Filed 10/30/14 Marriage of McHugh CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of CHARLES D. and CONNIE A. McHUGH.
CHARLES D. McHUGH, Appellant,

v. CONNIE A. McHUGH, Respondent;

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent. G048551 (Super. Ct. No. 09D008768)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Duane T. Neary, Temporary Judge. (Pursuant to Ca l. Const., art. VI, § 21.) Affirmed.2 Steven A. Madoni; John L. Dodd & Associates, John L. Dodd and Benjamin Ekenes for Appellant. Keith E. Dolnick for Resp ondent Connie A. McHugh. Kamala D. Harris, Attorney Genera l, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for Respondent Orange County Depart ment of Child Support Services.
* * * Appellant Charles D. McHugh filed an order to show cause asking the trial court to reduce his child support obligations because he lost his job as a commissioned salesman and his new job paid considerably less. 1 In opposing Charles’s request, respondent Connie A. McHugh countered by asking the tria l court to increase support because Charles lost his job for diverting business from his employer to his father’s competing company for the ad mitted purpose of minimizing his reported income and reducing his support obligations. Connie ar gued the court should in crease support based on Charles’s income at his original job beca use Charles refused his employer’s offer to retain him if he fully disclosed his misc onduct and paid his empl oyer restitution. The trial court denied Charles’s request to re duce support and grante d Connie’s request to increase support by imputing income to Charles at the level he earned before engaging in his misconduct. Family Code section 4058, subdivision (b), grants trial courts discretion to set child support based on a parent’s earning ca pacity rather than ac tual income if the court finds the parent has the ability and oppor tunity to earn income at the level to be imputed. 2 As explained below, th is discretion includes imputing income to the parent

1 For clarity, “we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a l ack of respect. [Citation.]” ( In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)

2 All statutory references are to th e Family Code unless otherwise stated.3 based on earnings at a prior jo b, without evidence the parent has the current opportunity to earn at that same level, if the parent left or otherwise lost the job in a manner reflecting a voluntary and deliberate dives titure of financial resources required to pay child support obligations, and imputing income at that le vel is in the child’s best interests. We affirm the trial court’s order exer cising its discretion to impute income under section 4058, subdivision (b), because substantial evidence supports the findings that (1) Charles had the ability and opportunity to keep his j ob; (2) his termination was a voluntary divestiture of resources required for child suppo rt obligations because of his misconduct in diverting business to his father’s company to avoid his support obligations and deliberately failing to satisfy his employe r’s conditions for keeping his higher paying job; and (3) imputing income to Charle s was in the child’s best interests.

