Filed 3/13/13 M.V. v. J.V. CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

M.V., 

 Plaintiff and Appellant, 

 v. 

J.V., 

 Defendant and Respondent. 

 D061474 

 (Super. Ct. No. DS41687) 

 APPEAL from an order of the Superior Court of San Diego County, Roderick W. 

Shelton, Judge. Reversed. 

 Appellant M.V. (Mother) appeals from a postjudgment order modifying and 

eliminating certain child support obligations of the child's father, respondent J.V. 

(Father). Those obligations were originally established by a stipulated judgment in this 

paternity action that referred to Father's ownership of substantial assets from which the 
2 

support would be paid, without regard to his monthly income. (Fam. Code,1 §§ 3587, 

4053 et seq., 7600 (the Uniform Parentage Act).) In the initial phase of this proceeding, 

the family court denied Father's request to set aside the stipulated judgment, and that 

order has not been challenged and is well supported by the record. 

 Mother appeals the family court's order that (1) granted the motion by Father to 

modify and decrease his stipulated support obligations in several respects, i.e., the 

duration (from age 21 to age 18) and amount of the monthly payments (from $3,000 to 

$928) and educational expenses, and (2) denied Mother's informal and formal motions to 

continue the hearing for discovery of the value and existence of his assets, as they had 

been referenced in the stipulated judgment. In its ruling, the court stated its view that the 

parties' agreement was unfair, because it was different from the usual support orders, and 

it should not be enforced. (§ 3901, subd. (a) [support obligation ordinarily runs until age 

18 or high school completed].) 

 On appeal, Mother contends the family court abused its discretion, acted without 

sufficient support in the evidence, or exceeded its jurisdiction when it reduced the amount 

and duration of the monthly support, and set aside or modified several educational 

expense provisions in the stipulated judgment. She contends she showed ample grounds 

for a continuance of the hearing to seek discovery about Father's assets, because he did 

not file an income and expense declaration (I&E declaration) until shortly before the 

April 6, 2011 hearing, to put his assets at issue. 

 

1 All further statutory references are to the Family Code unless noted. 
3 

 Representing himself on appeal, Father responds that Mother failed to supply 

credible proof that he had any significant assets, as referred to in the stipulated judgment, 

and the court was justified in denying her requested continuances for discovery. He 

points out that his motion was originally filed in November 2010 and then continued, so 

that Mother could have sought discovery earlier. He also claims the family court 

correctly concluded on the available evidence that he had sufficiently shown a change of 

circumstances regarding his monthly income and disability status, with respect to both 

the monthly support and the educational expenses. 

 We conclude Mother's challenges to the order are well taken, and the record 

demonstrates that the family court lacked any adequate basis in the evidence to exercise 

its discretion in the manner it did on the child support issues, and under all the relevant 

circumstances, it was an abuse of discretion to deny the requested continuance to allow 

further discovery about Father's assets. Moreover, the family court misinterpreted the 

terms of the parties' agreement with respect to the duration of child support ordered and 

the educational expense issues, and it erred in altering that agreement through these 

modification proceedings, which constituted an impermissible collateral attack on the 

stipulated judgment, but without a proper showing. (See In re Marriage of Stanton

(2010) 190 Cal.App.4th 547, 554.) We reverse the order. 
4 

I 

BACKGROUND 

A. Stipulated Judgment on Paternity and Support 

 We set forth only those facts that are relevant to the issues on appeal. The record 

shows that the parties, who were never married, entered into a May 2010 stipulation for 

entry of judgment establishing paternity of their daughter, born in 2006 (the stipulated 

judgment or SJP, which resembles a marital settlement agreement (MSA) confirmed by a 

judgment). The stipulation provides for sole legal and physical custody in Mother and 

for Father to pay specified child support and expenses, and provides for a reservation of 

jurisdiction to the court to resolve any disputes arising out of the agreement. Notice of 

entry of judgment was given in May 2010. 

 Although the stipulated judgment covers a number of topics, this appeal concerns 

only the provisions for monthly child support, clothing expenses, and for support 

payments for private high school, university expenses and possibly graduate school. 

Regarding monthly child support, the SJP states that Father shall pay to Mother $3,000 

per month for child support, as well as bearing all clothing, school uniform and shoe 

expenses.2 The duration of this obligation was stated to be until the child reached the age 

of 21 and is no longer a full-time student, or when she marries, dies, or completes her 

university studies. The SJP states, "It is the parties' mutual desire that child support 

 

2 The parties' agreement that Father would pay additional child support consisting of 

the child's clothing expenses, including shoes and any school uniforms, does not mention 

private elementary school, and the precollege agreement apparently was limited to the 

child attending private high school. 
5 

continue until the child has completed her university Baccalaureate and any postgraduate 

degrees." 

