Filed 10/25/21 Marriage of Mitchell CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of NICOLE M.

and CHRISTOPHER L. 

MITCHELL

2d Civil No. B308861

(Super. Ct. No. D362162)

(Ventura County)

NICOLE M. MITCHELL,

 Appellant,

v.

CHRISTOPHER L. 

MITCHELL,

 Respondent,

VENTURA COUNTY DEPT. 

CHILD SUPPORT SERVICES,

 Intervenor.

Nicole M. Mitchell (mother) appeals from orders modifying 

child support and denying her motion to set aside a prior child 
2

support order. Mother claims that the prior order was based on 

the fraud and perjury of her former spouse, respondent 

Christopher L. Mitchell (father). Both parties represented 

themselves in the trial court and on appeal.1 We affirm.

Factual and Procedural Background

In January 2016 the parties’ marriage was dissolved. The 

parties have one child who was born in 2005. On August 13, 

2019, the trial court conducted a hearing to determine the 

amount of father’s child support obligation. Both parties were 

sworn at the inception of the hearing. Father declared in open 

court: “The only thing that’s relevant right now is my Social 

Security, my Reid West income,[2] . . . [and] statements on the 

income and expense declarations that I filed around the 17th.” 

“I’m on Social Security benefits, and I can make $17,400. [¶] If I 

exceed $17,400 in earnings, I have to pay back $1 for every $2 

earned, and I was also instructed by the Social Security 

department that if that amount is too much, they can actually 

stop benefits. So it makes sense to me to calculate child support 

based on reality.” 

The court calculated father’s child support obligation based 

on annual earnings of $17,640 and monthly social security 

income of $1,900. The court ordered father to pay child support 

of $822 per month beginning July 1, 2019. 

In December 2019 mother filed a motion to set aside the 

support order because it was based on father’s fraud and perjury. 

Mother declared: “[Father] represented to the Court that he had 

1 We deny mother’s motion to strike father’s brief for failure 

to comply with the California Rules of Court.

2 Father was an instructor at Reid West Golf Academies in 

Phoenix, Arizona. 
3

retired and was taking his Social Security benefits and would not 

earn more than the approximately $17,000 annually in extra 

income that would not affect his social security benefits. In 

reality, he had completed the interviewing process for the 

General Manager position at Cold Springs Country Club in early 

August 2019 and was offered and accepted that job. He never 

disclosed this pertinent and materially significant information to 

the Court, and he gave perjured testimony to, once again, 

intentionally mislead the Court.” Mother attached to her motion 

an announcement from Cold Springs Golf & Country Club (Cold 

Springs) that father had started work as general manger on 

September 17, 2019. 

On September 29, 2020, the trial court conducted a hearing 

(the September 2020 hearing) on mother’s motion to set aside the 

child support order. The court said it had “received the financial 

records on three accounts” and “nothing else was submitted.” 

Mother did not object to the court’s statement. The court 

continued: “[T]he motion filed and the attached documents 

show[] that [father] began his employment at Cold Springs Golf 

and Country Club September 17, 2019. . . . Based upon 

[mother’s] pleadings and assuming that everything alleged in the 

pleading[s] was proven true, the motion is denied. [¶] The new 

employment reference began in September of 2019. There is no 

basis to alter the amount of child support as ordered based on the 

incomes established” at the August 13, 2019 hearing. “So based 

upon the pleadings, that motion is denied.” 

Mother interjected, “I would like to point out that from the 

documents that were subpoenaed from Cold Springs, [father] was 

given the offer of employment on August 6[, 2019],” seven days 

before the August 13, 2019 hearing. The court replied, “That’s 
4

irrelevant.” Mother did not say when father had accepted the 

offer.

The court’s signed order denying mother’s motion states: 

“Mother’s Motion to set aside child support order . . . based upon 

fraud is denied based upon [her] pleadings. The new employment 

of . . . Father began on September 27, 2019 [sic, it began on 

September 17, 2019]. Assuming all aspects of [mother’s] pleading 

was true, there would be no factual basis to alter the child 

support amount based upon income as determined” at the 

hearing on August 13, 2019. 

On December 10, 2019, mother filed a request to modify 

child support. The court considered this request at the 

September 2020 hearing. The trial court ordered father to pay 

child support of $931 per month for the period from December 1, 

2018 through June 30, 2019, and $1,314 per month effective 

January 1, 2020. The court did not modify the previously ordered 

child support of $822 per month from July 1, 2019 through 

December 31, 2019. 