I

F ACTS AND P ROCEDURAL H ISTORY
Charles and Connie wed in 1992, a nd have one child who was born in 1996. The couple separated in September 2009, and Charles file d a petition to dissolve the marriage that same month. Almost immedi ately, Connie filed an order to show cause seeking temporary child and spousal support. In November 2009, the trial court granted Connie’s request, ordering Charles to pay $2 ,227 in child support and $4,773 in spousal support each month. The cour t based its award on Charles’ s monthly income of $24,159
as a successful salesman for Amcor Packaging Distribution (Amcor), and Connie’s lack of income as a stay-at-home mom. In early 2010, Charles filed an order to show cause seeking to reduce the amount of temporary child and spousal support based on his reduced income. In his supporting declaration, Charles explained he suffered a drastic income reduction in December 2009 when his largest client decided not to re new its contract with Amcor. According to Charles, he was paid on a commi ssion, and the loss of that client cut his4 income nearly in half. Char les also argued Connie was a licensed attorney and the court should require her to find employment. In March 2011, the trial court granted Charles’s request and reduced his monthly child suppor t to $1,275 and his m onthly spousal support to $2,840. In August 2011, Connie and Charles e ach filed applications seeking to change the court’s March 2011 ruling. Connie filed a motion to set aside the March 2011 order, while Charles filed another order to show cause seeking to further reduce his support obligations. In her motion, Connie argued the March 2011 order should be set aside because Charles misrepresent ed his income to the court. In his order to show cause, Charles argued he suffered another drastic re duction of income because Amcor fired him in April 2011, and his new job paid considerably less. In response, Connie asked the court to increase the temporary support by reinstating the original support order. In November 2011, the trial court conducted an evidentiary hearing on Connie’s motion to set aside, but it continue d the hearing on the other requests. At the hearing, the court received testimony from Th omas Sarnecki, Amcor’s Vice President of Workplace Relations and Employm ent Counsel. Sarnecki expl ained Charles was one of Amcor’s top salesmen earning between $1 37,000 and $597,000 pe r year during the period 2003 to 2009. In 20 09, Charles asked Amcor to help him reduce his income because he was about to become embroiled in a bitter di vorce and wanted to minimize his earnings. According to Sarnec ki, Amcor told Charles it could reassign him to a lower paying position, but it would not cooperate with any of his other “more aggressive approach[es],” such as diverting some of hi s compensation. Charle s therefore remained in the same position and his compen sation arrangements did not change. In the months following these discussi ons, Sarnecki testified Amcor noticed a significant drop in the amount of sales Charles generated. Charles explained the decrease was due to the downturn in the ec onomy and the lack of competitiveness in some of Amcor’s bids. Sarnecki expl ained Amcor initially believed Charles’s5 explanation because of his past faithful se rvice, but it began inve stigating him and his accounts after one of Charles’s customer s asked Amcor about the products it had purchased and Amcor’s records showed the customer had not purchased anything in a couple of years. Sarnecki further testified Amcor’s inve stigators discovered Charles’s father operated a competing business, Value Added Packaging & Prin ting, Inc. (Value Added), and the investigators believed Charles had di verted some of Amcor’s business to his father’s business. The investigators also believed Charles used one of Amcor’s other salesmen to close sales with some of Charle s’s customers, and then Charles and the other salesman would share the commission. In March 2011, Sarnecki and other Am cor executives met with Charles to discuss the investigators’ findings. During this meeting, Charles admitted he had done a lot of “‘stupid stuff’” in trying to reduce his income and settle his divorce, including diverting business to Value Added and en tering into improper commission sharing agreements with another salesman on at least three accounts. Sarnecki further testified that Charles admitted what he did “‘wasn’t right,’” showed remorse for his actions, and wanted to “come clean” so he could keep his job. Based on Charles’s admissions and hi s many years of successful service, Amcor offered to retain Charles if he satisfied three conditions : (1) he fully disclosed all of his misconduct; (2) he paid Amcor restitution fo r the business he diverted; and (3) he agreed to a “last chance” em ployment agreement. Sarn ecki thought Charles would accept these conditions b ecause he appeared remorseful , but Charles refused to pay restitution or disclose the business he divert ed. Instead, he told Sarnecki and the other executives, “‘ . . . I can’t tell you . . . I know it was wrong . . . You’re going to get mad at me. . . .’” When Charles re fused to cooperate and agre e to these conditions, Amcor terminated Charles’s employment and filed a lawsuit against him, his father, and Value Added to recover the diverted income.6 Charles testified to his version of th e meetings with Sarnecki and Amcor’s investigators. Charles admitted he made many of the statements Sarnecki attributed to him, but he testified those statements were no t true. According to Charles, he made those statements because Amcor’s investigators told him he would ha ve to make those admissions to keep his job. In December 2011, the trial court deni ed Connie’s set aside motion. The court explained the only permissible ground for granting the motion would be if Charles defrauded the court by misrepresenting his inco me. The court found Charles attempted to divert business from Amcor, but Connie failed to show he divert ed any particular business or the amount of Charles’s actual in come when the court made its March 2011 support order. Without evidence showing a specific income th at differed from the court’s earlier findings, the court concluded it c ould not grant Connie’s motion. In late 2012, the court conducted hear ings on Charles’s request to further reduce his support obligations and Connie’s counter request to increase his support obligations. Charles and Connie stipulated the court would decide these requests based on the testimony it received during the earlier h earings on Connie’s se t aside motion. In February 2013, the court denied Charles reque st and granted Connie’s: “The Court finds that [Charles] had the opportunity to cont inue his employment at AMCOR and that [Charles] was terminated as a result of his non-cooperation in the in vestigation into his own misconduct. The Court finds that his mi sconduct was part and parcel of his attempt to lower Child and Spousal Support. Th erefore, the Court finds, termination from AMCOR is deemed an unwillingness to work. ( In re Marriage of Regenery (1989) 214 Cal. App. 3d 1367) The Court finds that this order is in th e best interest of the child. [¶] The Court’s other findings are as indicated in the Dissomaster computer printout . . . attached to this order. Th is Child Support order commences August 1, 2012.” The computer printout att ached to the court’s order reveals the court did not use the amount of Charles’s current income at his new job, but imputed monthly income7 to Charles at the same level he earned at Am cor when the court made its original support order in November 2009, i.e., $24,159. The court also imputed monthly income to Connie in the amount of $8,333. Based on these findings, the court ordered Charles to pay monthly child support of $2,047, nearly an $800 per month increase from the March 2011 support order and just $180 less per month than the original November 2009 support order. The court’s orde r did not specify an amount of spousal support. Charles timely appealed the court’s February 2013 order.

II

D ISCUSSION

A. Governing Legal Principles on Child Support and Imputing Income California has adopted a “statewide uniform guideline” for determining child support according to a complex formula based on each parent’s income and custodial time with the child. (§§ 4050, 4055; In re Marriage of Smith (2001) 90 Cal.App.4th 74, 80-81 ( Smith ).) The child support amount the formula establishes is rebuttably presumed to be the correct amount, and the court may order a different amount only in limited circumstances and only af ter making certain findings. (§ 4057; Smith , at p. 81.) Determining the amount of child suppo rt therefore is a highly regulated area of the law, and the only discretion the trial court has is the discretion c onferred by statute or rule. 3 ( Smith , at p. 81.)

