Filed 8/17/22 Marriage of H.A. and B.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of San Diego County, Lizbet Muñoz, Commissioner. Affirmed.

Monica A. Bennett for Appellant.

The Curran Law Firm and Michaela C. Curran for Respondent H.A.

Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Gregory D. Brown and Darin L. Wessel, Deputy Attorneys General, for Respondent County of San Diego.

B.R. (Mother) appeals from the family court’s order of October 2, 2020, which ruled on her request to modify the child support she pays to H.A. (Father) for the support of their minor child. Mother also contends that her attorney, Monica Bennett, should not have to pay the $900 that she was ordered to pay to Father’s counsel pursuant to Code of Civil Procedure section 473, subdivision (b).

Mother raises a number of contentions, all of which we conclude are without merit. Accordingly, we affirm the family court’s October 2, 2020 order, as well as the order requiring Ms. Bennett to pay $900 to Father’s counsel.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father were married for seven years and 10 months. In 2009, Mother and Father had a daughter (Daughter). A petition for dissolution was filed in 2014, and a bifurcated judgment dissolving the marriage was entered in 2015.[1]

Mother currently lives in England with a new husband and their child, born in December 2017. Father lives in San Diego County with Daughter, and Mother has visitation with Daughter.

On October 31, 2017, the family court ordered Mother to pay $248 per month in child support.[2] In making that order, the family court imputed income for Mother at $1,657 per month, and for Father at $1,733 per month, and it found that Mother had “not made a good faith effort to seek employment.” The family court applied a state tax rate of 3.51% to Mother’s imputed income. The order assumed a noncustodial timeshare for Mother of ten percent.

On May 29, 2018, the current child custody order was put in place. As reflected in that order, Father has primary physical custody. Mother may visit Daughter in San Diego County for up to seven consecutive days, as well as in the United States during Daughter’s summer vacation and on alternating spring breaks and winter breaks.

On August 20, 2018, Mother filed a request to modify child support. As changed circumstances she cited (1) the revised timeshare arrangement in the May 29, 2018 custody order; (2) the recent birth of her new child; and (3) her current economic condition. Mother specifically requested (1) a recalculation of child support based on the changed timeshare arrangement; (2) a hardship deduction under Family Code sections 4071 and 4072; (3) a low-income adjustment under Family Code section 4055, subdivision (b)(7); and (4) a downward departure from the guideline child support amount “to avoid leaving [her] family with an insufficient income” to meet needs for “basic subsistence.” She also argued that, due to her need to care for her new child, income should not be imputed to her.

The hearing on Mother’s request to modify child support was continued several times. Ultimately, the family court set a hearing for February 28, 2020. Father and his counsel appeared for the scheduled hearing, but Mother and Ms. Bennett did not. After waiting 45 minutes past the time set for the hearing, the family court dismissed Mother’s request to modify child support.

On August 11, 2020, the family court held a hearing on Mother’s request for relief from its dismissal of her request to modify child support. Ms. Bennett declared that she did not appear at the February 28, 2020 hearing because she made a mistake and believed it was scheduled for 10:00 a.m. Father did not oppose the relief sought by Mother, but he did request the setting of a motion for sanctions under Family Code section 271 on the date of the continued hearing. The family court granted relief based on mistake pursuant to Code of Civil Procedure section 473, subdivision (b).[3] In doing so, it awarded reasonable compensatory fees for the attorney fees incurred by Father in connection with the February 28, 2020 hearing.[4] Specifically, the family court ordered Ms. Bennett to pay $900 directly to Father’s counsel. The family court clarified that its order regarding the $900 was separate from Father’s request for sanctions under Family Code section 271, which it would consider at the upcoming hearing on Mother’s request to modify child support.[5]

On October 2, 2020, the family court held a remote hearing on Mother’s request to modify child support, at which both Mother and Ms. Bennett appeared. The record before the family court contained several income and expense declarations that Mother filed after her request to modify child support was originally filed in August 2018. The final income and expense declaration filed by Mother on September 21, 2020, stated that Mother had been employed in a restaurant from September 2019 until March 2020, when her employer closed because of the pandemic. She stated, “I earned approximately 7.9 UK pounds per hour. I worked an estimated 28 hours per week. In September 2019 I earned 950 GBP gross per month, which presently converts to $ 1,224.29 USD.” Mother also stated that her new husband had been unemployed since August 2019. The declaration showed that Mother received $1,152 in August and September 2020 in governmental COVID assistance.