Standard of Review for Ruling on

Motion to Set Aside Support Order

Mother’s motion was made pursuant to Family Code 

section 3691, which lists the grounds for setting aside a support 

order. The grounds include actual fraud and perjury. (Id., subds. 

(a), (b).) Family Code section 3690, subdivision (a) provides, “The 

court may, on any terms that may be just, relieve a party from a 

support order . . . based on the grounds, and within the time 

limits, provided in this article.” (Italics added.) The use of the 

word “may” indicates that the court has discretion whether to set 

aside a support order. Family Code section 3693 provides that 

“the court has discretion to set aside the entire [support] order, if 
5

necessary, for equitable considerations.” Accordingly, we apply 

the abuse of discretion standard of review to the denial of 

mother’s motion to set aside the prior child support order.

“‘[W]here a trial court has discretionary power to decide an 

issue, an appellate court is not authorized to substitute its 

judgment of the proper decision for that of the trial judge. . . . 

“‘The appropriate test for abuse of discretion is whether the trial 

court exceeded the bounds of reason . . . .’” [Citations.]’” (In re

Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1386; see also 

Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, 773 [“A ruling that constitutes an abuse 

of discretion has been described as one that is ‘so irrational 

or arbitrary that no reasonable person could agree with it’”].) We 

view the evidence “most favorably” in support of the court’s ruling 

and “indulg[e] all reasonable inferences in its favor.” (In re

Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.) 

We “focus[] on what was presented to the trial court at the time it 

made its decision.” (People v. Greenberger (1997) 58 Cal.App.4th 

298, 343.)

Motion to Augment the Record

Mother has moved to augment the record to include 

subpoenaed records relating to father’s employment by Cold 

Springs. We deny the motion because the records were not before 

the trial court when it ruled on mother’s motion to set aside the 

child support order. “Augmentation does not function to 

supplement the record with materials not before the trial court.”

(Vons Companies, Inc. v. Seabest Foods, Inc., (1996) 14 Cal.4th 

434, 444, fn. 3, impliedly abrogated on other grounds in BristolMyers Squibb v. Superior Court (2017) __ U.S. __, [137 S. Ct. 

1773, 1781].) At the hearing on mother’s motion, the court said it 
6

had “received the financial records on three accounts” and 

“nothing else was submitted.” Mother did not object. The court’s 

denial order states that it is “based upon [mother’s] pleadings.” 

The order does not mention the subpoenaed records.3 

The Trial Court Did Not Abuse Its Discretion

in Denying Motion to Set Aside Support Order

Perjury

Mother’s motion to set aside the child support order was 

based on father’s alleged perjury and actual fraud. Mother 

forfeited her claim that the trial court had erroneously denied her 

motion on the perjury ground. When the court ruled at the 

September 2020 hearing, it mentioned only the fraud ground: 

Mother “made that motion based on allegations of fraud. . . . 

[T]he motion is denied.” The court’s subsequent written ruling 

mentions only the fraud ground: “Mother’s Motion to set aside 

child support order . . . based upon fraud is denied based upon 

[her] pleadings.” Mother failed to preserve the perjury ground for 

appellate review because she did not press for a ruling on this 

alternate ground. “‘“[W]here the court, through inadvertence or 

neglect, neither rules nor reserves its ruling . . . the party who 

objected must make some effort to have the court actually rule. If 

the point is not pressed and is forgotten, [the party] may be 

deemed to have waived or abandoned it, just as if he had failed to 

3 In his brief father states that the trial court “considered 

and reviewed all the documents from the Subpoena records.” We 

disregard the statement because it is not supported by citation to 

the record. (Lee v. Department of Parks & Recreation (2019) 38 

Cal.App.5th 206, 213 [“We may disregard any factual 

contention not supported by a proper citation to the record”].)
7

make the objection in the first place.”’” (People v. Braxton (2004) 

34 Cal.4th 798, 813; see also People v. Ramirez (2006) 39 Cal.4th 

398, 450.) 

