Filed 1/3/22 Marriage of B.S. and S.S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of B.S. and S.S.

B.S.,

Respondent,

v.

S.S.,

Appellant.

 D077728

 (Super. Ct. No. 18FL010584C)

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

William J. Howatt, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 

§ 21.) Motion to dismiss appeal denied; order affirmed.

Stephen Temko for Appellant. 

Bickford Blado & Botros and Andrew J. Botros for Respondent. 

Appellant S.S. appeals from an April 2020 order on his request to

modify and reduce child and spousal support to respondent B.S. The family 

court reduced combined support from $40,000 per month to $15,000 per 

month, including an upward deviation of child support from the guideline 

$7,367 amount to $10,000 based on the parties’ children’s various needs. The 
2

court declined to make its order retroactive to the date S.S. filed his 

modification request. S.S. contends the court reversibly erred by these 

rulings because he did not have the actual income to pay the ordered support, 

and the court failed to adequately consider his inability to pay given his 

litigation costs and living expenses. 

B.S. moves to dismiss S.S.’s appeal under the equitable disentitlement 

doctrine, which gives an appellate court the ability to stay or dismiss the 

appeal of a party who has refused to obey court orders. (In re Marriage of 

Hofer (2012) 208 Cal.App.4th 454, 459; United Grand Corp. v. Malibu 

Hillbillies, LLC (2019) 36 Cal.App.5th 142, 166.) We elect to address S.S.’s 

appeal, and thus deny B.S.’s motion. On the merits, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND1

S.S. and B.S. were married in 2001 and had three children during the 

marriage. In September 2018, while the children were minors, B.S.

petitioned for dissolution of the marriage and sought a domestic violence 

restraining order. On the day B.S. served her petition, S.S. transferred to his 

1 We state some of the background facts from uncontested factual 

findings in the family court’s detailed ruling on S.S.’s modification request. 
3

mother $3 million out of a bank account he owned jointly with his father.2 

The parties eventually entered into a stipulation to appoint Judge William 

Howatt as a privately compensated temporary judge in their matter. 

According to financial documentation and information S.S. provided to his 

expert accountants, he does not receive a salary; his primary source of income 

is distributions from his ownership interest in five hotel properties held in 

separate limited liability companies (LLCs).3 S.S. primarily invests in hotel 

properties with the plan to upgrade and refinance them, then make 

2 S.S.’s expert Brian Bergmark testified that that account, No. 5388, was 

opened with $2 million of which Bergmark allocated $1.7 million to S.S. and 

$300,000 to S.S.’s father. As of the date of S.S. and B.S.’s separation, the 

account had $5 million; $2 million was paid to one hotel limited liability 

company (New Albany Hospitality) and $3 million was transferred to S.S’s 

father. Bergmark testified that S.S.’s father received more than the father 

had put into the account due to money that S.S. owed him. Bergmark 

testified he verified the loans through check copies and bank statements. 

According to him, since separation, S.S. had borrowed approximately $1 

million from his father. On cross-examination, Bergmark admitted he had 

not provided backup documentation to counsel for these loans, there were no 

promissory notes reflecting them, and it was S.S. who gave him a written 

summary and told him he had received various loans from his father. S.S.

also was the source of what S.S. claimed were pages of his father’s bank 

statements reflecting the payments. 

3 S.S. identified the various LLCs in an August 2019 declaration. In a 

February 2019 declaration, S.S. stated: “My father and I are business 

partners in the hospitality industry. Our limited liability companies acquire 

properties that we develop and sell in the hotel and restaurant industry. I 

receive intermittent seasonal distributions, some of which is nondistributable (phantom) income on which I am required to pay income taxes. 

Historically, when a seasonal distribution was received it was deposited into 

our community savings account and used to pay our monthly family expenses 

which averaged $20,000-$25,000 per month. Until our September 2018 

separation, these funds were sufficient to maintain our family standard of 

living.” 
4

distributions to himself and his partners after the properties are fully 

leveraged and sold. His primary income is from the distributions from the 

hotels’ operation through his investment in an LLC with another individual.4 

In early July 2019, Judge Howatt considered S.S.’s request for order 

regarding temporary child and spousal support, which was the subject of a 

prior order by another superior court judge. Finding the court had made 

several errors in its prior support order, Judge Howatt ordered that S.S. pay 

temporary child and spousal support of $25,000 and $15,000 per month 

respectively, retroactive to July 1, 2019. It ordered the erroneous prior order 

for $70,000 in monthly combined child and spousal support corrected to 

$40,000 per month retroactive to March 1, 2019, “with all arrears payable 

forthwith.”5 In reaching his decision, Judge Howatt calculated guideline 

child support to be approximately $10,000, but found an increase to $25,000

was appropriate based on the marital standard of living, S.S.’s “past ability 

[to pay], if not present income available for support” and the children’s best 

interests. 

