Filed 3/13/13 M.V. v. J.V. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



M.V.,                                                               D061474

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. DS41687)

J.V.,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of San Diego County, Roderick W.

Shelton, Judge. Reversed.



         Appellant M.V. (Mother) appeals from a postjudgment order modifying and

eliminating certain child support obligations of the child's father, respondent J.V.

(Father). Those obligations were originally established by a stipulated judgment in this

paternity action that referred to Father's ownership of substantial assets from which the
support would be paid, without regard to his monthly income. (Fam. Code,1 §§ 3587,

4053 et seq., 7600 (the Uniform Parentage Act).) In the initial phase of this proceeding,

the family court denied Father's request to set aside the stipulated judgment, and that

order has not been challenged and is well supported by the record.

       Mother appeals the family court's order that (1) granted the motion by Father to

modify and decrease his stipulated support obligations in several respects, i.e., the

duration (from age 21 to age 18) and amount of the monthly payments (from $3,000 to

$928) and educational expenses, and (2) denied Mother's informal and formal motions to

continue the hearing for discovery of the value and existence of his assets, as they had

been referenced in the stipulated judgment. In its ruling, the court stated its view that the

parties' agreement was unfair, because it was different from the usual support orders, and

it should not be enforced. (§ 3901, subd. (a) [support obligation ordinarily runs until age

18 or high school completed].)

       On appeal, Mother contends the family court abused its discretion, acted without

sufficient support in the evidence, or exceeded its jurisdiction when it reduced the amount

and duration of the monthly support, and set aside or modified several educational

expense provisions in the stipulated judgment. She contends she showed ample grounds

for a continuance of the hearing to seek discovery about Father's assets, because he did

not file an income and expense declaration (I&E declaration) until shortly before the

April 6, 2011 hearing, to put his assets at issue.



1      All further statutory references are to the Family Code unless noted.
                                               2
       Representing himself on appeal, Father responds that Mother failed to supply

credible proof that he had any significant assets, as referred to in the stipulated judgment,

and the court was justified in denying her requested continuances for discovery. He

points out that his motion was originally filed in November 2010 and then continued, so

that Mother could have sought discovery earlier. He also claims the family court

correctly concluded on the available evidence that he had sufficiently shown a change of

circumstances regarding his monthly income and disability status, with respect to both

the monthly support and the educational expenses.

       We conclude Mother's challenges to the order are well taken, and the record

demonstrates that the family court lacked any adequate basis in the evidence to exercise

its discretion in the manner it did on the child support issues, and under all the relevant

circumstances, it was an abuse of discretion to deny the requested continuance to allow

further discovery about Father's assets. Moreover, the family court misinterpreted the

terms of the parties' agreement with respect to the duration of child support ordered and

the educational expense issues, and it erred in altering that agreement through these

modification proceedings, which constituted an impermissible collateral attack on the

stipulated judgment, but without a proper showing. (See In re Marriage of Stanton

(2010) 190 Cal.App.4th 547, 554.) We reverse the order.




                                              3
                                              I

                                      BACKGROUND

                     A. Stipulated Judgment on Paternity and Support

       We set forth only those facts that are relevant to the issues on appeal. The record

shows that the parties, who were never married, entered into a May 2010 stipulation for

entry of judgment establishing paternity of their daughter, born in 2006 (the stipulated

judgment or SJP, which resembles a marital settlement agreement (MSA) confirmed by a

judgment). The stipulation provides for sole legal and physical custody in Mother and

for Father to pay specified child support and expenses, and provides for a reservation of

jurisdiction to the court to resolve any disputes arising out of the agreement. Notice of

entry of judgment was given in May 2010.

       Although the stipulated judgment covers a number of topics, this appeal concerns

only the provisions for monthly child support, clothing expenses, and for support

payments for private high school, university expenses and possibly graduate school.