After considering, among other things, evidence of Father’s income, as well as the actual timeshare exercised by Mother in the past two years, the family court found that there were changed circumstances based on Father’s income and the parties’ timeshare, as well as due to the temporarily reduced opportunity of Mother to earn income during the first months of the pandemic. The family court rejected Mother’s request for it to depart from guideline child support: “Let me make the record clear. There’s no evidence to support a low-income adjustment. There’s no evidence to support a deviation. And there’s not substantial evidence that the Court is satisfied with and that is credible to support a hardship.” The family court’s minute order stated in relevant part:

“The Court does find[ ] that since the date of filing in 09/2018, there has been a change of circumstance meriting a modification of support. The change has been as to the timeshare being exercised by Mother, and Father’s income.

“Effective 09/01/2018, child support is $248 per month payable from [Mother] to [Father]

“Effective 01/01/2019, child support is $300 per month payable from [Mother] to [Father]

“Effective 01/01/2020, child support is $314 per month payable from [Mother] to [Father]

“Effective 04/01/2020, child support is $148 per month payable from [Mother] to [Father]

“Effective 10/01/2020, child support is $383 per month payable from [Mother] to [Father]

“Except for the time period of 04/01/2020-09/30/2020, the Court continues to impute minimum wage to [Mother] based upon UK wages. By stipulation of the parties, the court looks up the conversion of pounds to dollars. The Court finds during the time period of 04/01-09/30/20, there was no opportunity of [Mother] and will utilize the UK [COVID] monies she received to calculate support.

“The Court finds there is no credible evidence for a hardship[,] a deviation or a low income adjustment.”

Mother filed a notice of appeal, identifying the order from which she was appealing as the order from the October 2, 2020 hearing.[6]

II.

DISCUSSION

A. Mother Has Not Established a Denial of Due Process at the October 2, 2020 Hearing

Mother first argues that she was deprived of due process at the October 2, 2020 hearing because of malfunctions in the MS Teams application used to conduct the remote hearing. She argues that the “problem with the MS Teams platform . . . robbed [Mother] of her Due Process right to effectively argue and object to the case issues during these proceedings.” As a remedy, Mother requests that we “remand the matter for further hearing.”

Although Mother’s argument concerns the October 2, 2020 hearing, she repeatedly cites to examples of technological malfunctions during an otherwise-unexplained August 2, 2021 hearing, which is not part of the appellate record. Moreover, for those instances in which she does cite to the October 2, 2020 reporter’s transcript, Mother does not provide accurate record citations. The reporter’s transcript is numbered from pages 202 to 264. Mother cites to pages 2, 3, 48, and 60.

Based on our own review of the reporter’s transcript from the October 2, 2020 hearing, the technical difficulties consisted primary of (1) counsel for Father losing her video connection in the middle of the hearing and having to participate by telephone; and (2) the video connection for Ms. Bennett freezing up near the end of the hearing, while the family court was making its findings, requiring her to also participate by telephone and causing her to have missed a portion of the proceedings. Specifically, Ms. Bennett explained when she rejoined the hearing that she had missed approximately the prior five minutes of the proceedings. The family court asked Ms. Bennett what she had last heard. It then picked up again at that point in its ruling to ensure that Ms. Bennett did not miss anything.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citations.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) We reject Mother’s due process argument because Mother has not identified any manner in which she failed to receive a meaningful opportunity to be heard due to the technical difficulties. In connection with this appeal, Mother has been able to review the reporter’s transcript of the October 2, 2020 hearing, including the proceedings that took place while Ms. Bennett was disconnected. Mother has not identified any specific instances of unfairness or inability to meaningfully participate as a result of the technical difficulties.

Further, Mother has not identified anything that she would present at a new hearing that she did not have the opportunity to present on October 2, 2020 due to any technical difficulties. Thus, Mother has failed to establish any prejudice from the alleged due process violation or any basis for her requested remedy of remand to the family court. (Cal. Const., art. VI, § 13 [reversal is warranted only if the appellant establishes a miscarriage of justice].)