On August 1, 2019, S.S. filed another request for order relating to child 

and spousal support. He asked the court to modify child and spousal support

downward “based on [his] actual earnings, B.S.’s ability to earn working full 

time, and [their] respective timeshare with the children.” According to S.S., 

his yearly taxable income from 2013 to 2018 fluctuated greatly for various 

4 Bergmark explained that S.S. and the others were “using capital and 

equity from one property and financing that property and putting it 

into other properties in order to make acquisitions or make these 

improvements . . . .” 

5 Judge Howatt’s order was signed and filed later in August 2019, after 

S.S. on August 1, 2019, filed the request for order that is the subject of the 

present appeal. 
5

reasons. S.S. claimed his 2018 monthly income averaged $30,252 and his 

2019 average monthly income from LLC distributions was $42,824. 

Asserting he was living with his parents because he could not afford his own 

housing, he outlined his estimated living expenses from September 2018 to 

July 2019. S.S. asked the court to impute income to B.S., a radiologist with 

the asserted potential to earn over $500,000 per year based on her ability to 

work full time. In responsive and supplemental declarations, S.S. claimed he 

had been forced to borrow money from his father to pay court-ordered 

support. He stated he had $34,000 in a bank account and $77,177 in an 

investment account, with no ongoing income. S.S. pointed to his expert’s 

conclusion that his “normalized” monthly earnings were $35,095, noting that 

the figure was similar to that given by B.S.’s forensic CPA Brian Brinig, who 

opined based on information for 2015 to 2018 S.S.’s average monthly income 

available for support was $35,788. In a November 2019 income and expense 

declaration, S.S. claimed average monthly expenses of $43,972.6 He accused 

B.S. of misrepresenting the amount of funds available to her as well as her 

need for spousal and child support. 

S.S. admitted he did not pay the court-ordered child and spousal 

support for January, February and March 2020. In February 2020, he 

submitted an updated income and expense declaration in which he again 

listed his expenses as $1,615 in uninsured healthcare costs; $126 in groceries 

and household supplies; $565 for eating out; $240 in cell phone and telephone 

6 S.S. listed his expenses as $1,615 in uninsured healthcare costs; $126 

in groceries and household supplies; $565 for eating out; $240 in cell phone 

and telephone expenses; $33 in laundry and cleaning; $700 in clothing; 

$3,100 in education expenses; $5,000 in entertainment, gifts and vacation 

expenses; $1,931 in automobile and transportation expenses; and $28,062 in 

litigation costs. He claimed he paid $2,600 per month to a housekeeper as an 

installment payment or debt. 
6

expenses; $33 in laundry and cleaning; $700 in clothing; $3,100 in education 

expenses; $5,000 in entertainment, gifts and vacation expenses; $1,931 in 

automobile and transportation expenses; and $28,062 in litigation costs. He 

claimed he paid $2,600 per month to a housekeeper as an installment 

payment or debt. He reported paying his attorneys approximately 

$807,073.25 as of February 2020, asserting he paid the fees and costs with 

loans from his parents. 

In March 2020, the court conducted a hearing on S.S.’s August 2019 

request. It took evidence from S.S.’s and B.S.’s expert CPAs Bergmark and 

Brinig, who had issued reports before the hearing. Both experts testified to 

S.S.’s available income to pay support.

Bergmark testified that his income analysis for S.S. looked at cash 

flows generated from hotel operations and distributions, as well as the level 

of debt; he testified that S.S. had told him, however, that he did not believe 

he could get any additional refinances, causing concern about his cash flow. 

S.S. told Bergmark there would be declining revenues unless they 

commenced a property improvement plan (PIP) on a hotel; Bergmark also 

testified about market disruptions including the Covid-19 pandemic. 

Bergmark’s summary analysis of S.S.’s income “normalized” the monthly 

cash flow amounts, meaning he looked at all of the businesses’ and 

operations’ historical numbers, used time periods most representative, and 

came up with the best indication of ongoing yearly earnings for each entity, 

then divided them by 12. These normalized earnings constituted Bergmark’s 

opinion as to S.S.’s income available for support. 