3 Although Charles’s order to show caus e sought to reduce both his child and spousal support obligations and Connie’s counter request sought to increase both Charles’s child and spousal support, the par ties’ briefs only address the child support order. Accordingly, “[a]lthough the rules pertaining to the imputation of income for purposes of spousal and child support may di ffer, . . . we consider any issue that may pertain to this distinction waived for purposes of this appeal.” ( In re Marriage of Eggers (2005) 131 Cal.App.4th 695, 699 ( Eggers ).)8 The Family Code has granted the tr ial court discretion when imputing income to a parent based on his or her “earning capacity.” (§ 4058, subd. (b).) Specifically, section 4058, subdivision (b) stat es, “The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.” ( Ibid .) Originally, “the exercise of this di scretion was limited to situations where the parent was found to be deliberately sh irking family responsibilities by refusing to seek or accept gainful employment. [Citati ons.] No such limitation exists under the present scheme, however. [Citations.] ‘While deliberate avoidance of family responsibilities is a significant factor in the decision to consider earning capacity [citation], the statute explicitly authorizes consideration of ea rning capacity in all cases,’ consistent with the child’s bestinterests. [Citations.]” ( Smith , supra , 90 Cal.App.4th at p. 81.) The Family Code does not define earning capacity, but its meaning has been established through case law. ( Eggers , supra , 131 Cal.App.4th at p. 699.) “‘Earning capacity is composed of . . . the ability to work , including such factors as age, occupation, skills, education, health, backgrou nd, work experience and qualifications; . . . and an opportunity to work . . . .’ [Citation.]” 4 ( Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 685 ( Mendoza ).) “The ‘opportunity to wo rk’ exists when there is substantial evidence of a reasonable ‘likelihood th at a party could, with reasonable effort,