If the trial court had denied mother’s motion on the perjury 

ground, it would not have abused its discretion. “The crime of 

perjury requires proof that the perjurer acted with specific intent 

to make a false statement under oath.” (People v. Meza (1987) 

188 Cal.App.3d 1631, 1647; see Pen. Code, § 118 [“Every person 

who, having taken an oath . . . , willfully and contrary to the oath, 

states as true any material matter which he or she knows to be 

false . . . is guilty of perjury”].) Mother does not refer us to any 

intentionally false statement by father at the August 13, 2019 

hearing. At most, father did not disclose his prospective 

employment. Mother claims that father “was not honest . . . 

when he testified . . . that his only income moving forward would 

be his Social Security benefits . . . and the non-taxable amount of 

extra earnings allowed by Social Security of $17,400 annually.” 

(Italics added.) But father did not testify that this would be his 

situation “moving forward.” He testified that this was his 

situation “right now,” i.e., at the time of the August 13, 2019 

hearing. Father insisted, “[T]he amount of money that I’m going 

to make later down the road . . . [is] not relevant.”4 

Although mother told the court that Cold Springs had made 

its offer of employment on August 6, 2019, there was no evidence 

that father had accepted the offer on or before the August 13, 

2019 hearing date. Until father accepted the offer, there was no 

agreement and Cold Springs could withdraw its offer. Mother 

4 In his brief father states, “[Mother] is saying that at the 

Hearing I was testifying about my future income, which is a 

misrepresentation of the facts.” 
8

cites no authority requiring father to disclose an offer of future 

employment that he has not yet accepted.

Actual Fraud

The other ground for mother’s motion was actual fraud. 

“The suppression of that which is true, by one having knowledge 

or belief of the fact,” may constitute actual fraud by a party to a 

contract if the suppression is accompanied by an “intent to 

deceive another party thereto, or to induce him to enter into the 

contract.” (Civ. Code, § 1572, subd. 3.) An intent to deceive is 

required where, as here, there is no contract. “[A]n intent to 

deceive . . . is the basis of actual fraud.” (Anderson v. Deloitte &

Touche (1997) 56 Cal.App.4th 1468, 1476.) “‘Actual fraud’ has 

two parts: actual and fraud. The word ‘actual’ has a simple 

meaning in the context of common-law fraud: It denotes any 

fraud that ‘involv[es] moral turpitude or intentional wrong.’ 

[Citation.]” (Husky Intern. Electronics, Inc. v. Ritz (2016) 578 

U.S. 882 [136 S. Ct. 1581, 1586]; see also Civ. Code, § 3294, subd. 

(c)(3) [“‘Fraud’ means an intentional misrepresentation, deceit, or 

concealment of a material fact known to the defendant with the 

intention on the part of the defendant of thereby depriving a 

person of property or legal rights or otherwise causing injury”].) 

To constitute actual fraud, the person from whom the material 

fact is concealed must act in reliance upon the concealment to his 

or her damage. (Roche v. Hyde (2020) 51 Cal.App.5th 757, 820.)

The trial court did not abuse its discretion in determining 

that, based on the materials before it, father did not conceal his 

prospective employment with the intent to deceive mother or 

deprive her of property to which she was legally entitled. The 

court believed that father’s prospective employment in midSeptember 2019 had no bearing on the calculation of child 
9

support at the hearing conducted on August 13, 2019. We do not 

consider whether the court’s belief was legally correct. It did not 

act arbitrarily or irrationally in impliedly concluding that father’s 

nondisclosure of his prospective employment was motivated not 

by an intent to deceive but by the same good faith belief held by 

the court, i.e., father’s prospective employment was irrelevant to 

the calculation of child support as of the hearing date. At the 

hearing father stated, “It was my understanding that child 

support is based on reality, meaning now . . . .” “The only thing 

that’s relevant right now is my Social Security, my Reid West 

income, . . . [and] statements on the income and expense 

declarations that I filed around the 17th.” 

Calculation of Child Support 

from 9/17/2019 through 12/31/2019 

Mother contends that, after the September 2020 hearing, 

the trial court erroneously failed to modify child support for the 

period from September 17, 2019, when father started his 

employment with Cold Springs, through December 31, 2019. 

Mother claims that the court did not follow state guidelines for 

child support and did not make appropriate findings for deviating 

from those guidelines. 

Mother fails to establish that she asked the court to modify 

child support for the period in question. The register of actions 

shows that, on December 10, 2019, mother made a request to 

modify child support. The request is not included in the record. 

