Filed 10/6/26 Marriage of Nese and Chang 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ALPER NESE and H052691
MINHEE CHANG. (Santa Clara County
Super. Ct. No. 23FL003014)
ALPER NESE,
Appellant,
v.
MINHEE CHANG,
Respondent.
In this pending marital dissolution proceeding, appellant Alper Nese challenges
two trial court orders requiring him to pay child support and seek gainful employment.
He contends that the trial court abused its discretion by calculating support using an
incorrect custody timeshare percentage, by wrongfully imputing income to him, and by
requiring him to seek employment even though he was already working at his own
startup company. Respondent Minhee Chang has not participated in this appeal. We
therefore decide the appeal based solely on Nese’s opening brief and the record he
provided (Cal. Rules of Court, rule 8.220(a)(2)), and we conclude that he has not carried
his burden of demonstrating reversible error.1 We affirm.
1 All future rule references are to the California Rules of Court.
I. BACKGROUND2
Nese filed the present petition for dissolution of his marriage to Chang in 2023.
Nese and Chang have one son born in 2011.
A. Nese’s Request for Order
In June 2024, Nese filed a request for order (RFO) seeking an initial determination
regarding guideline child support, temporary spousal support, and attorney’s fees and
costs. Although he was “working on his startup” company, he claimed he had no income
while Chang had a “six figure” salary, and the “balance of hardship strongly favor[ed] the
need for spousal support” from Chang to him. Nese submitted an income and expense
declaration claiming employment since 2019 as co-founder and CEO of cogniDNA in
Palo Alto, working 40 hours per week but getting paid “$0” per month. He was 44 years
old and held bachelor’s and doctoral degrees in chemistry. He alleged a “50 percent”
timeshare with Chang in connection with his child, although he also acknowledged that
this was a “rough estimate,” as the parties did not have an established parenting plan.
Chang opposed the RFO, asserting that the parties did not have a 50/50 timeshare
with their son, as Nese’s housing situation was unstable, and “[w]hen he has overnights
with our son, they either sleep in an Airbnb or in [Nese’s] car.” She requested guideline
support based on the parties’ actual time spent with their son, which she said was
Mondays through Fridays and most weekends with her, and 28 percent with Nese.
2 During the pendency of this appeal, Nese filed three petitions for writs of
supersedeas in an effort to stay the trial court orders at issue, as well as a request for an
expedited ruling (erroneously captioned as a motion for in camera review). This court
denied each of the petitions. In those filings, Nese had also indicated an intention to
appeal the trial court’s orders permitting Chang to travel internationally with their son.
But Nese’s opening brief on appeal addresses only the support orders, and the travel
dates have now passed. Accordingly, we deem any challenge to the authorization of
international travel to be both forfeited and moot. (See Nagel v. Westen (2021)
59 Cal.App.5th 740, 752 [failure to raise issue in opening brief “ ‘waives the issue on
appeal’ ”].)
2
Chang noted that Nese was “highly educated, healthy and capable of working,” and so
she requested that the trial court require him to seek work and impute a minimum wage to
him until he secured employment. Her income and expense declaration reported her
wages at $10,417 per month.
At an initial hearing on August 26, 2024, the trial court continued the matter to
September 16, 2024. As stated in the minute order, the parties were “to meet and confer
regarding imputation at minimum wage, vocational assessment or any other ideas parties
can agree upon” before the September hearing. According to the trial court’s register of
actions and a declaration filed for a later hearing, Chang filed a declaration addressing
financial support issues on September 17, 2024. This document was not included in the
record on appeal, and so we do not know its contents. We also do not have the
September 16, 2024 minute order, so we have no information about what happened at
that hearing.
On October 3, 2024, Chang filed another declaration requesting that the trial court
impute income of $10,416 per month to Nese ($125,000 annually) and order him to seek
income-earning employment consistent with his education, experience, and abilities. She
stated that Nese was last employed as a scientist in 2016 and 2017, earning between
$110,000 to $125,000 per year. She attached (1) Nese’s online biography from Carnegie
Mellon University outlining his prior education, experience, publications, patents,
presentations, and awards, (2) two recent job postings for local scientist positions offering
salaries between $120,000 and $155,000, and (3) her proposed guideline child support
calculation.
