Filed 2/14/24 V.K. v. J.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

V.K.,

Appellant,

v.

J.A.,

Respondent.

 D081906

 (Super. Ct. No. 22FL010534C)

APPEAL from a judgment of the Superior Court of San Diego County, 

Victor N. Pippins, Judge. Affirmed in part, reversed in part, and remanded.

V.K., in pro. per., for Appellant.

No appearance for Respondent.

INTRODUCTION

In this parentage action, V.K. appeals from a family court’s initial order 

establishing child support and denying her request for attorney fees. She

contends the court erred in four respects: It (1) failed to make the order 

retroactive to the date of the filing of the petition; (2) erroneously included 

income she had not yet earned in calculating 39 days of child support; 
2

(3) erroneously considered J.A.’s income, derived entirely from recurring gifts 

from his parents, as taxable income; and (4) erroneously denied her request 

for an attorney fee contribution. We conclude there is merit to V.K.’s second 

and third claims of error. As a consequence, we reverse the court’s child 

support order and remand with instructions to recalculate child support to 

accurately reflect V.K.’s income for the period of December 1, 2022 to January 

8, 2023 and to characterize J.A.’s income as nontaxable. In all other respects, 

we affirm.

BACKGROUND

As of September 2022, V.K. and J.A. had been together for 

approximately seven years and had a four-year-old child. They had been 

living rent-free in the home of J.A.’s parents for the last five years of their 

relationship, when in August 2022 V.K. moved out with the child because of 

alleged domestic abuse by J.A. 

On August 23, 2022, V.K. filed a request for a domestic violence 

restraining order (DVRO).1 On September 1, she filed a petition to establish 

J.A.’s paternity of the child and a request for order (RFO) seeking child 

support and an attorney fees contribution from J.A.2 

On November 15, 2022, the court issued a one-year DVRO against J.A., 

protecting both V.K. and the child. The court also entered a child custody 

order, awarding legal and physical custody of the child to V.K. and parenting 

time to J.A. that amounted to a 15 percent timeshare. 

1 Although V.K. represents herself in this appeal, she (and J.A.) both had 

counsel in the DVRO proceedings and the parentage action.

2 V.K. filed an amended RFO on November 21, 2022 to update the 

amount of attorney fees she was requesting.
3

On December 21, 2022, the court held a hearing on V.K.’s RFO for child 

support and attorney fees. On January 12, 2023, the court issued a written 

minute order in which it ordered J.A. to pay monthly child support of $472, 

retroactive to December 1, 2022, and arrears of $944 through February 1, 

2023. The court denied V.K.’s request for attorney fees, finding J.A. did not 

have the ability to contribute to V.K.’s attorney fees. V.K. appeals.

DISCUSSION

I.

Child Support

We review a family court’s award of child support for abuse of 

discretion. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730.) Under 

this standard, we determine whether the court’s factual determinations are 

supported by substantial evidence and whether the court acted reasonably in 

exercising its discretion. (Ibid.; In re Marriage of de Guigne (2002) 97 

Cal.App.4th 1353, 1360.) We do not substitute our own judgment for that of 

the family court; instead, we determine only if any judge reasonably could 

have made such an order. (In re Marriage of Alter, at pp. 730−731.) Because 

child support is a highly regulated area of law, the court has only the 

discretion provided by California’s child support statutes and related policies.

(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) To determine 

whether the court followed established legal principles and correctly 

interpreted the child support statutes, we apply de novo review. (In re 

Marriage of Alter, at p. 731.)

Although J.A. did not file a respondent’s brief in this appeal, V.K., as 

appellant still bears the affirmative burden to show error. (In re Marriage of 

F.M. & M.M. (2021) 65 Cal.App.5th 106, 110, fn. 1.) Appellate courts 

approach every appeal with the presumption the appealed judgment is 
4

correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 608−609.) To succeed on 

appeal, V.K. has the burden of demonstrating “that the trial court committed 

an error that justifies reversal of the judgment.” (Ibid.) She retains this 

burden even though her appeal is unopposed. (In re Marriage of F.M. & 

M.M., at p. 110, fn. 1.) 