Bergmark also traced incoming and outgoing funds from various bank 

accounts. This tracing included sales proceeds from a joint restaurant 

business, from which S.S. received $700,000 in January 2019. S.S. deposited 
7

half of the proceeds back into an account for one hotel LLC jointly owned by 

him and his father (New Albany Hospitality, LLC, or New Albany), and 

$350,000 into another account, from which S.S. paid $350,000 in federal 

income tax payments. (The court later found this was an overpayment, 

resulting in a refund of $307,478 to S.S., which S.S. deposited into his 

personal bank account.) Bergmark explained in part that he understood from 

S.S. that some of the payments to S.S.’s father were loans, which Bergmark 

concluded amounted to $1,030,087. Bergmark admitted he saw no 

promissory notes or any other documentation to substantiate the loans; he 

relied only on what S.S. told him. S.S. gave Bergmark a paper purporting to 

be a summary of the loan activity; Bergmark did not prepare it and S.S. told 

him what the interest rate was. S.S. also provided Bergmark select pages 

purporting to be his father’s bank account records. One account in particular, 

No. 5388, was opened in May 2017 with $2 million from an account held 

jointly by S.S. and B.S., but Bergmark allocated $1.7 million to S.S. and 

$300,000 to S.S.’s father due to their respective property ownership interests. 

As of the date of separation in September 2018, the account held $5 million, 

but $2 million was transferred to New Albany, and the other $3 million was 

paid to S.S.’s father, assertedly to repay loans. 

S.S. and B.S. testified. S.S. explained his hotel ownership interests and 

his work, describing himself as “money manager” who made decisions “to 

input dollars or not put dollars in a particular investment and . . . try to 

manage and mitigate all the risks from ownership.” He testified his father 

was an investor, and another individual managed the hotel property 

improvement plans (PIPs), day to day operations, bank accounts, and bills. 

S.S. admitted purposely submitting factually inaccurate asset and liability 

information to banks for the purpose of getting loans; he testified it was 
8

“common” to overstate assets and understate liabilities. In January 2020, he 

sold his interest in New Albany to his father, and testified he received 

between $500,000 and $1 million in cash, which he deposited back into the 

bank account of another hotel property to go toward a PIP. S.S. admitted he 

last paid court-ordered monthly $40,000 in child and spousal support in 

December 2019, claiming he was unable to make the January, February, and 

March 2020 payments. 

B.S. testified about her employment history up to and after the time of 

separation, as well as her obligations with respect to the children’s medical 

and behavioral issues and the frequent appointments they had with various 

physicians. B.S. testified that she did not consent to the sale of the 

restaurant business or how S.S. distributed the $700,000 in proceeds. She 

did not see a court order permitting the sale of New Albany; she did not agree 

to New Albany’s sale or how the sales proceeds were distributed. She did not 

consent to $5 million being taken out of account No. 5388 and disbursed in 

the manner S.S. did. In a February 2019 declaration, she asserted a balance 

sheet showed they owned $63 million in assets. 

The family court made extensive findings in its modification ruling.7 It 

observed that B.S. did not factually contest that there had been a material 

change of circumstances. It found S.S. was presently four months behind on 

his support obligations to B.S. and the children “because he abruptly stopped 

paying support in January 2020.” At the same time, it observed that S.S. had 

paid his attorneys over $806,000, while B.S. had paid hers approximately 

$274,000; an over $500,000 difference. 

7 The family court’s April 29, 2020 order also addressed S.S.’s motion to 

compel further answers to special interrogatories, B.S.’s request for one-half 

of a 2018 tax refund, and B.S.’s request for attorney fee contributions from 

S.S. None of these matters are at issue in this appeal.
9

The court stated that S.S., who was living with his parents, estimated 

his monthly income to be $42,824 per month for the year 2019 based upon 

available distributions. It found: “Forensic analysis by Brian Bergmark and 

Brian Brinig of [S.S.’s] ‘Income Available for Support’ is very consistent in 

recognizing that historically S.S.’s income is predicated upon the amount of 

distributions from his hotel property partnership interests. . . . [S.S.] earns 

$44,740 per month. . . . [¶] Mr. Bergmark’s analysis is based exclusively 

upon information supplied by [S.S.] This is significant when consideration is 

given to loan applications which [S.S.] has manufactured and contain false 

information regarding net worth.” 

