Filed 12/8/22 O.E. v. John G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

O.E.,

Respondent

v.

John G.,

Appellant.

 B310605

 Los Angeles County

 Super. Ct. No. 17STPT00073

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael J. Convey, Judge. Affirmed.

John G., in pro. per., for Appellant.

O.E., in pro. per., for Respondent.

____________________
2

In this family law case, a father, John G., appeals rulings 

on parenting time, child support, and sanctions. We affirm. 

Undesignated statutory citations are to the Family Code. 

I

The father and O.E., the mother, have a daughter, A.E.G., 

who was born in December 2016. The parents were in a 

relationship between April 2015 until shortly after A.E.G.’s birth. 

A.E.G. has lived with the mother since birth. The father lives 

about 45 miles away.

Before trial, in May 2018, the court ordered the father to 

appear for a vocational exam.

Trial proceeded in two phases. Phase one was about 

custody and parenting time. It lasted four days in December 

2018. Phase two was about child support and sanctions. It 

lasted three days in July 2020.

Before phase one, the father had A.E.G. for two hours on 

Wednesdays and three hours on Saturdays.

The father asked the court for equal parenting time. After 

one month of transition, he wanted parenting time from 8:00 a.m. 

Sundays until 8:00 p.m. Wednesdays.

The mother requested the father have parenting time 

weekly on two weekday afternoons and every other Saturday. 

After A.E.G. turned four, the mother asked for the father to have 

overnights each Friday.

The father alleged the mother kicked him and this issue 

came up during both phases of trial. In phase one, he said the 

mother kicked him in May 2017 and this caused a bruise. He 

said, “[S]he kicked me very hard.” He played a video of the 

incident when cross-examining the mother. The mother 
3

submitted that video as evidence, but she did not play it at trial. 

The father also presented photographs of his arm with a bruise.

The court made factual findings. It distrusted some of the 

father’s evidence. As to the father’s contention that the mother 

kicked him, the court did not credit the father. The court found 

the video showed the mother and father slightly brushed together 

and the father had an exaggerated and dramatic reaction.

The court found both parents sometimes acted 

inappropriately to try to gain a litigation advantage, but the 

court identified more examples of the father’s disingenuous 

conduct. The court found the father used written 

communications with the mother to manufacture issues. The 

father documented A.E.G.’s occasional bumps and bruises as 

evidence of abuse by the mother. The court found A.E.G.’s minor 

injuries were typical of a toddler. The father made repeated and 

unfounded statements about the mother abducting A.E.G. The 

father used a scanner to search A.E.G.’s body for recording 

devices he thought the mother planted. These searches were 

fruitless.

The court found the mother testified credibly that the 

father once pushed her in the chest, she fell backwards and lost 

her balance, and this happened around A.E.G.

The court ordered joint legal custody and largely granted 

the mother’s requests for parenting time. A.E.G. would live 

primarily with the mother. The father would have parenting 

time on Mondays for three hours, Wednesdays for seven hours, 

and three Saturdays a month for ten hours each. On January 1, 

2021, after A.E.G. turned four, the father would have overnights 

every Friday at 3:00 p.m. to Saturday at 6:00 p.m.
4

The court explained its reasoning. A.E.G. had lived with 

the mother since birth. A.E.G.’s daycare and doctor are near the 

mother. The mother was A.E.G.’s primary contact and primary 

bond. Given her stage of development, the court found A.E.G.

should maintain this primary bond in the mother’s home.

The court rejected the father’s request for three and onehalf days of consecutive parenting time per week because it did 

not prioritize A.E.G.’s needs. His plan would keep A.E.G. from 

her primary attachment for extended overnight periods at an 

early stage. It would be detrimental for A.E.G. to be apart from 

either parent for long periods of time. Other obstacles to having 

equal time were the distance between the parents, which would 

make it difficult for A.E.G. to go back and forth more often, and 

the parents’ high-conflict communication. 

The court gave the mother final decisionmaking authority 

if the parents had an impasse. The court explained the mother’s 

decisions were more child centered. The father’s decisions were 

sometimes based on what he wanted and about opposing the

mother, not about A.E.G.’s best interests.

The second phase of trial was about child support and 

sanctions. Before this phase, the father paid $88 per month in 

child support.

