1

Filed 7/18/23 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHARLES SWAN,

Plaintiff and Appellant,

v.

KRYSTLE HATCHETT,

Defendant and 

Respondent.

 A163825, A164764

 (Alameda County

 Super. Ct. No. HF

 16825795)

THE COURT:

It is ordered that the opinion filed herein on June 29, 2023, 

be modified as follows:

1. On page 22, the first sentence in the last paragraph (“The 

juvenile court's orders are reversed.”) is replaced with:

“The trial court’s orders are reversed.” 

There is no change in judgment. The parties’ stipulation 

and request, filed on July 12, 2023, is otherwise denied.

Date: _____________________ _______________________ P.J.
1

Filed 6/29/23 (unmodified opinioin)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHARLES SWAN,

Plaintiff and Appellant,

v.

KRYSTLE HATCHETT,

Defendant and 

Respondent.

 A163825, A164764

 (Alameda County

 Super. Ct. No. HF

 16825795)

Charles Swan appeals from the trial court’s orders denying 

his request to reduce the amount of child support he pays Krystle 

Hatchett for their triplets and awarding Hatchett about $10,000 

in need-based attorney’s fees. On his request to modify child 

support, Swan contends the trial court erred by casting aside all 

of his evidence of his income and ignoring other evidence that he

had a new child and that Hatchett’s income had increased. He 

further argues the trial court’s refusal to consider his evidence of 

his income for child support purposes conflicts with its finding 

that he could pay a specific amount of Hatchett’s attorney’s fees

and that the fees award is otherwise infirm. We agree that the 

trial court’s reasons for ignoring all of Swan’s evidence lack 

substantial evidentiary support. We further agree that the 

award of attorney’s fees to Hatchett was improper because it 

conflicts with its disregard of Swan’s evidence. We will therefore 
2

reverse the trial court’s orders and remand for further 

proceedings.

BACKGROUND

Swan and Hatchett are the parents of triplets born in 2016. 

They share joint legal and physical custody of the children. 

In November 2017, the trial court issued an order 

addressing child support. Swan testified from a profit and loss 

statement that he had prepared for his self-employment as a tax 

preparer, real estate broker, mortgage broker, and appraiser. 

The trial court found Swan’s bookkeeping was poor, especially for 

someone who prepared tax returns for a living. Swan testified 

that his net income as of August 2017 was $40,498. But after 

adding back certain deductions Swan had taken that the trial 

court found were personal expenses, the trial court calculated 

Swan’s monthly income to be $9,245 per month, which would 

amount to $110,940 per year. The trial court ordered Swan to 

pay child support of $2,350 per month, retroactive to the 

beginning of 2017, and to pay off the arrears at $350 per month. 

Hatchett was not working, and the trial court did not impute 

income to her due to insufficient information. 

I. Swan’s Request to Modify Child Support

In September 2018, Swan filed a request to change the 

child custody and child support order. As relevant here, Swan 

asked the court to issue a new guideline support order, order 

Hatchett to seek work in order to provide for the children, and 

waive interest on certain arrears in his payments. 
3

In early 2019, the trial court ordered Hatchett to undergo a 

vocational evaluation paid for by Swan. In advance of the 

hearing on Swan’s request, the parties stipulated that Swan was 

“entitled to a hardship when calculating child support in this 

matter.” 

II. Hearing

The trial court held the hearing on Swan’s request on 14 

different days between May 2019 and August 2020. The 

witnesses were Swan, Swan’s financial expert Jeff Stegner, and 

Hatchett. 

Swan

Swan owned three properties on the same street in 

Fremont. He rented out two of the houses and divided the third 

with 60 percent being used for his business and the remainder for 

his personal living space. 