 Next, the agreement states that the parties had agreed upon the child support 

amounts and expenses stated above, in light of Father's refusal in these proceedings to 

provide any completed I&E declaration. However, Father represented by signing the 

agreement "that he has the ability to pay all support and expense payments set forth in 

this agreement and that he anticipates that he will have sufficient assets and income to 

pay all of the child support and expenses," as had been set forth. "Father further 

represents that the income from his current or future employment is not necessary for him 

to meet the obligations set forth in this Agreement because the Father has sufficient assets 

and other sources from which to pay the support and expenses," as above, and Father 

represented himself to be a high income earner within the meaning of section 4057. The 

agreement accordingly sets forth a presumption, based on Father's representations, that he 

cannot request a downward modification of child support, "absent a very strong and 

specific showing of changed circumstances." The parties acknowledged their rights 

under California child support guidelines, along with their agreement to change that level 

of child support. 

 Regarding private high school expenses, paragraph 10A of the SJP states the 

parties' mutual desire that the child would attend private high school and university, and 

that Father would pay as additional child support 100 percent of private school tuition, 

book costs, fees and associated expenses. 
6 

 Regarding university expenses, paragraph 10C of the SJP states the parties' mutual 

desire that the child attend college, "and possibly graduate school," after graduating from 

high school, and that absent any other independent funding source, Father shall pay 100 

percent of the cost of books, tuition, room, board, and fees for college or university, "in 

the [child's] conscientious pursuit of an initial Baccalaureate and/or postgraduate degree." 

B. April 2011 Motion to Modify Support Amount; Denial of Motion to Set Aside 

 In November 2010, Father filed a motion to set aside the SJP, or in the alternative 

to modify custody and support. (Code Civ. Proc., § 473, subd. (b).) After a stipulated 

continuance, he filed an I&E declaration two days before the April 6, 2011 hearing. 

Both parties had legal representation, and Mother filed opposition papers. At the first 

hearing, the trial court denied his request to set aside the SJP, and deferred the financial 

issues for further hearings. 

 At four days of hearings over several months, the court took declarations and 

heard testimony from several witnesses, including the parties. Father sought to decrease 

his monthly support obligation from $3,000 per month, because he stated he had 

voluntarily resigned his job as a deputy attorney general with the Baja California office in 

Mexico, and reduced his income from about $14,500/month to $0 (all in U.S. dollar 

amounts). As of March 2011, he was on temporary disability for finger surgery. His 

I&E declaration stated he had $150,000 in personal property, $2,500 cash, but no real 

property. His 2009 tax return showed he had income of $172,513.50. 

 In Father's I&E declaration of May 13, 2011, he stated that his monthly gross 

income was now $4,652 per month, with total expenses of $3,860. A revised declaration 
7 

dated May 17, 2011 showed a further reduction in income and expenses. He had 

obtained a new job, district attorney supervisor, and was living in Tijuana in a 

condominium for which his employee (Attorney Marcos Valenzuela) held title. Father 

paid $350 monthly maintenance costs, not rent. He stated that he did not own any real 

property or businesses, although his father Jorge Rodriguez-Pacheco (Grandfather) and 

family owned several. 

 In rebuttal, Mother filed declarations and her own I&E declaration, stating that 

Father had resigned his position to obtain a higher position within the federal attorney 

general system. She said Father owned or pursued a money lending business called Auto 

Money, and he had five offices for this business and earned about $20,000 per month 

from it, for a total monthly income of about $80,000 from his work and properties. 

According to Mother, Father bought real estate in his mother's name and his brothers' 

names. He had income from an inheritance from his grandmother, a tire warehouse in 

Mexico City. 

 Mother received some rental payments from Father for a warehouse that Mother 

owned in Mexicali, that Father managed for her, although it was unclear whether those 

payments were also in the nature of child support, as Father had reported them differently 

to United States and Mexican authorities. Mother, also an attorney, operated a law 

practice at a loss and she owned $200,000 in real and personal property. Her 2010 taxes 

showed an income of $9,950. She was living in section 8 low income housing in the San 

Ysidro area with the child and her other children. She claimed Father paid child support 

to her up until February 2011. 
8 

C. May 2011 Mother's Motion for Continuance; August 2011 Ruling

 In May 2011, Mother provided a copy of a January 2010 real property purchase 

agreement for a Coronado house, priced at $885,000, with Father and a friend listed as 

the purchasers, and showing a cash deposit of $26,550. Mother orally requested that the 

hearing be continued so that she could take discovery of the income and expenses that 

Father listed, and others, and a ruling was deferred. Mother filed a written motion to 

continue the financial issues on June 2, 2011, supported by her declaration about the 

extent of her knowledge of assets that Father held in the name of others in Mexico. The 

court denied any continuance at the June 17 hearing. 

