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Filed 6/25/13 Rodriguez v. Smit CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

ROBERT D. RODRIGUEZ, 

 Plaintiff and Appellant, 

v. 

MARGARETHA M. SMIT, 

 Defendant and Respondent. 

 A136186 

 (Contra Costa County 

 Super. Ct. No. D10-00553) 

 Robert D. Rodriguez appeals an order for child support of his four-year-old 

daughter who lives with her mother, Margaretha Smit, in Nevada. He contends the court 

erred in determining the parents’ income and expenses when setting the amount of child 

support. We find no error and shall affirm the order. 

STATEMENT OF FACTS1

 Rodriguez and Smit are attorneys licensed to practice in California. In February 

2010, Rodriquez, in propria persona, filed a petition to establish a parental relationship 

with a child born to Smit in January 2009. Smit retained counsel. The parties stipulated to 

paternity in September 2011 and, two months later, Smit filed a motion for child support. 

The court awarded temporary child support of $1,255 monthly and set a hearing date to 

determine ongoing support. 

 

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 The record consists of a short appellant’s appendix and reporter’s transcript. Rodriguez 

alone filed a brief. 
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 The parties submitted income and expense declarations in advance of the April 

2012 hearing. Smit reported that she was laid off work at an Oakland law firm in January 

2012 and was currently unemployed. She listed no income and monthly expenses of 

$5,562 for herself and three children. Rodriguez declared he was self-employed as an 

attorney with gross business income over the prior three months of $46,300. Rodriguez 

claimed business expenses of $43,651, leaving only $2,649 in net profit over the threemonth period. Rodriquez estimated his average monthly income over the prior twelve 

months to be $2,650, with personal expenses for himself, his wife and a step-daughter 

exceeding his income. He did not provide a copy of his 2011 tax return, only a 2010 

Schedule C detailing profit or loss from a business. That form showed high business 

expenses resulting in a loss. 

 The parties’ declarations and economic situations were examined at the hearing. 

Smit testified that she moved to Reno, Nevada in February 2012 to permit easier 

visitation with her two older children whose father lives in Truckee, California and has 

shared custody. Smit sold her California house and bought a less expensive house in 

Nevada. She and her children were living on proceeds from the sale until she could pass 

the Nevada bar exam and secure employment as an attorney. Smit enrolled for the July 

2012 bar exam and was preparing with a classroom study program she attended weekday 

mornings and self-study in the afternoons. Smit testified that she also intended to 

volunteer part-time with a family law organization while studying for the bar exam to 

network with local attorneys in hope of future employment. Smit wanted to put the 

parties’ child in day care to allow her time for study and volunteering in preparation for 

work. On cross-examination, Smit said she applied, without success, for several attorney 

positions after she was laid off. She expected to obtain employment after obtaining a 

license to practice law in Nevada. 

 Rodriguez was cross-examined at length about his income and expense 

declaration, particularly his claimed business expenses. On a monthly basis, Rodriguez 

averaged $15,433 in revenue from his law practice with claimed expenses of $14,550. 

Among those expenses, Rodriguez declared business travel expenses of $2,445. He had 
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no out-of-state cases or overnight stays and attributed the entire amount to gasoline, 

“which is not cheap these days.” He reported additional business-related car expenses of 

$2,215, excluding gasoline and loan payments. Rodriguez attributed the $2,215 in 

monthly car expenses to “maintenance and what I use to upkeep” a 2007 Kia Spectra. 

Rodriguez claimed monthly meal expenses of $1,741 to “treat clients and . . . other 

business associates to lunch, [a] cup of coffee, [or] dinner.” 

 The trial court found that Rodriguez overstated his business expenses and reduced 

the amounts claimed by “recapturing 90% of Mr. Rodriguez’s car expenses, 75% of his 

meals and 100% of his travel expenses.” The court set his monthly income at $7,100. The 

court set Smit’s income “at zero retroactive to January 2012 when she was laid off from 

her previous employer.” The court ordered Smit to “seek work” but expressed 

satisfaction that Smit was preparing for employment by studying for the Nevada bar 

exam and thus “found no evidence to impute income to Ms. Smit.” The court ordered 

Rodriguez to pay $1,203 monthly in guideline child support plus an additional $386 “as a 

child care add on for a total of $1,589 per month.” Smit was ordered to provide 

Rodriguez “evidence regarding the cost of day care.” 

