Marriage of Shayan CA2/8

Opinion

Filed 9/28/26 Marriage of Shayan CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

In re the Marriage of ZOHREH B333844 MCINTYRE and SHAHRIYAR (Los Angeles County SHAYAN. Super. Ct. No. SD025162)

ZOHREH MCINTYRE SHAYAN et al., Respondents, v.

SHAHRIYAR SHAYAN,

Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Michael J. Convey, Judge. Affirmed. Shahriyar Shayan, in pro. per.; Law Offices of William W. Oxley and William W. Oxley for Appellant. No appearance for Respondent Zohreh McIntyre Shayan. Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Maureen C. Onyeagbako and Ricardo Enriquez, Deputy Attorneys General, for Respondent Los Angeles County Child Support Services Department. _________________________________ INTRODUCTION Shahriyar Shayan appeals from the order denying his request for equitable credits under Jackson v. Jackson (1975) 51 Cal.App.3d 363 (Jackson), commonly referred to as Jackson credits, for the period of time when he claims he had primary physical custody of his children.1 In denying the request, the trial court found that Shahriyar was not entitled to equitable relief in the form of Jackson credits because he failed to provide credible evidence of his income and the expenses he allegedly incurred when the children were in his care, and he paid little to no child support for a number of years when the children were primarily in the care of their mother. We conclude the trial court did not abuse its discretion in denying Shahriyar’s request for Jackson credits, and accordingly, affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. November 2008 child support order Shahriyar and Zohreh McIntyre Shayan are the divorced parents of two children, Layla and Shane, both of whom are now adults. In 2007, Zohreh filed a petition for dissolution of the marriage. In November 2008, the family court ordered Shahriyar to pay Zohreh $1,381 per month in child support based on his income and a 35 percent timeshare with the children. The court ordered Shahriyar and Zohreh to equally split any expenses 1 As is customary in family law proceedings, we refer to the parties by their first names.

2 pertaining to the children’s extracurricular activities, health insurance, and unreimbursed medical bills. 2. November 2011 move away order In November 2011, the family court granted Zohreh’s request to move with the children from Los Angeles to the United Kingdom. The order provided that Zohreh would continue to have primary physical custody of the children, and Shahriyar would have visitation. Jurisdiction over any custody or support matters would remain in Los Angeles Superior Court. To facilitate Shahriyar’s visitation with the children, the order required Zohreh’s attorney to set up a Travel Trust Account (TTA) that would be funded with an initial $2,500 contribution made by Zohreh and then with the child support payments made by Shahriyar. To cover Shahriyar’s legal expenses in the event Zohreh sought to change jurisdiction, the order also required Zohreh’s attorney to set up a Jurisdiction Trust Account (JTA) that would be funded with the child support arrears owed by Shahriyar through October 2011. Neither the TTA nor the JTA was ever established by Zohreh’s attorney, or funded with any child support payments or arrears owed by Shahriyar. 3. October 2019 requests for order regarding child support The children moved back to Los Angeles in July 2013, followed by Zohreh two months later. According to Zohreh, upon her return to Los Angeles, she and Shahriyar agreed to a 50/50 timeshare with the children. According to Shahriyar, when the children returned in July 2013, they began residing almost exclusively with him, and he paid for all of their expenses. Neither party, however, sought an order modifying child custody or support until several years later.

