Filed 5/23/17 Marriage of Shao and Wang CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


In re the Marriage of LINDA SHAO and TSAN-KUEN WANG. H039823
(Santa Clara County
Super. Ct. No. FL126882)

LINDA SHAO,

Appellant,

v.

TSAN-KUEN WANG,

Respondent;

SANTA CLARA COUNTY DEPARMENT OF CHILD SUPPORT SERVICES,

Respondent.


Appellant is Linda Yi-Tai Shao, an attorney in the State of California, and is proceeding pro se in this matter. She appeals a child support modification order entered on May 3, 2013 requiring her to pay support to her ex-husband, Tsan-Kuen Wang, for the care of their minor child, L. The order at issue also involved an award of equitable child support credits pursuant to In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072 (Trainotti) to Wang for the time period when he made support payments to Shao when he had full custody of L.
Shao raises eight arguments in this appeal, the bulk of which deal with her claim that the child support order violated her due process rights. Shao asserts that she did not receive notice that the court would impute income to her, and that the evidence did not support the order.
The Department of Child and Family Support Services (Department) is a respondent in this matter, and argues that the evidence shows that Shao was properly served in this case, and that the court’s order was supported by sufficient evidence. The Department asserts that Shao’s remaining arguments are meritless or were waived for failure to assert them in the lower court.
STATEMENT OF THE FACTS AND CASE
Shao and Wang were married for almost 18 years, and separated in 2005. The couple have two children together, Louis, born in May 1994, and L., born in March 2005. The court entered judgment for dissolution of marriage on May 28, 2008 following Shao and Wang’s settlement agreement.
Although there have been numerous orders and two appeals following the entry of judgment, the proceedings that precipitated the order that is the subject of this appeal began on November 26, 2012. At that time, the Department filed a motion for modification of child support and for an award of equitable Trainotti credits. The Department initiated the proceedings at the request of Wang, who at that time had sole custody of L. as the result of an emergency screening in August 2010. Wang reported to the Department that Shao had not participated in her supervised visitation with L. since May 17, 2012, and that he had L. 100 percent of the time. The Department served the motion on Shao by mail on November 6, 2012.
In response to the motion, Shao filed an income and expense declaration on January 25, 2013 stating that her monthly average income was $816, and that her monthly average expenses were $4,180, with $2,640 of those expenses paid for by others.
A hearing on the Department’s motion was held on May 3, 2013. The Department requested that child support to Shao from Wang be set at zero dollars effective December 1, 2012. The Department also asked the court to determine whether Wang was entitled to equitable Trainotti credits for the period he had sole custody of L., but continued to pay child support to Shao.
The court determined that Shao had earned income of $2,640 per month based on her declaration that others paid for $2,640 of her monthly expenses. The court also found that Shao had no custody of L., and Wang had L. 100 percent of the time. Based on these findings, the court set Wang’s child support obligation at $0 to Shao beginning December 1, 2012, and that Wang was entitled to equitable Trainotti credits from mid-August 2012 through November 2012. The court ordered Shao to pay child support to Wang in the amount of $458 beginning December 1, 2012.
DISCUSSION
Shao argues that the court’s modification of the child support order violated her due process rights because she did not receive notice that the court would impute income to her, and the evidence did not support the order. In addition, she asserts that the court failed to find changed circumstances to modify the order, calculated the support order incorrectly, improperly based the order on a void order, violated an automatic stay, and abused its discretion in applying equitable credits against her.
We review a child-support order for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) This standard of review applies to the court’s imputation of income; In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1392-1393). In seeking to modify a child support order, a party must demonstrate a change in circumstances justifying the proposed modification. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1304 (Bardzik).)
To assess whether the trial court abused its discretion, “[w]e determine ‘whether the court’s factual findings are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.’ [Citation.] We 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. [Citation.]” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) In determining whether the court’s finding are supported by substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party, and the lower court’s order, the benefit of every reasonable inference. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) We accept all evidence supporting the order as true and discard contrary evidence. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) The order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234.)
Due Process