On October 14, 2024, the trial court entered its findings and order from the
initial August 26, 2024 hearing. The order stated, “The parties agree[d] that [Nese’s]
current timeshare is 28%,” and it directed them to meet and confer regarding
imputation of income to Nese, a vocational evaluation, and “the industry standard
income” for someone in his position.
3
On October 21, 2024, the trial court held another continued hearing on Nese’s
RFO, with both sides present. According to the minute order: “The Court[’]s tentative is
to impute $125,000 to [Nese]. [¶] The Court will allow imputation at $125,000 annually
as [Nese’s] salary.” The trial court adopted Chang’s proposed child support calculation
and ordered Nese to pay guideline child support to Chang of $662 per month. The trial
court also granted Chang’s request for a “Seek Work Order” against Nese. The court
subsequently entered its findings and order on January 13, 2025.
B. Nese’s Notice of Appeal and Settled Statement
Nese filed his notice of appeal on November 7, 2024, after the August 26 and
October 21 hearings but before the trial court entered its formal findings and order. We
deem Nese’s notice of appeal to have been timely filed immediately after the January 13,
2025 order. (Rules 8.100(a)(2), 8.104(d)(2) & (e).)
Because no court reporter was present at any of these hearings, Nese elected to
proceed on this appeal by way of a settled statement under rule 8.137. The trial court
rejected Nese’s initial proposed settled statement and ordered him to “remove argument,
statements of law, and interpretations of law from the proposed settled statement.”
Additionally, the court ordered Nese “to add the following … regarding the 10/21/2024
hearing: [¶] The court considered [Chang’s] October 3, 2024 declaration, and its exhibits,
in evaluating [Nese’s] ability and opportunity to obtain employment,” and ordered Nese
to attach Chang’s declaration and exhibits to the settled statement. Nese’s amended
settled statement did not incorporate all of these corrections, prompting the trial court to
direct him again to “remove argument and speculation from the proposed settlement
statement” and specifying the exact language to be removed.
On September 9, 2025, the trial court certified Nese’s revised settled statement,
even though it continued to include language the court had ordered to be removed. The
certified settled statement indicates that no party or witness testified at either the
August 26, 2024 or October 21, 2024 hearings, although it also includes Chang’s
4
October 3, 2024 declaration and its attachments, and it reflects no objections to these
documents. The certified statement sets forth Nese’s reasons for his appeal, including
that the “28% timeshare cited by opposing counsel [and used to calculate child support]
was from a prior schedule and did not reflect [the] current custody arrangement,” that
there was no evidence of “employment records, salary history, or expert evaluations” to
support the income imputed to him, and that he “expressed concern” regarding the seek
work order because he was already running a business even if not “drawing a salary.”
As for the trial court’s findings, the certified statement indicates that the court
“signed an order after the August 26, 2024 hearing that included a 28% timeshare, though
this number was not confirmed during the hearing.” In addition, at the October 21, 2024
hearing, “the judge imputed a $125,000 income to [Nese]” and ordered child support
“based on that figure and issued a seek-work order. [Nese] attempted to speak about the
support calculation but was not allowed to.”
II. DISCUSSION
Nese argues that the trial court erred by: (1) using a 28 percent timeshare to
calculate child support even though he did not agree to it, (2) imputing income to him
without substantial evidence, and (3) issuing a seek work order absent evidence he was
deliberately underemployed or acting in bad faith to remain underemployed. For the
reasons set forth below, we are not persuaded by these arguments.
A. The Standard of Review
We review child support and temporary spousal support orders under an abuse of
discretion standard. (In re Marriage of Hein (2020) 52 Cal.App.5th 519, 529 (Hein)
[child support]; In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104 [temporary
spousal support].) A “seek work” order is reviewed under the same standard. (Barron
v. Superior Court (2009) 173 Cal.App.4th 293, 298–299.) “When conducting an abuse
of discretion review, appellate courts consider (1) whether the trial court’s factual findings
are supported by substantial evidence, (2) whether the trial court followed applicable
5
legal principles, and (3) whether the trial court reasonably exercised its discretionary
authority—that is, whether any judge reasonably could have made such an order.
[Citations.]” (Hein, supra, at p. 529.)
B. The Trial Court’s Reliance on a 28 Percent Timeshare
Nese first argues that the October 21, 2024 child support order was flawed because
it relied on the earlier August 26, 2024 order, which stated, “The parties agree that
[Nese’s] current timeshare is 28%.” Nese maintains that he entered into no such
agreement, and so the proposed order submitted by Chang’s counsel and signed by the
court was improper.