3 In October 2019, Shahriyar filed two requests for an order (RFO) regarding child support. These RFO’s are not part of the record on appeal. However, as described by the family court, the RFO’s sought to modify Shahriyar’s child support obligation going forward and to apply Jackson credits to past amounts due. In January 2020, the court modified the child custody order to provide that Zohreh would have a 95 percent timeshare with Layla and 5 percent timeshare with Shane, and Shahriyar would have a 95 percent timeshare with Shane and a 5 percent timeshare with Layla. In April 2020, while Shahriyar’s October 2019 RFO’s were pending, Zohreh petitioned the court for a determination of child support arrears owed by Shahriyar. More than two years later, on May 3, 2022, Commissioner Jeffrey W. Korn issued findings and recommendations on certain pending matters in the case. Among other findings, Commissioner Korn denied Shahriyar’s request to disentitle Zohreh from collecting any child support arrears, but recommended that Shahriyar receive a credit for expenses that were supposed to be covered by the TTA during the time the children resided in the United Kingdom. Commissioner Korn also set the matter for trial on Shahriyar’s request for Jackson credits. After Shahriyar filed an objection to Commissioner Korn’s findings and recommendations, the matter was set for a de novo hearing before Judge Michael J. Convey. 4. December 2022 to April 2023 evidentiary hearing Over a 10-day period between December 2022 and April 2023, Judge Convey held an evidentiary hearing on Shahriyar’s October 2019 RFO’s regarding child support. The court first heard testimony on whether there was an existing valid child 4 support order. After finding that the November 2008 child support order was valid and remained in effect, the court then heard extensive testimony regarding each parent’s income, paid expenses, and custodial time with the children. 4.1. Zohreh’s testimony Zohreh testified that the November 2008 child support order was based on a 65 percent timeshare to Zohreh and 35 percent timeshare to Shahriyar. Although the order required Shahriyar to pay $1,381 per month in child support, Zohreh did not receive any child support payments between 2008 and 2019 except for a few tax intercepts totaling approximately $3,500. When Zohreh moved with the children to the United Kingdom, she incurred extracurricular and therapy expenses for the children, but she did not ask Shahriyar to assist in paying for them. During this time, Zohreh relied on loans from family members to help support the children. The children moved back to the United States in July 2013, which was the start of Shahriyar’s summer timeshare with them. Zohreh followed two months later in September 2013. Upon Zohreh’s return, she and Shahriyar had an informal agreement for a 50/50 timeshare in which they each had the children in their care for one week at a time. When the children were with Zohreh, she paid for their clothing, food, and other living expenses. The 50/50 timeshare arrangement continued as to both children until about June 2016, when Layla began residing primarily with Zohreh in Laguna Beach and Shane resided primarily with Shahriyar in Los Angeles. From June 2016 until June 2020, when Layla turned 18 years old, she had occasional visits with Shahriyar but did not stay overnight in his home.

