunities were available to him 

within BHPD that would not have required him to perform 

physical tasks he could not do. Despite having previously worked 

in security, Anthony made no effort to identify other jobs he 

might be qualified for based on his long law enforcement career.

When asked why he did not try to find a different job, Anthony 

answered that his real estate career transition was “working for 

me.”

3. The Family Law Court’s Order

After conducting a trial on September 13, 2018 and 

October 5, 2018, the court issued a 14-page order on 

November 13, 2018 denying Anthony’s request to reduce his child 

support obligations. The court found that Anthony’s health and 

physical condition had not changed between the time he had 

agreed to the support levels specified in the judgment of 

dissolution and his resignation from BHPD shortly thereafter. In 

addition, the court pointed out, Anthony could have requested 

language in the stipulated judgment allowing for support 

modification in the event he left his job at BHPD, but did not 

do so. 

The court also ruled Anthony had failed to carry his burden 

to show his former BHPD salary should not be imputed to him, 

noting a parent’s voluntary decision to leave his or her 

employment is not a proper ground to reduce that parent’s 

support obligations. While Anthony continued to feel discomfort

from his earlier injuries, the court concluded, he had not 

demonstrated he suffered from a disability that prevented him

from working as a BHPD patrol officer when he chose to resign. 

The court did not find credible Anthony’s testimony there was “no 

way” he could go back to work in November 2016, and Anthony 
9

did not provide medical evidence supporting his belief he could 

not work as a patrol officer in late 2016. To the contrary, the 

documentary evidence supported the conclusion that Anthony 

was healthy enough to return to his regular patrol work as early 

as 2014. 

Finally, the court ruled Anthony had failed to establish a 

lack of ability or opportunity to earn his former salary in a 

different position. Anthony did not inquire whether BHPD could

accommodate his perceived limitations in a different position and 

did not explore possible alternative law enforcement or security 

opportunities. In fact, Anthony did not apply to any kind of job 

after resigning from BHPD, having already decided to move into 

real estate.

DISCUSSION

1. Governing Law and Standard of Review

As a general rule, a party seeking modification of a child 

support order must establish that circumstances have changed 

since the underlying order was made. (In re Marriage of Usher

(2016) 6 Cal.App.5th 347, 357; In re Marriage of Cryer (2011) 

198 Cal.App.4th 1039, 1048; In re Marriage of Leonard (2004) 

119 Cal.App.4th 546, 556.) The burden of proof to justify a 

downward modification rests with the supporting party. 

(In re Marriage of Cryer, at p. 1054; In re Marriage of Leonard, 

at p. 556.)

“‘“Change of circumstances” means a reduction or increase 

in the supporting spouse’s ability to pay and/or an increase or 

decrease in the supported spouse’s needs. It includes all factors 

affecting need and the ability to pay.’” (In re Marriage of 

Shimkus (2016) 244 Cal.App.4th 1262, 1272-1273.) “‘There are 

no rigid guidelines for evaluating whether circumstances have 
10

sufficiently changed to warrant a child support modification.’” 

(In re Marriage of Usher, supra, 6 Cal.App.5th at p. 358.) “‘The 

ultimate determination of whether the individual facts of the case 

warrant modification of support is within the discretion of the 

trial court.’” (Ibid.; see In re Marriage of Khera & Sameer (2012) 

206 Cal.App.4th 1467, 1484 [“‘A modification of spousal support 

cannot be granted in the absence of proof of a change in 

circumstances. However, the converse is not true; a showing of 

changed circumstances does not necessarily mandate a 

modification of spousal support’”].)

We generally review an order granting or denying a request 

to modify child support for abuse of discretion. (In re Marriage of 

Usher, supra, 6 Cal.App.5th at p. 357.) Under that standard, 

“‘[W]e do not substitute our judgment for that of the trial court, 

but confine ourselves to determining whether any judge could 

have reasonably made the challenged order.’” (In re Marriage of 

Macilwaine (2018) 26 Cal.App.5th 514, 527.)4 However, “[t]o 

4 To the extent an appellant challenges the factual basis for 

the family law court’s decision to deny modification of support, 

rather than arguing it abused its discretion in determining the 

facts as found do not warrant modification, the question for the 

reviewing court is not whether substantial evidence supported 

the family law court’s findings, but whether the evidence 

compelled findings in favor of the appellant as a matter of law: 

“‘In the case where the trier of fact has expressly or implicitly 

concluded that the party with the burden of proof did not carry 

the burden and that party appeals, it is misleading to 

characterize the failure-of-proof issue as whether substantial 

evidence supports the judgment.’ [Citation.] ‘Thus, where the 

issue on appeal turns on a failure of proof at trial, the question 

for a reviewing court becomes whether the evidence compels a 
11

decide whether the trial court followed established legal 

principles and correctly interpreted the child support statutes, we 

apply the independent standard of review.” (In re Marriage of 

Alter (2009) 171 Cal.App.4th 718, 731.) 