Regarding monthly child support, the SJP states that Father shall pay to Mother $3,000

per month for child support, as well as bearing all clothing, school uniform and shoe

expenses.2 The duration of this obligation was stated to be until the child reached the age

of 21 and is no longer a full-time student, or when she marries, dies, or completes her

university studies. The SJP states, "It is the parties' mutual desire that child support


2      The parties' agreement that Father would pay additional child support consisting of
the child's clothing expenses, including shoes and any school uniforms, does not mention
private elementary school, and the precollege agreement apparently was limited to the
child attending private high school.
                                              4
continue until the child has completed her university Baccalaureate and any postgraduate

degrees."

       Next, the agreement states that the parties had agreed upon the child support

amounts and expenses stated above, in light of Father's refusal in these proceedings to

provide any completed I&E declaration. However, Father represented by signing the

agreement "that he has the ability to pay all support and expense payments set forth in

this agreement and that he anticipates that he will have sufficient assets and income to

pay all of the child support and expenses," as had been set forth. "Father further

represents that the income from his current or future employment is not necessary for him

to meet the obligations set forth in this Agreement because the Father has sufficient assets

and other sources from which to pay the support and expenses," as above, and Father

represented himself to be a high income earner within the meaning of section 4057. The

agreement accordingly sets forth a presumption, based on Father's representations, that he

cannot request a downward modification of child support, "absent a very strong and

specific showing of changed circumstances." The parties acknowledged their rights

under California child support guidelines, along with their agreement to change that level

of child support.

       Regarding private high school expenses, paragraph 10A of the SJP states the

parties' mutual desire that the child would attend private high school and university, and

that Father would pay as additional child support 100 percent of private school tuition,

book costs, fees and associated expenses.



                                             5
       Regarding university expenses, paragraph 10C of the SJP states the parties' mutual

desire that the child attend college, "and possibly graduate school," after graduating from

high school, and that absent any other independent funding source, Father shall pay 100

percent of the cost of books, tuition, room, board, and fees for college or university, "in

the [child's] conscientious pursuit of an initial Baccalaureate and/or postgraduate degree."

    B. April 2011 Motion to Modify Support Amount; Denial of Motion to Set Aside

       In November 2010, Father filed a motion to set aside the SJP, or in the alternative

to modify custody and support. (Code Civ. Proc., § 473, subd. (b).) After a stipulated

continuance, he filed an I&E declaration two days before the April 6, 2011 hearing.

Both parties had legal representation, and Mother filed opposition papers. At the first

hearing, the trial court denied his request to set aside the SJP, and deferred the financial

issues for further hearings.

       At four days of hearings over several months, the court took declarations and

heard testimony from several witnesses, including the parties. Father sought to decrease

his monthly support obligation from $3,000 per month, because he stated he had

voluntarily resigned his job as a deputy attorney general with the Baja California office in

Mexico, and reduced his income from about $14,500/month to $0 (all in U.S. dollar

amounts). As of March 2011, he was on temporary disability for finger surgery. His

I&E declaration stated he had $150,000 in personal property, $2,500 cash, but no real

property. His 2009 tax return showed he had income of $172,513.50.

       In Father's I&E declaration of May 13, 2011, he stated that his monthly gross

income was now $4,652 per month, with total expenses of $3,860. A revised declaration

                                              6
dated May 17, 2011 showed a further reduction in income and expenses. He had

obtained a new job, district attorney supervisor, and was living in Tijuana in a

condominium for which his employee (Attorney Marcos Valenzuela) held title. Father

paid $350 monthly maintenance costs, not rent. He stated that he did not own any real

property or businesses, although his father Jorge Rodriguez-Pacheco (Grandfather) and

family owned several.

       In rebuttal, Mother filed declarations and her own I&E declaration, stating that

Father had resigned his position to obtain a higher position within the federal attorney

general system. She said Father owned or pursued a money lending business called Auto

Money, and he had five offices for this business and earned about $20,000 per month

from it, for a total monthly income of about $80,000 from his work and properties.