5 During this same four-year period, Shane stayed with Zohreh two weekends per month in addition to his summer, winter, and spring breaks. Although the January 2020 child custody order reduced Zohreh’s timeshare with Shane to 5 percent, her actual timeshare with Shane was approximately 35 percent in 2020 and 2021, and 20 percent in 2022. Shahriyar paid for the children’s health insurance, but did so inconsistently and cancelled their insurance in 2020, after which the children received coverage through the Medi-Cal program. Zohreh testified that her current monthly income was $3,741 and that her monthly rent was $3,480. She admitted that, between 2019 and 2020, she received several large deposits to her bank account from family and friends, which totaled $158,000. 4.2. Shahriyar’s testimony Shahriyar testified that, before the children moved with Zohreh to the United Kingdom, he had custody of them every Tuesday and Thursday, and four weekends per month. While the children were residing in the United Kingdom, Shahriyar had three visits with them, and he spent about $10,000 on travel expenses. In early 2013, Shahriyar and Zohreh discussed a potential return to the United States, and they agreed that the children would reside with Shahriyar until Zohreh got situated. Shahriyar denied that their agreement was for a 50/50 timeshare. When Zohreh moved back to the United States in 2013, her time with the children was limited to weekends because she lived in a studio apartment that lacked sufficient beds for the children to stay with her overnight. Between July 2013 and September 2016, the children spent 90 percent of their time with Shahriyar and 10 percent of their time with Zohreh. In September 2016, 6 Layla began residing with Zohreh in Laguna Beach where she attended high school, and visiting Shahriyar on the weekends and during her summer breaks. Since 2016, Zohreh has had a 90 percent timeshare with Layla and a 5 to 10 percent timeshare with Shane. Between July 2013 and September 2016, Shahriyar paid for all the children’s expenses, including their health insurance premiums, extracurricular activities, and private tutors. Shahriyar estimated that he spent over $1,500 per month on the children. During this period, Zohreh did not ask Shahriyar to provide child support, nor did she offer to pay for any of the children’s expenses. Because Shahriyar was exclusively covering the children’s expenses, he did not believe he owed Zohreh any child support payments. Shahriyar claimed he was seeking Jackson credits for the period from 2013 (when the children moved back to the United States) to October 2019 (when he filed his RFO’s). However, Shahriyar did not have any invoices for the amounts he spent on the children during this period because he paid for their expenses with credit cards. Shahriyar testified that, between 2013 and 2015, he owned his own business and had an average monthly income of less than $3,000. From 2016 to 2020, Shahriyar worked as a manager at a business owned by his mother, and his monthly income was $3,200. Shahriyar has not been employed since early 2020 and has supported himself through unemployment insurance benefits and other government relief. He denied having an interest in any other businesses, including ones owned by his mother. He admitted he owed his attorney $62,000, but could not recall whether he paid any attorney fees between 2020 and 2022. Shahriyar claimed he met the children’s expenses by carrying a 7 balance on his credit cards and accepting loans from family and friends. 4.3. Third party witness testimony Both Zohreh and Shahriyar called friends, neighbors, and other associates to testify about the amount of time they spent with the children. Shahriyar’s witnesses generally testified that they often saw Shahriyar with the children, and only saw Zohreh with the children on rare occasions. Zohreh’s witnesses testified that they saw Zohreh with the children on a frequent basis. Zohreh also called Shahriyar’s former business partner, David Kazemi, as a witness. Kazemi testified that he became business partners with Shahriyar in 2015, and that Shahriyar used his mother’s name to purchase the business so that he could avoid paying child support. 5. July 2023 order on Shahriyar’s RFO’s On July 17, 2023, Judge Convey issued his findings and order on Shahriyar’s two RFO’s regarding child support. The court found that the November 2008 child support order requiring Shahriyar to pay $1,381 per month was a valid and enforceable order that remained in effect. The court further found that Shahriyar had not complied with that order and paid only $4,682.52 in child support as of October 2019, when he filed the RFO’s. The court explained this lack of compliance was significant because Shahriyar “now seeks to have several thousand dollars as ‘Jackson credits’ applied when he only paid $4,682.52 in support over a course of about eight years. That is not fair. That is not equitable. If [Shahriyar] seeks this equitable relief, he must come to the Court showing some good faith effort to pay support. He did not do that. And that weighs heavily against him on the issue of credibility. It weighs heavily 8 against the Court’s exercise of equitable discretion … on his request for ‘Jackson credits.’ ” (Italics added.) In assessing the credibility of the parties, the court found that Shahriyar’s testimony about his income was not believable and was completely inconsistent with his tax returns. The court noted that Shahriyar’s “inconsistent testimony leads the Court to find that [Shahriyar] may have been trying to ‘outsmart’ Zohreh or the judge … to change his testimony as it suited him,” and that adopting “these inconsistent positions reflects adversely on his credibility.” The court further found that Shahriyar failed to disclose his business interests because it was “not credible that [Shahriyar] denies he has … an interest in a business property and an interest in a family business, that is worth several hundreds of thousands of dollars.” In addition, the court found that it was “not credible that Zohreh lives in an apartment … with rent that is about the same amount as her monthly income.” For purposes of determining the parties’ respective incomes, the court decided that their tax returns and income and expense declarations were more reliable sources of evidence than their testimony. On Shahriyar’s request for a modification of the child support order, the court found that a modification was proper based on a change in the parties’ incomes and custodial time with the children. The court ordered Zohreh to pay Shahriyar $190 per month