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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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 Cal. 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 Respondent Connie A. McHugh. 

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant 

Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, 

for Respondent Orange County Department 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 trial court to increase support 

because Charles lost his job for diverting business from his employer to his father’s 

competing company for the admitted purpose of minimizing his reported income and 

reducing his support obligations. Connie argued the court should increase support based 

on Charles’s income at his original job because Charles refused his employer’s offer to 

retain him if he fully disclosed his misconduct and paid his employer restitution. The 

trial court denied Charles’s request to reduce support and granted 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 capacity rather than actual income if the 

court finds the parent has the ability and opportunity to earn income at the level to be 

imputed.2 As explained below, this 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 lack of respect. [Citation.]” 

(In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.) 

2 All statutory references are to the Family Code unless otherwise stated. 
3

based on earnings at a prior job, 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 divestiture of financial resources required to pay child support 

obligations, and imputing income at that level is in the child’s best interests. 

We affirm the trial court’s order exercising 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 job; (2) his termination was a 

voluntary divestiture of resources required for child support obligations because of his 

misconduct in diverting business to his father’s company to avoid his support obligations 

and deliberately failing to satisfy his employer’s conditions for keeping his higher paying 

job; and (3) imputing income to Charles was in the child’s best interests. 

I 

FACTS AND PROCEDURAL HISTORY

Charles and Connie wed in 1992, and have one child who was born in 

1996. The couple separated in September 2009, and Charles filed a petition to dissolve 

the marriage that same month. Almost immediately, 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 court 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 renew its contract with Amcor. 

According to Charles, he was paid on a commission, and the loss of that client cut his 
4

income nearly in half. Charles 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 support to $1,275 and his monthly spousal support 

to $2,840. 

In August 2011, Connie and Charles each 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 misrepresented his income to the court. In his order to show cause, 

Charles argued he suffered another drastic reduction 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 continued the hearing on the other requests. At the 

hearing, the court received testimony from Thomas Sarnecki, Amcor’s Vice President of 

Workplace Relations and Employment Counsel. Sarnecki explained Charles was one of 

Amcor’s top salesmen earning between $137,000 and $597,000 per year during the 

period 2003 to 2009. In 2009, Charles asked Amcor to help him reduce his income 

because he was about to become embroiled in a bitter divorce and wanted to minimize his 

earnings. According to Sarnecki, 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 his compensation. Charles therefore remained 

in the same position and his compensation arrangements did not change. 

In the months following these discussions, 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 economy and the lack of competitiveness in 

some of Amcor’s bids. Sarnecki explained Amcor initially believed Charles’s 
5

explanation because of his past faithful service, but it began investigating him and his 

accounts after one of Charles’s customers 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 investigators discovered Charles’s father 

operated a competing business, Value Added Packaging & Printing, Inc. (Value Added), 

and the investigators believed Charles had diverted 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 Charles’s customers, and then Charles and the other 

salesman would share the commission. 

In March 2011, Sarnecki and other Amcor 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 entering 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 his 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 for the business he diverted; and (3) he 

agreed to a “last chance” employment agreement. Sarnecki thought Charles would 

accept these conditions because he appeared remorseful, but Charles refused to pay 

restitution or disclose the business he diverted. 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 refused to cooperate and agree 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 the 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 not true. According to Charles, he made those 

statements because Amcor’s investigators told him he would have to make those 

admissions to keep his job. 

In December 2011, the trial court denied 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 income. The court found Charles attempted to 

divert business from Amcor, but Connie failed to show he diverted any particular 

business or the amount of Charles’s actual income when the court made its March 2011 

support order. Without evidence showing a specific income that differed from the court’s 

earlier findings, the court concluded it could not grant Connie’s motion. 

In late 2012, the court conducted hearings 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 hearings on Connie’s set aside motion. In 

February 2013, the court denied Charles request and granted Connie’s: “The Court finds 

that [Charles] had the opportunity to continue his employment at AMCOR and that 

[Charles] was terminated as a result of his non-cooperation in the investigation into his 

own misconduct. The Court finds that his misconduct was part and parcel of his attempt 

to lower Child and Spousal Support. Therefore, 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 the best interest of the child. 

[¶] The Court’s other findings are as indicated in the Dissomaster computer printout . . . 

attached to this order. This Child Support order commences August 1, 2012.” 

The computer printout attached 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 income 
7

to Charles at the same level he earned at Amcor 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 order did not specify an amount of spousal support. Charles 

timely appealed the court’s February 2013 order. 