Swan prepared his own tax returns. He maintains 

separate personal, business, and rental accounts for his expenses, 

but he admitted that he sometimes commingled expenses. Swan 

explained that when he used the wrong account for an expense, 

he would make a Post-It note as a reminder to record the expense 

correctly. His employee would reconcile his bank statements and 

Post-It notes, and use receipts when available. Some expenses 

such as Costco appeared as both business and personal expenses, 

and Swan would use Post-Its to divide the expenses. For meals 

and expenses, some of which were business-related and some 

personal, Swan would reconcile his expenses monthly based on 
4

receipts, when available, and memory to avoid deducting 

personal expenses as business expenses. 

Between 2017 and 2018, Swan changed how he reported his 

rental income on his tax returns. In 2017, Swan had reported his

rental income and expenses on Schedule E of his returns and his 

other business expenses on Schedule C, but in 2018 he combined 

all of his business expenses together on Schedule C. He changed 

his reporting methods because he was told his earlier method was 

incorrect. As a result, the only way to separate out the 2018

expenses for his rental properties from those for the rest of his 

business would be to engage in a tedious process of categorizing 

expenses. The categories of expenses on his profit and loss 

statements did not match the categories on his tax returns. 

Swan claimed variously that the IRS had audited him five 

or eight times and each time the IRS concluded he had 

underreported his deductions. Swan is conservative in his 

deductions, such as by claiming a smaller mortgage interest 

deduction than his lenders reported to the IRS or a lower amount 

of his auto expenses than the law allows. He does this so that if 

he is audited he will be owed a refund. As a result of the audits, 

Swan had a $2.3 million net operating loss on his returns. 

Swan’s expert, Jeff Stegner, later explained that Swan could 

carry this loss forward on his tax returns so he would not be 

paying any federal income taxes for quite a number of years, 

although he would still pay federal self-employment tax. 

The rental income on Swan’s properties in 2018 was 

slightly higher than in 2017, but the repairs and maintenance 
5

were significantly higher. Swan said his maintenance expenses 

were higher in 2018 than 2017 because he was converting them 

to short-term rentals on Airbnb. He later admitted that the 

expenses he listed as rental supplies and repair and maintenance 

in his profit and loss statement included construction costs of 

placing a shed on each rental property that he worked on 

converting to rental units. Swan had previously converted the 

garage at one of the properties into a separate rental unit, which 

Hatchett had rented from him before the triplets were born. 

Because of this construction, Swan expanded from having three

rental units to six. Still later, Swan revealed that the city had 

ordered him to cease renting the garage and one of the sheds 

because they were not up to code. Swan had not obtained any 

permits for any of the construction. He claimed he was not a 

contractor and not familiar with the rules and laws governing 

permits. 

Although he works as a real estate appraiser, Swan

initially could not give an estimate of the value of any of his 

properties. He then said the rental properties could possibly be 

worth $700,000 to $800,000, but he still could not say whether 

his property that he split between his business and his personal 

use would be worth more or less than that. Swan could not 

provide an estimate for how much he owed on the mortgage on 

his personal property but said it could be less than $500,000. He 

could not remember whether his mortgage payments for the 

rental properties had changed between 2017 and 2019. 
6

Swan had declared chapter 11 bankruptcy and was still in 

bankruptcy when he testified. He was paying back payroll taxes

through the bankruptcy for his one W-2 employee. He could not 

say how much longer he had to make those payments, but he 

thought it was under 10 years. When Swan filed his income and 

expense declaration, he did not include in his assets a Charles 

Schwab retirement account containing about $50,000 or $60,000. 

Swan explained that the form asked him to list stocks, bonds, and 

other assets he could sell easily, and he could not sell his 

retirement assets easily. 

Swan’s child from another relationship was born around 

the beginning of 2019. The child’s mother, X.H., lives in one of 

Swan’s rental units. X.H. is also one of Swan’s employees, 

working in real estate and as the manager of his office. Hatchett 

had also managed Swan’s office. Swan’s new child spends time in 

the homes of Swan and X.H. For the calendar year of 2018, Swan 

paid her about $75,000, according to a 1099 form Swan prepared

between hearing dates. Swan paid X.H. with cash withdrawals 

from an ATM, as he had done with other workers as well. Swan 

kept track of his cash payments to workers with ATM receipts 

and by memory. 