in child support for the period from December 1, 2019 to June 30, 2020, based on the custody order awarding Zohreh a 95 percent timeshare with Layla and Shahriyar a 95 percent timeshare with Shane. For the period from July 1, 2020 to December 31, 2020, Zohreh was ordered to pay Shahriyar $404 per month in child support for Shane based on Zohreh’s actual 9 timeshare with Shane being 28 percent. Effective January 1, 2021, Zohreh’s child support obligation was reduced to $211 per month. For extracurricular and medical expenses, the court continued the prior order that the parents share them equally and follow specific protocols for seeking reimbursement. On Shahriyar’s request for Jackson credits, the court found that Shahriyar was not entitled to receive such equitable credits under the circumstances of this case. The court found that Shahriyar did “not bring an equitable approach to the request” because “[t]here was a long period of time during which child support was not paid, or paid very minimally if at all, until the time of [the] RFOs.” The court explained that “it is not equitable to give credits when credit is not appropriate, that is, when credit is not due with the support obligations being met in a minimal or any, fashion.” The court further found that Shahriyar failed to prove that he met his child support obligation by providing a corresponding amount of actual in-home support for the children. The court noted that Shahriyar’s testimony about his income was “at odds with what his tax returns showed,” and that it did not make sense that he “is able to meet his monthly expenses on the minimal income he … testifies to, given that his rent obligation is almost equal to his testimony as to his monthly income.” The court also noted that Shahriyar’s failure to “track the expenses that would comprise the request for Jackson credits … lends less credibility to [his] case.” (Italics added.) Additionally, the court found that the evidence showed that “the custodial timeshare was not completely with [Shahriyar]” and that “there was considerable timeshare with Zohreh from June 2020, to the present.” Based on these findings, the court denied Shahriyar’s 10 request for Jackson credits to be applied against any child support arrears that he owed. Shahriyar filed a timely appeal from the court’s July 17, 2023 order. The Attorney General, acting on behalf of the Los Angeles County Child Support Services Department, filed a respondent’s brief to represent the public interest under Family Code section 17406. 6. Request for judicial notice Shahriyar requests that we take judicial notice of an order issued by the family court during the pendency of his appeal as to whether Zohreh had a community property interest in certain real property. Because this order is not relevant to our resolution of the appeal, we deny Shahriyar’s request. (See Coyne v. City and County of San Francisco (2017) 9 Cal.App.5th 1215, 1223, fn. 3 [denying judicial notice of documents that were not relevant to dispositive issues]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [same].) DISCUSSION On appeal, Shahriyar challenges the July 17, 2023 order denying his request for Jackson credits against his child support arrears. We conclude the trial court did not abuse its discretion in denying Shahriyar’s request. 1. Governing law We generally review an order granting or denying a request for modification of child support for abuse of discretion. (In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 527; In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357.) In applying this standard of review, “we consider only ‘whether the [trial] court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its 11 discretion.’ [Citation.] ‘We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order.’ ” (In re Marriage of Macilwaine, at p. 527.) As a general rule, a trial court may not retroactively modify a child support order. (See Fam. Code, §§ 3603, 3651, subd. (c).) Thus, “a trial court has no discretion to absolve an obligor of support arrearages, or interest thereon.” (In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 626; accord, Stover v. Bruntz (2017) 12 Cal.App.5th 19, 26.) However, “it is within the court’s equitable power to deny enforcement of the arrears on equitable grounds under certain circumstances.” (In re Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1016.) In particular, under a line of cases beginning with Jackson, appellate courts have held that a trial court has discretion to grant a credit against child support arrears for a period during which the parent owing the arrears effectively discharged the support obligation by caring for the child in his or her own home. (Jackson, supra, 51 Cal.App.3d at p. 368; accord, Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 735; In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075; In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182.) These credits are referred to as Jackson credits, after the first case to recognize them. (Helgestad, at pp. 721–722.) In Jackson, for instance, the father ceased paying child support after the child began residing with him on a full-time basis with the mother’s consent. (Jackson, supra, 51 Cal.App.3d at p. 365.) The mother later obtained a writ of execution on child support arrears for the time the child was living with the father, and in response, the father sought an order quashing the writ of execution or reimbursing him for the money he spent caring for 12 the child. (Ibid.) The trial court denied the father’s request on the ground that it was an improper attempt to modify a prior child support order. (Id. at pp. 365–366.) The appellate court reversed, reasoning that “the trial court would have been well within its discretion in … quashing the writ of execution or permitting only partial enforcement on the basis that [the father] had directly discharged his obligation or on the basis of equitable considerations.” (Id. at p. 368.) The court noted that the child began living with the father with the consent of the mother, and the father expended amounts well in excess of his court-ordered obligation in providing a home and support for the child. (Ibid.; see also In re Marriage of Trainotti, supra, 212 Cal.App.3d at pp. 1075–1076 [“trial court erred by refusing to consider whether appellant had satisfied his obligation by furnishing [the child], with the approval of his former wife, a home and support that was equal to or in excess of the court-ordered amount”].) 