4 As originally established in In re Marriage of Regnery (1989) 214 Cal.App.3d 1367 ( Regnery ), this earning capacity standa rd included a third prong, “the willingness to work exemplified throu gh good faith efforts, due diligence and meaningful attempts to secure employment.” ( Id . at pp. 1372-1373.) “Later courts, recognizing . . . the . . . willin gness to work [element] should be taken for granted, recast Regnery ’s three-prong test as a simple two- prong test: ability and opportunity.” ( In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1302 ( Bardzik ); State of Oregon v. Vargas (1999) 70 Cal.App. 4th 1123, 1126 ( Vargas ).)9 apply his or her education, skills and training to produce income.’ [Citation.]” ( Smith , supra , 90 Cal.App.4th at p. 82.) “‘When the ability to work or the oppo rtunity to work is lacking, earning capacity is absent and application of the stan dard is inappropriate. When the payor is unwilling to pay and the other two factors are pr esent, the court may apply the earnings capacity standard to de ter the shirking of one’s family responsibilities.’ [Citation.]” ( Mendoza , supra , 182 Cal.App.4th at p. 6 85, original italics.) Ac cordingly, “‘“[t]he only limitations against imputing income to an un employed or underemployed parent is where the parent in fact has no ‘earning capacity’ . . . or rely ing on earning capacity would not be consistent with the childre n’s best interest. . . .”’ [Citation.] In other words, ‘[ a ] s long as ability and opportun ity to earn exist , . . . the court has the discretion to consider earning capacity when consistent with the ch ild or children’s best interests. . . .’ [Citation.]” ( Vargas , supra , 70 Cal.App.4th at p. 1126, original italics.) On an application to modify support by imputing income to a parent based on earning capacity, the burden of proof as to ability and o pportunity to earn imputed income changes depending on which parent —the payor or the payee—is seeking to change the status quo. For example, “where the payor parent loses his or her job and seeks a reduction in court-ordered support base d on the changed circumstances of lack of income, it will be the payor parent, as movi ng party, who bears th e burden of showing a lack of ability and opportunity to earn income.” ( Bardzik , supra , 165 Cal.App.4th at p. 1304, original italics; see also id . at pp. 1308-1309; Eggers , supra , 131 Cal.App.4th at p. 701.) In contrast, when th e payee parent seeks to increase the amount of court-ordered support by imputing to the payo r parent a greater income th an the court previously had ordered, the payee parent, as the moving pa rty, bears the burden of proof to show the payor parent has the ability and opport unity to earn that imputed income. ( Bardzik , at p. 1294.)10 The parent seeking to impute income mu st show that the other parent has the ability or qualifications to perform a j ob paying the income to be imputed and the opportunity to obtain that job, i.e., an ava ilable position. The pare nt seeking to impute income, however, does not bear the burden to show the other parent would have obtained the job if he or she applied. ( In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1339 ( LaBass & Munsee ); see Bardzik , supra , 165 Cal.App.4th at pp. 1305-1306.) For example, in LaBass & Munsee , the father sought to modify the existing support order by imputing a full-time teacher’s salary to the moth er even though the mother was only working as a part-time teache r. The father met his burden to show the mother’s ability and opportun ity to earn a full-time teac hing salary by presenting evidence showing the mother had a teaching credential, the local school district had multiple openings for full-time teachers with the mother’s background and experience, and the pay scale for a full-time teacher w ith the mother’s level of education and experience. ( LaBass & Munsee , supra , 56 Cal.App.4th at pp. 133 5-1336.) Based on this showing, the trial court imputed the full- time teaching salary to the mother. The appellate court rejected the mother’s ar gument the award was based on nothing but “guesswork,” explaining, “[The father] bore no burden to convince the court that [the mother] would have secured a full-time job had she ap plied. Rather, it was incumbent upon [the mother] to show that, despite reasonable efforts, she could not secure employment despite her qualifications.” ( Id . at p. 1339, original italics.) We review an order establishing or modifying child support based upon earning capacity for an abuse of discretion. ( In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079 ( Berger ); Vargas , supra , 70 Cal.App.4th at p. 1126.) “[W]e consider only ‘whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’ [Citation.] . . . ‘[W]e do not substitute our own judgment for that of the trial court, but determine only if any judge reasona bly could have made such an order.’” ( Berger , at p. 1079.)11 B. We Infer All Necessary Findings Supported by the Record Because Charles Failed to Request a Statement of Decision When modifying a support order, the tria l court must provide a statement of decision explaining its ruling if requested by either parent. (§ 3654; In re Marriage of Sellers (2003) 110 Cal.App.4th 10 07, 1010.) A statement of decision generally must provide the factual and legal basis for the tria l court’s decision as to each of the principal controverted issues. (Cod e Civ. Proc., § 632; see Sellers , at p. 1010.) “Under the doctrine of ‘implied findi ngs,’ when parties waive a statement of decision expressly or by not requesting one in a timel y manner, appellate courts reviewing the appealed judgment must presum e the trial court made all factual findings necessary to support the ju dgment for which there is substantial evidence.” ( In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549-550, fn. 11 ( Condon ); see In re Marriage of Starr (2010) 189 Cal.App.4th 277, 287; In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928 ( Cohn ).) A party who does not reque st a statement of decision may not argue the trial court failed to make any finding required to support its decision. ( Ibid .) Here, Charles waived any objection th e trial court did not make necessary findings because he failed to ask the trial cour t for a statement of decision. We therefore imply all findings necessary to support the tria l court’s order denying Charles’s request to reduce his support obligations and granting Co nnie’s request to increase his support obligations. ( Cohn , supra , 65 Cal.App.4th at p. 928; see Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148.) Citing In re Marriage of Askmo (2000) 85 Cal.App.4t h 1032, 1040, Charles contends “a statement of decision [was not] required here” because an order on a motion does not require a statement of decision. He is mistaken. The trial court’s order was not merely an order on a motion, but rather an order modifying a support order. Section 365412 therefore required a statement of decision an d Charles’s failure to request a statement requires us to invoke the implied findings doctrine. Charles also contends the implied findi ngs doctrine does not apply because the trial court’s order adequately identified th e legal basis for its ruling and the evidence it considered. To support th is contention, Charles cites In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580, and In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, 1494, fn. 3. In Fingert , the Court of Appeal declined to apply the implied findings doctrine because the appeal was based on a settled statement of facts, the trial court’s decision, and the reasons for the trial court’s decision. The Fingert court concluded the settled statement provided it with the necessary information to decide the appeal, but the court cited no authority estab lishing an exception to the implied findings doctrine for an appeal ba sed on a settled statement. 5 ( Fingert , at p. 1580.) Seaman & Menjou followed Fingert without analysis. ( Seaman & Menjou , at p. 1494, fn. 3; see also Condon , supra , 62 Cal.App.4th at p. 549, fn. 11 [following Fingert without analysis].) None of these cases appl y here because Charles doe s not base his appeal on a settled statement, but rather on the clerk’ s and reporter’s transcripts he designated. Moreover, although the foregoing cases seek to create an exce ption to the implied findings doctrine, several respected treatises explain, “The apparent consensus is that appellant’s express or implied waiver of a st atement of decision on the appealed issues unequivocally invokes the doctrine of ‘implied findings.’” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2014) ¶ 15:103, pp. 15-23 to 15-24, original italics; Eisenberg et al., Cal. Practic e Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 8:24, pp. 8-13 to 8-14; Frie dman et al., Cal. Practice Guide:

5 California Rules of Court, rule 8.137 allows an appellant to appeal based on a settled statement of the trial court pro ceedings in lieu of a reporter’s and clerk’s transcript.13 Landlord-Tenant (The Rutter Gr oup 2014) ¶ 9:267, pp. 9-69 to 9-70.) We therefore follow the general rule and apply the implied findings doctrine.