II 

DISCUSSION

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 after making certain findings. (§ 4057; Smith, at 

p. 81.) Determining the amount of child support therefore is a highly regulated area of 

the law, and the only discretion the trial court has is the discretion conferred by statute or 

rule.3 (Smith, at p. 81.) 

 3 Although Charles’s order to show cause 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 parties’ 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 differ, . . . 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 trial court discretion when imputing 

income to a parent based on his or her “earning capacity.” (§ 4058, subd. (b).) 

Specifically, section 4058, subdivision (b) states, “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 discretion was limited to situations where 

the parent was found to be deliberately shirking family responsibilities by refusing to 

seek or accept gainful employment. [Citations.] 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 earning capacity in all cases,’ 

consistent with the child’s best interests. [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, background, 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 work’ exists when there is 

substantial evidence of a reasonable ‘likelihood that 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 standard included a third prong, 

“the willingness to work exemplified through good faith efforts, due diligence and 

meaningful attempts to secure employment.” (Id. at pp. 1372-1373.) “Later courts, 

recognizing . . . the . . . willingness 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 opportunity to work is lacking, earning 

capacity is absent and application of the standard is inappropriate. When the payor is 

unwilling to pay and the other two factors are present, the court may apply the earnings 

capacity standard to deter the shirking of one’s family responsibilities.’ [Citation.]” 

(Mendoza, supra, 182 Cal.App.4th at p. 685, original italics.) Accordingly, “‘“[t]he only 

limitations against imputing income to an unemployed or underemployed parent is where 

the parent in fact has no ‘earning capacity’ . . . or relying on earning capacity would not 

be consistent with the children’s best interest. . . .”’ [Citation.] In other words, ‘[a]s long 

as ability and opportunity to earn exist, . . . the court has the discretion to consider 

earning capacity when consistent with the child 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 opportunity 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 based on the changed circumstances of lack of 

income, it will be the payor parent, as moving party, who bears the 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 the payee parent seeks to increase the amount of court-ordered 

support by imputing to the payor parent a greater income than the court previously had 

ordered, the payee parent, as the moving party, bears the burden of proof to show the 

payor parent has the ability and opportunity to earn that imputed income. (Bardzik, at 

p. 1294.) 
10

The parent seeking to impute income must show that the other parent has 

the ability or qualifications to perform a job paying the income to be imputed and the 

opportunity to obtain that job, i.e., an available position. The parent 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 mother even though the 

mother was only working as a part-time teacher. The father met his burden to show the 

mother’s ability and opportunity to earn a full-time teaching 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 with the mother’s level of education and 

experience. (LaBass & Munsee, supra, 56 Cal.App.4th at pp. 1335-1336.) Based on this 

showing, the trial court imputed the full-time teaching salary to the mother. The 

appellate court rejected the mother’s argument 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 applied. 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 reasonably 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 trial 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 1007, 1010.) A statement of decision generally must 

provide the factual and legal basis for the trial court’s decision as to each of the principal 

controverted issues. (Code Civ. Proc., § 632; see Sellers, at p. 1010.) 

“Under the doctrine of ‘implied findings,’ when parties waive a statement 

of decision expressly or by not requesting one in a timely manner, appellate courts 

reviewing the appealed judgment must presume the trial court made all factual findings 

necessary to support the judgment 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 request 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 the trial court did not make necessary 

findings because he failed to ask the trial court for a statement of decision. We therefore 

imply all findings necessary to support the trial court’s order denying Charles’s request to 

reduce his support obligations and granting Connie’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.4th 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 3654 
12

therefore required a statement of decision and Charles’s failure to request a statement 

requires us to invoke the implied findings doctrine. 

Charles also contends the implied findings doctrine does not apply because 

the trial court’s order adequately identified the legal basis for its ruling and the evidence 

it considered. To support this 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 establishing an exception to the implied findings 

doctrine for an appeal based 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 apply here because Charles does 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 exception to the implied 

findings doctrine, several respected treatises explain, “The apparent consensus is that 

appellant’s express or implied waiver of a statement 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. Practice Guide: Civil Appeals and Writs (The Rutter 

Group 2014) ¶ 8:24, pp. 8-13 to 8-14; Friedman 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 proceedings in lieu of a reporter’s and clerk’s 

transcript. 
13

Landlord-Tenant (The Rutter Group 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 Entitled to a Reduction in His Support 

Obligations 

Charles contends the trial court erred in denying his request to reduce his 

support obligations because there 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 could keep his Amcor job and continue earning at the same 

income level the court used to calculate his support under the March 2011 order, Charles 

contends the court erred in refusing to reduce his support obligations to an amount 

commensurate with his lower income. We disagree because Charles misconstrues the 

burden of proof on his request, and substantial evidence supports 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 conditions: (1) fully disclosing all 

information about his improper conduct; (2) paying Amcor restitution for the business he 

diverted; and (3) entering into a last chance employment agreement with Amcor. 