B. Mother Has Forfeited Her Argument That the Family Court Should Have Considered the Foreign Earned Income Exclusion and an International Treaty in Determining Her Income Available for Child Support

A significant portion of Mother’s appeal focuses on her contention that the family court erred because it failed to consider the foreign earned income exclusion (26 U.S.C. § 911) and the Convention with Great Britain and Northern Ireland regarding Double Taxation and Prevention of Fiscal Evasion, July 24, 2001, T.I.A.S. No. 13161 (the Convention) when calculating her imputed income available for child support.[7] Although Mother’s briefing is disorganized, the relevant argument heading in Mother’s opening appellate brief states that her net imputed income would have been set at zero for the purpose of calculating her child support obligations had the family court applied those sources of law.

We need not, and do not, reach the merits of Mother’s contention that the foreign earned income exclusion and the Convention have any relevance in this matter. A party generally may not raise a new issue for the first time on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528.) As specifically relevant here, this forfeiture rule is applicable when an appellant contends, for the first time on appeal, that the family court should have used different tax assumptions in calculating guideline child support. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1001-1002 (Hinman) [party could not argue on appeal that the family court should have applied different federal withholding exemptions or included certain tax deductions when she did not raise those issues below].)

Mother did not present any argument in the family court concerning either the foreign earned income exclusion or the Convention, in any context, including with respect to the calculation of her income or the tax assumptions applied by the family court. Accordingly, Mother has forfeited her ability to raise those arguments for the first time on appeal.

C. Mother Has Forfeited Her Contention That the Family Court Should Not Have Used the California Guideline Child Support Calculator

Mother next contends that the family court erred in using the County’s California Guideline Child Support Calculator in calculating the appropriate child support order.[8] She contends the use of the California Guideline Child Support Calculator was not appropriate because she is domiciled in the United Kingdom (U.K.). Specifically, Mother contends that the California Guideline Child Support Calculator did not properly take into account that her “wages are subject to taxes and deductions in England, including but not limited to the national tax rate, a national insurance deduction, and a pension deduction.” She suggests that the family court should have employed a computer program that the U.K. uses to calculate child support, or that it should have referred to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, November 23, 2007. (See Fam. Code, § 5700.102 [referencing that treaty].)

Mother has forfeited this argument because she did not raise it in the family court. (Hinman, supra, 55 Cal.App.4th at pp. 1001-1002.) A party must bring a challenge to the calculation of child support in the family court as a prerequisite to raising a challenge to that calculation on appeal. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 37 [appellant could not for first time on appeal challenge the allocation of certain income to him in calculating support]; In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 (Whealon) [to conserve judicial resources, a party must first challenge child support calculation errors in the family court].)

Citing the reporter’s transcript from the October 2, 2020 hearing, Mother contends that she has not forfeited the argument because Ms. Bennett “did challenge the use of the U.S. tax settings to calculate a net income for [Mother] who resides in England.” Based on our review of the record, that is not an accurate description of the proceedings. Ms. Bennett raised the subject matter of U.K. tax deductions. However, when informed that the family court was using the same tax deduction setting as used by the family court in making the previous support order in 2017 (based on a state tax rate of 3.51 percent), Ms. Bennett did not object or argue for a different approach.

Specifically, the following exchange took place:

“MS. BENNETT: . . . If we’re going to use UK dollars, are we also using a UK tax deduction from those dollars for my client as well as exception for her national experience.

“THE COURT: We’re setting her income at minimum wage of head of household and two. That is the evidence that would be appropriate and that’s before the Court. If there’s any question regarding tax settings, I don’t have any evidence that that—why that would be improper.

“MS. BENNETT: So you’re using US tax settings to deduct to arrive at a net income for my client who resides in England; is that correct?

“THE COURT: The Court is using the tax settings that are defaulted in the system, unless you have evidence to show that that is incorrect.

“MS. BENNETT: Are those default tax settings US deductions?”

The family court then turned to counsel for the County for information about the tax settings.

“[COUNTY COUNSEL]: Okay. When I looked at how the order from October 31st, 2017 was run, I saw that Commissioner Roberts had used a state tax rate for her at 3.51 percent. So I just continued to use that in the calculation.

“THE COURT: Okay. Yes, that’s what—I didn’t change that. That has been the tax rate, that whatever was Commissioner Roberts’, now Judge Roberts’ findings, those have been confirmed and ratified. So that did not change. So all of these findings that the Court has made have been with the tax settings and findings that Commissioner Roberts made back in—on October 31st, 2017, where she imputed minimum wage to Mother based on pounds in England. And so that didn’t change.”