C. Charles Failed to Show He Was En titled to a Reduction in His Support Obligations Charles contends the trial court erred in denying his request to reduce his support obligations because th ere is no substantial evidence to support a finding he had the opportunity to keep his job at Amcor instead of taking his new, lower paying job. Without evidence showing he co uld keep his Amcor job and co ntinue earning at the same income level the court used to calculate hi s support under the March 2011 order, Charles contends the court erred in refusing to re duce his support obligations to an amount commensurate with his lower income. We disagree because Charles misconstrues the burden of proof on his request, an d substantial evidence suppor ts the trial court’s ruling. As the moving party seeking to modify the existing support order, Charles bore the burden to show not only that he lost his Amcor job, but also that he lacked the ability and opportunity to keep that job and continue earning at the same level. ( Bardzik , supra , 165 Cal.App.4th at p. 1304; Eggers , supra , 131 Cal.App.4th at p. 701.) Here, it is undisputed Amcor fired Charles, but it also is undisputed Amcor gave Charles the opportunity to keep his job if he satisfied three conditio ns: (1) fully disclosing all information about his improper conduct; (2) pa ying Amcor restitution for the business he diverted; and (3) entering into a last chance employment agreement with Amcor. Accordingly, to obtain an order reducing hi s support obligations it was Charles’s burden to present evidence showing he could not satisfy these cond itions, and therefore did not have the opportunity to keep his job. On the disclosure condition, Charles contends the “only testimony on this point” was his testimony stating he was “unable to give [Amcor] what [it] wanted” and he “didn’t have the information that they were looking for.” Charles acknowledges Sarnecki testified Charles “avoided directly answering the question[s Amcor asked,] and14 said things such as, ‘ . . . I can’t tell you . . . I know it was wrong . . . You’re going to get mad at me . . . .’” Accord ing to Charles, this is not substantial evidence he “ had the needed information.” (Original italics.) Charles, however, ignores Sarnecki’s other testimony that Charles admitted he (1) diverted business to Value Added; (2 ) entered into improper commission sharing agreements with another salesman on at leas t three accounts; (3) broke the trust Amcor placed in him; and (4) “what he did ‘wasn’t right.’” Charles also ignores Sarnecki’s testimony that Amcor learned a customer recently had purchased Amcor products through Charles, but Amcor’s records show ed the customer had not purchased any products for at least two years. This testimony constitutes substantial evidence supporting the reasonable infe rence Charles had the information Amcor sought and Charles’s testimony to the contrary does no t undermine the evidence’s substantiality. ( Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291, 308 ( Leung ) [“in evaluating a claim of insufficiency of evid ence, a reviewing court must resolve all conflicts in the evidence in favor of the prevailing party an d must draw all reasonable inferences in support of the trial court’s judgment”].) Moreover, Charles bore the burden to show he could not provide the information to Amcor, wh ich required him to show he did not have the information and he could not obtain it. The evid ence Charles cites does not satisfy this burden. On the restitution condition, Charles faults Connie for failing to present evidence showing how mu ch restitution Amcor demanded and evidence Charles had the financial ability to pay the am ount demanded. In Charles’s view, the absence of evidence on these points prevented the trial court from finding Charle s could satisfy the restitution condition, and therefore the court erred in find ing Charles had the oppo rtunity to keep his job. But Charles bore the burden to show he could not satisfy this condition, not Connie. ( Bardzik , supra , 165 Cal.App.4th at p. 1304; Eggers , supra , 131 Cal.App.4th at p. 701.)15 The lack of eviden ce on this point is therefore fatal to Charles’s challenge, not the trial court’s ruling. 6

D. Substantial Evidence Suppo rts the Trial Court’s Ruling Imputing Income to Charles Charles contends the trial court er red in granting Connie’s request to increase his support obligations for three reas ons. We separately address each of them.

1. Connie Established Charles Had th e Ability and Opportuni ty to Keep His Job at Amcor Charles first contends the trial court erred in imputing income to him based on his Amcor earnings because Connie failed to satisfy her burden that Charles had the ability and opportunity to keep his job. According to Charles, Connie had to show not only that Amcor offered to allo w Charles to keep his job, bu t also that he had the means to satisfy Amcor’s conditions. Charles ag ain misconstrues the applicable burden of proof, and substantial evidence supports the trial court’s implied finding Connie met her burden. As the parent seeking to change the existing support order by imputing income to Charles at the level he would have earned if he kept his job at Amcor, Connie bore the burden to show Char les had the ability and opportun ity to remain at Amcor. ( LaBass & Munsee , supra , 56 Cal.App.4th at p. 1339; see Bardzik , supra , 165 Cal.App.4th at pp. 1 305-1306.) Connie satisfi ed that burde n by submitting substantial, undisputed evidence showing Char les excelled at that job for most of their 17-year marriage and Amcor offere d to allow Charles to keep his job if he fully disclosed his wrongdoings, paid Amcor re stitution for the business he diverted, and entered into a last chance employment agreement.

