Simmons v. Balch CA4/1

California Court of Appeal · D064424 · 2014-07-28 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. DF225067
Trial judge: Adam Wertheimer (commissioner)
Outcome: affirmed — Affirmed.
Area: family
Panel: Gilbert Nares (author), O'Rourke, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:56Z · confidence high

The trial court denied James Balch's motion to modify a child support order, finding he failed to meet his burden of proof by not providing current and complete income evidence. The Court of Appeal affirmed the denial, holding that the trial court did not abuse its discretion in relying on the lack of admissible, current financial declarations.

Ruling reviewed	Standard	The court	The model
Denial of motion to modify child support order “Due to the parties' failure to comply with the job contacts orders and the lack of evidence to either impute or determine income, the trial court found that Balch failed to meet his burden of proof to support modification of the November 2012 order.”	abuse of discretion	correct	agree with court agree with court

Authorities

relied: In re Marriage of Bodo (2011) 198 Cal.App.4th 373 — Establishes the abuse of discretion standard of review for child support modification determinations.
relied: In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353 — Defines the scope of abuse of discretion review as checking for substantial evidence and reasonable exercise of discretion.
relied: In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281 — Holds that a parent must introduce admissible evidence of changed circumstances as a necessary predicate for modification.
relied: In re Marriage of Gruen (2011) 191 Cal.App.4th 627 — Requires that financial information used for child support calculations be current as of the time of the hearing.
relied: In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572 — Supports the conclusion that a party cannot demonstrate abuse of discretion when relying on outdated income and expense declarations.

The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard and cites appropriate authority regarding the requirement for current, admissible financial evidence in child support modifications. It logically connects the appellant's failure to provide updated declarations to the trial court's lack of basis to modify the order.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court denied James Balch's motion to modify a $209-per-month child support order, finding after three hearings that he had not met his burden of proof because he filed the wrong (and later stale) financial form and the parties' incomplete job-contact compliance left no evidence from which to determine or impute income; it reinstated the November 2012 order. The Court of Appeal reviewed for abuse of discretion and affirmed, holding Balch failed to present admissible, current evidence of changed circumstances as required by Brinkman and rule 5.260.

Ruling reviewed	Standard	The court	The model
Denial of motion to modify child support for failure to meet burden of proof of changed circumstances; reinstatement of the November 2012 $209 order “the trial court found that Balch failed to meet his burden of proof to support modification of the November 2012 order.”	abuse of discretion	correct	agree with court Brinkman places on the moving parent the burden to introduce admissible evidence of changed circumstances, and the record shows Balch filed a simplified financial statement the court twice told him was the wrong form, never filed a complete income and expense declaration, and submitted conflicting income figures ($1,500 vs. $0). On that record the trial court acted within its discretion. However, the opinion does not squarely address Balch's documented custody change (court order increasing timeshare from 25% to 38%) or his request at the May hearing to recalculate using the November 2012 incomes with the new timeshare, which is a distinct changed-circumstance argument; Simmons disputed the timeshare, so the trial court could still reasonably decline, but the appellate opinion skips this point.
Finding that Balch's simplified financial statement was the wrong form and, by the August hearing, not a current income and expense declaration under rule 5.260 “Because the only evidence in support of the modification request was an outdated income and expense declaration, Balch cannot demonstrate that the court abused its discretion in denying his motion.”	abuse of discretion	correct	agree with court Rule 5.260(a) requires a current income and expense declaration for child support hearings, with 'current' defined as within three months; Balch's April 19, 2013 filing was more than three months old at the August 5, 2013 hearing, and the court had expressly ordered him in May to file a complete declaration with proof of income. Gruen supports the requirement that financial information be current as of the hearing. The appellate court's alternative ground is consistent with the rule and the cited authority.