According to California Rules of Court, rule 5.125, Nese had the opportunity to
object to Chang’s proposed order after the August 26 hearing by submitting documents to
the trial court, including an alternate proposed order. The record does not show that he
did so. The forfeiture rule applies when a party fails to object to the language of a
proposed order when given the opportunity to do so. (City of San Marcos v. Coast Waste
Management, Inc. (1996) 47 Cal.App.4th 320, 328.) Thus, Nese’s objections to the
August 26 order have been forfeited on appeal.
Even if we were to reach Nese’s argument on the merits, we would reject his claim
that there was no basis for a 28 percent timeshare at the August 26, 2024 hearing. In his
notice designating the record on appeal, Nese submitted a declaration describing the
August 26 hearing as follows: “The opposing party’s attorney stated that she calculated
my time spent with my son and determined it was 28%. I responded that I believed I had
spent more time with my son but agreed to the 28% timeshare as a historical
calculation . . . so the judge could calculate child support.” And in his response to
Chang’s proposed order after the August 26 hearing, Nese informed Chang’s attorney,
“I thought indeed I spent more time than 28% but agreed not to go deep into schedule
arguments.” At least for purposes of the August 26, 2024 hearing, Nese’s own statements
6
confirm his understanding that a timeshare of 28 percent would be used by the trial court
to “calculate child support.”
The certified settled statement includes references by Nese that the 28 percent
“number was not confirmed during the [August 26] hearing,” and that he “explained
that the 28% timeshare was from a prior schedule and did not reflect the current
arrangement.” But that language does not directly contradict the basis for using the
number to calculate child support. Indeed, even if Nese expressed doubt about whether
the number remained accurate, he does not claim at any point to have presented an
alternative timeshare percentage in connection with the August 26 hearing or the
October 21 hearing.
Nese also argues that under In re Marriage of Drake (1997) 53 Cal.App.4th 1139,
1170 (Drake), a remand is required here because the trial court’s written order contained
findings not reflected in the court’s oral ruling or minute order. Respectfully, Nese
misreads the case. Drake stands for the proposition that a “trial court’s oral ruling on a
motion does not become effective until it is filed in writing with the clerk or entered in
the minutes.” (Ibid.) Drake expressly permits the trial court to enter a written order that
departs from its oral rulings when those rulings are not reflected in the minutes:
“Accordingly, the trial court may properly file a written order differing from its oral
rulings when the rulings have not been entered in the minutes of the court.” (Ibid.)
Rather than undermine the trial court’s order, Drake supports the trial court’s authority to
do exactly what it did in this case.
For these reasons, Nese has not carried his burden to show an abuse of discretion in
calculating guideline child support based on a 28 percent timeshare.
C. Nese’s Earning Capacity
Next, Nese argues that the trial court erred by imputing an annual income of
$125,000 to him without “vocational testimony, labor-market evidence, or findings
regarding a available employment consistent with [his] circumstances.” The law does not
7
require these specific categories of evidence, and so this argument is also without
foundation.
Family Code section 4058 provides that “the court may, in its discretion, consider
the earning capacity of a parent in lieu of the parent’s income, consistent with the best
interests of the children.” (Id., subd. (b)(1)(B).) In making that determination, the court
must consider the parent’s specific circumstances, such as his or her “employment and
earnings history, job skills, educational attainment, literacy, age, health, criminal record
and other employment barriers,” as well as “the local job market, the availability of
employers willing to hire the parent, prevailing earnings levels in the local community,
and other relevant background factors affecting the parent’s ability to earn.” (Id.,
subd. (b)(2).) Where there is evidence of both ability and opportunity to work, income
may be imputed. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331,
1338 (LaBass).) “ ‘[T]he pertinent inquiry is whether substantial evidence supports the
court’s finding—not whether a contrary finding might have been made.’ [Citation.]”
(In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 380 (Ankola).)
The trial court’s findings as to Nese’s earning capacity were based on Chang’s
October 4, 2024 declaration and exhibits showing that Nese held multiple degrees in
chemistry (including a Ph.D.), had academic and scientific work experience, and
previously earned between $110,000 and $125,000 as a scientist in 2017. The evidence
also identified comparable and available positions in the local labor market with annual
salaries ranging from $120,000 to $155,000. Nese did not raise any objections to
Chang’s evidence, nor does he contend on appeal that such evidence should have been
excluded.