6 We do not address the third condi tion Amcor imposed on Charles keeping his job—entering into a last chance employmen t agreement—because Ch arles’s failure to show he could not satisfy the firs t two conditions renders this moot.16 As explained above, the parent seek ing to impute income to the other parent need only show the ot her parent had the ability to perform the job earning the income to be imputed and the job was availabl e. The parent to whom the income would be imputed bears the bu rden to show he or she could no t secure the job despite reasonable efforts. ( LaBass & Munsee , supra , 56 Cal.App.4th at p. 1339; see Bardzik , supra , 165 Cal.App.4th at pp. 1305-1 306.) We explained the rati onale for putting this burden on the parent to whom the income would be imputed in Bardzik : “This rule is grounded in the commonsense proposition that you can lead someone to a want ad but you can’t make them apply for the job. . . . Readers need only us e a little imagination to think of all the ways that a parent with both ability to do a job and the oppo rtunity to get it could subtly sabotage a job application or interview.” ( Bardzik , at p. 1305.) Here, it takes little imagination to th ink of the many ways Charles could sabotage Amcor’s offer to allow him to keep his job if he satisfied Amcor’s conditions. For example, as the trial court impliedly fou nd, he could simply refuse to provide the information Amcor sought and refuse to pay restitution. Whether Charles could satisfy Amcor’s conditions lay uniquely within his kno wledge and control. It therefore is reasonable that Charles should bear the bur den to show he could not satisfy the conditions despite reasonable efforts. (See Bardzik , supra , 165 Cal.App.4th at pp. 1305-1306; LaBass & Munsee , supra , 56 Cal.App.4th at p. 1339.) As explained above, substantial eviden ce supports the trial court’s implied finding Charles could have provided the in formation Amcor requested, but refused to provide it. As for the restitution condition, Charles failed to pr ovide any evidence showing he lacked the financial resources to pay Amcor restituti on. Accordingly, Charles failed to show he co uld not satisfy Amcor’s conditi ons and substantial evidence supports the trial court’s im plied finding Charles had the ab ility and opportun ity to keep his job.17 2. The Trial Court Had Discretion to Impute Income to Charles Based on His Previous Earnings Assuming he had the opport unity to remain with Amcor, Charles contends the trial court nonetheless erred in imputing income to him at the level he earned in November 2009 because Connie failed to show he had the current opportunity to earn the same income. According to Charles, the trial court coul d not impute income to him based on his November 2009 earnings without substantial evidence sh owing not only that he had the opportunity to keep his job at Amcor, but also th e present opportunity to earn the same income. Neither the law nor the facts support Charles’s contentions. Under section 4058, subdivision (b), a trial court has discretion to impute income based on a job the parent previously held depending on the circumstances under which the parent quit or otherwise left that job. ( Eggers , supra , 131 Cal.App.4th at p. 700; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1219-1220 ( Padilla ); In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1638-1639 ( Ilas ); Regnery , supra , 214 Cal.App.3d at pp. 1373-1376.)
In Padilla , the father quit a well-paying job to start his own business shortly before a hearing to determine whether his su pport obligations should be increased based on the newly-enacted statutory formula for dete rmining child support. The court ordered the support to remain the same for six months to allow the father time to start his new business. At the end of that six-month period, the father had not paid any support, had not earned any income from the business, and pr oduced no evidence to show the situation would improve. The trial court therefore in creased the father’s support obligations by imputing income to him based on his earnings at the job he left several months earlier. ( Padilla , supra , 38 Cal.App.4th at pp. 1214-1215.) We affirmed the trial court’s exercise of its discretion because “‘“[a parent does] not have the right to divest himself [or herself] of his [or her] earning ability at the expense of . . . minor children.”’ [Citations.]” ( Id . at p. 1218.) Instead, “a child supp ort obligation ‘“must be take n into account whenever an18 obligor wishes to pursue a different lifestyle or endeavor. . . . [It is] an overhead which must be paid first before any othe r expenses. . . .”’ [Citations.]” ( Ibid .) Similarly, in Ilas , the trial court imputed inco me to a father based on his earnings from the job he left a year earlier to start medical school. ( Ilas , supra , 12 Cal.App.4th at pp. 1633-1634.) The Cour t of Appeal affirmed, explaining “‘[the father] did not have the right to divest himsel f of his earning ability at the expense of [the mother] and his two minor children. [The fa ther] may wish to unde rtake and pursue and continue to pursue his acquis ition of a medical doctorate degree, but he must also continue to pay his child and spousal support.’” ( Id . at p. 1639; see Regnery , supra , 214 Cal.App.3d at pp. 1373-1376 [parent quitting job and failing to find replacement employment for two years supported trial c ourt’s decision imputing income based on earnings at prior job].)
In Eggers , the parent’s employer fired him for sending sexually inappropriate e-mails to a coworker. ( Eggers , supra , 131 Cal.App.4th at p. 698.) Although the parent did not quit his job to pursue other endeavors, the trial court nonetheless relied on Padilla and Ilas to impute earnings because the court viewed the termination as more “voluntary” than “i nvoluntary” based on the reason for the termination. ( Id . at pp. 700-701.) We reversed be cause the parent’s misconduct was not equivalent to voluntarily di vesting himself of earning ca pacity required to pay child support, as in Padilla and Ilas . In reaching that conclusion, we acknowledged trial courts have the discretion to impute earnings from a prior job when a parent’s conduct in quitting the job “reflect[s] a divestiture of resources required for child support obligations.” We also recognized “[t]he re may be situations where the supporting parent’s conduct warrants considering a cl aimed involuntary termination of employment as actually voluntary for purposes of determ ining the parent’s earning capacity.” ( Ibid .) We concluded, however, th e parent’s conduct in Eggers did not rise to that level. ( Id . at p. 701.)19 Here, we conclude the evidence support s the trial court’s decision to treat Charles’s termination as voluntary and impu te income to him at his November 2009 earnings level. Charles did not simply exerci se poor judgment on a collateral matter that resulted in his