With these principles in mind, we turn to V.K.’s contentions the family 

court erred in its child support order because it (1) failed to make the order 

retroactive to the date of the filing of the petition; (2) erroneously included 

income she had not yet earned in calculating support for the period of 

December 1, 2022 to January 8, 2023; and (3) erroneously considered J.A.’s 

income, comprised entirely of recurring gifts from his parents, as taxable 

income.

A. The Court’s Child Support Findings

1. V.K.’s Income and Expenses

When she filed her petition and RFO on September 1, 2022, V.K. was 

unemployed, as she was the child’s full-time caregiver. She and J.A. had 

been receiving financial support from J.A.’s parents, until she moved out and

obtained a temporary DVRO in August. After moving out, V.K. received 

public assistance. 

At the time of the December 21, 2022 hearing, V.K.’s current income 

and expense declaration (IED) showed she had earned $20 from selfemployment; received $516 in CalFresh;3 had $624 in a bank account and no 

assets other than a car she valued at $2500; had credit card debts of $15,090; 

3 CalFresh is the California implementation of the federal Supplemental 

Nutrition Assistance Program, formerly known as the Food Stamp program, 

which provides financial assistance for purchasing food to low-income 

California residents.
5

and had estimated monthly expenses of $5,229. The evening before the 

hearing, V.K. had received a formal job offer. She was to begin her new job

on January 9, 2023, earning $41,600 in annual wages, or approximately 

$3,467 per month. Her CalFresh benefits would discontinue upon the start of 

her employment.

2. J.A.’s Income and Expenses4

J.A. asserted he had multiple health conditions which prevented him 

from working full time. For the couple of years prior to November 2022, J.A. 

had been self-employed on a “crypto-currency project,” which was “not as 

profitable” as he had hoped. Based on his 2021 tax returns, his total 

compensation for 2021 was $9,090 in gross capital gains. In 2022, the 

“trading was less” and he inherited $7,500 from his grandfather in June or 

July 2021.

V.K.’s counsel argued J.A.’s credit card statements showed an average 

monthly balance of $3,510.30, which over a period of 11 months were paid on 

the same day each month by his parents. V.K. asked the court to consider 

the recurring financial support from J.A.’s parents as nontaxable income to 

J.A. J.A. asserted the payments were a loan from his parents that he was 

expected to repay. 

3. The Court’s Findings

The court ordered J.A. to pay monthly child support of $472, retroactive 

to December 1, 2022, and arrears of $944 through February 1, 2023. The 

4 According to the Register of Actions, J.A. filed an IED contemporaneous 

with his Responsive Declaration to the RFO, on November 29, 2022. J.A.’s 

IED, however, is not part of the record on appeal. We derive the facts 

regarding his financial condition from his responsive declaration and the 

reporter’s transcript of the December 21, 2022 hearing.
6

child support order was based on the following findings, which were reflected 

in a Dissomaster report attached to the court’s minute order.

The court found V.K. earned monthly taxable income of $3,467, her tax 

filing status was head of household with two exemptions, and the child was 

in her primary custody.

As to J.A., the court found he had a monthly income of $3,000 

comprised of recurring gifts from his parents, rejecting the claim his parents’ 

payments of his monthly expenses were loans. However, the court

characterized this monthly income as taxable wages, rather than nontaxable 

income, in the Dissomaster. It found J.A.’s tax filing status was single with 1 

exemption and he had a 15 percent timeshare with the child.

B. The Trial Court Did Not Abuse Its Discretion in Not Ordering Child 

Support Retroactive to the Filing Date of the Petition 

Family Code5 section 4009 provides, in relevant part, “An original 

order for child support may be made retroactive to the date of filing the 

petition, complaint, or other initial pleading.” (Italics added.) By its plain 

terms, the statute is permissive. It does not require the family court to order 

child support retroactive to the filing of the initial pleading, but rather gives

it the discretion do so. Accordingly, we review the court’s decision on 

retroactivity under section 4009 for an abuse of discretion. (In re Marriage of 

Barth (2012) 210 Cal.App.4th 363, 374−375; In re Marriage of Cheriton, 

supra, 92 Cal.App.4th at p. 300.)