 Father filed further responses and lodged recent pay stubs. He testified that by 

April 2011, he was using his savings to pay Mother the monthly $3,000 child support, 

and the assets he held were the same both in May 2010, when the stipulated judgment 

was entered, and in May 2011, at the time of the hearing. 

 In July 2011, Mother lodged translated declarations from Father's half-sister and 

from Grandfather, about their respective knowledge of assets that Father held in Mexico. 

Mother updated her I&E declaration in August 2011. At the hearing, Mother testified 

about her limited knowledge of the real properties and businesses that Father was 

operating, as well as stating that he often received valuable gifts in the course of his legal 

work for favors he gave. He drove cars that were registered in the names of others, 

obtained gasoline subsidies from work, and did not pay rent. Father filed a rebuttal 

declaration from Grandfather, denying he told Mother anything about Father's assets. 

Father stated that he was not a corrupt official, and the gifts were not improper. 
9 

 At the close of the August 5, 2011 hearing, the court issued a tentative and then a 

final ruling, as an oral statement of decision. The court ordered that Mother and Father 

should share joint legal custody, and Father had a 25 percent timeshare. The court stated 

its belief that the stipulated agreement regarding child support past age 18 was not fair, 

and the duration of the support obligation was reduced from age 21 to age 18, as the court 

stated that was customary under section 3901. 

 In explaining its support ruling, the court stated, "I'm going to only look at 

evidence I have in front of me, and that's going to be payment stubs. With that being 

said, when [Father] makes more money, [Mother] can always come back and ask for an 

increase in child support, and that's just how it works. But for right now, I'm going to use 

the income that I do have." 

 The court next inquired whether Father's income on the pay stubs was in pesos or 

dollars, and counsel discussed the income and deductions. Counsel for Mother stated that 

the only recent tax return (2009) showed that Father had income of $172,513.50, 

averaging out to $14,376.21 per month, from employment. She therefore argued he had 

the ability to earn $14,000 per month, but due to the denial of her motion for discovery, 

Mother had been unable to take his deposition to learn what his income was in 2010 and 

to inquire into his bank accounts and other assets, including houses in Coronado, Tijuana, 

and Mexico City. In response, the court said, "That's based upon [Mother's] testimony, 

though, no physical evidence. That's only based on testimony." Counsel for Mother 

responded, "Your Honor, the physical evidence exists, but since I haven't been able to do 
10 

discovery" (due to Father's surgery schedule and lack of information about his assets), 

she continued to object that no sufficient changed circumstances had been shown. 

 The court then determined that Father had a gross salary of $5,180 per month (net 

adjusted $4,629), and Mother's net income was $1,257. This calculation resulted in a 

child support guidelines award of $928 per month, because the court said Father had met 

his burden as far as a change of circumstances (being on disability since Mar. 2011), and 

this was a temporary order, until he was back to working full time. 

 Next, the court's order altered and decreased the stipulated educational expenses 

obligations, regarding (1) private high school, from all expenses per month to $0; 

(2) college, from all expenses to one-half of the expenses, (3) postcollege schooling, from 

all expenses to $0. Other orders were made regarding insurance and attorney fees (not 

contested here). Mother appeals. 

II

APPLICABLE STANDARDS 

A. Duty of Support 

 "A parent's duty of support continues as to an unmarried child who has attained 

age 18, is a full-time high school student, and is not self-supporting until the child 

completes the 12th grade or reaches age 19, whichever occurs first." (§ 3901, subd. (a); 

10 Witkin, Summary of Cal. Law (10th ed. 2008) Parent & Child, § 422, p. 528.) 

"[Section] 3901[, subdivision] (a) does not limit a parent's ability to agree to provide 

additional support or the court's power to inquire whether such an agreement has been 

made. (§ 3901[, subd.] (b).)" (10 Witkin, supra, § 422, p. 528; § 4053 [each parent 
11 

should support child to extent of ability]; M.S. v. O.S. (2009) 176 Cal.App.4th 548, 553-

557 [support principles applied in paternity case].) 

 The Supreme Court has long recognized: "There is nothing in the law to prevent a 

parent from contracting to support a child, minor or adult, married or unmarried. And 

when the agreement . . . is founded upon sufficient consideration, the contractual 

obligation is not measured by legal duties otherwise imposed. No principle of public 

policy intervenes to prevent such a contract and the courts have no right by a process of 

interpretation to release one of the contracting parties from disadvantageous terms 

actually agreed upon." (Kamper v. Waldon (1941) 17 Cal.2d 718, 721.) 