2. The trial court did not abuse its discretion in denying Shahriyar’s Jackson credits request In this case, the trial court acted within its discretion in ruling that Shahriyar was not entitled to Jackson credits. As the trial court recognized, an award of Jackson credits is a form of equitable relief. The court found that equity did not support Shahriyar’s request because he did not substantially comply with his child support obligation for several years. On appeal, Shahriyar argues this finding was “nonsensical” because in all Jackson credits cases, the obligor is necessarily in arrears on his or her child support payments. However, the trial court found that Shahriyar failed to pay child support not only during the period when the children allegedly were under his direct care (2013 to 2019), but also during the period when the children were 13 primarily in the care of Zohreh (2008 to 2013). In particular, the court found that the evidence “credibly showed that there were no child support payments made, from February 2009 to May 2012,” and that Shahriyar’s compliance with the existing child support order “after that date was sporadic and inconsistent at best.” Given Shahriyar’s lack of compliance with his child support obligation during the years when the children were in Zohreh’s care, the court reasonably found that Shahriyar was not entitled to equitable relief. In denying Shahriyar’s request for Jackson credits, the trial court also reasonably found that Zohreh continued to have a significant timeshare with the children during the period when Shahriyar claimed that the children were in his care. Shahriyar sought Jackson credits for the period from July 2013 (when the children returned to the United States) through October 2019 (when Shahriyar filed the RFO’s). However, Zohreh testified that, starting in September 2013, she and Shahriyar agreed to an equal timeshare in which they each had the children for one week at a time. According to Zohreh, this 50/50 timeshare continued until June 2016, when Layla began living primarily with Zohreh while Shane lived primarily with Shahriyar. Even after the June 2016 change in timeshare, Zohreh continued to have Shane two weekends per month and during his winter, spring, and summer breaks. Zohreh further testified that when the children were in her care, she paid for their food, clothing, and other living expenses. As the appellate court recognized in In re Marriage of Okum, the obligor parent is not entitled to Jackson credits where the other parent continues to provide the child with substantial care and support. (In re Marriage of Okum, supra, 195 Cal.App.3d at p. 182 [father was not entitled to Jackson 14 credits where mother “had substantial custody of [child] and … incurred expenses in raising him”].) While Shahriyar’s testimony about each parent’s timeshare conflicted with that of Zohreh, it was for the trial court to assess the credibility of the testimony and resolve conflicts in the evidence. (Ibid.) The trial court did not abuse its discretion in finding that Zohreh’s continued care and support of the children weighed against awarding Shahriyar Jackson credits. Moreover, the trial court reasonably found that Shahriyar failed to provide sufficient evidence of his payment of childcare expenses to support his request for Jackson credits. As the court explained, although Shahriyar was not required to keep a line-by-line accounting of the money he spent caring for the children, he did need to “show actual in-home support for the applicable period of time.” However, Shahriyar did not offer evidence of his payment of the children’s expenses beyond his own testimony, which the trial court found was not credible. The court also found that Shahriyar’s testimony about his income lacked credibility because it was at odds with his tax returns and his claimed expenses. Shahriyar thus failed to show that he satisfied his child support obligation by providing the children with direct support that “was equal to or in excess of the court-ordered amount.” (In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1076.) The trial court accordingly did not abuse its discretion in denying Shahriyar’s request for Jackson credits. Shahriyar’s remaining arguments on appeal likewise lack merit. In his appellate brief, Shahriyar appears to challenge Commissioner Korn’s May 3, 2022 recommended order, finding that Zohreh was not disentitled from enforcing the child support 15 arrears owed by Shahriyar. As the Attorney General correctly asserts, Commissioner Korn’s recommended order was not a final, appealable order, and it was superseded by the July 17, 2023 order issued by Judge Convey following the de novo hearing on Shahriyar’s October 2019 RFO’s. (See Fam. Code, § 4251, subd. (c) [where there is a timely objection to a commissioner’s recommended order, a de novo hearing is held before a regularly appointed judge].) The only appealable order that is properly before this court is the July 17, 2023 order. Shahriyar also appears to contend that, in issuing the July 17, 2023 order, Judge Convey erred by failing to award Shahriyar credits for the children’s extracurricular and medical expenses as well as the travel expenses that he incurred when the children were residing in the United Kingdom. The record reflects that the issues before Judge Convey on Shahriyar’s October 2019 RFO’s were whether Shahriyar was entitled to Jackson credits for the period from July 2013 to October 2019 when the children were purportedly in his care, and to a modification of his child support obligation from October 2019 forward. In denying the request for Jackson credits, the trial court found that Shahriyar failed to provide credible evidence of the amounts that he allegedly spent on the children’s expenses during the applicable time period. To the extent Shahriyar is now claiming that he also should have been awarded credits for expenses incurred prior to July 2013, he did not request that relief at the lengthy evidentiary hearing before Judge Convey. Prior to issuing the July 17, 2023 order, Judge Convey also held two additional hearings with the parties to address any disputes over the scope and language of the order. There is no indication that Shahriyar asked the court to provide him with additional 16 credits for unreimbursed extracurricular, medical, or travel expenses in determining the amount owed in child support arrears. On this record, Shahriyar has failed to demonstrate error in the trial court’s July 17, 2023 ruling. DISPOSITION The July 17, 2023 order is affirmed. Respondent Los Angeles County Child Support Services Department shall recover its costs on appeal.

VIRAMONTES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.