Shao asserts that the May 3, 2013 order is void because it violates due process. Specifically, she asserts that she was not given proper notice that the court would impute income to her in determining the support order.
“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.” (In re Vitamin Cases (2003) 107 Cal.App.4th 820, 829.) “It does not guarantee any particular procedure but is rather an ‘elusive concept,’ requiring only ‘ “notice reasonably calculated to apprise interested parties of the pendency of the action affecting their property interest and an opportunity to present their objections.” ’ ” (Ibid.)
Shao’s argument regarding notice appears to relate to her belief that the court imputed income to her in its order of child support, and that she was entitled additional time to address this issue. She asserts that she did not receive specific notice that the court would impute income to her. In support of this argument, Shao cites In re Marriage of Schmir (2005) 134 Cal.App.4th 43 (Schmir), where the trial court was found to have abused its discretion by imputing employment income to a spouse without giving the spouse advanced notice and a reasonable time to secure a job. (Id. at pp. 53-58.) Shao extrapolates from this that the court in this case was required to give her specific notice that it intended to impute income to her in modifying the child support order.
Schmir is not applicable to this case because here, the court did not actually impute income to Shao. To impute income to a parent, the court must consider the parent’s “earning capacity,” and opportunity to earn to set the parent’s income to correspond with that amount. (Fam. Code, § 4058, subd. (b).) Here, the court did not consider Shao’s earning capacity or opportunity to earn income in modifying child support. Rather, the court made a determination of Shao’s earned income from the specific information she provided in her declaration of income and living expenses. Specifically, the record shows that Shao claimed her monthly expenses were $4,180, and that she earned anywhere between zero dollars and $816 a month. Shao further claimed that other people paid for $2,640 of her monthly expenses. The court found that based on Shao’s declaration, the $2,640 of expenses paid for by others was in fact Shao’s earned income. This court has held that recurrent monetary gifts may be treated as income for the purpose of calculating a parent’s child support obligation. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 737.)
The record reflects that Shao received sufficient notice to satisfy due process when the Department served Shao with its notice of motion for modification of child support on November 6, 2012. This notice apprised Shao that the Department sought to modify the existing order, and seek equitable Trainotti credits on the ground that Wang had sole custody of L. since August 2010. The order did not violate Shao’s due process rights.
Evidence to Support Order
Shao asserts that the trial court’s order was made “without evidence,” because she did not receive a copy of Wang’s 2012 tax return, nor was she given a continuance to produce a copy of her own return. In support of this argument, Shao relies on Santa Clara County Superior Court Family Rule 3(E), which provides in relevant part: “The parties shall bring to the hearing at least three legible copies of their most recent state and federal income tax returns including all, attachments, specifically including all schedules, W-2 forms, 1099 forms, and amendments. . . . The Court may request additional tax returns and related documents: Failure to bring tax returns to the hearing may result in a delay of the hearing on a request for support or other sanctions.”
Here, Wang did provide his most recent tax return to the court, because he had not yet filed his 2012 tax return at the time of the hearing. According to Santa Clara County Superior Court Family Rule 3(E) cited above, the court had discretion to request additional documents, but was not required to. In this case, the court made its order based on the evidence presented at the hearing, including the declarations of the parties regarding income and expenses, and the custody timeshare for L. The fact that the court did not request Wang’s 2012 tax return that did not then exist, or continue the case for Shao to produce her tax return was not a violation of the rule.
The child support order in this case is supported by sufficient evidence. The record shows that the trial court relied on both parties’ declarations of income and expenses, as well as actual timeshare percentages as they existed at the time of the hearing, prior to modifying child support. (See Fam. Code, § 4055, subd. (b)(1)(D).)
Changed Circumstances
Shao asserts that the court erred in modifying the child support order, because it did not make a requisite finding that there were changed circumstances between the time of the original order and May 3, 2013.
This argument belies the facts of this case. It is undisputed that Shao lost all custody of L. in August 2010 after the results of the emergency screening recommended she undergo additional psychological testing and evaluation. At the time of the order on May 3, 2013, Wang had sole custody and 100 percent timeshare of of L. This is a changed circumstance that justified a modification of the child support order in this case. (See Bardzick, supra, 165 Cal.App.4th at p. 1304.)