According to Mother, Father bought real estate in his mother's name and his brothers'

names. He had income from an inheritance from his grandmother, a tire warehouse in

Mexico City.

       Mother received some rental payments from Father for a warehouse that Mother

owned in Mexicali, that Father managed for her, although it was unclear whether those

payments were also in the nature of child support, as Father had reported them differently

to United States and Mexican authorities. Mother, also an attorney, operated a law

practice at a loss and she owned $200,000 in real and personal property. Her 2010 taxes

showed an income of $9,950. She was living in section 8 low income housing in the San

Ysidro area with the child and her other children. She claimed Father paid child support

to her up until February 2011.

                                             7
          C. May 2011 Mother's Motion for Continuance; August 2011 Ruling

       In May 2011, Mother provided a copy of a January 2010 real property purchase

agreement for a Coronado house, priced at $885,000, with Father and a friend listed as

the purchasers, and showing a cash deposit of $26,550. Mother orally requested that the

hearing be continued so that she could take discovery of the income and expenses that

Father listed, and others, and a ruling was deferred. Mother filed a written motion to

continue the financial issues on June 2, 2011, supported by her declaration about the

extent of her knowledge of assets that Father held in the name of others in Mexico. The

court denied any continuance at the June 17 hearing.

       Father filed further responses and lodged recent pay stubs. He testified that by

April 2011, he was using his savings to pay Mother the monthly $3,000 child support,

and the assets he held were the same both in May 2010, when the stipulated judgment

was entered, and in May 2011, at the time of the hearing.

       In July 2011, Mother lodged translated declarations from Father's half-sister and

from Grandfather, about their respective knowledge of assets that Father held in Mexico.

Mother updated her I&E declaration in August 2011. At the hearing, Mother testified

about her limited knowledge of the real properties and businesses that Father was

operating, as well as stating that he often received valuable gifts in the course of his legal

work for favors he gave. He drove cars that were registered in the names of others,

obtained gasoline subsidies from work, and did not pay rent. Father filed a rebuttal

declaration from Grandfather, denying he told Mother anything about Father's assets.

Father stated that he was not a corrupt official, and the gifts were not improper.

                                              8
       At the close of the August 5, 2011 hearing, the court issued a tentative and then a

final ruling, as an oral statement of decision. The court ordered that Mother and Father

should share joint legal custody, and Father had a 25 percent timeshare. The court stated

its belief that the stipulated agreement regarding child support past age 18 was not fair,

and the duration of the support obligation was reduced from age 21 to age 18, as the court

stated that was customary under section 3901.

       In explaining its support ruling, the court stated, "I'm going to only look at

evidence I have in front of me, and that's going to be payment stubs. With that being

said, when [Father] makes more money, [Mother] can always come back and ask for an

increase in child support, and that's just how it works. But for right now, I'm going to use

the income that I do have."

       The court next inquired whether Father's income on the pay stubs was in pesos or

dollars, and counsel discussed the income and deductions. Counsel for Mother stated that

the only recent tax return (2009) showed that Father had income of $172,513.50,

averaging out to $14,376.21 per month, from employment. She therefore argued he had

the ability to earn $14,000 per month, but due to the denial of her motion for discovery,

Mother had been unable to take his deposition to learn what his income was in 2010 and

to inquire into his bank accounts and other assets, including houses in Coronado, Tijuana,

and Mexico City. In response, the court said, "That's based upon [Mother's] testimony,

though, no physical evidence. That's only based on testimony." Counsel for Mother

responded, "Your Honor, the physical evidence exists, but since I haven't been able to do



                                              9
discovery" (due to Father's surgery schedule and lack of information about his assets),

she continued to object that no sufficient changed circumstances had been shown.