 A comparable written, signed agreement by married parents to increase courtordered child support payments is enforceable under ordinary contract law or through an 

enforcement motion under Code of Civil Procedure section 664.6. (In re Marriage of 

Armato (2001) 88 Cal.App.4th 1030, 1045-1047; Hogoboom & King, Cal. Practice 

Guide: Family Law (The Rutter Group 2012) ¶¶ 17:25-17.25.5, pp. 17-10 to 17-11 

(Family Law).) Any modification of such an agreement, and likewise of this paternity 

settlement agreement, requires an evidentiary hearing on contested factual issues, and a 

resulting judicial determination based on admissible evidence that showed a material 

change of circumstances at the time the modification is sought. (In re Marriage of 

Cheriton (2001) 92 Cal.App.4th 269, 298-299 (Cheriton).) 
12 

B. Basic Rules of Review; Discretion of Family Court

 Appellate courts apply these standards of review to orders that modify statutory 

child support obligations, as set forth in In re Marriage of Williams (2007) 150 

Cal.App.4th 1221 (Williams): 

" '[A] determination regarding a request for modification of a child 

support order will be affirmed unless the trial court abused its 

discretion, and it will be reversed only if prejudicial error is found 

from examining the record below.' [Citations.] Thus, '[t]he ultimate 

determination of whether the individual facts of the case warrant 

modification of support is within the discretion of the trial court. 

[Citation.] The reviewing court will resolve any conflicts in the 

evidence in favor of the trial court's determination. [Citation.]' 

[Citation.] [¶] '. . . Furthermore, "in reviewing child support orders 

we must also recognize that determination of a child support 

obligation is a highly regulated area of the law, and the only 

discretion a trial court possesses is the discretion provided by statute 

or rule. [Citations.]" [Citation.] In short, the trial court's discretion 

is not so broad that it "may ignore or contravene the purposes of the 

law regarding . . . child support." ' " (Id. at pp. 1233-1234.) 

 In considering if an abuse of discretion has occurred, the appellate court reviews 

the record to determine if the court's factual determinations are supported by substantial 

evidence: "Our review is limited to determining whether the court's factual 

determinations are supported by substantial evidence and whether the court acted 

reasonably in exercising its discretion. [Citation.] We 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 De Guigne (2002) 97 

Cal.App.4th 1353, 1360 (De Guigne).) 

 For modification of a final child support order, the moving party (Father) had the 

burden of showing changed circumstances. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 
13 

256; Williams, supra, 150 Cal.App.4th 1221, 1234.) At the appellate stage, Mother bears 

the burden of showing that a prejudicial abuse of discretion occurred. (Maria P. v. Riles

(1987) 43 Cal.3d 1281, 1291.) Regarding her claims about the denial of her continuance 

request, for purposes of discovery, the issue on appeal is whether the trial court abused its 

discretion. "A motion for continuance is addressed to the sound discretion of the trial 

court. [Citation.] However, ' "[t]he trial judge must exercise his discretion with due 

regard to all interests involved, and the refusal of a continuance which has the practical 

effect of denying the applicant a fair hearing is reversible error. [Citations.]" ' " 

(Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, citing In re 

Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) 

C. Effect of SJP 

 Father's formal child support obligations originated in a paternity settlement 

agreement and stipulated judgment confirming the agreement. Such an obligation is 

"law-imposed" within the meaning of section 3585, because it requires payments arising 

out of the parental relationship as confirmed by court order. (See Family Law, supra, 

¶ 18:118-120, pp. 18-36 to 18-37.)3 Such an agreement may alter the usual statutory 

child support obligation, that a parent is released from the legal duty of support of a 

minor child when the child turns 18, graduates from high school or becomes 

 

3 Section 3585 provides, "The provisions of an agreement between the parents for 

child support shall be deemed to be separate and severable from all other provisions of 

the agreement relating to property and support of the wife or husband. An order for child 

support based on the agreement shall be law-imposed and shall be made under the power 

of the court to order child support." 
14 

emancipated. (§ 3901, subd. (a); 10 Witkin, Summary of Cal. Law, supra, Parent & 

Child, §§ 421, pp. 527-528 [under § 3587, "Notwithstanding any other provision of law, 

the court has authority to (1) approve a stipulated agreement by the parents to pay for the 

support of an adult child or for the continuation of child support after a child attains age 

18; and (2) make a support order to effectuate that agreement."].)4

 It is well established that parents can make an agreement to the contrary of statute, 

to voluntarily assume a greater obligation of support: "Upon sufficient consideration the 

parent may agree and be bound to do more than the statute requires, so long as the 

additional obligation is not contrary to nor inconsistent with the statutory provision." 