When asked whether he had traveled out of the country 

with X.H. in 2018, Swan first said he could not recall. When 

prompted afterwards whether he had traveled with X.H. to Paris 

and Saint-Tropez, he admitted he had. He initially could not 

recall who paid for the trip and said it could have been a client, 

then said he might have paid for it. When he could only find less 
7

than $50 in expenses in his own records for the trip, he then said 

he did not think he had paid for the trip and said it could have 

been one of his clients who sent him to look for retirement or 

investment property. He claimed his airfare and hotels were paid 

for by a client but he still could not recall a specific client. He 

initially said the trip did not coincide with any special dates or 

events but then admitted it coincided with X.H.’s birthday. 

Swan could not recall taking any other trips out of the 

country in the prior year, even though he generally took trips 

between one and 10 times per year, depending on the year, to 

places like Costa Rica, Panama, and Thailand. He admitted he 

traveled to Jamaica with X.H. in 2019, within two weeks of X.H.’s 

birthday. Swan could not recall who paid for the trip to Jamaica, 

even though it occurred only five months before he testified about 

it. He also took a business trip to Las Vegas in 2018, the same 

week as his birthday and the Fourth of July. Swan did not recall 

who traveled with him. 

Stegner

Swan’s expert Jeff Stegner testified that he relied on tax 

returns, bank statements, and a general ledger of transactions 

Swan provided him, without performing an audit or 

independently verifying anything beyond matching expenses to 

bank records and canceled checks. Stegner found Swan’s shift to 

combining his rental and other expenses on his Schedule C to be

completely allowable. To calculate Swan’s income available for 

support, Stegner took Swan’s net business income as stated on 

his tax returns, added back the depreciation and certain personal 
8

expenses, and for 2018 deducted mortgage principal payments for 

his rental properties that Swan reported to him. Stegner

calculated Swan’s income as $3,387 per month in 2017 and 

$3,643 per month in 2018. 

Hatchett

Hatchett secured a job in December 2019 earning $24 per 

hour for 40 hours per week. After March 2020, Hatchett began 

receiving pandemic hazard pay that pushed her hourly wage to 

$36 per hour, or about $75,000 per year. 

III. Post-hearing proceedings

In October 2020, the parties submitted written closing 

arguments. In January 2021, the trial court issued a tentative 

decision finding that Swan had failed to meet his burden of 

showing a change in his income. The court found Swan’s 

testimony and evidence regarding his income not credible. It 

rejected Stegner’s report because it was based on Swan’s noncredible evidence. It also rejected Swan’s request to waive 

interest on his child support arrears. But the trial court ordered 

the parties to provide additional briefing regarding whether it 

should modify support based on changes of circumstances during 

the pendency of Swan’s request, including Swan’s new child and 

Hatchett’s new income. 

After the supplemental briefing, in April 2021 the trial 

court issued a new tentative statement of decision denying 

Swan’s request to waive interest on arrears and denying his 

request to modify child support based on his claimed reduction in 
9

income, his new child, or Hatchett’s new income, in light of the 

lack of credibility of Swan’s evidence of his income. 

Swan moved for a new trial. At the hearing on the motion 

in August 2021, Hatchett made an oral request for need-based 

attorney’s fees. The trial court ordered the parties to submit 

further briefing regarding Swan’s argument that the court was 

obligated to re-calculate child support based on Hatchett’s new 

income and Swan’s new child, using the previous finding of 

Swan’s income if it did not find his new income evidence to be 

credible. 

The trial court continued the next hearing in October 2021 

so that Swan and Hatchett could submit updated income and 

expense declarations. At the final hearing in November 2021, 

Swan argued the trial court could not find both that his evidence 

at the hearing on his modification request was entirely not 

credible while also finding for purposes of Hatchett’s request for 

fees that there was a disparity in the parties’ incomes and that he 

could pay for Hatchett’s attorney’s fees. 

