Filed 5/3/16 Marriage of Gash and Ben-Noun CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION THREE

In re Marriage of DRU GASH and LIMOR 

BEN-NOUN.

___________________________________

DRU GASH,

Appellant,

v.

LIMOR BEN-NOUN,

Respondent.

 B258645

 (Los Angeles County

 Super. Ct. No. LD056298)

APPEAL from an order of the Superior Court of Los Angeles County, Marshall 

Rieger, Judge. Affirmed.

Robert F. Smith for Appellant.

No appearance for Respondent.

___________________________________
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Appellant Dru Gash appeals from an order denying without prejudice his request 

to modify a child support order. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2011, Gash agreed to pay to his former wife Limor Ben-noun $1,000 

per month in child support for their minor daughter. Thereafter, Gash filed a request to 

modify the support order and, in January 2013, the court found “a change of income to be 

temporary and therefore not a substantial change of circumstance to warrant a change in 

support orders from judgment of 7/7/2011.” 

On September 13, 2013, Gash, who was in default on his support obligation, filed 

the at issue request to modify the child support order. A back injury suffered in 2012 had 

gotten “progressively worse,” and friends and family were supporting Gash. According 

to Gash’s income and expense declaration, he worked about 20 hours per week and made 

$640 per month as a telemarketer. The child spent 95 percent of her time with mother. 

Gash then submitted, on July 11, 2014, another income and expense declaration stating 

that his job ended on April 1, 2014, and he worked 10 hours per week and made $600 per 

month. His financial situation changed significantly because he was “unable to work as 

much due to back injury and economy.” 

On January 17, 2014, the family court issued a seek-work order requiring Gash to 

conduct five job searches per week, 20 percent to be done in person. The parties returned 

to court on July 11, 2014, at which time Gash provided his job search record to the court. 

The court found Gash’s job search to be deficient: the “Court finds that [Gash] has 

sought employment positions which he [cannot] do and there are not enough job searches 

on his schedule of job searches to comply with the court order.” The court therefore 

denied the modification request without prejudice to refiling after completing appropriate 

job searches. The job search order remained in full force and effect.1

 

1 Gash augmented the record with documents identified as his job search records. 
3

CONTENTIONS

Gash contends on appeal I. that he should not have been ordered to seek work

because he had a job, that any such order should have been mutual, and that the family 

court’s seek-work order form was arbitrary, II. that the court abused its discretion by 

denying his request to modify the child support order, and III. the proceeding violated his 

due process rights.

DISCUSSION

I. The seek-work order.

Gash contends that the family court’s seek-work order was inappropriate, because 

he was not unemployed. Rather, he was self-employed and making $600 per month. 

Under Family Code section 4505,2subdivision (a), a court “may require a parent who 

alleges that the parent’s default in a child or family support order is due to the parent’s 

unemployment to submit” documentation showing that he or she has applied for work. A 

seek-work order is reviewed for abuse of discretion and is subject to reversal on appeal 

where there is no reasonable basis for the court’s action. (Barron v. Superior Court

(2009) 173 Cal.App.4th 293, 298-299.) Gash’s contention that the court could not order 

him to seek work when he was in fact employed is forfeited, because Gash agreed to the 

order. At the January 17, 2014 hearing at which the court issued the order, Gash’s 

counsel, after conferring with Gash who was present, said, “Your honor, my client is 

accepting of the court’s order.” In any event, there was a reasonable basis for the court’s 

order: Gash claimed that his default in his support obligations was due to the “economy” 

and not just to his back injury.

Gash next contends that Ben-noun should also have been ordered to seek work. 

But Ben-noun, for over five and a half years, operated a “business cart” doing hair 

extensions in a mall. She had 90 percent custody of the minor child, and she had an 18-

month child from her new marriage. The court declined to rule on the matter at the initial 

 

2 All undesignated statutory references are to the Family Code.
4

hearing in January 2014: “Actually, I think for today I’m going to go forward with what 

we have and go over. If she finds a better job, she can talk with her counsel. . . . But if 

she has a cart at a mall, my guess is someone owns it. It may be her. And I am not 

looking at tax returns, so I don’t know yet. And if it’s just an employment, she can look 

for additional work or to get a different job. But as I said before, the economy still isn’t 

that good, and I know that jobs are somewhat scarce.

“[Gash’s counsel]: Well, I –

“The court: If you don’t look, you can’t find it. If you want, you can file 

something for the next court date.” 

It appears that the family court found that mother was employed. Moreover, the 

court wasn’t prepared to consider the issue that day. The court therefore invited Gash to 

“file something” to raise the issue, but the record does not show he did so. The court 

therefore did not abuse its discretion by failing to order Ben-noun to seek work.