The father was born in 1969. He has a bachelor’s degree in 

economics. He has worked for about 20 years as a caregiver to 

his disabled sister for $589 a month. The sister lives separately 

from the father. He mostly cares for her from his own home. The 

father said this work takes approximately 32 hours a week and it 

is not on a fixed schedule. The father makes online purchases, 

does wellness checks, and takes his sister to appointments.
5

The father said his assets included about $180,000 from 

two accident settlements and $30,000 in real and personal 

property. He lives with his mother and does not pay rent.

The expert who conducted the vocational exam testified. 

On May 14, 2018, the expert met with the father. On May 31, 

2018, the father received the expert’s report, which found the 

father had the ability and opportunity to earn and listed 

potential jobs and positions.

The expert’s report said the father characterized himself as 

“computer literate.” The father “knows the keyboard” and uses 

Microsoft Word, email, and the internet.

The vocational expert testified the father has an earning 

capacity of $37,000 per year as an administrative assistant. The 

expert identified four potential positions in this field based on 

updated research from a day or two before the testimony.

The father thought the court should disregard the expert 

because the father was not interested in being an administrative 

assistant, he lacked experience, and the expert did not 

“guarantee” him a position. 

The father told the expert he had injuries that prevented 

him from performing some types of work. The father did not 

provide corroborating evidence about his assertion. The expert 

did not opine about whether the father was too injured to work 

full time, but he explained that if this were true, the father would 

qualify for social security disability benefits. The father could 

separately earn up to about $14,000 in income and remain 

eligible for those benefits.

The father did not offer documentary evidence that he was 

unfit to work. As of phase two, the father had not applied for 
6

social security disability benefits despite receiving the vocational 

report that discussed these benefits.

The mother and father offered competing testimony about 

sanctions. The mother said she asked the father to pick up 

A.E.G. from daycare for his Monday and Wednesday parenting 

time so the mother would not lose time at work. The mother 

offered compromises, including giving the father extra parenting 

time or doing the pick-up at a grocery store, but the father 

refused. The mother incurred attorney fees to resolve this issue. 

The mother testified that “[s]everal times” the father refused to 

talk directly to her and insisted he could only talk to her lawyer. 

The father also took extra time in phase one to litigate the issue 

of the mother allegedly kicking him.

The father asserted he was accommodating and the mother 

was uncooperative. He said he offered “heart felt proposals” to 

resolve the issue of the pick-up location and he “begg[ed]” the 

mother and her attorney to work with him to resolve the issue. 

He cross-examined the mother again about the alleged kicking 

incident. Despite the court’s findings in phase one, the father 

continued to assert the mother kicked him. He asked the mother, 

“[H]ow is it sanctionable that being kicked by you puts me at 

fault?” The mother responded that she never kicked the father. 

The court found it was in A.E.G.’s best interests to impute 

income to the father of $37,000 per year. The court admonished 

the father to seek work immediately.

The court calculated child support based on the imputed 

income and the percentage of time the father spent with A.E.G. 

The father owed $376 per month until January 2021, when he 

would increase his time with A.E.G. and would begin owing $112 

per month.
7

The court imputed income for the father effective the day 

after phase two of trial ended, August 1, 2020. The court did not 

set a later date because the father made no effort to get a job 

even though he had received the expert’s vocational report in 

2018. The mother had asked for an earlier date of December 

2018, but the court found this would be unfair to the father and 

against A.E.G.’s best interests. 

The court imposed $10,000 in sanctions against the father 

for three actions that delayed resolution of the case and caused 

unnecessary expenditures. First, the father was uncooperative 

about changing A.E.G.’s pick-up location to her daycare. Second, 

the father insisted on talking to the mother’s attorney instead of 

the mother about co-parenting issues. Third, the mother had to 

prepare for and contest the father’s discredited claim that the 

mother kicked him.

II

A

The court’s custody order was proper. On appeal, the 

father says it was an abuse of discretion not to grant his request 

for equal parenting time. This is incorrect. 

When making custody orders, courts’ primary concerns are 

children’s health, safety, and welfare. (§ 3020, subd. (a).) 

Children should have frequent and continuing contact with both 

parents and parents should share child rearing responsibilities 

unless this is not in their children’s best interests. (Id., subd. 

(b).)

We review custody orders for an abuse of discretion. 

(Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)

The court did not abuse its discretion by denying the 

father’s request for equal parenting time. The court properly 
8

accounted for A.E.G.’s young age, her primary bond with her 

mother, and the location of A.E.G.’s daycare and doctor near the 

mother. The court validly considered the distance between the 

parents and the parents’ issues with communicating. It 

appropriately found A.E.G. should not go three and one-half days 

at a time without seeing the mother. 

The court’s plan gave the father frequent and continuing 

contact. He had 20 hours of parenting time weekly across three 

days for most weeks until 2021, when he started having 37 hours 

of parenting time weekly across four days. The order gave the 

father ample time with A.E.G. 

B

The court properly imputed income to the father. 

To recap, the court imputed $37,000 in income effective the 

day after phase two of trial ended. The court used this imputed 

income to calculate child support payments of $376 per month for 

five months, then $112 per month based on the father’s increased 

share of parenting time.

We review child support orders that consider a parent’s 

earning capacity in lieu of the parent’s income for an abuse of 

discretion. (See In re Marriage of Simpson (1992) 4 Cal.4th 225, 

234.)

Parents’ first and principal obligation is to support their 

children. (§ 4053, subd. (a).) 

In calculating gross income, courts may impute income by 

considering parents’ earning capacity in lieu of their income, if 

this is consistent with their children’s best interests. (§ 4058, 

subd. (b).) When deciding whether to apply earning capacity, 

courts may consider children’s welfare, their developmental 

needs, and the time they spend with their parents. (Ibid.)
9

Earning capacity is the ability and opportunity to earn 

income. (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 

1079.) Ability factors include age, qualifications, skills, 

education, work experience, and health. (In re Marriage of 

Hinman (1997) 55 Cal.App.4th 988, 995.) Opportunity means an 

employer who is willing to hire. (Ibid.) A court may consider a 

parent’s earning capacity irrespective of the parent’s subjective 

reasons not to earn income. (See id. at p. 998.) When the ability 

or the opportunity to work is lacking, earning capacity is absent 

and application of the standard is inappropriate. (In re Marriage 

of Cohn (1998) 65 Cal.App.4th 923, 928–930 (Cohn) [child support 

order based on projected salary, rather than self-employment, 

was error, where despite training, skill, and earnest efforts to 

secure employment, payor spouse was unable to obtain job offer].)

The court properly imputed income. 

The father has ability and opportunity. He has a bachelor’s 

degree and basic computer skills. Yet he earns less than $10,000 

a year. The vocational expert testified the father had an earning 

capacity of $37,000 as an administrative assistant. The expert

identified potential positions in this field based on recent 

research. The court’s imputation of income was sound.

The father’s arguments against imputing income lack 

merit. 

The father disputes his ability. He contends the expert 

said the father needed job training to be an administrative 

assistant, but this is incorrect. With our emphasis, the expert 

testified the father “has the ability to be an administrative 

assistant now.” 

The father also contests the ability element by arguing he 

lacks experience, lacks computer proficiency, and experiences 
10

pain if he sits for too long. The father raised these issues when 

he met with the vocational expert and he argued them at trial. 

The expert offered contrary evidence, including the father’s selfdescribed computer literacy. Notwithstanding the father’s 

claimed lack of ability, the expert said the father qualified for 

various administrative assistant positions. The court properly 

credited the expert. 

The father complains he lacks the opportunity to work 

because the expert could not guarantee him a job. The father 

misunderstands the opportunity element. Opportunity does not 

require a job offer. It requires a “substantial likelihood” that 

parents, with “reasonable effort,” could apply their education, 

skills, and training to produce income. (Cohn, supra, 

65 Cal.App.4th at p. 930; see In re Marriage of Mosley (2008) 

165 Cal.App.4th 1375, 1391 [no burden to convince court 

opposing parent would have secured job had opposing parent 

applied]; In re Marriage of LaBass & Munsee (1997) 

56 Cal.App.4th 1331, 1335, 1338–1339 [newspaper want ads 

soliciting applications from people with parent’s qualifications 

sufficient to prove opportunity].) The expert’s opinion that the 

father qualified for jobs and his identification of several positions 

sufficed.

The father’s contentions about his lack of opportunity are 

hypothetical and unfounded. He never applied for work. He did 

not negate evidence of opportunity. (Cf. Cohn, supra, 

65 Cal.App.4th at pp. 929–931 [parent lacked opportunity for 

salaried position when he applied to jobs across several counties 

but got zero offers].)

