Filed 10/23/26 Fugfugosh v. Ariyadej 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ADAN FUGFUGOSH, H053503
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 24CS001223)
v.
LYNN ARIYADEJ,
Defendant and Respondent.
Adan Fugfugosh appeals the superior court’s order declining to modify his child
support payments to respondent Lynn Ariyadej. Fugfugosh, representing himself, argues
the trial court abused its discretion by: (1) failing to determine Ariyadej’s income or
earning capacity; (2) failing to consider cost-of-living differences between Fugfugosh’s
California residence and Ariyadej’s residence in Minnesota; and (3) relying on
Fugfugosh’s temporary, nonrecurring overtime to establish his income.
I. BACKGROUND
Fugfugosh moved the trial court to modify an order for him to pay child support to
Ariyadej. The original child support order is not contained in the appellate record.
Fugfugosh provided the court an income and expense declaration with his motion and he
attached earning statements from his employment.
The court denied Fugfugosh’s motion. The appellate record does not contain a
transcript of the motion hearing, and Fugfugosh’s brief states that no court reporter was
provided at the hearing. An order after hearing lists three children Fugfugosh was
required to support. The order after hearing states in full: “The Court finds or has
previously made a finding of proper service on Mother. [¶] Motion is denied due to an
insufficient showing of a change in circumstances. [¶] Existing orders remain in full
force and effect.”
Fugfugosh appealed the trial court’s order, and he failed to comply with the
procedure to timely obtain a settled statement of the record of proceedings in the superior
court.
II. DISCUSSION
Fugfugosh argues the trial court abused its discretion in establishing the amount of
child support by not determining Ariyadej’s income or earning capacity, by not
considering differences in the cost of living between the parties’ residences, and by using
Fugfugosh’s overtime to establish his income. Ariyadej did not file a brief in this matter.
The Santa Clara Department of Child Support Services, participating in this appeal as a
respondent, also did not file a brief. Consequently, we decide the appeal based on the
record, the opening brief, and Fugfugosh’s presentation at oral argument. (Cal. Rules of
Court, rule 8.220(a)(2).)
Except as otherwise provided, “a support order may be modified or terminated at
any time as the court determines to be necessary.” (Fam. Code, § 3651, subd. (a).) “The
statutory procedures for modification of a child support order ‘require a party to
introduce admissible evidence of changed circumstances as a necessary predicate for
modification.’ [Citation.] ‘The burden of proof to establish that changed circumstances
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warrant a downward adjustment in child support rests with the supporting spouse.’
[Citation.]” (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234 (Williams).)
“In family law actions, postjudgment orders regarding modification of support are
appealable.”1 (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906.) We
review the denial of a request to modify child support for abuse of discretion, and “ ‘[t]he
ultimate determination of whether the individual facts of the case warrant modification of
support is within the discretion of the trial court. [Citation.]’ ” (Williams, supra,
150 Cal.App.4th at p. 1234; see id. at p. 1233.) “Under an abuse of discretion standard,
we review the trial court’s legal conclusions de novo and its factual findings for
substantial evidence, and we reverse its application of the law to the facts only if it was
arbitrary and capricious.” (Swan v. Hatchett (2023) 92 Cal.App.5th 1206, 1215.)
To demonstrate the trial court abused its discretion, Fugfugosh must provide a
record that allows us to meaningfully review the challenged order. (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “ ‘Failure to provide an
adequate record on an issue requires that the issue be resolved against
[appellant].’ [Citation.]” (Ibid.) Fugfugosh has not provided a record that allows us to
meaningfully review the trial court’s order denying child support modification. The
order after hearing reflects that the trial court denied Fugfugosh’s motion, but it sheds no
light on the trial court’s rationale other than its conclusion that Fugfugosh failed to
demonstrate a change in circumstances. We therefore cannot conclude that the trial court
abused its discretion by failing to account for the issues Fugfugosh raises on appeal. A
“cardinal rule of appellate review [is] that a judgment or order of the trial court is
presumed correct and prejudicial error must be affirmatively shown.” (Foust, supra, at
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This court initially ordered Fugfugosh to show cause why this appeal should not
be dismissed as untimely and/or taken from a nonappealable order. After considering
Fugfugosh’s reply, we discharged the order to show cause.
3
p. 187.) “ ‘In the absence of a contrary showing in the record, all presumptions in favor
of the trial court’s action will be made by the appellate court.’ ” (Ibid.)