(Kamper v. Waldon, supra, 17 Cal.2d 718, 720.) Although Father objects that this 

authority is distinguishable simply because it arose out of a marriage case, it is clear that 

this paternity judgment is equivalent to a dissolution judgment for our purposes, the 

analysis of support principles and interpretation of an incorporated settlement agreement. 

As a matter of law, the stipulation was merged into the terms of the judgment, similar to a 

marital property rights adjudication. (See In re Marriage of Corona (2009) 172 

Cal.App.4th 1205, 1220-1221; see Family Law, supra, ¶ 17:340 et seq., pp. 17-86 to 17-

87 [stating, inter alia, that the parties cannot relitigate the division of property disposed of 

by a final judgment].) 

 

4 No issues exist here about the separate statutory scheme for support of a disabled 

indigent adult child. (See 10 Witkin, Summary of Cal. Law, supra, Parent & Child, 

§ 423, pp. 528-530 [discussing § 3910].) 
15 

 To interpret the order and the parties' agreement regarding child support in light of 

these principles, we will first address those provisions applicable to Father's statutory and 

contractual obligations of monthly child support until age 18 or the completion of high 

school (which remained modifiable by the court; part III, post). "When a child support 

agreement is incorporated in a child support order, the obligation created is deemed 

court-imposed rather than contractual, and the order is subsequently modifiable despite 

the agreement's language to the contrary." (Armstrong v. Armstrong (1976) 15 Cal.3d 

942, 947.) 

 Following that discussion, we will turn to the arguments about the other 

contractual provisions of the SJP, regarding educational expenses and support after age 

18. As with a marital settlement agreement that is incorporated into a judgment of 

dissolution, this appellate court will independently interpret the questions of law 

presented by the parties' agreement. (Part IV, post; In re Marriage of Davis (2004) 120 

Cal.App.4th 1007, 1017-1018 (Davis).) 

III 

MONTHLY SUPPORT; DENIAL OF CONTINUANCE 

 Mother contends the family court abused its discretion, or acted without sufficient 

support in the evidence, when modifying and decreasing the amount of Father's monthly 

child support obligation, as well as reducing to zero his obligation to pay the pre-age 18 

expenses for clothing, such as school uniforms. Since the SJP does not expressly cover 

private elementary school tuition, we will defer discussion of the private high school 

issues until part IV, post. For this child who was five years old at the time of the hearing, 
16 

all the support issues are closely intertwined with the denial of Mother's requested 

continuance for the purpose of obtaining discovery about Father's assets, to supplement 

the information that he had provided about his monthly income. 

A. Standards for Setting Child Support Obligations: Income 

 Section 4058, subdivision (a) outlines the components of a parent's "annual gross 

income" for support purposes, as meaning "income from whatever source derived," 

except as otherwise specified in the section, and income can be imputed based on earning 

capacity. (Cheriton, supra, 92 Cal.App.4th 269, 301; In re Marriage of Rocha (1998) 68 

Cal.App.4th 514, 516-517.) Such attribution of income is allowed where necessary to 

protect the child's best interests. (§ 4058, subd. (b); De Guigne, supra, 97 Cal.App.4th 

1353, 1363.) On appeal of a child support award, the family court's interpretation of 

statutory definitions (e.g., income) will be reviewed de novo. (In re Marriage of 

Pearlstein (2006) 137 Cal.App.4th 1361, 1371-1372.) 

 Where a stipulated order has been made for child support above the guidelines 

amount, the court is without authority to change that order, unless a showing of 

materially changed circumstances is made. (Williams, supra, 150 Cal.App.4th 1221, 

1234-1235; In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015; Family 

Law, supra, ¶ 17:30, pp. 17-13; In re Marriage of Stanton, supra, 190 Cal.App.4th 547, 

553.) Absent such a change of circumstances, a modification motion would be 

" ' "nothing more than an impermissible collateral attack on a prior final order." ' " (Id. at 

p. 554; Family Law, supra, ¶ 17:25, pp. 17-10 to 17-11.) 
17 

 At the time the SJP was confirmed, Father admitted he had a high earning capacity 

within the meaning of section 4057, and over the relevant time period in 2010-2011, he 

had held several positions in the Mexican federal legal system, had resigned, and had 

been rehired. At the time the court ruled, Father had recently changed jobs and was on 

temporary disability, which affected his monthly income, as the court acknowledged 

when relying upon his pay stubs as the controlling evidence before it. However, that was 

not the only potentially relevant and reasonably available evidence to be factored into the 

support calculation, as we next discuss. 