Here, the family court did exercise its discretion to make the child 

support retroactive, only it chose to make it retroactive to December 1, 2022 

and not September 1, 2022. Section 4009 “permits the trial court to make its 

5 All statutory references are to the Family Code.
7

ruling retroactive to [any date before] the filing date of the [initial pleading], 

but no earlier.” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 300, 

italics added.) V.K. must demonstrate the court abused its discretion by not 

awarding the additional three months of retroactivity. 

V.K. argues the court’s failure to grant the additional three months of 

retroactivity is inconsistent with established legal principles and created 

undue financial strain on her. The court, however, did not explain its reasons 

for selecting December 1, 2022 as the effective date of child support. Because 

V.K. did not request a statement of decision on the issue of retroactivity, in

the absence of an explanation for the order, we are required to indulge the 

presumption in favor of the correctness of the order and imply findings to 

support the order. (See In re Marriage of Weinstein (1991) 4 Cal.App.4th 555,

570.) We thus find no abuse of discretion in the court’s decision to make the 

child support order retroactive to December 1, 2022.

C. The Court’s Findings as to V.K.’s Income for December 1, 2022 to 

January 8, 2023 and J.A.’s Income as Taxable Were Not Supported by 

Substantial Evidence

V.K. argues the family court erred by considering her future unearned

wages in the December 2022 child support payment. We agree. There was 

no dispute that V.K.’s new job began on January 9, 2023 and she would be 

earning approximately $3,467 each month upon the start of her employment. 

Yet the court found she had taxable monthly wages of $3,467 from December 

1, 2022 through January 8, 2023. No argument was made to suggest any 

income should be imputed to V.K. on the basis she had the ability and 

opportunity to earn those wages in that period, nor is there any evidentiary 

basis to support such a ruling. (In re Marriage of Cohn (1998) 65 Cal.App.4th 

923, 931 [“[F]igures for earning capacity cannot be drawn from thin air; they 

must have some tangible evidentiary foundation.”]; In re Marriage of LaBass 
8

and Munsee (1997) 56 Cal.App.4th 1331, 1337−1338 [court is required to find

parent has the ability, willingness to work, and the opportunity to work

before it may impute income on the basis of earning capacity].) 

We also agree with V.K.’s next claim that the court erred by 

considering J.A.’s income comprised of recurring gifts from his parents as 

taxable income. The court has discretion to determine whether income is 

taxable or nontaxable, but there must be substantial evidence to support its 

election, and its discretion must be exercised to maximize income available 

for child support. Further, it is generally the donors (the parents) and not 

the recipient (J.A.) who are responsible for paying taxes on any gifts and, as 

J.A.’s attorney argued, J.A.’s parents did not pay gift taxes on the gifts at 

issue. To the contrary, J.A. claimed the payments were loans, a claim the 

court rejected as unpersuasive. Moreover, in 2022, each parent would be 

entitled to an annual gift exclusion of $16,000. Thus even entertaining that 

there was any basis to treat the gifts as taxable, only $4,000 would be 

considered potentially taxable, and even then, the tax burden would be 

shouldered by the parents. Yet the court characterized the entire annual 

amount of $36,000 as taxable to J.A. We thus conclude there is no 

substantial evidence to support the court’s finding that the gift income was

taxable to J.A. and the court therefore abused its discretion in characterizing 

the entire $36,000 as taxable to J.A. By characterizing the gifts as taxable, 

the court’s finding had the effect of improperly reducing J.A.’s adjusted net 

income available for support by $506.

Because neither of these findings was supported by substantial 

evidence, we must reverse the court’s child support order so that it can 

recalculate V.K.’s income for December 1, 2022 to January 8, 2023 and 

recharacterize J.A.’s gift income as nontaxable.
9

II.

Attorney Fees

Lastly, V.K. asserts the family court order denying her request for an 

attorney fee contribution from J.A. was error because there were “significant 

financial disparities” between the parties. As with her other claims, we 

review an attorney fee award for an abuse of discretion. (See In re Marriage 

of Smith (2015) 242 Cal.App.4th 529, 532.) Under this standard, we uphold 

any findings of fact supported by substantial evidence and do not reverse the 

court’s order unless, considering all the evidence viewed most favorably in 

support of the order, no judge could reasonably make the challenged order. 