2. Earning Capacity Versus Actual Income

When a parent’s income changes following entry of a child 

support order,5 the family law court may properly consider “not 

only [that parent’s] 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 v.

Ramos (2010) 182 Cal.App.4th 680, 684-685.) 

finding in favor of the appellant as a matter of law.’” (Juen v.

Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979; 

accord, Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 

218 Cal.App.4th 828, 838.) “‘Specifically, the question becomes 

whether the appellant’s evidence was (1) “uncontradicted and 

unimpeached” and (2) “of such a character and weight as to leave 

no room for a judicial determination that it was insufficient to 

support a finding.”’” (Juen, at p. 979; accord, Glovis America, Inc. 

v. County of Ventura (2018) 28 Cal.App.5th 62, 71; see In re R.V.

(2015) 61 Cal.4th 181, 201 [where a party fails to carry its burden

on an issue in the trial court, “the inquiry on appeal is whether

the weight and character of the evidence . . . was such that the

[trial] court could not reasonably reject it”].)

5 The court need not find the supporting spouse acted in bad 

faith to consider earning capacity rather than actual income.

“‘“While deliberate avoidance of family responsibilities is a 

significant factor in the decision to consider earning capacity 

[citation], [Family Code section 4058, subdivision (b),] explicitly 

authorizes consideration of earning capacity in all cases,” 

consistent with the child’s best interests.’” (In re Marriage of 

McHugh (2014) 231 Cal.App.4th 1238, 1245-1246.) 
12

“‘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. . . . [¶] . . . When the ability to work or the 

opportunity to work is lacking, earning capacity is absent and 

application of the standard is inappropriate. When the payor is 

unwilling to pay and the other two factors are present, the court 

may apply the earnings capacity standard to deter the shirking of 

one’s family obligations.’” (Mendoza v. Ramos, supra, 

182 Cal.App.4th at p. 685; accord, In re Marriage of McHugh

(2014) 231 Cal.App.4th 1238, 1245-1247; In re Marriage of Lim & 

Carrasco (2013) 214 Cal.App.4th 768, 775-776.) 

Where the payor parent “‘seeks a reduction in court-ordered 

support based on the changed circumstances of lack of income, it 

will be the payor parent, as moving party, who bears the burden 

of showing a lack of ability and opportunity to earn income.’” 

(In re Marriage of McHugh, supra, 231 Cal.App.4th at pp. 1246-

1247; accord, In re Marriage of Bardzik (2008) 165 Cal.App.4th 

1291, 1304.) “This rule is grounded in the commonsense 

proposition that you can lead someone to a want ad but you can’t 

make them apply for the job. . . . Readers need only use a little 

imagination to think of all the ways that a parent with both 

ability to do a job and the opportunity to get it could subtly 

sabotage a job application or interview.” (In re Marriage of 

Bardzik, at p. 1305; accord, In re Marriage of McHugh, at 

pp. 1251-1252.)
13

3. The Family Law Court Did Not Abuse Its Discretion in 

Determining Anthony Failed To Show Changed 

Circumstances Justifying Modification of His Child 

Support Obligations

The family law court acted well within its discretion in 

determining Anthony’s decision to resign from BHPD when his 

administrative leave terminated did not constitute changed 

circumstances warranting a reduction in his child support 

obligations. As discussed, Anthony resigned nine days after 

entry of the judgment of dissolution, which incorporated the

stipulated terms for child support. No evidence suggested

Anthony’s medical condition had changed in the intervening 

period. The only change was BHPD’s closure of its internal 

workers’ compensation fraud investigation and, with it, the end of 

Anthony’s administrative leave. Anthony was certainly aware 

that, if exonerated, he would be expected to return to patrol duty

and, given the nearly three years that had elapsed since 

commencement of the fraud investigation, should have 

anticipated that could occur at any time. The court reasonably 

observed that the stipulated judgment could have, but did not, 

include language modifying Anthony’s support obligations in the 

event he left BHPD. Given his unchanged physical condition, it 

does not matter whether Anthony was physically able to return 

to active police work and intended to do so when he agreed to the 

terms of the stipulated judgment or he had already decided to 

resign as soon as his paid administrative leave ended and was 

attempting to conceal that plan. Neither alternative justifies a 

modification of support.