B. Child Support Obligations; Effect of Assets, Investments, and Gifts 

 In calculating child support, the courts take into account both parents' " 'net 

monthly disposable income,' " as well as the parents' " 'annual gross income.' " (In re 

Marriage of Alter (2009) 171 Cal.App.4th 718, 731 (Alter).) " 'Income from other 

sources . . . should properly be factored into the "annual gross income" computation. 

[Citations.]' [Citation.]" (Cheriton, supra, 92 Cal.App.4th 269, 285.) "The judicially 

recognized sources of income cover a wide gamut." (Ibid.) 

 In the context of computing child support, the assets owned by a parent "may enter 

indirectly into the calculation in two ways: (1) In assessing earning capacity, a trial court 

may take into account the earnings from invested assets [citation]; and (2) a court may 

deem assets a 'special circumstance' [citation] that may justify a departure from the 

guideline figure for support payments [citation]. But these are exceptional situations; the 

child support obligation is based primarily on actual earnings and earning capacity." 
18 

(Mejia v. Reed (2003) 31 Cal.4th 657, 671; see Cheriton, supra, 92 Cal.App.4th at p. 292; 

§ 4057, subd. (b)(5).) 

 In assessing earning capacity, the court in Cheriton determined that the trial court 

had erred in failing to include the father's stock options proceeds and proceeds from the 

sale of stock in determining his income. (Cheriton, supra, 92 Cal.App.4th at pp. 289-

292.) There, the court concluded that "the trial court's refusal to consider [the father's] 

substantial wealth in setting child support may have resulted in an order that is too low to 

be in the best interests of his children, based on an assessment of their reasonable needs." 

(Cheriton, supra, at p. 292.) The trial court was required to determine whether to impute 

reasonable income to the father's assets. (Ibid.) 

 Even where the supporting party has "non-income-producing assets, the trial court 

has discretion to impute income to those assets based on an assumed reasonable rate of 

return." (In re Marriage of Pearlstein, supra, 137 Cal.App.4th 1361, 1373-1374, fn. 

omitted; County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1453-1454 [a trial court 

may impute income based on interest that could be earned from investment of a lump 

sum inheritance].) 

 In Williams, supra, 150 Cal.App.4th at page 1241, the court determined that a trial 

court acted within its discretion under section 4058, subdivision (b) in "implicitly 

determin[ing] that the children's best interests would be served by an increase in 

guideline child support, calculated in part by attributing an assumed 3 percent rate of 

return on [father's] investment assets." A court may have great latitude in applying the 

statutory scheme to individual cases. (Williams, supra, at p. 1240.) 
19 

 Likewise, where a supporting parent can reasonably expect to receive cash or 

easily valued or negotiable gifts on a consistent basis, they may be deemed a regular part 

of income, and the trial court is permitted to include such gifts in the income calculation. 

(Alter, supra, 171 Cal.App.4th 718, 734-737.) This can include free rent received by a 

parent. (Id. at p. 734.) 

C. Respective Showings: Pre-age 18 Support 

 As the moving party seeking modification downward to a guidelines amount, 

Father brought forward evidence about his recent earnings at his job. His 2009 tax return 

(the most recent one available) showed that he made approximately $172,500 in U.S. 

dollars, or $14,500 per month. At the time of the hearings in 2011, his declaration and 

testimony stated he was on four to six months of disability leave, at a reduced salary 

level. He provided pay stubs from the April through May 2011 period, showing a current 

income of around $5,000 per month. 

 Mother attempted to rebut this showing by arguing she was unduly hampered in 

obtaining information about Father's assets, by Father's practice of putting his various real 

property and business assets in the names of friends and relatives. These included a tire 

store in Mexico City that was in the name of his grandmother, the residence in Coronado, 

the condominium in Tijuana, and several income producing properties in Mexico, held in 

the names of Father's relatives or employees. During their relationship, Mother had 

participated with Father in managing some of his assets, and she gave testimony about 

the Mexicali warehouse that she owned and he managed in the course of running his 

lending business. Mother also owned a house for her mother to live in, and an office 
20 

condominium. She testified that she learned during their relationship that Father 

regularly received valuable gifts in connection with his work duties within the federal 

Mexican legal system, a gasoline subsidy and bonuses. 

D. Order; Evident Abuse of Discretion 

 The family court made a guidelines calculation solely based on Father's recent pay 

stubs that were readily available, and ruled that Father had showed changed 

circumstances for a modification of support because Father was currently on disability. 

The court stated that Mother had presented only undocumented testimony about Father's 

assets, other than his salary, and the court would therefore rely only on the salary 

evidence before it. According to Father, that ruling shows only that the court thought 

Mother was not a credible witness. Alternatively, Father argues that if income should be 

imputed to his assets, it should also be imputed to Mother's assets. 