Authorities

relied: In re Marriage of Bodo (2011) 198 Cal.App.4th 373 — A trial court's determination whether to modify a child support order is reviewed for abuse of discretion.
relied: In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353 — Under abuse of discretion review the appellate court asks whether factual findings are supported by substantial evidence and whether the court acted reasonably.
relied: In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281 — A parent seeking modification of child support must introduce admissible evidence of changed circumstances as a necessary predicate for modification.
relied: In re Marriage of Gruen (2011) 191 Cal.App.4th 627 — Financial information used to set or modify support must be current as of the time of the hearing.
relied: In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572 — A moving party who fails to provide the court with adequate current financial evidence cannot show abuse of discretion in denial of a support modification.

The appellate opinion: sound with gaps — The opinion correctly applies the abuse of discretion standard and the Brinkman burden on the moving party, and the record quoted (wrong form, conflicting income claims, stale declaration, express warnings from the bench) supports affirmance. It leaves gaps by not addressing the documented timeshare increase as an independent changed circumstance or Balch's request to use prior incomes with the new timeshare, by not noting that the trial court's reference to 'the parties' failure' to make job contacts applied mainly to Simmons rather than Balch, and it contains a clerical misnaming of the appellant as 'Simmons' in the introduction.

How this analysis was made · dispute it

Opinion

Filed 7/28/14 Simmons v. Balch CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JENNIFER SIMMONS, D064424

Respondent, v. (Super. Ct. No. DF225067)

JAMES BALCH,

Appellant;

SAN DIEGO DEPARTMENT OF CHILD SUPPORT SERVICES,

Respondent.

APPEAL from an order of the Superior Court of San Diego County, Adam Wertheimer, Commissioner. Affirmed.

James Balch, in pro. per., for Appellant.

No appearance for Respondent Jennifer Simmons. Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Catherine A. Ongiri, Deputy Attorneys General, for Respondent San Diego County Department of Child Support Services.

This appeal arises from the court's denial of appellant James Balch's motion to modify a child support order which requires he pay child support in the amount of $209 per month. Balch asserted his income and custody of his child changed and this warranted a modification of the support order. Respondent San Diego Department of Child Support Services (the Department) argued in response that Balch failed to provide credible income evidence to warrant a modification.

On appeal Simmons, appearing in propria persona, asserts the court erred in denying his modification motion because (1) each parent has an equal obligation to support their minor child, (2) the court did not consider each parent's actual income and custody in calculating the child support award, and (3) that failure was reversible "per se." We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Balch and Jennifer Simmons are the unmarried parents of a child born in 2009.

On November 9, 2012, Balch was ordered to pay child support in the amount of $209 per month effective November 1, 2012. The calculation attached to the order indicated Balch had visitation with their child at 25 percent and that both Balch and Simmons had a gross income of $1,755 per month in wages.

On April 19, 2013, Balch filed a motion to modify the November 2012 child support order. In support of the motion, Balch attached a proposed stipulation and a 2 custody and visitation order issued April 10, 2013. Balch alleged his visitation with his child increased from 25 percent to 38 percent. His proposed guideline child support calculation reflected he had an income of $1,500 per month. However, in his "simplified" financial statement he declared he was currently unemployed with a gross income of $0 per month, with child care expenses of $400 per month and rent of $600 per month.

Balch's motion was heard on May 20, 2013.1 The Department, Simmons and Balch appeared at that hearing. Simmons and Balch were sworn. Simmons requested a continuance to file a response and because the parties had an additional court date regarding custody and visitation at the end of May. Balch objected to the continuance and requested the court modify the order using the same income as the November 2012 order and a 38 percent visitation timeshare factor with his child. The court inquired as to the parties' current employment status. Balch indicated that he had stopped working two weeks prior. Simmons testified that she was unemployed and her unemployment benefits were ending.

The court indicated it was inclined to set temporary support at $0 since neither party had income and to continue the matter for the parties to make job contacts.

Simmons objected to the $0 order and requested the trial court impute income to Balch.