The court essentially found S.S.’s testimony about his finances to be not 

credible: “At first [S.S.] stated he did not fill out these forms, and then 

admits he filled them out but ‘everybody’ in the industry submits inflated 

numbers and that is a common practice. A lie is still a lie. A false statement 

of wealth or assets in order to obtain a loan can also be determined to be 

fraud. Importantly, while he would not admit that he lied when filling out 

these forms he did admit that he put false numbers into the form as well as 

leaving out debt obligations he now claims [are] due to his parents. It cannot 

be a mystery that the court is suspect of [S.S.’s] testimony and allegations in 

this case regarding his financial situation.” 

The family court also found it important that S.S. had control of the 

community assets and bank accounts. Given this, the court found the record 

lacked a satisfactory explanation or reason for S.S.’s transfer of $3 million to 

his mother, assertedly to repay a loan to his father, on the same day B.S. 

served him with her dissolution petition. The court recited its calculations 

for its guideline support. It then explained the factors it used to deviate from 
10

the guideline amount: “[S.S.] has [committed],8 after trial . . . domestic 

violence including acts of physical, psychological and financial abuse of [B.S.] 

[One of their daughters] was of sufficient age and understanding to observe 

and be severely psychologically affected by [S.S.’s] actions toward [B.S.] Both 

[of the other children] have suffered the effects of domestic violence as well. 

. . . [Their son] who is a special needs child functions admirably but slowly 

and needs tutorial assistance to complete his studies. [¶] It is undeniable 

that [S.S.’s] lack of anger management and self-control ha[s] brought this 

family to the brink of financial and emotional disaster. [¶] Actual domestic 

violence can be a factor which the court may seriously consider in setting a 

support amount. . . . [¶] Deviation from guideline for the benefit of the 

children is truly justified. [¶] In order to sustain the tutorial and therapeutic 

needs of all three children, and to meet the special needs of [their son], Child 

Support is set at $10,000 per month. [¶] While [B.S.] has suffered greatly 

from the domestic violence and abuse the court does not feel, under the 

circumstances where [S.S.] is alleging lack of ability to pay any support that 

it is appropriate to order other than the guideline suggested spousal support.” 

The Court addressed S.S.’s request for retroactivity to August 1, 2019,

as follows: “When making a modification to a child and spousal support 

order, the court may consider making the modification retroactive to a date 

certain, generally to the date of the filing of the motion. [¶] . . . [¶] The 

court has direct statutory authority and discretion to make a modification of 

an order for child support retroactive. ‘ . . . An order modifying or 

terminating a support order may be made retroactive to the date of the filing 

of the notice of motion or order to show cause to modify or terminate or any 

8 The court’s ruling states that S.S. was “convicted” of domestic violence, 

but B.S. concedes that he was not convicted of any crime. 
11

subsequent date . . . .’ [¶] This is a discretionary determination to be made 

by the trial court. There are no specific statutory guidelines by which the 

court is to make a decision on retroactivity. . . . [R]etroactivity is generally 

made in consideration of the supporting party’s ability to pay and the other 

party’s need.” Acknowledging the strong policies behind awards of adequate 

child support, the court ruled: “Giving consideration to the specific needs of 

the children as well as [B.S.] as victims of domestic violence either directly in 

[B.S.’s] situation or psychologically . . . as children observers it is appropriate 

in looking to the equities of the situation to deny retroactivity as requested by 

[S.S.]”

The court continued: “In addition to the effects of [S.S.’s] anger and 

abuse there is the lack of credibility in his testimony regarding disposition of 

millions of dollars of community monies on claimed but unverified ‘loans’

from his parents as well as his fictitious statements of net worth on multiple 

loan applications. The predicate for Mr. Bergmark’s income analysis is again 

based exclusively upon documentation and personal explanation of [S.S.].

The facts, circumstances and equities of the case do not warrant retroactive 

application of the support awards. [¶] Additionally, [B.S.] had a right to 

expect and rely upon the previously ordered child and spousal support 

pending this hearing. [¶] The request for retroactively effective child and 

spousal support is denied for the reasons stated.” (Some capitalization 

omitted.) On B.S.’s later request for clarification, the family court ruled that 

its modification order was effective as of April 28, 2020, and not retroactive. 

DISCUSSION

I. Motion to Dismiss Under Disentitlement Doctrine

B.S. has moved to dismiss this appeal under the disentitlement 

doctrine, under which a court has the inherent discretionary power to dismiss 
12

an appeal where a party refuses to comply with lower court orders (see

Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229;

Foster v. Sexton (2021) 61 Cal.App.5th 998, 1036, fn. 12; United Grand Corp. 

v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 166) or has engaged in 

“ ‘obstructive tactics.’ ” (Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 

346.) “ ‘The rationale underlying the doctrine is that a party to an action 

cannot seek the aid and assistance of an appellate court while standing in an 

attitude of contempt to the legal orders and processes of the courts of this 

state.’ ” (Ibid.; Stoltenberg, at p. 1230; In re Marriage of Hofer, supra, 208 

Cal.App.4th at p. 459.) 