(Ibid.) As we shall explain, we conclude no abuse of discretion appears on the 

record before us.

V.K. requested an attorney fee contribution from J.A. in the total 

amount of $29,355.78. V.K.’s counsel specified she was seeking $3,974 under 
10

sections 76056 and 76407 for work already performed in the parentage 

action, including for child support and child custody issues; $20,131.78 under 

section 63448 as the prevailing party in a DVRO action; and an additional 

$5,000 incurred since the filing of the amended RFO in November 2022.9 

Each of these family code provisions require a finding, in addition to 

the requesting party’s need, that the contributing party has the ability to 

6 Section 7605 provides, in relevant part: “In any proceeding to establish 

physical or legal custody of a child or a visitation order . . . , and in any 

proceeding subsequent to entry of a related judgment, the court shall ensure 

that each party has access to legal representation to preserve each party’s 

rights by ordering, if necessary based on the income and needs assessments, 

one party, . . . to pay to the other party, or to the other party’s attorney, 

whatever amount is reasonably necessary for attorney’s fees and for the cost 

of maintaining or defending the proceeding during the pendency of the 

proceeding.” (§ 7605, subd. (a).) “When a request for attorney’s fees and 

costs is made under this section, the court shall make findings on whether an 

award of attorney’s fees and costs is appropriate, whether there is a disparity 

in access to funds to retain counsel, and whether one party is able to pay for 

legal representation of both parties. If the findings demonstrate disparity in 

access and ability to pay, the court shall make an order awarding attorney's 

fees and costs.” (§ 7605, subd. (b).) 

7 Section 7640 provides, “The court may order reasonable fees of counsel, 

. . . to be paid by the parties . . . in proportions and at times determined by 

the court,” under the standards set forth in sections 2032 and 7605. 

8 Section 6344 provides, “After notice and a hearing, a court, upon 

request, shall issue an order for the payment of attorney’s fees and costs for a 

prevailing petitioner.” (§ 6344, subd. (a).) “Before a court awards attorney’s 

fees and costs” under this provision, “the court shall first determine pursuant 

to [s]ection 270 that the party ordered to pay has, or is reasonably likely to 

have, the ability to pay.” (§ 6344, subd. (c).)

9 We observe the sum of these amounts is $250 short of counsel’s total 

request of $29,355.78.
11

pay. (§§ 7605, subd. (b), 7640, 6344, subd. (c).) Here, the court found J.A. did 

not have the ability to pay a contribution to V.K.’s attorney fees and costs. It

found that J.A.’s own fees were paid by his parents through a gift and it could 

not order J.A.’s parents to contribute to V.K.’s fees. Substantial evidence 

supports the court’s findings. Based on V.K.’s request, the court considered

the monthly recurring gifts of approximately $3,000 that J.A. received from 

his parents as J.A.’s income for child support. Although the court declined to 

impute any further income to J.A. on the basis of its finding that he had not 

presented credible evidence he is unable to work, V.K. does not challenge this 

ruling. Other than financial support from his parents, J.A. did not have any

other assets. The court impliedly accepted the argument of J.A.’s attorney

that the court had before it “basically two poor people” who were each 

receiving financial support from their families. On this record, we cannot say 

“ ‘no judge could reasonably make the order made.’ ” (In re Marriage of

Smith, supra, 242 Cal.App.4th at p. 531.)

DISPOSITION

The court’s January 12, 2023 child support order is reversed. The 

matter is remanded to the superior court with instructions to recalculate 

child support so that it accurately reflects (1) V.K.’s income for the period of 

December 1, 2022 to January 8, 2023 and (2) that J.A.’s gift income is 

nontaxable. The superior court shall further determine any arrearages owed 

by J.A. based on the new child support amount. In all other respects, we 
12

affirm. V.K. is entitled to costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(3) and (a)(5).) 

DO, J.

I CONCUR:

McCONNELL, P. J.

I CONCUR IN THE RESULT:

CASTILLO, J.