No reporter’s transcript is included in the appellate record. Fugfugosh states this
is because no court reporter was available for his motion hearing. We note our Supreme
Court’s recent decision that the absence of a court reporter deprives appellants of a
verbatim record, and that “courts have a ministerial duty under [Jameson v. Desta (2018)
5 Cal.5th 594] and the in forma pauperis doctrine to provide indigent litigants, upon
request, with meaningful access in all cases to an official verbatim record of proceedings,
including by means of electronic recording if an official reporter or official reporter pro
tempore is unavailable.” (Family Violence Appellate Project v. Superior Court (2026)
20 Cal.5th 564, 596 (Family Violence Appellate Project).) However, the lack of a
verbatim record here does not allow us to impute error to the trial court.
“California jurisprudence has long recognized the availability of a settled
statement of proceedings at the trial court as a viable alternative to a reporter’s transcript
on appeal.” (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 933.) The appellate record
must contain a reporter’s transcript, an agreed statement, or a settled statement if “an
appellant intends to raise any issue that requires consideration of the oral proceedings in
the superior court . . . .” (Cal. Rules of Court, rule 8.120(b).) Within 10 days after filing
a notice of appeal, an appellant must designate the record on appeal, and if the appellant
“elects to proceed with a record of the oral proceedings in the trial court, the notice must
specify which form of the record listed in rule 8.120(b) the appellant elects to use.” (Id.,
rule 8.121(b)(1)(C).) In the notice designating the record on appeal, an appellant may
elect to use a settled statement as the record of the oral proceedings in the superior court
if the proceedings were not reported by a court reporter. (Cal. Rules of Court,
rule 8.137(a), (b)(1)(A).) To use a settled statement, Fugfugosh needed to “serve and file
in superior court with [his] notice designating the record on appeal under rule 8.121 a
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motion to use a settled statement instead of a reporter’s transcript.” (Id.,
rule 8.137(b)(2).)
Fugfugosh did not timely complete the process necessary to obtain a settled
statement.2 This court thus lacks an adequate record to review Fugfugosh’s assertions
that the trial court abused its discretion in denying his motion to modify child support.
The record does not contain any record of the oral proceedings of the motion hearing or
any other indication of the trial court’s rationale in denying child support modification.
We cannot impute error to the trial court without an adequate record, as an order denying
child support modification “ ‘will be reversed only if prejudicial error is found from
examining the record below.’ [Citation.]” (Williams, supra, 150 Cal.App.4th at
pp. 1233-1234.) The record before us provides no basis to allow us to conclude that the
trial court abused its discretion by not requiring Ariyadej to demonstrate her income, by
not considering differences in the parties’ cost of living, and by calculating Fugfugosh’s
income based on overtime.
At oral argument, Fugfugosh presented cogent arguments that his child support
payments should be modified due to significant financial hardship he is facing. His
option is to present these claims to the superior court in a new request to modify child
support, articulating how his current financial circumstances constitute a change in
circumstances warranting a downward adjustment in child support. Under our Supreme
Court’s recent decision in Family Violence Appellate Project, the superior court will be
required to provide a court reporter at any hearing on Fugfugosh’s request, and if a court
2
Fugfugosh moved this court for permission to use a settled statement, and this
court denied the motion without prejudice to a further showing why he failed to timely
designate the record of oral proceedings as required by California Rules of Court,
rules 8.121 and 8.137. Fugfugosh then filed a renewed motion “for permission to
proceed on appeal using a settled statement in lieu of a reporter’s transcript . . . .”
However, his renewed motion did not assert why he failed to timely designate the record
of oral proceedings. As a result, this court denied Fugfugosh’s renewed motion for a
settled statement.
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reporter is unavailable the superior court may utilize electronic recording to facilitate
completion of a verbatim record should Fugfugosh wish to appeal the superior court’s
action on his child support modification request. If a verbatim record is not provided for
some reason, Fugfugosh may seek the superior court’s approval of a settled statement.
To do so, he may serve and file with his notice designating the record on appeal a motion
in superior court to use a settled statement instead of a reporter’s transcript. (Cal. Rules
of Court, rule 8.137(b)(2).) While our decision does not prevent Fugfugosh from seeking
to modify the same support order at issue here, we express no opinion as to the merits of
the substantive issues he has raised.
III. DISPOSITION
The trial court’s order denying appellant Fugfugosh’s motion to modify child
support is affirmed without prejudice to Fugfugosh’s ability to bring a renewed motion,
as discussed herein. As respondent made no appearance in this appeal, there are no costs
to award.
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_______________________________
Greenwood, P. J.
WE CONCUR:
___________________________________________
Grover, J.
______________________________________
Danner, J.
H053503 Fugfugosh v. Ariyadej