In January 2022, the trial court denied Swan’s motion for a 

new trial and awarded Hatchett about $10,000 in need-based 

attorney’s fees. For Hatchett’s fees award, the trial court found 

there was a documented disparity in the parties’ access to funds 

to pay for legal representation, Swan had or was reasonably 

likely to have the ability to pay for both parties’ attorneys, and 

Hatchett’s fees request was reasonable and necessary. 

On the same day, in connection with its denial of Swan’s 

motion for a new trial, the court issued an amended final 
10

statement of decision regarding Swan’s modification request. As 

it had earlier, the trial court denied his request to waive interest 

on his arrears and his request to modify child support because it 

found that Swan’s evidence of his income was not credible. The 

trial court also found Swan had not submitted sufficient evidence 

that his new child caused him a financial hardship warranting 

modification of support. But the trial court said Swan’s gross 

income in 2018 was about $2.38 million. As for Hatchett’s 

income, the trial court found it would be unjust to modify the 

support to take her income into account because Hatchett had 

provided an updated income and expense statement in February 

2020 but Swan had not provided once since May 2019. The court 

found it would be unjust to use the prior finding of Swan’s income 

that supported the existing support order as the basis for a new 

order because it appeared to the court that Swan’s income had 

increased rather than decreased. 

DISCUSSION

I. Denial of request to modify child support

“An order of child support ‘may be modified or terminated 

at any time as the court [determines] to be necessary.’ (Fam. 

Code, § 3651, subd. (a).)[1] Statutory procedures for modification 

of child support ‘require a party to introduce admissible evidence 

of changed circumstances as a necessary predicate for 

modification.’ ” (In re Marriage of Leonard (2004) 

119 Cal.App.4th 546, 556.) “The burden of proof to establish 

changed circumstances sufficiently material to support an 

1 Undesignated statutory citations are to the Family Code.
11

adjustment in child support rests with the party seeking 

modification.” (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 

357–358.) “ ‘Ordinarily, a factual change of circumstances is 

required [for an order modifying support] (e.g., increase or 

decrease in either party’s income available to pay child support).’ 

[Citation.] ‘There are no rigid guidelines for judging whether 

circumstances have sufficiently changed to warrant a child 

support modification. So long as the statewide statutory formula 

support requirements are met (Fam. [Code section] 4050 et seq.), 

the determination is made on a case-by-case basis and may 

properly rest on fluctuations in need or ability to pay.’ [Citation.] 

The ultimate determination of whether the individual facts of the 

case warrant modification of support is within the discretion of 

the trial court.” (Leonard, at p. 556, italics omitted.)

“[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.” (In re Marriage of 

Leonard, supra, 119 Cal.App.4th at p. 555.) Under an abuse of 

discretion standard, we review the trial court’s legal conclusions 

de novo and its factual findings for substantial evidence, and we 

reverse its application of the law to the facts only if it was 

arbitrary and capricious. (Haraguchi v. Superior Court (2008) 

43 Cal.4th 706, 711–712.) “The trial court’s exercise of discretion 

must be ‘informed and considered,’ [citations] and the court may 

not ‘ignore or contravene the purposes of the law.’ ” (Brothers v. 

Kern (2007) 154 Cal.App.4th 126, 133.) “Appellate courts ‘do not 
12

reweigh evidence or reassess the credibility of witnesses.’ ” (In re 

Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)

Swan raises several different arguments on appeal, with

his primary contention being that his new child and Hatchett’s 

new income were changed circumstances that obligated the trial 

court as a matter of law to recalculate the amount of child 

support even without evidence of his income. He also argues that 

the trial court erred by refusing to consider any of his evidence. 

We need not decide whether Swan’s new child or Hatchett’s new 

income would have obligated the trial court to recalculate support 

even in the absence of evidence of Swan’s income because we 

conclude that substantial evidence does not support the trial 

court’s decision to ignore all of his evidence of his income in this 

case.