Accordingly, to obtain an order reducing his support obligations it was Charles’s burden 

to present evidence showing he could not satisfy these conditions, 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,] and 
14

said things such as, ‘ . . . I can’t tell you . . . I know it was wrong . . . You’re going to get 

mad at me . . . .’” According 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 least 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 showed the customer had not purchased any 

products for at least two years. This testimony constitutes substantial evidence 

supporting the reasonable inference Charles had the information Amcor sought and 

Charles’s testimony to the contrary does not undermine the evidence’s substantiality. 

(Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291, 308 (Leung) [“in evaluating a 

claim of insufficiency of evidence, a reviewing court must resolve all conflicts in the 

evidence in favor of the prevailing party and 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, which required him to show he did not have 

the information and he could not obtain it. The evidence Charles cites does not satisfy 

this burden. 

On the restitution condition, Charles faults Connie for failing to present 

evidence showing how much restitution Amcor demanded and evidence Charles had the 

financial ability to pay the amount demanded. In Charles’s view, the absence of evidence 

on these points prevented the trial court from finding Charles could satisfy the restitution 

condition, and therefore the court erred in finding Charles had the opportunity 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 evidence on this point is therefore fatal to Charles’s challenge, not the trial 

court’s ruling.6 

D. Substantial Evidence Supports the Trial Court’s Ruling Imputing Income to 

Charles

Charles contends the trial court erred in granting Connie’s request to 

increase his support obligations for three reasons. We separately address each of them. 

1. Connie Established Charles Had the Ability and Opportunity 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 allow Charles to keep his job, but also that he had the means 

to satisfy Amcor’s conditions. Charles again 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 Charles had the ability and opportunity to remain at Amcor. 

(LaBass & Munsee, supra, 56 Cal.App.4th at p. 1339; see Bardzik, supra, 

165 Cal.App.4th at pp. 1305-1306.) Connie satisfied that burden by submitting 

substantial, undisputed evidence showing Charles excelled at that job for most of their 

17-year marriage and Amcor offered to allow Charles to keep his job if he fully disclosed 

his wrongdoings, paid Amcor restitution for the business he diverted, and entered into a 

last chance employment agreement. 

 6 We do not address the third condition Amcor imposed on Charles keeping 

his job—entering into a last chance employment agreement—because Charles’s failure to 

show he could not satisfy the first two conditions renders this moot. 
16

As explained above, the parent seeking to impute income to the other 

parent need only show the other parent had the ability to perform the job earning the 

income to be imputed and the job was available. The parent to whom the income would 

be imputed bears the burden to show he or she could not 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. 1305-1306.) We explained the rationale 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 use a little imagination to think of all the 

ways that a parent with both ability to do a job and the opportunity to get it could subtly 

sabotage a job application or interview.” (Bardzik, at p. 1305.) 

Here, it takes little imagination to think 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 found, 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 knowledge and control. It therefore is 

reasonable that Charles should bear the burden 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 evidence supports the trial court’s implied 

finding Charles could have provided the information Amcor requested, but refused to 

provide it. As for the restitution condition, Charles failed to provide any evidence 

showing he lacked the financial resources to pay Amcor restitution. Accordingly, 

Charles failed to show he could not satisfy Amcor’s conditions and substantial evidence 

supports the trial court’s implied finding Charles had the ability and opportunity 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 opportunity 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 could not impute income to him 

based on his November 2009 earnings without substantial evidence showing not only that 

he had the opportunity to keep his job at Amcor, but also the 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 support obligations should be increased based 

on the newly-enacted statutory formula for determining 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 produced no evidence to show the situation 

would improve. The trial court therefore increased 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 support obligation ‘“must be taken into account whenever an 
18

obligor wishes to pursue a different lifestyle or endeavor. . . . [It is] an overhead which 

must be paid first before any other expenses. . . .”’ [Citations.]” (Ibid.) 

Similarly, in Ilas, the trial court imputed income 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 Court of Appeal affirmed, explaining “‘[the 

father] did not have the right to divest himself of his earning ability at the expense of [the 

mother] and his two minor children. [The father] may wish to undertake and pursue and 

continue to pursue his acquisition 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 court’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 “involuntary” based on the reason for the 

termination. (Id. at pp. 700-701.) We reversed because the parent’s misconduct was not 

equivalent to voluntarily divesting himself of earning capacity 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]here may be situations where the supporting 

parent’s conduct warrants considering a claimed involuntary termination of employment 

as actually voluntary for purposes of determining the parent’s earning capacity.” (Ibid.) 