After the family court delivered the rest of its findings, Ms. Bennett raised the issue again,

“MS. BENNETT: . . . But before we leave the child support, you said you reverted to the 12 settings. Are those the default settings that are with DissoMaster? So those are US federal settings and California State settings? Do we have some specific findings? Is it US or the federal tax rate for a person who’s in England?

“THE COURT: Again, these tax settings are the same tax settings that Commissioner Roberts made back on October 31st in 2017. The Court did not disturb that in any way. So whatever she found back at that time, the Court is not disturbing that. The Court is just making changes as to the timeshare, as to Father’s wages, and continuing with the imputation of minimum wage, as Commissioner Roberts found back in October.”

The family court informed Ms. Bennett that she would be receiving printouts of all of the calculations, including the tax settings. It then moved on to other issues. Ms. Bennett never argued to the family court that the tax settings it was applying were erroneous, and she never argued that it would be error for the family court to use the California Guideline Child Support Calculator. Mother has accordingly forfeited her ability to argue on appeal that the family court erred in either of those respects. (Whealon, supra, 53 Cal.App.4th at p. 144 [in the context of child support calculations, “any errors must be brought to the trial court’s attention at the trial level while the error can still be expeditiously corrected.”].)

D. Mother Has Not Established That the Family Court Abused Its Discretion in Imputing Income to Her

We next consider Mother’s contention that the family court erred in not granting her request to modify the previous child support order, which imputed income to her based on minimum wage.

“California has adopted a ‘statewide uniform guideline’ for determining child support according to a complex formula based on each parent’s income and custodial time with the child. . . . The child support amount the formula establishes is rebuttably presumed to be the correct amount, and the court may order a different amount only in limited circumstances and only after making certain findings. . . . [¶] The Family Code grants the trial court discretion to impute income to a parent based on his or her ‘earning capacity.’ ([Fam. Code, ]§ 4058, subd. (b).) Specifically, [Family Code] section 4058, subdivision (b) states, ‘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.’ ” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1245-1246.) “The Family Code does not define earning capacity, but its meaning has been established through case law. . . . ‘ “Earning capacity is composed of . . . the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications . . . and . . . an opportunity to work. . . .” . . .’ . . . ‘The “opportunity to work” exists when there is substantial evidence of a reasonable “likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income.” ’ ” (Id. at p. 1246.)

“A child support order may be modified when there has been a material change of circumstances.” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1048 (Cryer).) A party seeking a modification of an order imputing income in calculating child support has the burden to establish a change in circumstances. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303-1304 (Bardzik).) Thus, to obtain a modification of the previous order imputing income to her, Mother had the burden to show a material change of circumstance in her ability and opportunity to earn full time minimum wage income.

A “trial court’s determination to grant or deny a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found from examining the record below.” (In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1371.) Further, we review a “trial court’s decision to impute income to a parent for child support purposes based on the parent’s earning capacity . . . under the abuse of discretion standard.” (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.)

The family court found that the only change in circumstance with respect to Mother’s ability and opportunity to earn minimum wage income was during the pandemic-related business shut down, namely April through September 2020. It found that outside of those months, Mother had not demonstrated that she lacked the ability and opportunity to earn an income, notwithstanding the birth of her child in December 2017. Therefore, it modified the order imputing income to Mother based on U.K. minimum wage only for April through September 2020.

Under her argument heading stating “Imputation of Income to [Mother] Was an Abuse of Discretion” (capitalization, bolding, and underscoring omitted), Mother briefly sets out the applicable law on imputation of income, but she makes only a cursory one-sentence argument on the issue. Specifically, she states, “Appellant asks the Court to find that the imputation of income in this case was an abuse of discretion and that the imputation order should be set aside.”

“The absence of cogent legal argument . . . allows this court to treat the contentions as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke); see also United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 (United Grand) [“ ‘In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.’ . . . We may and do ‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.’ ”].) Mother has waived her appellant challenge to the family court’s imputation of income to her because she has provided nothing but a bare request for relief without any argument in support.