The trial court’s credibility findings regarding Swan’s 

evidence would normally be conclusive because on substantial 

evidence review we generally do not second guess the trial court’s 

assessment of the credibility of witnesses or documentary 

evidence. (In re Marriage of Balcof, supra, 141 Cal.App.4th at 

p. 1531; People v. Vivar (2021) 11 Cal.5th 510, 528, fn. 7 [“when 

reviewing a ruling under the substantial evidence standard, ‘an 

appellate court should defer to the factual determinations made 

by the trial court,’ regardless of ‘whether the trial court’s ruling[s 

are based] on oral testimony or declarations’ ”].) Swan argues his 

tax returns were presumptively correct and neither Hatchett nor 

the department submitted evidence rebutting the presumption, 

so the trial court was obligated to use them. The trial court 
13

followed In re Marriage of Hein (2020) 52 Cal.App.5th 519, 540–

541, 544–545, which held that even if the presumption existed, it 

did not apply to the tax returns of two corporations with 

intertwined operations, both of which were wholly owned by a 

self-employed parent. We agree with Hein’s reasoning and 

conclude that the presumption of correctness does not apply to 

tax returns of a self-employed parent like Swan, who controls 

how income is reported and is responsible for distinguishing 

between personal expenses and business expenses that would 

reduce available income for child support. The trial court was 

therefore not required to credit Swan’s tax returns.

The problem here is that the trial court’s order and 

statement of decision are inconsistent and significantly misstate 

the evidence in key respects relevant to its credibility 

determination.

2 Although we accept the trial court’s individual 

credibility determinations, given that the trial court had other 

options available to it to address shortcomings in Swan’s evidence

for the purposes of calculating child support, we cannot say that 

substantial evidence supports its decision to disregard Swan’s 

evidence in its entirety.

First, the trial court’s rejection of all of Swan’s testimony

and evidence cannot be squared with its statement that Swan

had gross income in 2018 of about $2.38 million. Nor can it be 

2 The trial court’s January 2022 order stated that it was 

denying Swan’s motion for a new trial and, in the alternative, 

issuing an amended statement of decision. Swan and the 

department both treat the amended statement of decision as the 

trial court’s final ruling, and we do the same. 
14

squared with the court’s statement that Swan’s income had 

increased rather than decreased so that it would be unjust to 

recalculate support using Swan’s income established in the prior 

order and Hatchett’s new income. As the trial court 

acknowledged, finding Swan’s evidence and testimony not 

credible had the effect “ ‘of removing that testimony from the 

evidentiary mix.’ ” (Moran v. Foster Wheeler Energy Corp. (2016) 

246 Cal.App.4th 500, 518.) Because neither Hatchett nor the 

department submitted evidence of Swan’s income, if the court 

had entirely ignored Swan’s evidence, it would have had no basis 

from which to conclude Swan had a specific amount of gross 

income or that his income had increased.

The only alternative evidence of Swan’s income in the 

record was the income and expense declaration he submitted in 

late 2021 in connection with Hatchett’s request for attorney’s 

fees. It appears the court ignored this declaration for the 

purposes of Swan’s modification request, since it said in its 

statement of decision that Hatchett had submitted an updated 

income and expense declaration in 2020 but Swan had not 

submitted one since May 2019. Nonetheless, the trial court must 

have relied on Swan’s 2021 declaration to find a disparity of 

resources and Swan’s ability to pay Hatchett’s attorney’s fees, 

because otherwise there was no evidence to support that award, 

either. This, too, is inconsistent with the court’s rejection of 

Swan’s evidence for his modification request. If the evidence 

Swan prepared for the modification request was so lacking in 

credibility as to be worthless, we cannot see why his 2021 income 
15

and expense declaration would be more credible. Conversely, if 

his 2021 declaration was somehow more credible than his earlier 

evidence, it is hard to understand why the trial court would have 

ignored it and found no evidence of his income at all for his 

modification request when it issued its amended statement of 

decision as part of the same order that granted Hatchett’s 

request for need-based attorney’s fees.