       The court then determined that Father had a gross salary of $5,180 per month (net

adjusted $4,629), and Mother's net income was $1,257. This calculation resulted in a

child support guidelines award of $928 per month, because the court said Father had met

his burden as far as a change of circumstances (being on disability since Mar. 2011), and

this was a temporary order, until he was back to working full time.

       Next, the court's order altered and decreased the stipulated educational expenses

obligations, regarding (1) private high school, from all expenses per month to $0;

(2) college, from all expenses to one-half of the expenses, (3) postcollege schooling, from

all expenses to $0. Other orders were made regarding insurance and attorney fees (not

contested here). Mother appeals.

                                              II

                                APPLICABLE STANDARDS

                                    A. Duty of Support

       "A parent's duty of support continues as to an unmarried child who has attained

age 18, is a full-time high school student, and is not self-supporting until the child

completes the 12th grade or reaches age 19, whichever occurs first." (§ 3901, subd. (a);

10 Witkin, Summary of Cal. Law (10th ed. 2008) Parent & Child, § 422, p. 528.)

"[Section] 3901[, subdivision] (a) does not limit a parent's ability to agree to provide

additional support or the court's power to inquire whether such an agreement has been

made. (§ 3901[, subd.] (b).)" (10 Witkin, supra, § 422, p. 528; § 4053 [each parent

                                             10
should support child to extent of ability]; M.S. v. O.S. (2009) 176 Cal.App.4th 548, 553-

557 [support principles applied in paternity case].)

       The Supreme Court has long recognized: "There is nothing in the law to prevent a

parent from contracting to support a child, minor or adult, married or unmarried. And

when the agreement . . . is founded upon sufficient consideration, the contractual

obligation is not measured by legal duties otherwise imposed. No principle of public

policy intervenes to prevent such a contract and the courts have no right by a process of

interpretation to release one of the contracting parties from disadvantageous terms

actually agreed upon." (Kamper v. Waldon (1941) 17 Cal.2d 718, 721.)

       A comparable written, signed agreement by married parents to increase court-

ordered child support payments is enforceable under ordinary contract law or through an

enforcement motion under Code of Civil Procedure section 664.6. (In re Marriage of

Armato (2001) 88 Cal.App.4th 1030, 1045-1047; Hogoboom & King, Cal. Practice

Guide: Family Law (The Rutter Group 2012) ¶¶ 17:25-17.25.5, pp. 17-10 to 17-11

(Family Law).) Any modification of such an agreement, and likewise of this paternity

settlement agreement, requires an evidentiary hearing on contested factual issues, and a

resulting judicial determination based on admissible evidence that showed a material

change of circumstances at the time the modification is sought. (In re Marriage of

Cheriton (2001) 92 Cal.App.4th 269, 298-299 (Cheriton).)




                                             11
                  B. Basic Rules of Review; Discretion of Family Court

       Appellate courts apply these standards of review to orders that modify statutory

child support obligations, as set forth in In re Marriage of Williams (2007) 150

Cal.App.4th 1221 (Williams):

          " '[A] determination regarding 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.' [Citations.] Thus, '[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.] The reviewing court will resolve any conflicts in the
          evidence in favor of the trial court's determination. [Citation.]'
          [Citation.] [¶] '. . . Furthermore, "in reviewing child support orders
          we must also recognize that determination of a child support
          obligation is a highly regulated area of the law, and the only
          discretion a trial court possesses is the discretion provided by statute
          or rule. [Citations.]" [Citation.] In short, the trial court's discretion
          is not so broad that it "may ignore or contravene the purposes of the
          law regarding . . . child support." ' " (Id. at pp. 1233-1234.)

       In considering if an abuse of discretion has occurred, the appellate court reviews

the record to determine if the court's factual determinations are supported by substantial

evidence: "Our review 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. [Citation.] We do not substitute our judgment for

that of the trial court, but confine ourselves to determining whether any judge could have

reasonably made the challenged order." (In re Marriage of De Guigne (2002) 97

Cal.App.4th 1353, 1360 (De Guigne).)