On this record, substantial evidence established that Nese had both the ability and
opportunity to earn $125,000 annually, consistent with the best interests of the parties’
minor child, and the trial court did not abuse its discretion in imputing income in that
amount.
8
Nese claims that earning capacity may be established only through vocational
expert testimony or a formal “labor-market analysis,” but he cites no authority for this
claim. The law imposes no such requirement. Although the trial court may order a
parent to submit to a vocational examination to assess earning capacity (Fam. Code,
§ 4331), neither such an examination nor expert testimony is a statutory prerequisite to
determining earning capacity, as any competent admissible evidence will suffice. (See
LaBass, supra, 56 Cal.App.4th at pp. 1338–1339 [local newspaper’s want ads were
sufficient to establish a parent’s opportunity to work]; see also Ankola, supra,
53 Cal.App.5th at p. 380 [“ ‘The testimony of one witness, even that of a party, may
constitute substantial evidence.’ [Citation.]”].)
In short, Nese cannot demonstrate error in the court’s imputation of income to him
in calculating the amount of support.
D. The Propriety of the Seek Work Order
Relying on In re Marriage of Simpson (1992) 4 Cal.4th 225 (Simpson) and In re
Marriage of Regnery (1989) 214 Cal.App.3d 1367 (Regnery), Nese contends that “[a]
seek-work order requires evidence of deliberate underemployment or underemployment
undertaken in bad faith.” Because he remained actively employed by his start-up
company despite receiving no income from that employment,3 he asserts that the
evidence did not support an inference that he was deliberately underemployed or acting
in bad faith, and the trial court therefore abused its discretion in issuing the seek work
order.
3 In his brief, Nese asserts, without citation, that at the October 21 hearing, he
informed the trial court that he was “receiving compensation that includes equity interests
vesting over time.” He does not elaborate on the alleged amount or value of this
compensation. Because this statement finds no factual support in the record, we do not
consider it. (Rule 8.204(a)(1)(C); Miller v. Superior Court (2002) 101 Cal.App.4th 728,
743.)
9
“California has a strong public policy in favor of adequate child support.
[Citations.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) Both
parents “have an equal responsibility to support their child in the manner suitable to the
child’s circumstances.” (Fam. Code, § 3900; see also Id., § 4053, subds. (a)–(d).)
Consistent with those policies, a court may require an unemployed or underemployed
parent who is in default of a child support order to submit evidence that the parent is
seeking employment (Fam. Code, § 4505, subd. (a)), and it may also require the parent to
“attend job training, job placement and vocational rehabilitation, and work programs.”
(Fam. Code, § 3558.)
Nese’s reliance on Simpson and Regnery is misplaced. Neither case concerned a
seek work order. Rather, both cases addressed the circumstances under which a court
may consider earning capacity in lieu of actual income when calculating support.
(Simpson, supra, 4 Cal.4th at pp. 233–236; Regnery, supra, 214 Cal.App.3d at pp. 1372–
1376.) Additionally, neither decision stands for the proposition that evidence of bad faith
or deliberate underemployment is required in order to determine earning capacity.
(Simpson, supra, at p. 233 [declining to decide whether earning capacity is limited only
to situations of deliberate suppression of income]; Regnery, supra, at pp. 1372–1373
[trial court must consider ability, willingness and opportunity to work]; see also In re
Marriage of Kochan (2011) 193 Cal.App.4th 420, 428 [“bad faith is not a required
factor”].)
In short, Nese has not demonstrated that the trial court’s seek work order was an
abuse of discretion.4
4 Nese does not challenge the trial court’s authority to issue a seek work order in
the absence of an existing child support order or a finding that a parent is in default. We
therefore assume, without deciding, that the court had such authority. (Haley v.
Antunovich (2022) 76 Cal.App.5th 923, 927, fn. 1 [assuming without deciding that trial
court had authority to issue a seek work order against nondefaulting parent where
appellant raised only sufficiency of the evidence contentions].)
10
III. DISPOSITION
The trial court’s support orders are affirmed. Given the absence of any
respondent’s brief, in the interests of justice, the parties shall bear their own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
11
CHUNG, J.
WE CONCUR:
GROVER, ACTING P. J.
LIE, J.
Nese v. Chang
H052691
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.