3

In any event, leaving aside the internal inconsistencies 

within the trial court’s statement of decision and between its 

rulings on the modification request and fees request, the trial 

court’s finding of Swan’s 2018 gross income was off by a 

considerable margin. The trial court said twice in its statement 

of decision that Swan’s tax return showed he had gross income in 

2018 of about $2.38 million. The only source for this figure 

appears to have been the portion of Swan’s tax return in which he 

applied a net operating loss carried forward from prior tax years. 

But a net operating loss is not income. As reflected elsewhere in

his tax return, and as the parties generally agreed at trial, 

Swan’s only source of income that year was his business, whose

3 The trial court may have ignored the later declaration for 

the purposes of the modification request because Swan submitted 

it after closing arguments on that matter. But the trial court 

issued its amended statement of decision under Code of Civil 

Procedure section 662 in response to Swan’s motion for a new 

trial. That statute allows a court in an action tried without a 

jury to amend a statement of decision, but it also allows the court 

to set aside a statement of decision and re-open the case for 

additional evidence. (Code Civ. Proc., § 662.) The submission of 

the modification request therefore was no obstacle to considering 

Swan’s later-filed evidence.
16

actual gross income was about $370,000. The trial court’s 

statement of Swan’s gross income was therefore significantly off 

the mark.

In its closing brief, the department briefly questioned 

whether Swan might be underreporting his gross income, based 

on the fact that Swan admitted to taking several international 

trips but reported only minimal expenses for those trips and 

could not show where he obtained the funds deposited in his 

Charles Schwab accounts. The department also alluded to it 

being difficult to determine if there was actually a change in 

Swan’s income and suggested the correctness of Swan’s tax 

returns was questionable. But both the department and 

Hatchett still used Swan’s stated gross income as the starting 

point for their calculations of child support, suggesting that they, 

at least, did not find Swan’s testimony and evidence so 

misleading as to be useless. 

The trial court provided several different reasons why it 

found Swan’s testimony not credible in its entirety, including

Swan’s defensive and evasive demeanor; difficulty recalling basic 

facts about his unpermitted rental units, tenants, and value of 

his properties; initial mischaracterization of his rental units as 

storage units; and his struggle to provide accurate information 

about his travel and cash commissions he paid to his current 

partner and mother of his youngest child, who is also one of his 

employees and living in one of his rental units. Even from a cold 

transcript, Swan’s testimony appears evasive and difficult to 

credit on many of these points. The trial court could reasonably 
17

have extended its credibility determination to the documents that 

Swan prepared. (In re Marriage of Calcaterra & Badakhsh

(2005) 132 Cal.App.4th 28, 31, 36 [affirming trial court’s drawing 

of factual inferences adverse to party who submitted misleading 

and false tax return; rule that a trier of fact can accept as true 

only part of a witness’s testimony and disregard the rest applies 

to documents prepared by the witness or at his direction].) The 

department cites Swan’s testimony on these topics as support for 

the trial court’s order, but it ignores the trial court’s 

misstatement of Swan’s income and the inconsistencies within 

the trial court’s orders. Given the magnitude of the trial court’s 

error on its statement of Swan’s gross income—overstating it

more than six-fold—we cannot say that substantial evidence 

supports the trial court’s drastic step of entirely disregarding all 

of Swan’s evidence based only on the credibility issues that it 

highlighted in its order.

The trial court’s decision to disregard all of Swan’s 

testimony, a decision apparently without precedent in reported 

cases as far as we have been able to determine, is striking given 

that the trial court had other options at its disposal to respond to 

Swan’s credibility problems. As the trial court acknowledged, it 

could have imputed income to Swan if it did not believe his stated 

income matched his earning capacity. That is precisely the 

approach another trial court took with a parent whose attempts 

to hide assets and income were even more egregious than Swan’s.