Finally, it appears that the family court created a form for a party subject to a seekwork order to fill out. The form, entitled “Employment Search Record,” had, for 

example, headings for “Name of business, person, union or other entity,” “Address,” 

“Telephone Number,” “Position(s) Applied for,” and “Application submitted in (P)erson 

(M)ail (F)ax (I)nternet.” The form also had lines numbered 1 through 5 so that a party 

can list the five job searches he or she completed each week. Gash contends that the 

form “was not required by the statute and was in fact arbitrary.” True, section 4505 does 

not require a form, but the section also does not preclude one. Moreover, we see no 

arbitrariness in a court, for its and the parties’ convenience, creating a form to facilitate 

the process. (See Code Civ. Proc., § 128, subd. (a)(1), (8) [courts have power to control 

process and orders so as to make them conform to law and justice]; Cottle v. Superior 

Court (1992) 3 Cal.App.4th 1367, 1376-1377.) The form was a useful and convenient 

tool to show job search efforts. 

Gash, however, chose not to fill out the form according to the court’s instructions. 

Instead of listing all jobs he applied for on the form, he listed only his in-person ones. He 
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submitted a separate printout of his on-line applications. Although Gash failed to comply 

with the court’s order, the court did not reject Gash’s job search efforts on that ground. 

The record instead shows that the court considered Gash’s efforts but concluded they 

were deficient. We therefore reject Gash’s suggestion that the court “arbitrarily” rejected 

evidence of his job search efforts.

II. The request to modify the child support order.

Gash contends that the family court abused its discretion by denying his 

modification request without prejudice. We disagree.

We review an order modifying a child support order for an abuse of discretion. 

(In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234; In re Marriage of 

Leonard (2004) 119 Cal.App.4th 546, 555.) A reduction in child support will not be 

ordered unless there has been a material or substantial change of circumstances since 

entry of the previous order. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 392; 

In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47.) “ ‘Ordinarily, a factual change 

of circumstances is required [for an order modifying support] (e.g., increase or decrease 

in either party’s income available to pay child support).’ [Citation.] ‘There are no rigid 

guidelines for judging whether circumstances have sufficiently changed to warrant a 

child support modification. So long as the statewide statutory formula support 

requirements are met (Fam. [Code,] § 4050 et seq.), the determination is made on a caseby-case basis and may properly rest on fluctuations in need or ability to pay.’ ” (In re 

Marriage of Leonard, at p. 556; see also In re Marriage of Laudeman (2001)

92 Cal.App.4th 1009, 1015 [“the overriding issue is whether a change has affected either 

party’s financial status”].)

In determining income for support purposes, a court may also consider a child 

support obligor’s earning capacity, consistent with the best interests of the children. (See 

generally § 4058, subd. (b).) A parent may not shirk his or her parental obligations by 

reducing earning capacity through unemployment or underemployment. (In re Marriage 
6

of Hinman (1997) 55 Cal.App.4th 988; In re Marriage of Dacumos (1999) 

76 Cal.App.4th 150, 155.) 

Implicit in the court’s seek-work order here was a finding that Gash, who based 

his modification request on an injury that limited his ability to work and on the poor 

economy, failed to establish he was maximizing his earning capacity. The court thus 

ordered Gash to seek work so that the court could establish his earning capacity. But the 

court found that Gash failed to comply with that order and denied the modification 

request on that ground. The record supports that finding. Gash’s printout of his on-line 

job searches did not include all information the court requested to enable it to evaluate 

Gash’s applications. Gash also applied for jobs (for example café supervisor and 

restaurant manager) that he appeared to be unqualified for and did not comply with his 

asserted physical limitations. The court thus noted, for example, that “[m]ost of the jobs 

that you are trying to get have activity. It doesn’t seem like if you all of a sudden had

pain and couldn’t work that they would keep you. It seems like you are basically 

torpedoing having to work.” The court thus suggested that Gash refile his modification 

request and support it with additional information from his doctor about the types of

positions he could do. The court could then “limit the scope of what his job searches 

would be.” 

Gash’s failure to establish his earning capacity, or lack thereof, precluded the 

family court from evaluating whether there was a material or substantial change in 

Gash’s circumstances warranting a reduction in his support obligations. The court 

therefore did not abuse its discretion by denying the modification request without 

prejudice. 

III. Due process in child support proceedings at Central Civil West.

Gash suggests that because judges at Central Civil West who preside over support 

proceedings were once district attorneys in the child support enforcement department, the 

process is fundamentally unfair; i.e., it is the same as “having your divorce case decided 

by your mother-in-law.” That the judicial officer once was a district attorney and that 
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support proceedings are heard in the same building that houses the child support 

enforcement office does not show that either the process or the judge was biased against 

Gash. Also, “the mere fact a judicial officer rules against a party does not show bias.”

(In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328.) 

DISPOSITION

The order is affirmed. No costs on appeal are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, Acting P. J.

We concur:

LAVIN, J.

HOGUE, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.