According to B.S., despite the court’s orders to pay monthly support, 

S.S. has not made a single child or spousal support payment since December 

2019, and he presently has $220,000 in child support arrears alone, before 

interest. She points out that on appeal, S.S. does not challenge the actual 

guideline child support of $7,367 per month, only the court’s upward 

deviation to $10,000, characterizing S.S. as “conced[ing] that he should be 

paying $7,367 per month.” She also points out that in his February 2020 

income and expense declaration, S.S. declared he was spending $5,000 per 

month on entertainment, gifts, and vacation, and $2,600 per month on a 

housekeeper, and he represented that between November 2019 and February 

2020, he had paid his lawyer over $117,000 in attorney fees. B.S. asserts S.S.

also owes $112,623 in spousal support arrears and has never paid child care 

expenses and uninsured healthcare costs as court-ordered additional child 

support. She asserts that in 2020 and 2021, S.S. filed lawsuits against her in 

Tennessee, Florida, Kentucky and Indiana, and an unsuccessful writ petition 

in this court in September 2020, all while not paying support. According to 

B.S., S.S.’s bank statements reflect that between December 13, 2019, and 
13

April 23, 2020, he had made over $365,000 in cash deposits into his personal 

checking account and he continued to incur substantial credit card charges 

through March 2021, which he paid off monthly. 

In opposition, S.S. does not deny he failed to pay support; he maintains 

that due to the Covid-19 pandemic, his hotel business rendered him unable to 

comply with child and spousal support after December 2019. He states the 

proceeds from the sale of one of his cars went “mostly” to arrears, and 

proceeds from the community house are now held in trust until the parties’ 

counsel can meet and confer about the disputes over the precise amount of 

arrears. According to S.S., he has not willfully violated the court’s orders to 

pay support; rather, he lost the sole source of his income. In an 

accompanying declaration, S.S. asserts he had no hotel profits in January 

through March 2020, and thus his failure to make support payments in 

January and February 2020 was not willful. He argues B.S. has not provided 

proof of his ability to pay the support amounts; she ignores the consequences

of the pandemic as well as later orders reducing support to zero in October 

2020, and she does not give him credit for payments she received. 

“ ‘ “Appellate disentitlement ‘is not a jurisdictional doctrine, but a 

discretionary tool that may be applied when the balance of the equitable 

concerns make it a proper sanction . . . .’ [Citation.]” [Citation.] No formal 

judgment of contempt is required; an appellate court “may dismiss an appeal 

where there has been willful disobedience or obstructive tactics. [Citation.]”

[Citation, italics added.] The doctrine “is based upon fundamental equity and 

is not to be frustrated by technicalities.” ’ . . . [¶] The ‘disentitlement 

doctrine “is particularly likely to be invoked where the appeal arises out of 

the very order (or orders) the party has disobeyed.” ’ [Citation.] ‘[T]he merits 

of the appeal are irrelevant to the application of the doctrine.’ ” (United 
14

Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 166; 

Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 

265.) Dismissal of an appeal under the disentitlement doctrine is an 

equitable remedy subject to our discretion. (Ironridge Global IV, at p. 265.)

“The power to dismiss an appeal for refusal to comply with a trial court 

order has been exercised in a variety of circumstances, including: where a 

parent had taken and kept children out of the state in violation of a divorce 

decree [citations]; where a husband had failed to pay alimony as ordered in 

an interlocutory judgment of divorce [citation]; where a party in a civil action 

was a fugitive from justice and in contempt of the superior court for failure to 

appear on criminal charges after being released on bail [citations]; and where 

defendants willfully failed to comply with trial court orders regarding a 

receivership. [Citation.] Moreover, the inherent power to dismiss an appeal 

has been exercised in several cases where a party failed or refused to appear 

for a judgment debtor examination.” (TMS, Inc. v. Aihara (1999) 71 

Cal.App.4th 377, 379-380, citing in part Kottemann v. Kottemann (1957) 150 

Cal.App.2d 483.) In Kottemann,the appellant, a certified public accountant,

made repeated efforts to thwart his spouse’s ability to enforce an alimony 

judgment: he closed bank accounts and transferred assets on which she

attempted to execute, secreted himself to avoid a deposition, and lied about 

the extent of his ownership in certain stock. (Kottemann, at pp. 484-488.) In 

dismissing the appeal, the appellate court observed it was “clear” that the 

appellant “intends to frustrate plaintiff’s efforts to obtain the fruits of her 

judgment and [an] attorney fee award” and it “cannot be gainsaid” that he 

“entertains an intention to defraud her . . . .” (Id. at p. 488.) 