In re Marriage of Barth (2012) 210 Cal.App.4th 363, 366–

367, 370 (Barth), involved an appeal from an initial child support 
18

order in which the father was, like Swan, an accountant who 

prepared his own statements and financial reports in which he 

categorized expenses. The father included in his business 

expenses dozens of personal expenses as well as “wages he 

allegedly paid to his girlfriend without any satisfying evidence to 

justify the expense.” (Id. at p. 370.) The trial court believed the 

father was purposefully vague or evasive and found he failed to 

disclose material facts, such as a substantial severance package 

from a former employer and recurring rental income from a 

property. (Id. at p. 369.) It also found the father’s professed 

business expenses were phony or personal and that the father 

“was not to be believed on any issue relating to his finances.” 

(Id. at pp. 370, 377.) In these circumstances, the appellate court 

concluded the trial “court had no choice but to impute income to 

[the father] for the purpose of establishing child support.” (Id. at 

p. 377.) The appellate court upheld as reasonable the trial court’s 

imputation of income based on a vocational report prepared by 

the mother’s expert and the addition of estimates of various items 

of income father had hidden. (Id. at pp. 371, 376–377.)

Given the trial court’s lengthy and factually supported

reasons for finding aspects of Swan’s testimony not credible, the 

trial court here would have been well within its rights to impute 

income to Swan, like in Barth. Hatchett did not provide a 

vocational report. But the trial court could have taken other 

approaches, such as by rejecting non-credible deductions Swan 

made from his gross income to calculate his net income. For 

example, if it found Swan’s payments to his new partner to be not 
19

credible and viewed them instead as an improper attempt to hide

his income, it could have rejected some or all of those deductions 

and included them when calculating his income. (In re Marriage

of Calcaterra & Badakhsh, supra, 132 Cal.App.4th at p. 36 [“the 

trial court could credit father’s indication of gross income and 

disregard his indication of expenses necessary to service the 

properties”].)

Similarly, if the trial court believed Swan was improperly 

claiming personal expenses to be business expenses, it could have 

added an amount for the improper deductions back to Swan’s 

income. (See In re Marriage of Rodriguez (2018) 23 Cal.App.5th 

625, 635 & fn. 11 [trial court properly ignored vehicular 

depreciation deduction from self-employed parent’s tax return 

because it did not reduce monthly income from the business].) If 

the trial court believed Swan’s standard of living did not match 

his claimed expenses and disbelieved his explanation that clients 

he could not recall had paid for his trips, it could have imputed to 

him the income necessary for him to have paid such expenses. 

(Cf. Barth, supra, 210 Cal.App.4th at p. 370 [trial court found 

father understated his expenses in order to match his 

understatements of income].) To be sure, the trial court would 

have needed to use estimates for some of these figures, given the 

credibility problems of Swan’s evidence. But having failed to 

provide credible evidence of his overall income, Swan would have 

had little grounds to complain if the trial court could not precisely 

calculate specific aspects of his income.
20

The availability of the options Barth endorsed confirms 

that the trial court’s refusal to calculate Swan’s income entirely

must have been based on more than a simple difficulty crediting 

aspects of his testimony about how he calculated his net income 

from his business’s gross income. The court’s mistaken belief 

that Swan had understated his income by almost $2 million must 

have played a significant role in its decision. The effect of the 

trial court’s refusal to consider Swan’s evidence was ultimately to 

exclude entirely Hatchett’s income from the calculation of child 

support, contrary to the policies in section 4053 that both parents 

are responsible for their children’s support, child support is 

calculated based on each parent’s actual income, and each parent 

should pay for the support of the children according to the 

parent’s ability. (§ 4053, subds. (c)–(e); see also Brothers v. Kern, 

supra, 154 Cal.App.4th at p. 133 [trial court’s exercise of its 

discretion to modify support may not “ ‘ignore or contravene the 

purposes of the law’ ”].) As a result, and because the trial court’s 

treatment of Swan’s evidence was inconsistent both within its 

statement of decision and between its denial of his request to 

modify support and grant of Hatchett’s request for attorney’s 

fees, we cannot say that substantial evidence supports the trial 

court’s choice to ignore all of Swan’s evidence for his modification 

request.
21

II. Award of attorney’s fees to Hatchett

We review the trial court’s attorney’s fees award for abuse 

of discretion. (In re Marriage of Smith (2015) 242 Cal.App.4th 

529, 532 [reviewing award under § 2030].)4

 The same problems affecting the trial court’s denial of 

Swan’s modification request also undermine its award of needbased attorney’s fees to Hatchett. As noted ante, we cannot 