       For modification of a final child support order, the moving party (Father) had the

burden of showing changed circumstances. (Montenegro v. Diaz (2001) 26 Cal.4th 249,

                                             12
256; Williams, supra, 150 Cal.App.4th 1221, 1234.) At the appellate stage, Mother bears

the burden of showing that a prejudicial abuse of discretion occurred. (Maria P. v. Riles

(1987) 43 Cal.3d 1281, 1291.) Regarding her claims about the denial of her continuance

request, for purposes of discovery, the issue on appeal is whether the trial court abused its

discretion. "A motion for continuance is addressed to the sound discretion of the trial

court. [Citation.] However, ' "[t]he trial judge must exercise his discretion with due

regard to all interests involved, and the refusal of a continuance which has the practical

effect of denying the applicant a fair hearing is reversible error. [Citations.]" ' "

(Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, citing In re

Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)

                                       C. Effect of SJP

       Father's formal child support obligations originated in a paternity settlement

agreement and stipulated judgment confirming the agreement. Such an obligation is

"law-imposed" within the meaning of section 3585, because it requires payments arising

out of the parental relationship as confirmed by court order. (See Family Law, supra,

¶ 18:118-120, pp. 18-36 to 18-37.)3 Such an agreement may alter the usual statutory

child support obligation, that a parent is released from the legal duty of support of a

minor child when the child turns 18, graduates from high school or becomes


3      Section 3585 provides, "The provisions of an agreement between the parents for
child support shall be deemed to be separate and severable from all other provisions of
the agreement relating to property and support of the wife or husband. An order for child
support based on the agreement shall be law-imposed and shall be made under the power
of the court to order child support."

                                              13
emancipated. (§ 3901, subd. (a); 10 Witkin, Summary of Cal. Law, supra, Parent &

Child, §§ 421, pp. 527-528 [under § 3587, "Notwithstanding any other provision of law,

the court has authority to (1) approve a stipulated agreement by the parents to pay for the

support of an adult child or for the continuation of child support after a child attains age

18; and (2) make a support order to effectuate that agreement."].)4

       It is well established that parents can make an agreement to the contrary of statute,

to voluntarily assume a greater obligation of support: "Upon sufficient consideration the

parent may agree and be bound to do more than the statute requires, so long as the

additional obligation is not contrary to nor inconsistent with the statutory provision."

(Kamper v. Waldon, supra, 17 Cal.2d 718, 720.) Although Father objects that this

authority is distinguishable simply because it arose out of a marriage case, it is clear that

this paternity judgment is equivalent to a dissolution judgment for our purposes, the

analysis of support principles and interpretation of an incorporated settlement agreement.

As a matter of law, the stipulation was merged into the terms of the judgment, similar to a

marital property rights adjudication. (See In re Marriage of Corona (2009) 172

Cal.App.4th 1205, 1220-1221; see Family Law, supra, ¶ 17:340 et seq., pp. 17-86 to 17-

87 [stating, inter alia, that the parties cannot relitigate the division of property disposed of

by a final judgment].)




4      No issues exist here about the separate statutory scheme for support of a disabled
indigent adult child. (See 10 Witkin, Summary of Cal. Law, supra, Parent & Child,
§ 423, pp. 528-530 [discussing § 3910].)
                                              14
       To interpret the order and the parties' agreement regarding child support in light of

these principles, we will first address those provisions applicable to Father's statutory and

contractual obligations of monthly child support until age 18 or the completion of high

school (which remained modifiable by the court; part III, post). "When a child support

agreement is incorporated in a child support order, the obligation created is deemed

court-imposed rather than contractual, and the order is subsequently modifiable despite

the agreement's language to the contrary." (Armstrong v. Armstrong (1976) 15 Cal.3d

942, 947.)