 The problem with Father's position is that under accepted family law principles, 

the evidence about his earnings level at the time of the ruling was only part of the overall 

required guidelines calculation under sections 4055 and 4058, and the court disregarded 

the terms of the stipulated child support order and judgment, by ignoring Father's assets 

that formed the basis of the monthly amount, and thus it improperly failed to permit 

relevant evidence to be adduced on the main alleged change of circumstances before the 

court. The stipulated judgment was grounded in the substantial assets that Father owned, 

that were identified as supporting the fulfillment of his support payment obligation, 

without any need for his work income. The SJP anticipated that no such disclosure of 

Father's substantial assets would ever be necessary, because of the stipulation. 
21 

 When a litigant requests a continuance, last minute or otherwise, the court should 

take into consideration the degree of diligence in his or her efforts to bring the case to 

trial or hearing, including participating in earlier court hearings, conducting discovery, 

and preparing for trial. (Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th 1389, 

1396.) When a court decides whether to grant a continuance or extend discovery, its 

decision must be directed toward achieving substantial justice, by deciding whether " 'the 

strong public policy favoring disposition on the merits outweighs the competing policy 

favoring judicial efficiency.' " (Ibid.) 

 Moreover, admissible evidence of materially changed circumstances is required 

" 'as a necessary predicate' " for modification. (Williams, supra, 150 Cal.App.4th 1221, 

1234.) The court had to adhere to the principles set forth in section 4053 that each parent 

should support the child according to his or her ability, and imputation of income, even 

from assets, is permitted where necessary to promote the child's best interests. (§ 4058, 

subd. (b); De Guigne, supra, 97 Cal.App.4th at pp. 1359, 1363.) This record supports an 

inference that Father may have been using family members and employees to hold title to 

assets on his behalf, and this may have prevented Mother from acquiring relevant asset 

information. (In re Marriage of Hoffmeister, supra, 161 Cal.App.3d 1163, 1170-1171.) 

 Although Father was normally a high earner, who had changed positions within 

the Mexican governmental legal system and was employed at the time of the hearings (on 

temporary disability), he could not, without a more complete showing about his net 

worth, repudiate his prior agreements that a particularly strong showing of a change of 

circumstances would be needed to modify child support, and that his earnings were 
22 

deemed not to be essential to the payment of the agreed amount. This strong showing 

was not made here. To the extent that Father was relying on his claimed disability and 

reduced monthly income, the court failed to take into account what length this work 

restriction would have, and whether it was a material factor that made any difference in 

light of the assets he previously possessed. Additionally, in ruling on Father's 

modification requests and stating it was a temporary order, the court erroneously placed 

the burden on Mother to bring another motion to modify later. 

 It was accordingly an abuse of discretion for the family court to discount Mother's 

testimony about the extent of her knowledge or lack of knowledge with regard to those 

referenced, existing assets, in light of its previous rulings that had denied her requests for 

a continuance to obtain such documentation. Although more discovery could have been 

sought earlier by Mother's counsel, even before Father's I&E declaration was provided, 

that is not a reasonable requirement here. When Father's unsuccessful motion to set aside 

was filed in November 2010, he did not provide an I&E declaration, and his admissions 

about his possession of extensive assets remained in place. Mother subsequently 

presented an adequate showing that she needed to and might be able to obtain more 

documentation about the assets, and that she had not done so previously because she was 

not put on adequate notice until the filing of Father's April 2011 I&E declaration that he 

apparently had divested himself of such assets. Mother's continuance requests were at 

least reasonably timely, in light of the court's decision to schedule several days of trial to 

address the financial issues, after the motion to set aside the SJP was denied. 
23 

 On this record, the trial court abused its discretion in denying Mother's request for 

continuance to conduct discovery about the value of Father's assets, because the evidence 

provided about Father's current earnings and work disability was not sufficient, without 

more, to make an appropriate "law-imposed" support calculation under section 3585. 

IV 

TERMS OF SJP: DURATION OF SUPPORT; EDUCATIONAL EXPENSES 

 Mother next contends the family court misinterpreted the SJP, or abused its 

discretion, or exceeded its jurisdiction, in granting the motion to modify and decrease 

Father's support obligation, regarding (1) support until age 21 (reduced to 18 or 

graduation from high school); (2) payment of all college expenses (only 1/2 payable) and 

(3) private high school or postcollege schooling (none payable). 