We do not take lightly the undisputed fact that in January 2020, S.S. 

“abruptly” stopped paying court-ordered child support that is the subject of 
15

this appeal (as well as spousal support and other child care expenses). The 

duty of a parent to support his or her children is a fundamental parental 

obligation (Moss v. Superior Court (1998) 17 Cal.4th 396, 405) and must be 

according to the parent’s circumstances, station in life, and ability. (Fam. 

Code, § 4053, subds. (a), (d).) B.S. has shown that S.S. submitted income and 

expense declarations showing that after he stopped paying support he 

continued to pay extraordinarily large monthly personal expenses ($7,600)

toward “gifts, entertainment, and vacation” or housekeeping and made 

substantial payments to his attorneys in the months before and after 

January 2020. Though the court in May 2020 granted him some relief from 

spousal support obligations, it expressly ordered that he “continue to pay the 

existing Child Support Orders,” which he did not. All of this, combined with

S.S.’s suspicious and inadequately-explained transfers of large sums of 

money to his parents and his abject dishonesty on loan applications, which he 

sought to downplay at trial and the family court relied on to reject his 

credibility, could warrant dismissing this appeal. On the other hand, S.S. 

has shown that as late as June 2021, the parties’ attorneys continued to 

negotiate how to pay child and spousal support arrears from funds held in 

trust and how much of the proceeds from community assets would go toward 

them. According to counsels’ e-mails, as of October 1, 2020, the California 

family court no longer had jurisdiction over child support and jurisdiction 

over child support beyond that period rests in Florida. 

We elect to reach the merits, and address the appeal without applying 

such an extreme sanction. (See In re E.E. (2020) 49 Cal.App.5th 195, 207.) 

The right to an appeal “ ‘must not be lightly forfeited, and where a doubt 

exists as to a litigant’s conduct being contumacious or willful, an appellate 

court will tolerate temporarily the acts which were disruptive of the judicial 
16

process. We always prefer to resolve a cause on its merits; once the rights of 

the parties have been determined with finality, then the thwarted authority 

and offended dignity of the court may be assuaged with condign sanctions to 

the extent of the affront.’ ” (Stoltenberg v. Ampton Investments, Inc., supra, 

215 Cal.App.4th at pp. 1231-1232.)

II. Upward Departure from Guideline Child Support

S.S. contends the family court erred by using the four-year average of 

his income to deviate upward from the $7,367 guideline monthly amount of 

child support to $10,000 per month.9 He acknowledges that the court’s 

reason for deviating was his children’s special needs, and admits that under 

Family Code section 4320, subdivision (i), “ ‘[a]ctual domestic violence can 

be a factor which the court may seriously consider in setting a support 

amount.’ ” Nevertheless, S.S. purports to recite a litany of “facts” including 

misstating his own testimony concerning the impact of the Covid-19 

9 S.S. does not contest the family court’s calculation of guideline child 

support at $7,367, based on S.S.’s $44,740 monthly income available for 

support, the determination of which was subject to considerable court 

discretion. (See Fam. Code, § 4058, subd. (a)(1), (2) [annual gross income is 

income from whatever source derived, including income from the 

proprietorship of a business, such as gross receipts reduced by required 

expenditures for the business’s operation].) The court adopted Bergmark’s 

conclusion of S.S.’s normalized monthly earnings, which had already taken 

into account the fluctuations in revenue. As we state (fn. 10, post), S.S. 

agreed with his own expert’s assessment of his monthly income available for 

support.
17

pandemic on the hotel business,10 with the apparent goal of demonstrating 

the past four years of average or normalized income would not reoccur and he 

is unable to pay the increased $2,633 per month in child support. He argues

the court’s upward deviation “did not reflect the reality of the future” and

“[w]ith negative income, [S.S.] had barely enough to live on especially 

considering he was still under court orders (after the first $50,000) to pay 

litigation expenses.” S.S. compares his situation to cases, including In re 

Marriage of Riddle (2005) 125 Cal.App.4th 1075, in which the appellate 

courts reversed child support orders that exceeded the payor spouse’s ability 

to pay. 