termination; rather, he engage d in misconduct with the intent to avoid his child support obligations and refused to acce pt Amcor’s reasonable conditions that would have allowed him to keep his well-paying jo b despite his malfeasance. In deciding to impute income to Charles, the trial court found he had the op portunity to keep his job, Amcor fired him because he refused to cooperat e with its investigation into his diversion of business and improper commission sharing agreements, his misconduct “was part and parcel of his attempt to lower Child and Spousal Support,” and imputing income to Charles was in the child’s best interests. Substantial evid ence supports each of these findings. Sarnecki testified Charles approached Amcor in early 2009 and asked for help in reducing his income because he woul d soon become embroile d in a bitter divorce. Amcor refused Charles’s request to conceal some of his compensation from Connie, and in the months following that refusal Charles’s sales volume dropped significantly. Charles eventually admitted to Sarnecki and other Amcor execu tives he had done a lot of “‘stupid stuff’” to reduce his income and try to settle his divorce, including diverting some of his Amcor customers to Value Ad ded and entering into improper commission sharing agreements with another salesman on at least three accounts. Finally, Sarnecki testified Amcor terminated Charles when he failed to cooperate with the investigation into his misconduct and provide informati on about the business he diverted. Charles testified he made the foregoing statements to Sarnecki and other Amcor executives, but claimed the statements were not true, explaining Amcor’s inves tigators told him he had to make the statements if he wanted to keep his job. The trial court ne cessarily resolved this conflict in the evidence in Connie’s favor, and we must defer to the trial court’s resolution of that conflict. ( Leung , supra , 55 Cal.4th at p. 308.)20 Charles cites several cases that hold a trial court’s decision to impute income to a parent must be based on evidence of a current opportunity to earn the income to be imputed, and evidence establishing mere ly that a parent continues to possess the skills and qualifications that made it possible to earn a certain salary in the past is not sufficient. (See, e.g., Mendoza , supra , 182 Cal.App.4th at pp. 685-686; Berger , supra , 170 Cal.App.4th at pp. 1079-1080; Bardzik , supra , 165 Cal.App.4th at pp. 1308-1309; Smith , supra , 90 Cal.App.4th at pp. 82-83; Vargas , supra , 70 Cal.App.4th at p. 1127; Cohn , supra , 65 Cal.App.4th at pp. 929-931.) N one of these cases, however, involves a parent who engaged in inten tional misconduct to reduce his reported income and support obligations, and then refused to cooperate w ith the employer when it nonetheless offered him the opportunity to keep hi s job despite his malfeasance. The two cases Charles cites th at resemble our case are Berger and Bardzik because they involved parents who voluntarily left a job. In Berger , we affirmed the trial court’s decision refusing to impute income to a father based on a well-paying job he held five years earlier because there was no evidence he had the present opportunity to earn the same income. In seeking to impute that income to th e father, the mother did not argue the court had discretion to impute in come from that previous job based on Padilla , Ilas , and Eggers . Moreover, the father had quit his well-paying job to start a new business a year before the couple separated, and there was no evidence suggesting he did so in anticipation of a divorce or to divest himself of resources he would later need to meet his child support obligations. ( Berger , supra , 170 Cal.App.4th at pp. 1074-1075, 1079-1080.) Similarly, in Bardzik , we affirmed the trial court’s decision refusing to impute income to a mother based on a job from which she had retired a year earlier because there was no evidence showing whether there were current opportunities for her to earn the same income. The father sought to impute income to the mother solely based on the salary she had earned before retiremen t because she had retired at the relatively21 young age of 42. The fathe r, however, did not rely on Padilla , Ilas , and Eggers , which granted the trial court discretion to impute earnings from a prior job when the circumstances showed the parent deliberatel y abandoned the employment necessary to pay child support. In addition, there was no ev idence the mother retired to divest herself of resources required to pay child support. ( Bardzik , supra , 165 Cal.App.4th at pp. 1296-1298, 1308-1309.) Because Berger and Bardzik affirmed the trial court’s exercise of its discretion and did not addr ess the rule we apply here, neither case establishes the trial court abused its discretio n by imputing income to Charles at the level he earned in November 2009. Finally, Charles contends the reasons for his termination and his motivation for acting as he did are irrelevant to the tria l court’s decision whether to impute income to Charles. To support this c ontention, Charles cites the follo wing statement we made in Padilla : “A parent’s motivation for reducing av ailable income is irrelevant when the ability and opportunity to adequately and reasonably provid e for the child are present.” ( Padilla , supra , 38 Cal.App.4th at p. 1218.) Charles, however, takes this sentence out of context, ignores our later clarif ication of this sentence in Bardzik , and ignores the proper role motivation may play in the earning capacity analysis.
In Padilla , we declared a trial court’s au thority to impute income based on earning capacity did not require a finding the parent acted in bad faith in reducing or eliminating his or her income. (See Padilla , supra , 38 Cal.App.4th at pp. 1217-1218.) In Bardzik , we explained this statement from Padilla was “exuberant di cta” and “[did not stand] for the blanket proposition that motivation is per se irrelevant” because “[a]n inflexible rule of per se irrelevance . . . is inconsistent with Fam ily Code section 4058, subdivision (b)’s treatment of earning capac ity as a discretionary matter considering the best interests of the children.” ( Bardzik , supra , 165 Cal.App.4th at p. 1311, original italics.) Other cases have explained section 4058, subdivision (b), e xplicitly authorizes a court to consider earning capacity in all cases consistent with the child’s best interests22 regardless of whether the parent acted in ba d faith, but deliberate avoidance of family responsibilities remains a “‘significant factor’” in deciding whether to consider earning capacity in lieu of actua l income. (See, e.g., Smith , supra , 90 Cal.App.4th at p. 81; Ilas , supra , 12 Cal.App.4th at pp. 1638-1639.) Ac cordingly, the trial court properly considered Charles’s declared intent to reduce his income when it decided to impute income to Charles based on his November 2009 earnings level.