We note that under a completely different argument heading (regarding her request for a downward departure from guideline child support due to special circumstances), Mother makes a brief argument concerning the imputation of income. She states, “In the instant case, [Father] never produced any credible evidence regarding [Mother’s] ability and opportunity to work in [her specific city in] England. [Father] only produced an allegation regarding the minimum wage in England. [Mother] asks the Court to find that this was an insufficient production of inadmissible evidence to substantiate an imposition of minimum wage on [Mother]. We certainly know that from March of 2020 forward the entire country was closed, including [Mother’s] employer, due to the COVID epidemic. [¶] [Mother] asks the Court to find that it was an abuse of discretion to impute minimum wage, at 40 hours per week, to her in this case.”

We reject this argument for multiple reasons. First, we may disregard the argument because it does not appear in the section of Mother’s brief under the argument heading “Imputation of Income to [Mother] Was an Abuse of Discretion” (capitalization, bolding, and underscoring omitted). (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 [“We may disregard arguments not properly presented under appropriate headings.”].) Second, even were we to consider the argument, it lacks merit because it depends on a misunderstanding of the burden of proof in a request to modify child support. In this proceeding to modify child support, it was Mother’s burden to establish a basis to modify the previous order imputing income to her, not Father’s burden to establish that the imputation of income was appropriate. (Bardzik, supra, 165 Cal.App.4th at pp. 1303-1304.) Finally, there was ample evidence before the family court to support its finding that, aside from the period impacted by the pandemic, Mother continued to have the ability and opportunity to work, even after the birth of her child in December 2017. Specifically, Mother submitted evidence that she was in fact employed from August 2019 to March 2020.

E. Mother Has Not Established That the Family Court Abused Its Discretion in Declining to Depart Downward from Guideline Child Support Based on Any of the Grounds She Identifies

Mother contends that the family court erred in concluding that there was no credible evidence to support a departure from guideline child support on any of the grounds she identified, namely, (1) a hardship deduction to her gross income (Fam. Code, §§ 4070, 4071, subd. (b), 4072); (2) a low-income adjustment (id., § 4055, subd. (b)(7)); (3) a special circumstances adjustment (id., § 4057, subd. (b)(5)) based on the cost of travel to exercise visitation with Daughter; and (4) a special circumstances adjustment (ibid.) based on her household’s financial condition. We consider each in turn.

1. Hardship Deduction

When the family court calculates the net disposable income of a parent in setting guideline child support, it is authorized to make a deduction from a parent’s gross income “for hardship, as defined by [Family Code] [s]ections 4070 to 4073, inclusive, and applicable published appellate court decisions.” (Fam. Code, § 4059, subd. (g).) Family Code section 4070 states, “If a parent is experiencing extreme financial hardship due to justifiable expenses resulting from the circumstances enumerated in [Family Code] [s]ection 4071, on the request of a party, the court may allow the income deductions . . . necessary to accommodate those circumstances.” (Italics added.) As relevant here, Family Code section 4071 states that “[c]ircumstances evidencing hardship include . . . [¶] . . . [t]he minimum basic living expenses of either parent’s natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent.” (Fam. Code, § 4071, subd. (a)(2).)

The hardship deduction “is not a ‘foregone conclusion’ on the birth of new children” but depends on “the family’s income, as well as purported expenses,” bearing in mind that one’s “responsibility as a parent ‘s not to seek to provide less for some of [the parent’s] children because [the parent] had others, but to provide adequately for all of them.’ ” ([i]In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382, italics added.) The decision to order a hardship deduction is within the discretion of the family court. (Whealon, supra, 53 Cal.App.4th at p. 145.)

Mother sought a hardship deduction based on the birth of her new child in December 2017. In her declaration, Mother stated, “Our household spends approximately 150 UK pounds each month for our new baby’s food, clothing, diapers, and miscellaneous expenses. This is approximately $200.00/month in US dollars. A hardship deduction is appropriate to spread the resources which are available for child support [for] my new baby and her older sister who is the subject of these proceedings.” She also stated that “[m]y husband and I are living at or below the poverty line in England.” However, Mother provided only minimal information about the financial resources available to her household from her new husband, limiting that evidence to an otherwise unsupported claim that her husband was “unemployed” since August 2019 and submitting one month of an earnings statement from an employer of her husband for June 30, 2018.