“An award of child support rests in the court’s sound discretion and 

cannot be overturned absent a showing of a clear abuse of discretion. ‘An 

appellate court does not substitute its own judgment; rather it interferes only 

if no judge could reasonably have made the order under the circumstances.’ ” 

(In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 184; In re Marriage of 

Bodo (2011) 198 Cal.App.4th 373, 384.) Under this standard, we “ ‘examine 

10 In his brief, S.S. asserts as a “fact” that it was “obvious the past four 

years average would not occur given the Covid 19 outbreak. [Hotel] 

[b]ookings were already down, in early March, for April May and June, 2020.” 

In fact, at the cited portion of the record, S.S. testified that he agreed with 

Bergmark’s assessment of his income available for support. He then 

explained that he could manage certain risks, but “[w]hat I cannot manage, 

what I cannot guarantee is that a coronavirus, which has already affected our 

bookings in April, May and June—if that keeps playing out, what will that 

mean to our income for the full year 2020? There are certain risks I can only 

mitigate, but I cannot guarantee you that that’s the way will work out [sic].” 

Not only did S.S. not directly testify that bookings went down, he stated he 

could not say what the pandemic would mean for his 2020 income. 

Additionally, S.S. claims the court acknowledged his monthly expenses were 

$42,972 including $28,062 in monthly litigation expenses, but in fact the 

court merely stated he had listed such expenses and did not make any finding 

on S.S’s litigation expenses.
18

the evidence in the light most favorable to the prevailing party and give that 

party the benefit of every reasonable inference. [Citation.] We accept all 

evidence favorable to the prevailing party as true and discard contrary 

evidence. [Citation.]’ [Citation.] ‘We do not reweigh the evidence or 

reconsider credibility determinations.’ ” (In re Marriage of Calcaterra &

Badakhsh (2005) 132 Cal.App.4th 28, 34.) “We are not called upon to 

determine whether we would have made such an award, but whether any 

judge could reasonably have done so.” (In re Marriage of de Guigne (2002) 97 

Cal.App.4th 1353, 1365-1366; In re Marriage of Aylesworth (1980) 106 

Cal.App.3d 869, 876.) Further, the lower court’s order is presumed to be 

correct on appeal and S.S. as the appellant bears the burden of affirmatively 

demonstrating error. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 

311-312; IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) 

S.S. has not met that burden. Notably, he does not challenge the 

underlying factual basis for the court’s diversion upward, namely the 

children’s special needs expenses necessitated, in part, by his acts of domestic 

violence. Rather S.S.’s arguments attempt to attack the court’s use of the 

time period of income, and view the evidence in the light most favorable to 

him. While he acknowledges elsewhere that the court discounted his 

credibility, he fails to recognize that this means the court was within its 

discretion to reject S.S.’s claims about loans from his father, as well as 

Bergmark’s tracing analysis (all based on S.S.’s representations) so as to 

conclude S.S. had access to large sums of money available for support that he 

improperly transferred to his father. (Accord, In re Marriage of Chakko 

(2004) 115 Cal.App.4th 104, 110 [upholding trial court’s rejection of business 

owner’s “structuring of income and expenses” as “an attempt to minimize 

child support obligations,” concluding “[f]ather fails to appreciate the rules on 
19

appeal concerning substantial evidence and abuse of discretion. He fails to 

understand that the trial court did not credit his testimony”].) The court was 

not required to accept those portions of Bergmark’s analysis. (In re Marriage 

of Greenberg (2011) 194 Cal.App.4th 1095, 1099 [trial court “sits as trier of 

fact” and is “ ‘sole judge of the credibility and weight of the evidence’ ”]; see In 

re Marriage of Calcaterra & Badakhshi, supra, 132 Cal.App.4th at p. 36 [trier 

of fact is entitled to accept or reject any part of a witness’s testimony].) The 

court found S.S. lied about his financial condition to banks so as to inflate his 

worth for the purpose of getting loans, but this permitted the court to infer 

that S.S. was likewise dishonest in his claim of reduced or no funds available 

for support. (Accord, Marriage of Calcaterra, at pp. 35-36 [trial court was 

entitled to use father’s gross rental income without deducting expenses for 

his monthly income due to its finding that father lied about his income and 

expenses].) The various transfers and lack of credibility in S.S.’s testimony 

as to his financial condition distinguishes this case from those in which 

appellate courts reversed support orders based on unrepresentative periods of 

earnings. (Compare, In re Marriage of Riddle, supra, 125 Cal.App.4th at pp. 