Anthony contends his self-assessment that he could not 

safely return to patrol work fully justified his resignation.

However, as discussed, after placed on IOD status in March 2013, 
14

Anthony was medically cleared to return to his patrol officer 

duties in 2014 with no medical restrictions. Physician reports 

from 2016 reaffirmed Anthony’s clearance to return to work with 

full duty and no limitations or restrictions. The only physician 

report arguably supporting Anthony’s contention that he could 

not safely return to patrol work given his medical condition 

resulted from a February 2017 follow-up exam three months after 

Anthony had resigned from BHPD. This report merely 

“endorse[d]” Anthony’s decision to resign after the fact. 

In short, Anthony’s evidence in support of his argument 

was neither uncontradicted nor of such character and weight as 

to compel a finding in his favor that Anthony’s medical condition 

prevented him from continuing his employment as a BHPD 

patrol officer at the time he chose to resign. (See Juen v. Alain 

Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 979.) 

To be sure, Anthony is correct that, as a factual matter, his 

income decreased and his economic situation had changed as a 

result of his resignation. However, a “‘[c]hange of circumstances’” 

means a change in a supporting parent’s ability to pay, or a 

change in the supported spouse’s needs. (In re Marriage of 

Shimkus, supra, 244 Cal.App.4th at pp. 1272-1273.) Anthony’s 

BHPD resignation did not necessarily reduce his ability to pay 

child support. Anthony might have easily obtained another job

with an equivalent salary if he had made any effort to do so. 

Moreover, Anthony’s contention ignores that a parent’s showing 

of changed circumstances does not mandate support modification. 

As discussed, whether the facts presented warrant modification 

of support remains within the broad discretion of the family law

court. (Ibid.; accord, In re Marriage of Khera & Sameer, supra, 
15

206 Cal.App.4th at p. 1484.) That discretion was reasonably 

exercised here. 

4. The Family Law Court Did Not Abuse Its Discretion in 

Determining Anthony Failed To Show Lack of Ability or 

Opportunity To Earn Income at His Previous Level

Even if the court had found Anthony was physically 

incapable of returning to active patrol officer duty in November 

2016, as the parent seeking support modification, Anthony had

the burden to prove he lacked the ability or opportunity to earn a 

comparable income in a different job. (In re Marriage of McHugh, 

supra, 231 Cal.App.4th at pp. 1245-1247.) The family law court 

reasonably determined Anthony failed to carry this burden. 

As discussed, after resigning from BHPD, Anthony made 

no effort to find other employment, preferring instead to expand 

his work in real estate from part-time to full-time. Anthony had

earned approximately $140,000 a year at BHPD. During 

four years working full-time as a real estate agent, Anthony 

reported annual earnings of $30,000 or less. Yet Anthony stated 

his career transition was “working for [him].”

Although Anthony acknowledges that income can be 

imputed based on earning capacity, he contends his resignation 

from BHPD and decision not to seek comparable employment 

should not be considered “voluntary,” arguing his physical 

limitations precluded not only his return to BHPD as an active 

patrol officer but also his employment in security-related 

positions with other public or private employers, notwithstanding 

his extensive experience in law enforcement. Yet he introduced 

scant evidence that, in light of his purported disability, he had 

neither the ability nor the opportunity to obtain such 

employment and with it a salary commensurate with the one on 
16

which his child support obligations were based. The family law 

court’s credibility findings—its disbelief of Anthony’s selfdescription of the extent of his pain and its impact on his ability 

to work and its acceptance of Karla’s testimony that Anthony’s 

physical limitations diminished after 2013—amply support its 

rejection of this argument. 

Simply put, Anthony did not have the right to divest 

himself of his earning ability at the expense of his minor 

children. (In re Marriage of McHugh, supra, 231 Cal.App.4th at 

p. 1253; see Moss v. Superior Court (1998) 17 Cal.4th 396, 424;

In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218; In re 

Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1639.) “Instead, ‘a 

child support obligation “‘must be taken into account whenever 

an obligor wishes to pursue a different lifestyle or endeavor. . . . 

[It is] an overhead which must be paid first before any other 

expenses.’”’” (In re Marriage of McHugh, at p. 1253.) 

In sum, the family law court did not abuse its discretion 

when it ruled Anthony had failed to carry his burdens to 

establish a reduction in his child support obligations was 

justified.

DISPOSITION

The order denying modification of child support is affirmed.

Karla is to recover her costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.