Based on the limited evidence submitted by Mother, the family court could reasonably conclude that Mother did not submit sufficient evidence to support her contention that the approximate additional expense of $200 per month for the maintenance of a new child gave rise to extreme financial hardship for her household. A family court may take into account the financial resources of a new spouse in deciding whether a household is experiencing financial hardship due to the birth of a new child. (Whealon, supra, 53 Cal.App.4th at p. 145 [“it is perfectly reasonable to take into account the fact that a new spouse may be earning income in determining the hardship deduction for the expenses of a child of that spouse”].) Here, because Mother submitted only minimal evidence regarding her new husband’s financial resources, the family court reasonably could conclude that Mother did not establish that her household would experience extreme financial hardship due to the birth of her new child unless it ordered a deduction to her imputed gross monthly income.

2. Low-Income Adjustment

Mother contends that the family court erred because it did not apply the low-income adjustment set forth in Family Code section 4055, subdivision (b)(7).

That provision states, “In all cases in which the net disposable income per month of the obligor is less than one thousand five hundred dollars ($1,500), adjusted annually for cost-of-living increases, there is a rebuttable presumption that the obligor is entitled to a low-income adjustment. . . . The presumption may be rebutted by evidence showing that the application of the low-income adjustment would be unjust and inappropriate in the particular case. . . . The low-income adjustment shall reduce the child support amount otherwise determined under this section by an amount that is no greater than the amount calculated by multiplying the child support amount otherwise determined under this section by a fraction, the numerator of which is 1,500, adjusted annually for cost-of-living increases, minus the obligor’s net disposable income per month, and the denominator of which is 1,500, adjusted annually for cost-of-living increases.” (Fam. Code, § 4055, subd. (b)(7).)

Mother bases her contention that the family court did not apply the low-income adjustment in Family Code section 4055, subdivision (b)(7) on the statement in the family court’s minute order that “[t]he Court finds there is no credible evidence for a hardship[,] a deviation or a low income adjustment.”[9] (Italics added.) According to Mother, the family court should have applied the low-income adjustment because her imputed income was below the threshold to trigger it.

However, as the County points out in its respondent’s brief, the printouts from the California Guideline Child Support Calculator attached to the family court’s October 2, 2020 minute order show that the family court did apply the low-income adjustment described in Family Code section 4055, subdivision (b)(7). The County explains, “When it came to calculating child support, the guideline calculations used by the trial court show that the statutory low-income adjustment was actually applied since each of the calculations provided a range for the basic child support amount. . . . This occurs when the low-income adjustment is triggered. In each of the time periods, the trial court applied the lowest amount of child support in the guideline indicated support range.” (Italics added.) Mother makes no attempt in her reply brief to dispute this point. Based on the County’s citations to the record, we conclude that Mother cannot establish that she is entitled to any relief with respect to the low-income adjustment described in Family Code section 4055, subdivision (b)(7), as the family court did, in fact, apply that adjustment.

3. Cost of Travel

Mother requested that the family court consider the cost of her travel to the United States to visit Daughter as a special circumstance warranting a downward deviation from guideline child support pursuant to Family Code section 4057, subdivision (b)(5). That provision states that a court may deviate from guideline child support if “[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case.” (Fam. Code, § 4057, subd. (b)(5).) The family court denied the request to deviate from guideline child support.

As support for her contention that the family court erred in denying her request, Mother cites Wilson v. Shea (2001) 87 Cal.App.4th 887 (Wilson). Wilson held that, in an appropriate case, the cost of visitation may be a sufficient basis to support the family court’s decision to deviate from the guideline amount in a move-away case. (Id. at p. 894 [“it is perhaps not too much to say that one can indeed perceive times when ‘equity or logic’ would justify lowering child support so as to facilitate visitation in the wake of a move-away”].) Specifically, Wilson held that the family court was within its discretion to make an order putting into trust some of the noncustodial parent’s monthly child support to fund travel so that the noncustodial parent could visit his child after the custodial parent moved away from California to South Carolina. (Id. at pp. 895-896.) As support for its conclusion that the family court was within its discretion to make that order, Wilson cited both “the sheer distance and daunting logistics of visitation” between California and South Carolina, and “the additional factor of active interference by the custodial parent with the noncustodial parent’s relationship with his child,” based on which “ncreased visitation is particularly needed . . . to repair the damage.” ([i]Id. at p. 895.)