1082-1084 [court abused its discretion by using two months of husband’s 

income to calculate child and spousal support where he was a financial 

advisor with an unusual compensation arrangement].) 

Rather, this case is akin to In re Marriage of Calcaterra & Badakhshi, 

supra, 132 Cal.App.4th 28, where the court was not required to accept the 

appellant father’s assertions as to his income and expenses, or In re Marriage 

of Kirk (1990) 217 Cal.App.3d 597, in which the party made a “contractual 

shift of disposable income” from funds available for child support to the 

repayment of third party debt, from which the family court reduced the 

party’s child support obligation. (Id. at pp. 601, 606.) The appellate court in
20

Marriage of Kirk held such a shift of funds was impermissible: “ ‘A parent’s 

first and principal obligation is to support his or her minor children . . . .’ 

[Citation.] ‘All payments of support shall be made by the person owing the 

support payment prior to the payment of any debts owing to creditors.’ 

[Citation.] ‘[A]n indebted parent cannot escape liability for the paramount 

obligation to support the parent’s children because of indebtedness such 

parent has created.’ ” (Id. at p. 606.) Though the court in Kirk observed 

there was “nothing to suggest that this obligation was sham, unenforceable or 

undertaken as a ruse to avoid child support,” it held the record “impels the 

conclusion that the contract was voluntarily entered into by [the former 

husband] in the face of a preexisting child support obligation which the new 

contract was bound to undermine.” (Ibid.) The family court’s error was “in 

failing to consider that the only rational inference derivable from the 

paperwork before the court was that this shift was a voluntary diversion of 

income to pay debt, resulting in deprivation of funds for child support. The 

law does not permit this. Were we to sanction this sort of transaction we can 

envision all manner of special contracts, with employers or others who owe 

money to a supporting parent, which shift funds from available income to 

utilization for other purposes benefiting the parent (such as savings plans, 

retirement plans, miscellaneous fringe benefits), resulting in the contention 

that the support order must be reduced.” (Id. at p. 607.)

The circumstances here do permit an inference that S.S. shifted income 

as a sham or ruse to avoid obligations that he knew would arise11 given 

B.S.’s filing of a petition for dissolution. The trier of fact may reject even 

11 The court found S.S. is “highly educated and has credentials as a 

Certified Public Accountant and a Juris Doctor degree although he has never 

practiced as a lawyer.” 
21

uncontradicted evidence as not credible. (See Sprague v. Equifax, Inc. (1985) 

166 Cal.App.3d 1012, 1028.) Under the circumstances, there was little 

reason for the trial court to find anything S.S. said about his finances 

credible. As stated, it is not for us to revisit the award, but to merely decide 

whether no judge could reasonably have made the order that this family 

court did. On this record we cannot say that is the case.

III. Refusal to Retroactively Apply the April 2020 Order

S.S. contends the court reversibly erred by failing to make its 

modification order retroactive because while it considered the children’s 

needs, it did not adequately consider his inability to pay, which he states is 

“outcome determinative.” S.S. maintains the court focused only on the 

children’s needs, and not his ability to pay and lack of income. S.S. argues: 

“The evidence showed that [S.S.] did not have income to pay $40,000 a month 

in combined spousal and child support during the retroactive period and he 

did not have the ability to pay arrears while at the same time support himself 

and pay ongoing support.” S.S. acknowledges that the court found him not 

credible as to his financial situation and the multiple fictitious loan 

applications, but claims “there was no evidence, from anybody, including the 

forensics that [S.S.] had hidden assets, the ability to pay[ ] over $200,000 in 

after tax dollars.” S.S. cites authority for the propositions that a finding a 

party lacks credibility is not affirmative evidence of a contrary conclusion, 

and that speculation is not substantial evidence. 

We review for abuse of discretion the court’s decision whether to make 

a child support order retroactive. (In re Marriage of Leonard (2004) 119 

Cal.App.4th 546, 555.) Again under this standard, we view the evidence in 

the light most favorable to B.S. and give her the benefit of every reasonable 

inference, accepting all evidence favorable to her as true and discarding 
22

contrary evidence. (In re Marriage of Calcaterra & Badakhsh, supra, 132 

Cal.App.4th at p. 34.) We do not reconsider the court’s credibility 

determination that S.S. was untruthful in connection with his financial 

circumstances. Because S.S.’s argument on retroactivity rests on the same 

foundation as his challenge to the court’s modification order—his asserted 

lack of funds and inability to pay—our conclusions above dispose of his 

argument.

DISPOSITION

The order is affirmed.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.