       Following that discussion, we will turn to the arguments about the other

contractual provisions of the SJP, regarding educational expenses and support after age

18. As with a marital settlement agreement that is incorporated into a judgment of

dissolution, this appellate court will independently interpret the questions of law

presented by the parties' agreement. (Part IV, post; In re Marriage of Davis (2004) 120

Cal.App.4th 1007, 1017-1018 (Davis).)

                                             III

                  MONTHLY SUPPORT; DENIAL OF CONTINUANCE

       Mother contends the family court abused its discretion, or acted without sufficient

support in the evidence, when modifying and decreasing the amount of Father's monthly

child support obligation, as well as reducing to zero his obligation to pay the pre-age 18

expenses for clothing, such as school uniforms. Since the SJP does not expressly cover

private elementary school tuition, we will defer discussion of the private high school

issues until part IV, post. For this child who was five years old at the time of the hearing,

                                             15
all the support issues are closely intertwined with the denial of Mother's requested

continuance for the purpose of obtaining discovery about Father's assets, to supplement

the information that he had provided about his monthly income.

               A. Standards for Setting Child Support Obligations: Income

       Section 4058, subdivision (a) outlines the components of a parent's "annual gross

income" for support purposes, as meaning "income from whatever source derived,"

except as otherwise specified in the section, and income can be imputed based on earning

capacity. (Cheriton, supra, 92 Cal.App.4th 269, 301; In re Marriage of Rocha (1998) 68

Cal.App.4th 514, 516-517.) Such attribution of income is allowed where necessary to

protect the child's best interests. (§ 4058, subd. (b); De Guigne, supra, 97 Cal.App.4th

1353, 1363.) On appeal of a child support award, the family court's interpretation of

statutory definitions (e.g., income) will be reviewed de novo. (In re Marriage of

Pearlstein (2006) 137 Cal.App.4th 1361, 1371-1372.)

       Where a stipulated order has been made for child support above the guidelines

amount, the court is without authority to change that order, unless a showing of

materially changed circumstances is made. (Williams, supra, 150 Cal.App.4th 1221,

1234-1235; In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015; Family

Law, supra, ¶ 17:30, pp. 17-13; In re Marriage of Stanton, supra, 190 Cal.App.4th 547,

553.) Absent such a change of circumstances, a modification motion would be

" ' "nothing more than an impermissible collateral attack on a prior final order." ' " (Id. at

p. 554; Family Law, supra, ¶ 17:25, pp. 17-10 to 17-11.)



                                             16
       At the time the SJP was confirmed, Father admitted he had a high earning capacity

within the meaning of section 4057, and over the relevant time period in 2010-2011, he

had held several positions in the Mexican federal legal system, had resigned, and had

been rehired. At the time the court ruled, Father had recently changed jobs and was on

temporary disability, which affected his monthly income, as the court acknowledged

when relying upon his pay stubs as the controlling evidence before it. However, that was

not the only potentially relevant and reasonably available evidence to be factored into the

support calculation, as we next discuss.

         B. Child Support Obligations; Effect of Assets, Investments, and Gifts

       In calculating child support, the courts take into account both parents' " 'net

monthly disposable income,' " as well as the parents' " 'annual gross income.' " (In re

Marriage of Alter (2009) 171 Cal.App.4th 718, 731 (Alter).) " 'Income from other

sources . . . should properly be factored into the "annual gross income" computation.

[Citations.]' [Citation.]" (Cheriton, supra, 92 Cal.App.4th 269, 285.) "The judicially

recognized sources of income cover a wide gamut." (Ibid.)

       In the context of computing child support, the assets owned by a parent "may enter

indirectly into the calculation in two ways: (1) In assessing earning capacity, a trial court

may take into account the earnings from invested assets [citation]; and (2) a court may

deem assets a 'special circumstance' [citation] that may justify a departure from the

guideline figure for support payments [citation]. But these are exceptional situations; the

child support obligation is based primarily on actual earnings and earning capacity."