The court explained that imputation requires specific evidence and that the issue could be 1 On March 27, 2014, the Department filed a motion to augment the record to include the reporter's transcript and minute orders from the May 20 and June 17 hearings, which were not included in the record on appeal filed by Balch. On April 16, 2014, we granted that motion. 3 addressed at the future hearings. The court noted that the simplified financial statement Balch filed was the wrong form and ordered him to file a complete income and expense declaration. The trial court found that neither party had income and set temporary child support at $0 effective May 1, 2013, without prejudice, ordered both parties to make a minimum of 10 job contacts per week, ordered the parties to file updated income and expense declarations with proof of income, and continued the matter to June 17, 2013.

The Department, Balch and Simmons appeared at the June 17, 2013 hearing.

Balch presented 23 job contacts and Simmons presented 9. Simmons again requested the trial court impute income to Balch and disputed the 38 percent visitation timeshare factor used in Balch's proposed child support calculation. The trial court continued the matter to August 5, 2013, and reiterated each party must seek 10 job contacts per week.

The Department, Balch and Simmons appeared at the August 5, 2013 hearing.

Balch provided 54 out of the 70 job contacts ordered and Simmons provided none. Due to the parties' failure to comply with the job contacts orders and the lack of evidence to either impute or determine income, the trial court found that Balch failed to meet his burden of proof to support modification of the November 2012 order. The trial court reinstated the November 9, 2012 order of $209 per month effective August 1, 2013.

DISCUSSION

I. STANDARD OF REVIEW

The trial court's determination whether modification of a child support order is warranted is reviewed for an abuse of discretion. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.) When applying the abuse of discretion standard, the reviewing 4 court is limited to "determining whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.)

II. ANALYSIS

Balch asserts that there were significant changes in his employment and custody of the minor child and that this alone required the trial court to grant his request to modify the November 2012 support order. However, he did not present sufficient admissible evidence to justify a modification.

A parent seeking to modify a child support order must "'introduce admissible evidence of changed circumstances as a necessary predicate for modification.'" (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1288, 1292.)

Guideline support places the interests of children as the state's top priority. (Fam.

Code,2 § 4053, subd. (e).) Moreover, the Family Code provides each parent should pay for the support of the children according to his or her ability. (§ 4053, subd. (d).) Thus, the trial court may consider earning capacity in lieu of actual income provided it is consistent with the best interests of the children. (§ 4058, subd. (b).)

As the court found, Balch failed to provide the trial court with the evidence necessary to determine either his actual income or his earning capacity. As we noted, ante, the court notified Balch at the May 20 hearing that the simplified financial statement was the wrong form and ordered him to file a complete income and expense 2 All further statutory references are to the Family Code. 5 declaration. The court told Balch that to modify the November 2012 order it needed "current, complete, income and expense declarations with proof of income, filed and served in advance." The court therefore lacked the necessary evidence to evaluate the factors it was required to consider under section 4053.

Moreover, even if the court could consider modifying child support based upon the simplified financial statement filed by Balch, the financial information had to be current as of the time of the hearing. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 640-641.) California Rules of Court, rule 5.260(a) provides that for all hearings involving child support both parties must complete, file and serve a current income and expense declaration. "Current" is defined as being completed within the past three months. (Cal. Rules of Court, rule 5.260(a)(3).)

Balch filed his simplified financial statement on April 19, 2013. That is more than three months prior to the August hearing. Because the only evidence in support of the modification request was an outdated income and expense declaration, Balch cannot demonstrate that the court abused its discretion in denying his motion. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 576.)

6 DISPOSITION

The order is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

Cites, in this corpus

Bodo v. Bodo No. H035659 · 2011-08-12
Gruen v. Gruen No. D055950 · 2011-01-04
In Re Marriage of Tydlaska D041180 · 2003-11-19
In Re Marriage of Brinkman H024600 · 2003-09-11
Guigne v. Guigne No. A091882 · 2002-04-30