reconcile the trial court’s two different assessments of Swan’s 

evidence on the same day for the purposes of his modification 

request and Hatchett’s fees request. The trial court could not 

logically rely on Swan’s income and expense declaration to award 

attorney’s fees while simultaneously finding Swan’s testimony 

and evidence of his income in the modification proceeding to be 

not credible in its entirety. Swan’s evidence in the modification 

proceeding was much more detailed than his income and expense 

declaration, but both were based on Swan’s own calculations of 

his revenue and business expenses. And if the trial court did 

disregard Swan’s evidence entirely for both requests, then it 

4 Neither Hatchett nor the court identified the specific 

statute authorizing an award of need-based fees in this matter. 

Swan assumed at the hearing that Hatchett’s request was based 

on section 2030, which authorizes an award of need-based fees 

“[i]n a proceeding for dissolution of marriage, nullity of marriage, 

or legal separation of the parties, and in any proceeding 

subsequent to entry of a related judgment.” (§ 2030, subd. (a)(1).) 

Hatchett did not disagree. The choice of statute is irrelevant to 

our analysis, which turns on the contradictions in the court’s 

factual findings.
22

lacked any factual basis to find Swan had greater resources than 

Hatchett and could pay for her legal representation.

Hatchett argued at the hearing that even if the trial court 

could not make a finding of Swan’s precise income for child 

support, it could still find that Swan had more income and 

resources than Hatchett.5 This argument ignores the fact that 

the trial court’s credibility finding should have eliminated Swan’s 

evidence in its entirety. The point of the trial court’s modification 

order was not that Swan’s evidence was too vague to permit a 

calculation, it was that Swan’s evidence was so lacking in 

credibility that it was essentially no evidence at all. Besides, 

even if Hatchett were correct about this, the trial court found 

specifically that Swan had or could reasonably be expected to 

have the ability to pay about $10,000 of Hatchett’s fees. Such a 

finding essentially required the court to put some kind of number 

on Swan’s income, a calculation that the trial court claimed was 

impossible even with Swan’s earlier, more detailed evidence.

III. Interest on support arrears

Swan briefly contends the trial court erred by refusing to 

rule on the merits of his request to waive interest on some of his 

child support arrears. We need not discuss the factual 

background for Swan’s request or the particulars of his argument 

on appeal because the trial court lacked authority to waive the 

arrears. (In re Marriage of Hubner (2004) 124 Cal.App.4th 1082, 

1089 [“notwithstanding changed circumstances, or a claimed lack 

5 Hatchett did not file a respondent’s brief. 
23

of clarity in a court’s order assessing child support arrearages, 

courts have no authority to waive or forgive interest accrued on 

past-due child support amounts”].) Swan does not explain how 

the trial court could have waived interest on his arrears despite 

this black-letter law.

DISPOSITION

The juvenile court’s orders are reversed. The matter is 

remanded for further proceedings not inconsistent with this 

opinion. We express no opinion regarding the outcome of the 

proceedings on remand. The parties shall bear their own costs on 

appeal.

BROWN, P. J.

WE CONCUR:

STREETER, J.

GOLDMAN, J.

Swan v. Hatchett (A163825, A164764)
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Toni Y. Mims-Cochran 

Counsel: Law Office of Stephanie J. Finelli and 

Stephanie J. Finelli for Appellant.

 

Krystle Hatchett, in pro. per., for Respondent 

Krystle Hatchett. 

Rob Bonta, Attorney General, Cheryl L. Feiner, 

Assistant Attorney General, Maureen C. 

Onyeagbako and Jennifer C. Addams, Deputy 

Attorneys General, for Respondent Alameda 

County Department of Child Support Services.