 As outlined above, the family court denied Father's motion to set aside the entire 

SJP, and it proceeded to hear the remaining financial issues, and interpreted the parties' 

SJP on child support after age 18, and on educational expenses. Section 3587 provides 

authorization for the court to approve a "stipulated agreement by the parents to pay for 

the support of an adult child or for the continuation of child support after a child attains 

the age of 18 years and to make a support order to effectuate the agreement." However, 

the power of the court to set aside such a stipulated agreement, that was confirmed by a 

judgment, is not expressly provided for in the statutes. Father is essentially seeking to 

collaterally attack those provisions of the stipulated judgment, but in the guise of 

modifying such contractual terms. (See In re Marriage of Stanton, supra, 

190 Cal.App.4th at p. 554.) 
24 

 "A support order based on the parties' stipulated agreement to pay for the support 

of an adult child is enforceable by contempt, even though there is no applicable statutory 

support obligation apart from the stipulation. Having been approved by the court and 

entered as a court order, the obligation is deemed law-imposed (not a 'debt'). 

[Citations.]" (Family Law, supra, ¶ 18:120, p. 18-37.) 

 We are required to interpret independently the questions of law presented by the 

statutorily authorized support agreement, as it was incorporated into the judgment, 

including its provisions on changed circumstances. Such agreements are construed 

utilizing the general rules governing the interpretations of contracts. (In re Marriage of 

Iberti, supra, 55 Cal.App.4th 1434, 1439.) We give effect to the evident mutual intention 

of the parties, and " '[i]f contractual language is clear and explicit, it governs.' " (People 

v. Shelton (2006) 37 Cal.4th 759, 767; Davis, supra, 120 Cal.App.4th at p. 1018; 

E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470.) 

 First, with regard to the duration of the support obligation, section 3901, 

subdivision (b) provides that a parent's ability to agree to provide additional support, past 

age 18 or until the completion of high school, is not limited by this section, and the court 

retains the power to inquire whether an agreement to provide additional support has been 

made. Such an agreement for child support is deemed to be separate from all other 

provisions of the agreement, and "[a]n order for child support based on the agreement 

shall be law-imposed and shall be made under the power of the court to order child 

support." (§ 3585.) Since there was no marriage here, there are no other severable, 
25 

relevant property or spousal support provisions. This child was born in 2006, and only 

the issues litigated at these hearings in 2011 are now before us. 

 All of the child support provisions in the stipulated judgment are premised upon 

Father's statement in it that he would not provide an I&E declaration, but instead 

represented that he will have sufficient assets and income to pay all of the expenses and 

support provided for in the agreement, and any current or future employment was not 

necessary for him to meet those obligations. Father further agreed that he would not 

request a downward modification of child support, "absent a very strong and specific 

showing of changed circumstances." His I&E declarations omitted any information 

about real property or business assets, such as Mother's testimony indicated that he had 

previously owned at various times, and she had some basis in her personal knowledge to 

make those claims. As discussed above, more information about his assets was 

potentially available and necessary for the court to make an informed exercise of 

discretion. 

 Likewise, although the stipulated judgment provides that Father shall pay all of the 

child's college expenses, the court reduced that by half, and omitted the private high 

school and postcollege schooling expense entirely. The court stated its personal views 

that the public schools in Chula Vista were very good and Mother's two other children 

seemed to be doing well there. However, the parties had previously set forth their 

agreement that their child should attend private high school and that Father would pay 

additional child support consisting of the child's clothing expenses, including shoes and 

any school uniforms, without regard to the amount of his monthly income. On this 
26 

record, the court did not have an adequate basis to disregard and vacate those portions of 

the judicially confirmed agreement. 

 When counsel for Mother pointed out that these rulings were a total departure 

from the parties' agreement, the court stated as justification, "I think this is more fair than 

what was in the agreement, to be honest with you. I think this is what is normally done in 

every family law case. The 21-year age was totally different from -- in my short period 

of being in family law and in talking to other people, and I'm going to go back to what is 

normally done on Family Code section 3901." However, this record does not show that a 

"very strong and specific showing of changed circumstances," as required by the 

stipulated agreement, and by case law, was made at these hearings. The family court was 

not authorized, in these modification proceedings, to disregard the language of the 

agreement by stating that it was more customary to end child support at age 18. The 

parties had statutory authorization under section 3585 et seq. to agree otherwise on the 

duration and nature of child support, and they did so. Father failed to show adequate or 

material grounds to modify those obligations, with regard to providing child support up 

until age 21 and the agreed-upon educational expenses. 

 We need not discuss Mother's additional arguments about abuse of discretion, and 

express no opinion on whether Father can show the relevant material change of 

circumstances at a later time. The reversal is an open reversal, except as specified above 

(the unchallenged denial of Father's motion to set aside the stipulated judgment). 
27 

DISPOSITION 

 The order modifying the stipulated judgment is reversed. Appellant is to recover 

all costs on appeal. 

HUFFMAN, J. 

WE CONCUR: 

 McCONNELL, P. J. 

 McDONALD, J.