3. The Trial Court’s Denial of Connie’ s Motion to Set Aside Did Not Bar Her Counter Request to Increase Support Charles contends the trial court erre d in granting Connie’s counter request to increase his support obliga tions because her earlier motion to set aside the March 2011 order modifying support raised the same issues and she failed to appeal the court’s denial of that motion. According to Charles, the doctrine of res judicata prevented Connie from relitigating the propriety of the March 2011 order. We disagree. Connie’s counter request did not seek to relitigate the merits of the March 2011 order, but rather to increase support based on changed circumstances. “‘As generally understo od, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary aspect,” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect,” commo nly known as collatera l estoppel, “[t]he prior judgment . . . ‘operates’” in “a second su it . . . based on a different cause of action . . . ‘as an estoppel or conclusive adjudicatio n as to such issues in the second action as were actually litigated and determ ined in the first action.’ [C itation.]” [Citation.] “The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a23 final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a pa rty to the prior proceeding. [Citations.]”’ [Citation.]” ( Boeken v. Philip Mo rris USA, Inc. (2010) 48 Cal.4th 788, 797, original italics.) Here, Connie’s motion to set aside th e March 2011 support order was based on her contention Charles lied when he claime d his income had been drastically reduced because he had lost his largest customer. According to Connie , Charles’s income remained the same because he had diverted some of his customer s to Value Added and another salesman at Amcor, and therefore th e Amcor pay stubs on which the trial court relied in making the March 20 11 order did not accurately state Charles’s income. The court denied Connie’s motion because she fail ed to show the amount of Charles’s income not reflected in his pay stubs. The court ex plained it appeared Char les was attempting to conceal income, but the court could not gr ant Connie’s motion because she failed to present evidence showing Charle s succeeded in his efforts to hide his actual income. In contrast, Connie based her request to increase Charles’s support obligations on circumstances occurring afte r the court issued its March 2011 order. Connie learned Amcor had fired Char les and filed a lawsuit against him. 7 According to Connie, that lawsuit revealed Charles had been engaging in misconduct designed to conceal his reported income and thereby re duce his support obligations. Connie argued the trial court should impute income to Char les in the amount he earned when the court made its original support order. The trial court granted this request because it found Charles lost his job based on the scheme he concocted to conceal his true income and imputing income to Charles at hi s previous earnings level was in the child’s best interest.

7 Section 213 authorized the declaration Connie filed in resp onse to Charles’s request to further reduce his support obliga tions to include a co unter request seeking affirmative relief on her behalf. (See In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1127.)24 Accordingly, the issues the trial court decided on Connie’s two requests are far from identical. The motion to set aside required Connie to prove Charles’s income on the date the court issued the March 2011 or der differed from Charles’s claimed income. In other words, Connie had to prove Charles committed a fraud on the court. The counter request to increase support required Conn ie to prove Charles had the ability and opportunity to keep his job at Amcor and imputing the income Charles previously earned at Amcor was in the child’s best interest. Although the two requests were based on the same basic set of underlying fa cts, Charles provides no aut hority or explanation to show the requests involved the identical issue. Ac cordingly, the doctrine of res judicata does not apply.

III
D ISPOSITION

The order is affirmed. Connie sh all recover her costs on appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.