“The party seeking to challenge an order on appeal has the 

burden to provide an adequate record to assess error. [Citation.] 

Where the party fails to furnish an adequate record of the 

challenged proceedings, his claim on appeal must be resolved 

against him. [Citations.]” (Rancho Santa Fe Assn. v. Dolan-King
10

(2004) 115 Cal.App.4th 28, 46.) We cannot fault the trial court 

for not modifying child support from 9/17/2019 through 

12/31/2019 if mother failed to request modification for this period.

Even if mother had requested modification of child support 

for this period, she impliedly withdrew the request at the 

September 2020 hearing. The trial court said, “Now, moving on 

[from mother’s motion to set aside the child support order] to the 

Request for Order for modification of child support filed by 

[mother] December 10, 2019. That would have an effective date of 

January 1, 2020.” (Italics added.) Mother failed to object that 

she was requesting that the effective date be September 17, 2019, 

not January 1, 2020. Later the trial court declared, “Right now, 

so that I stay on track, . . . we are dealing strictly January 1, 

2020, until now. That’s it.” Mother again failed to object. “‘“‘An 

appellate court will ordinarily not consider procedural defects or 

erroneous rulings, in connection with relief sought or defenses 

asserted, where an objection could have been but was not 

presented to the [trial] court by some appropriate 

method . . . . [T]he explanation is simply that it is unfair to the

trial judge and to the adverse party to take advantage of an error 

on appeal when it could easily have been corrected at the 

trial.’ . . .”’” (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)

Mother’s Remaining Claims

Mother claims that, in calculating child support after the 

September 2020 hearing, the trial court erroneously omitted 

father’s 2020 social security income and erroneously provided 

him with “deductions for expenses for which no concrete proof 

was provided.” The claims are forfeited because mother failed to 

show that she had raised them below. (In re Marriage of Hinman

(1997) 55 Cal.App.4th 988, 1002 [mother forfeited “her right to 
11

challenge the computation of the child support award on appeal” 

because she failed to raise below the alleged errors in the 

computation]; In re Marriage of Calcaterra & Badakhsh (2005) 

132 Cal.App.4th 28, 37, bracketed material in original [“‘For 

better or worse, California child support law now resembles 

determinate sentencing in the criminal law: The actual 

calculation required of the trial judge has been made so 

complicated [citation] that, to conserve judicial resources, any 

errors must be brought to the trial court’s attention at the trial 

level while the [theoretical] error can still be expeditiously 

corrected’”]; Hogoboom & King, Cal. Practice Guide--Family Law 

(The Rutter Group June 2021 update) ch. 6-A, ¶ 6:499:13 [“a 

party preserves the right to challenge the computation 

of formula support only if alleged calculation errors . . . are 

brought to the trial court’s attention; otherwise, the errors are 

waived”].)

Mother’s claims are also forfeited because the argument in 

her opening brief (pages 23-24) is devoid of supporting citations 

to the record. “‘Any statement in a brief concerning matters in 

the appellate record—whether factual or procedural and no 

matter where in the brief the reference to the record occurs—

must be supported by a citation to the record.’” (Professional

Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970.) 

“Thus, ‘[i]f a party fails to support an argument with the 

necessary citations to the record, . . . the argument [will be] 

deemed to have been waived. . . .’” (Nwosu v. Uba (2004) 122 

Cal.App.4th 1229, 1246.) Mother “is not exempt from the 

foregoing rules because [s]he is representing [her]self on appeal 

in propria persona.” (Ibid.)
12

In any event, mother’s challenge to the omission of father’s 

social security income is without merit. The trial court explained 

that it had excluded the income because “[o]n 5/21/20, the Social 

Security Administration informed . . . Father that he had 

received an improper overpayment in 2020 and the money was to 

be refunded. If the money was used in the calculation [of child 

support,] . . . Father would be eligible for a modification to factor 

it out upon repayment to Social Security as unforeseen income 

loss. So, given the Social Security Administration letter, it serves 

no purpose to factor [social security income] in the equation.” 

Disposition

The orders appealed from are affirmed. Father shall 

recover his costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
William R. Redmond, Judge

Superior Court County of Ventura

______________________________

Nicole M. Mitchell, in pro. per., for Appellant.

Christopher L. Mitchell, in pro. per., for Respondent.

No appearance by Intervenor.