The father, with reasonable effort, could apply his skills to 

produce income. He has the opportunity to work. 
11

The father had fair notice the court might impute income. 

The court discredited the father’s stated ignorance about his 

obligation to make diligent efforts to provide for his daughter. In 

May 2018, the court ordered the father to appear for a vocational 

exam, the father met with the vocational expert, and the father 

received the expert’s report. The report found the father had the 

ability and opportunity to earn and listed potential jobs and 

positions. This gave the father sufficient notice. The father 

responded to the report with over two years of inaction. The 

court’s decision to set the effective date of August 1, 2020, rather 

than an earlier date, was generous to the father.

The father cites In re Marriage of Schmir (2005) 

134 Cal.App.4th 43, but that case does not help him. There, a 

couple dissolved their 23-year marriage and the ex-husband paid 

the ex-wife monthly spousal support. (Id. at pp. 53–54.) When 

the ex-wife was 61 years old, the ex-husband sought to terminate 

support. A vocational expert said she could get a job. Two 

months after the ex-wife received the expert’s report, the court 

imputed income to her, and substantially decreased support 

effective three weeks later. (Id. at pp. 54, 57.) The Court of 

Appeal found no error in the order, but found it was an abuse of 

discretion to terminate support without reasonable advance 

notice and an opportunity to secure employment. (Id. at p. 58.) 

Schmir does not control. First, the spousal support and 

child support contexts are different. Parents’ first and principal 

obligation is to support their minor children, consistent with the 

children’s best interests. (§ 4053, subd. (a).) A.E.G. was born in 

December 2016 and the father knew he needed to support her. 

Three and one-half years later, he had not attempted to increase 

his earnings. Second, the father knew the mother sought to 
12

impute income and he received the vocational expert’s report in 

May 2018. The court began imputing income more than two 

years later. This is unlike the timeline in Schmir. 

The father had notice. The court’s order was proper and 

the father must heed it. (See Moss v. Superior Court (Ortiz)

(1998) 17 Cal.4th 396, 423 [court may impose contempt sanction 

or criminal penalty for violation of support order based on 

earning capacity where parent’s failure to seek and accept 

employment causes inability to comply with order].) 

C

The court did not abuse its discretion when it imposed 

$10,000 in sanctions. 

The Family Code permits courts to award attorney fees and 

costs as a sanction if a party’s uncooperative conduct hinders 

settlement. (§ 271, subd. (a).) Courts cannot impose sanctions 

that cause an unreasonable financial burden. (Ibid.) 

We review an order for sanctions for an abuse of discretion. 

(In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) 

We affirm unless, considering all evidence in favor of the trial 

court’s order, no judge could reasonably make the order. (Ibid.) 

Evidence supported the order. The mother testified the 

father refused her requests and compromises about A.E.G.’s pickup location and he insisted on speaking only to her lawyer. The 

father disagrees and claims he was cooperative. The mother’s 

testimony supported the court’s order, however, and the court did 

not abuse its discretion by accepting her account.

The father’s manufactured claim about the mother kicking 

him was another ground for sanctions. On appeal, the father 

incorrectly contends he proved the mother kicked him and caused 

a bruise. The video matches the trial court’s description: The
13

mother’s foot brushed the father. The court properly treated the 

father’s conduct and the photos of bruises with distrust. The 

father consumed time in both phases of trial litigating this false 

claim. Together with the father’s other conduct, the court 

reasonably ordered sanctions.

The sanctions are not an unreasonable financial burden on 

the father because he had accounts with over $180,000. 

D

The father has waived two issues for lack of briefing. First, 

in the fact section of his brief, he asserts he was “improperly 

impeached.” The father does not provide legal support for his 

claim, nor does he raise the issue in his brief’s argument section. 

Second, the father asks us to dismiss and vacate the seek work 

order. He mentions this order once in his brief without legal 

argument. The father has therefore waived contentions about 

these two issues. (See Benach v. County of Los Angeles (2007) 

149 Cal.App.4th 836, 852.) 

DISPOSITION

The judgment is affirmed. Costs are awarded to O.E.

WILEY, J.

We concur: 

STRATTON, P. J. GRIMES, J.