A family court has “ ‘broad discretion’ ” to determine whether or not a special circumstance applies under Family Code section 4057, subdivision (b)(5). (Cryer, supra, 198 Cal.App.4th at p. 1049.) In the context of a special circumstance deviation, “[o]n review, ‘[w]e 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 Rodriguez (2018) 23 Cal.App.5th 625, 636.) Although Wilson, supra, 87 Cal.App.4th 887, holds that a family court has the discretion to consider a noncustodial parent’s travel expenses for visitation as a basis for departing from guideline child support, Wilson does not require a family court to exercise its discretion to do so.

Here, it was reasonable for the family court to choose not to exercise its discretion to deviate from guideline child support based on Mother’s travel expenses. Although the family court did not state its reasons, it could have concluded that Mother would be able to visit Daughter, even without a deviation from guideline child support, based on Mother’s statement in her declaration that she was able to borrow money from her family to travel to the United States to visit with Daughter. Further, the family court could have determined that, unlike in Wilson, there was no “active interference by the custodial parent with the noncustodial parent’s relationship with [the] child” to justify deduction of the visitation expenses from the child support payment. (Id. at p. 895.)[10]

4. Special Circumstances Due to Extreme Financial Hardship

Mother contends that a second special circumstance warrants a deviation from guideline child support under Family Code section 4057, subdivision (b)(5). Relying on City and County of San Francisco v. Miller (1996) 49 Cal.App.4th 866 (Miller), Mother argues that a family court may “reduce the presumptive child support to zero when the payment of child support would leave the obligor with insufficient funds for basic subsistence.”[11] Mother contends that the family court abused its discretion in not deviating from guideline child support on this basis because her “household income in relation to the expenses demonstrated that [Mother’s] household was experiencing an extreme financial hardship.”

We reject this argument for the same reason that we reject Mother’s argument that the family court erred in denying the hardship deduction under Family Code section 4070. Specifically, Mother’s argument relies on the financial condition of her household, but the family court could reasonably conclude that Mother did not submit credible evidence about the financial condition of her household, as she submitted only minimal evidence about her new husband’s financial resources.

Moreover, Mother’s argument regarding financial hardship is based on what she identifies as her actual income, rather than the imputed full-time minimum wage income that the family court found Mother had the ability and opportunity to earn. “Each parent should pay for the support of the children according to the parent’s ability.” (Fam. Code, § 4053, subd. (d), italics added.) In light of Mother’s imputed income, the family court did not abuse its discretion in declining to deviate from guideline child support based on Mother’s contention that her limited household income gave rise to a financial hardship.

F. The Challenge to the Family Court’s Order That Ms. Bennett Pay $900 Is Without Merit

The final issue concerns Mother’s challenge to the family court’s August 11, 2020 order that Ms. Bennett pay $900 to counsel for Father to compensate Father for the cost of the February 28, 2020 hearing at which Ms. Bennett mistakenly failed to appear. As we have noted, the family court made the order based on Code of Civil Procedure section 473, subdivision (b), which states, “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”[12]

We reject the challenge to the family court’s order because the appellate argument is conclusory and undeveloped. The entirety of the legal argument consists of the following: “Counsel now asks the Court to strike the fee award as violative of the notice requirements which are established by Due Process as is stated in the U.S. Constitution 5th and 14th Amendments, California Constitution Article I section 7.” As we have explained, “The absence of cogent legal argument . . . allows this court to treat the contentions as waived.” (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830; see also United Grand, supra, 36 Cal.App.5th at p. 153 [“We may and do ‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.’ ”].) Because Mother’s appellate brief does not attempt to explain how the family court’s order violated the notice requirements of due process and does not cite any legal authority beyond the federal and California constitutions, we treat the argument as waived. Ms. Bennett must make a prompt payment of $900 to Father’s counsel.[13]

DISPOSITION

We affirm the family court’s October 2, 2020 order, as well as the August 11, 2020 order requiring Mother’s counsel, Monica Bennett, to pay $900 to Father’s counsel. Father shall recover his costs on appeal.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.

[1] Numerous proceedings have occurred in this action, resulting in a Register of Actions in the family court that was 52 pages long at the time the appellate record was created. As the family court described, “there ha[ve] been many motions filed in this case . . . —too many to count.” We do not discuss that history and instead limit our discussion to the procedural history that is relevant to the issues presented in this appeal.

[2] On our own motion, we have augmented the appellate record to include the family court’s October 31, 2017 minute order.