We concluded, however, the parent’s conduct in Eggers did not rise to that level. (Id. at 

p. 701.) 
19

Here, we conclude the evidence supports the trial court’s decision to treat 

Charles’s termination as voluntary and impute income to him at his November 2009 

earnings level. Charles did not simply exercise poor judgment on a collateral matter that 

resulted in his termination; rather, he engaged in misconduct with the intent to avoid his 

child support obligations and refused to accept Amcor’s reasonable conditions that would 

have allowed him to keep his well-paying job despite his malfeasance. In deciding to 

impute income to Charles, the trial court found he had the opportunity to keep his job, 

Amcor fired him because he refused to cooperate 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 evidence supports each of these 

findings. 

Sarnecki testified Charles approached Amcor in early 2009 and asked for 

help in reducing his income because he would soon become embroiled 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 executives 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 Added 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 information 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 investigators told him he had to 

make the statements if he wanted to keep his job. The trial court necessarily 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 merely 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.) None of these cases, however, involves a 

parent who engaged in intentional misconduct to reduce his reported income and support 

obligations, and then refused to cooperate with the employer when it nonetheless offered 

him the opportunity to keep his job despite his malfeasance. 

The two cases Charles cites that 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 the father, the mother did not 

argue the court had discretion to impute income 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 retirement because she had retired at the relatively 
21

young age of 42. The father, 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 deliberately abandoned the employment necessary to 

pay child support. In addition, there was no evidence 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 address the rule we apply here, neither case 

establishes the trial court abused its discretion 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 trial court’s decision whether to impute income to 

Charles. To support this contention, Charles cites the following statement we made in 

Padilla: “A parent’s motivation for reducing available income is irrelevant when the 

ability and opportunity to adequately and reasonably provide 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 clarification 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 authority 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 dicta” 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 Family Code section 4058, 

subdivision (b)’s treatment of earning capacity 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), explicitly authorizes a 

court to consider earning capacity in all cases consistent with the child’s best interests 
22

regardless of whether the parent acted in bad faith, but deliberate avoidance of family 

responsibilities remains a “‘significant factor’” in deciding whether to consider earning 

capacity in lieu of actual income. (See, e.g., Smith, supra, 90 Cal.App.4th at p. 81; Ilas, 

supra, 12 Cal.App.4th at pp. 1638-1639.) Accordingly, 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 erred in granting Connie’s counter request 

to increase his support obligations 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 understood, “[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,” commonly known as collateral estoppel, “[t]he 

prior judgment . . . ‘operates’” in “a second suit . . . based on a different cause of action 

. . . ‘as an estoppel or conclusive adjudication as to such issues in the second action as 

were actually litigated and determined in the first action.’ [Citation.]” [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 a 
23

final judgment on the merits; and (3) the party against whom the doctrine is being 

asserted was a party or in privity with a party to the prior proceeding. [Citations.]”’ 

[Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797, original 

italics.) 

Here, Connie’s motion to set aside the March 2011 support order was based 

on her contention Charles lied when he claimed 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 customers to Value Added and 

another salesman at Amcor, and therefore the Amcor pay stubs on which the trial court 

relied in making the March 2011 order did not accurately state Charles’s income. The 

court denied Connie’s motion because she failed to show the amount of Charles’s income 

not reflected in his pay stubs. The court explained it appeared Charles was attempting to 

conceal income, but the court could not grant Connie’s motion because she failed to 

present evidence showing Charles succeeded in his efforts to hide his actual income. 

In contrast, Connie based her request to increase Charles’s support 

obligations on circumstances occurring after the court issued its March 2011 order. 

Connie learned Amcor had fired Charles 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 reduce his support obligations. Connie argued 

the trial court should impute income to Charles 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 his previous earnings level was in the child’s best interest. 

 7 Section 213 authorized the declaration Connie filed in response to Charles’s 

request to further reduce his support obligations to include a counter 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 order 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 Connie 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 facts, Charles provides no authority or explanation to show 

the requests involved the identical issue. Accordingly, the doctrine of res judicata does 

not apply. 

III 

DISPOSITION

The order is affirmed. Connie shall recover her costs on appeal. 

 

 ARONSON, J. 

WE CONCUR: 

MOORE, ACTING P. J. 

THOMPSON, J.