 Rodriguez filed a timely notice of appeal. Smit assumed her own representation on 

appeal and did not file a respondent’s brief. 

DISCUSSION 

 Rodriguez contends the trial court erred in finding that he overstated his business 

expenses. He maintains that the court was required, in the absence of contrary 

documentary or expert testimony, to accept his income and expense declaration as true. 

Rodriguez is mistaken on this point. In setting child support, a family law court weighs 

the credibility of witnesses and may reject all or part of a parent’s representations as to 

income and expenses, even in the absence of contrary evidence. (In re Marriage of 

Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 36.) Income and expense 

declarations, despite being executed under penalty of perjury, far too often “just don’t 

‘add up.’ ” (Id. at p. 38.) Family law courts must determine “which declarations have the 
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‘ring of truth’ and which do not.” (Ibid.) This function is part of its larger fact finding 

role. A family law “court sits as trier of fact and it is called upon to determine that a 

witness is to be believed or not believed. This is the nature of fact finding. ‘The trier of 

fact is the sole judge of the credibility and weight of the evidence . . . .’ ” (In re Marriage 

of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) 

 A family law court may also reject income figures stated on tax returns. A parent’s 

income, stated on recent tax returns, is “presumptively correct” but may be rebutted by 

other evidence of a parent’s income. (In re Marriage of Calcaterra & Badakhsh, supra,

132 Cal.App.4th at pp. 34-36.) Here, Rodriguez did not submit a tax return for 2011, only 

a 2010 Schedule C listing a business loss but no final income figure. The court properly 

considered his current financial situation as reflected in his income and expense 

declaration (with attached profit and loss statement for the first quarter of 2012) and his 

testimony at the hearing. Ultimately, the court disbelieved Rodriguez’s undocumented 

representations that his law practice generated average monthly revenue of $15,433 yet 

netted only $883. The court set his monthly income at $7,100, less than half his business 

revenue. The record fully supports the court’s determination. 

 Rodriguez next raises the fact that Smit bought her Nevada home with California 

sale proceeds, and thus has no mortgage payments. He contends the court should have 

included the reasonable value of Smit’s “free housing” as income. The trial court found 

the contention “untimely” because it was first raised in a supplemental brief filed on the 

day of the hearing. The contention is also ill-founded. Such imputations of income 

commonly arise when a parent receives free housing as an employee benefit. (Fam. Code, 

§ 4058, subd. (a)(3); In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 757.) There 

is no basis for imputing income here, where Smit did not receive benefits from an 

employer or other third party but from the sale of an asset she owned. 

 Finally, Rodriguez argues the court should have imputed income to Smit based on 

her earning capacity. (Fam. Code, § 4058, subd. (b).) “If a parent is unwilling to work 

despite the ability and the opportunity, earning capacity may be imputed” to that parent 

for purposes of computing child support. (In re Marriage of LaBass & Munsee (1997) 56 
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Cal.App.4th 1331, 1338.) The court found that Smit was not unwilling to work and was, 

in fact, actively seeking work by studying for the Nevada bar exam. The court noted that 

Smit’s time was better spent preparing for a well-paid attorney job in the near future than 

taking a lower-paid job immediately. The court’s finding is reviewed for an abuse of 

discretion. (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1383.) None appears 

here. 

 At such time as Smit obtains employment, Rodriguez may of course seek an 

appropriate adjustment of his support obligation. (E.g., In re Marriage of Williams (2007) 

150 Cal.App.4th 1221, 1234.) 

III. DISPOSITION 

 The order is affirmed. 

 _________________________ 

 Pollak, Acting P.J. 

We concur: 

_________________________ 

Siggins, J. 

_________________________ 

Jenkins, J.