[3] Code of Civil Procedure section 473, subdivision (b) states that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In granting relief, the family court noted that Father disputed the explanation by Ms. Bennett about why she did not appear at the February 28, 2020 hearing.

[4] The statute provides, “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).)

[5] Father subsequently withdrew his request for sanctions. In his September 10, 2020 declaration withdrawing the request for sanctions, Father stated “Attorney Monica Bennett has not paid the $900 she was ordered to pay my counsel at the August 11, 2020 hearing. I respectfully request this court admonish Ms. Bennett and order them due forthwith.”

[6] Both the County of San Diego Department of Child Support Services (the County) and Mother have filed requests for judicial notice. We deny both the County’s request (filed March 24, 2022) and Mother’s request (filed May 13, 2022), as the documents at issue are not necessary to our resolution of this appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not “necessary, helpful, or relevant”].)

[7] Mother states that her most recent residence in the United States was in Nebraska. Accordingly, as part of her argument, Mother also cites Nebraska income tax law to show that the foreign earned income exclusion is relevant to tax liability under Nebraska law.

[8] Family Code section 4055 sets out the mathematical formula to be applied to parents’ incomes in calculating child support. (Fam. Code, § 4055, subds. (a), (b).) Because Family Code section 4055 “involves, literally, an algebraic formula,” courts may use an approved computer program to make the guideline child support calculation. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523 & fn. 2, 524; see also Fam. Code, § 3830 [court may use only approved software to calculate support].) In this case, because the County was involved, the family court was required to use the California Guideline Child Support Calculator. (Cal. Rules of Court, rule 5.275(j) [“In all actions for child or family support brought by or otherwise involving the local child support agency . . . , the Department of Child Support Services’ California Guideline Child Support Calculator software program must be used by: [¶] (A) Parties and attorneys to present support calculations to the court; and [¶] (B) The court to prepare support calculations.”].)

[9] During the hearing, the family court stated, “There’s no evidence to support a low-income adjustment.” The minute order apparently reflects that statement.

[10] On our own motion, we have augmented the appellate record to include the family court’s December 5, 2017 minute order denying Mother’s request that Father be ordered to pay the travel costs associated with Mother’s visitation with Daughter. The minute order states, “TRAVEL COSTS: [¶] This is a request that can be properly filed before this court and family court. [¶] 1. [Mother] moved out of country by choice. [¶] 2. Court does not find that [Father] has the ability to pay travel costs. [¶] The Court hereby denies the [Mother’s] request for [Father] to pay travel costs.” In denying Mother’s request to deviate from guideline child support based on her travel expenses, the family court could reasonably have relied on the grounds set forth in the December 5, 2017 minute order as well.

[11] Miller held that the family court did not abuse its discretion in deviating from guideline child support when the father would otherwise have been left with $14 per month on which to live and to feed his child during his 20 percent timeshare, after paying rent and guideline child support. (Miller, supra, 49 Cal.App.4th at pp. 868-869.)

[12] Mother herself is not aggrieved by the order to pay $900, which was directed solely against her attorney. Therefore, unless we construe Mother’s notice of appeal as including Ms. Bennett, there would be no party to this appeal with standing to challenge the order requiring Ms. Bennett to pay $900. (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67-68 [“Injurious effect on another party is insufficient to give rise to appellate standing. A ‘party cannot assert error that injuriously affected only nonappealing coparties.’ ”].) In an abundance of caution, in light of our Supreme Court’s opinion in K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, we will construe Mother’s notice of appeal to include Ms. Bennett, and we will accordingly proceed to address the merits of Mother’s argument. (Id. at p. 885 [“we conclude that a reviewing court must construe a notice of appeal from a sanctions order to include an omitted attorney when it is reasonably clear that the attorney intended to join in the appeal, and the respondent was not misled or prejudiced by the omission.”].) Moreover, we note that Mother did not identify the August 11, 2020 order in her notice of appeal. Nevertheless, we will deem that order to be within the scope of this appeal due to the correspondence we received from Ms. Bennett in response to our request that Mother clarify the order from which she was appealing. That correspondence identified, among others, the “attorney fee order” from August 11, 2020.

[13] Father briefly requests at the end of his respondent’s brief that “[Mother] and or her counsel be ordered to pay his attorney fees and costs for this appeal.” Father has not cited any authority for his request, and we therefore reject the request as insufficiently supported by citation to legal authority.