Miscalculation of Support Amount
Shao argues that the court mistakenly set the child support amount based on a miscalculation. Shao specifically argues that the trial court’s calculation failed to include Wang’s tax benefit received for paying L’s health insurance premiums and profits from the sale of stock options. She states that the calculation was based on Wang’s “fraudulent” income and expense declaration. She also argues that the trial court failed to (1) consider the payments she made for her supervised visitations, and (2) apply the “low income factor.” She further asserts that the trial court erroneously ordered her to pay health insurance.
Shao asserts that the court made all of the above errors in calculating child support, yet she did not raise any of these factual arguments or attempt to correct any of the alleged errors in the court below. Shao has forfeited these claims by not raising them in the trial court, and we will not consider them for the first time on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
Void Order
Shao asserts that the support order in this case was improperly based on the August 4, 2010 custody order that she claims was vacated by an interim order on October 31, 2011.
Shao’s argument is incorrect. Initially, there is no basis for Shao’s claim that the August 4, 2010 custody order was vacated by the interim 2011 order. Moreover, the record is clear that the court properly modified child support in this case based on the custody and timeshare of L. at the time of the hearing on May 3, 2013. The court did not base its modification on the August 4, 2010 custody order. Shao’s claim that the modification was based on a void order is meritless.
Automatic Stay
Shao cites Code of Civil Procedure section 916, subdivision (b) to argue that the child support modification order violated the “automatic stay that should be declared void.” She argues “[i]t is undisputed that on 5/3/2013, the legality of Orders of August 4, 2010 and 10/31/11 were pending appeal under the case number of H037820.”
Contrary to Shao’s assertion, the subject of the appeal in case number H037820 was the interim order dated October 31, 2011, which continued supervised visitation for Shao, not the August 10, 2010 order granting Wang sole custody of L. Moreover, the modification order at issue in this appeal is not based on the custody order dated August 10, 2010 as discussed above. Rather, the modification order is based on the circumstances at the time of the hearing that Wang had sole custody and 100 percent timeshare of L.
Equitable Credits
Shao initially argues that the court erred in awarding Wang equitable Trainotti credits. Shao does not provide legal support for this argument and instead asserts that the court should have awarded her equitable child support credits. This argument is based on a factual timeline outlining periods when she allegedly had full custody of L. and Louis, Wang and Shao’s now adult son.
Equitable credits were awarded to Wang for the period of mid-August 2012 to November 2012 when Wang continued to pay child support to Shao, yet he had sole custody and 100 percent timeshare of L. Shao offers no legal argument that this award was made in error. Moreover, Shao did not assert that she was entitled to equitable credits in the trial court. Shao cannot make this claim for the first time on appeal. As with Shao’s claim that the order was based on miscalculation, her claim that she is entitled to equitable credits is forfeited. (In re Dakota H., supra, 132 Cal.App.4th at p. 222.)
Unheard Child Support Modification Motions
Shao argues that the trial court violated her due process rights by “refusing to adjudicate on her motion to modify support based on support in arrears from 2/12/2010 for appellant’s full time care of Louis until his majority and appellant’s full time care of [L.] until May 9, 2010.”
At the child support modification hearing on May 13, 2013, Shao attempted to assert past child support issues unrelated to the motion being considered. The trial court properly refused to consider the past motions, because they were not the subject of the modification motion that was being heard.
In this appeal, as in the trial court, Shao does not clearly identify the motions she believes should have been considered or demonstrate how those motions were properly before the trial court at the time. Shao argues that she stipulated to an “overly too low payment of child support of $600” that should now be considered void and be modified. In addition, Shao requests “this Court to declare the trial court’s refusing to adjudicate for more than 3 years being violating due process.”
Shao’s arguments about unheard child support motions are unintelligible, and areunrelated to the modification order on appeal.
Conclusion
The modification of child support order in this case is supported by substantial evidence including the declarations of the parties and the custody and timeshare at the time of the hearing. In addition, the order did not violate Shao’s due process rights. We find that the trial court did not abuse its discretion in modifying child support in this case. (See Cheriton, supra, 92 Cal.App.4th at p. 282.)
DISPOSITION
The order is affirmed.




______________________________________
RUSHING, P.J.






WE CONCUR:






____________________________________
PREMO, J.






____________________________________
ELIA, J.