Filed 1/16/18 County of Tuolumne Dept. of Child Support Services v. Rogers CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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Appellant father Derrick G. Rogers (Father) appeals from an order modifying a prior order for child support. Father contends there was no evidence of changed circumstances to support the trial court’s decision. We disagree and affirm the court’s order.

BACKGROUND

On March 24, 2011, a stipulated judgment was entered pursuant to which Father agreed to pay guideline child support but was ordered to pay $0 in child support. The judgment noted the “low-income adjustment” was being applied. Father also was ordered to “submit an application to the Veteran’s Administration [VA] for apportionment of his VA disability benefit in favor of Dependent . . . , payable to the Dependent’s caretaker. Application must be submitted by April 30, 2011.” El Dorado County Department of Child Support Services (DCSS) registered that judgment in El Dorado County on March 2, 2016, and became the substitute payee for support.

On June 10, 2016, DCSS moved to modify the child support order. In support of their request, DCSS argued “[t]here is a zero child support order, [Father] has income and the minor child is receiving public assistance.” Father then filed an income and expense declaration, declaring his monthly income to be $2,173. He further declared his sole source of income was “VA Disability” because he was a 100 percent disabled veteran.

At the hearing on DCSS’s motion, Father testified that he was paid “$2,100-something” each month in VA benefits. DCSS asked him whether he received a benefit for his child and whether that benefit was included in the $2,173. Father said he was not sure how much the benefit for his child was but that it would be included in the $2,173.

Father expressed his confusion about how the prior order from Tuolumne County, which was for $0 per month, could be changed to the $407 per month the DCSS was asking for. DCSS responded: “I’m going to object to reference to Tuolumne County, Your Honor. That was five years ago, and we don’t have all of the facts that were in front of the Court at that time.” DCSS further explained that Father had the child 50 percent of the time, his monthly income was $2,173, and “the guideline is $407 per month.”

The court noted Father’s objections but found “the VA benefits are includable as gross income for purposes of child support calculations, and it does appear to the Court that there is a 50/50 timeshare. Mother has no reportable income.” Thus, the court ordered Father to pay $407 per month in child support.

Father filed a timely notice of appeal.

DISCUSSION

Father asserts the court erred in modifying the child support order, because there was no evidence of changed circumstances between the time of the original order and the hearing on July 18, 2016. On appeal, the Attorney General argues the changed circumstance is that Father failed to submit an application to the VA to apportion his benefits for the minor child, as he was ordered to do. On this record, the Attorney General has the better argument.

We review a child support order for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) 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.)

It is undisputed that Father was previously ordered to pay $0 in child support but to submit an application to have his VA benefits apportioned so the mother would receive the child’s portion. It also is not disputed that Father received $2,173 each month in VA disability benefits. At the hearing, Father testified that the portion of benefits earmarked for the parties’ child, whatever that amount was, was included in the $2,173. The record thus demonstrates that Father did not comply with the court’s prior order to have his VA benefits apportioned and the child’s portion paid directly to the child’s mother. Father’s failure to comply with the court’s prior order results in a material change in circumstances: the mother is not receiving the child’s portion of Father’s VA benefits, as was contemplated in the court’s prior order.

Finding sufficient evidence of changed circumstance, we affirm the trial court’s order for support.

DISPOSITION

The July 18, 2016 order modifying support is affirmed.

RAYE , P. J.

We concur:

ROBIE , J.

HOCH , J.