                                             17
(Mejia v. Reed (2003) 31 Cal.4th 657, 671; see Cheriton, supra, 92 Cal.App.4th at p. 292;

§ 4057, subd. (b)(5).)

       In assessing earning capacity, the court in Cheriton determined that the trial court

had erred in failing to include the father's stock options proceeds and proceeds from the

sale of stock in determining his income. (Cheriton, supra, 92 Cal.App.4th at pp. 289-

292.) There, the court concluded that "the trial court's refusal to consider [the father's]

substantial wealth in setting child support may have resulted in an order that is too low to

be in the best interests of his children, based on an assessment of their reasonable needs."

(Cheriton, supra, at p. 292.) The trial court was required to determine whether to impute

reasonable income to the father's assets. (Ibid.)

       Even where the supporting party has "non-income-producing assets, the trial court

has discretion to impute income to those assets based on an assumed reasonable rate of

return." (In re Marriage of Pearlstein, supra, 137 Cal.App.4th 1361, 1373-1374, fn.

omitted; County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1453-1454 [a trial court

may impute income based on interest that could be earned from investment of a lump

sum inheritance].)

       In Williams, supra, 150 Cal.App.4th at page 1241, the court determined that a trial

court acted within its discretion under section 4058, subdivision (b) in "implicitly

determin[ing] that the children's best interests would be served by an increase in

guideline child support, calculated in part by attributing an assumed 3 percent rate of

return on [father's] investment assets." A court may have great latitude in applying the

statutory scheme to individual cases. (Williams, supra, at p. 1240.)

                                              18
       Likewise, where a supporting parent can reasonably expect to receive cash or

easily valued or negotiable gifts on a consistent basis, they may be deemed a regular part

of income, and the trial court is permitted to include such gifts in the income calculation.

(Alter, supra, 171 Cal.App.4th 718, 734-737.) This can include free rent received by a

parent. (Id. at p. 734.)

                       C. Respective Showings: Pre-age 18 Support

       As the moving party seeking modification downward to a guidelines amount,

Father brought forward evidence about his recent earnings at his job. His 2009 tax return

(the most recent one available) showed that he made approximately $172,500 in U.S.

dollars, or $14,500 per month. At the time of the hearings in 2011, his declaration and

testimony stated he was on four to six months of disability leave, at a reduced salary

level. He provided pay stubs from the April through May 2011 period, showing a current

income of around $5,000 per month.

       Mother attempted to rebut this showing by arguing she was unduly hampered in

obtaining information about Father's assets, by Father's practice of putting his various real

property and business assets in the names of friends and relatives. These included a tire

store in Mexico City that was in the name of his grandmother, the residence in Coronado,

the condominium in Tijuana, and several income producing properties in Mexico, held in

the names of Father's relatives or employees. During their relationship, Mother had

participated with Father in managing some of his assets, and she gave testimony about

the Mexicali warehouse that she owned and he managed in the course of running his

lending business. Mother also owned a house for her mother to live in, and an office

                                             19
condominium. She testified that she learned during their relationship that Father

regularly received valuable gifts in connection with his work duties within the federal

Mexican legal system, a gasoline subsidy and bonuses.

                          D. Order; Evident Abuse of Discretion

       The family court made a guidelines calculation solely based on Father's recent pay

stubs that were readily available, and ruled that Father had showed changed

circumstances for a modification of support because Father was currently on disability.

The court stated that Mother had presented only undocumented testimony about Father's

assets, other than his salary, and the court would therefore rely only on the salary

evidence before it. According to Father, that ruling shows only that the court thought

Mother was not a credible witness. Alternatively, Father argues that if income should be

imputed to his assets, it should also be imputed to Mother's assets.

       The problem with Father's position is that under accepted family law principles,

the evidence about his earnings level at the time of the ruling was only part of the overall

required guidelines calculation under sections 4055 and 4058, and the court disregarded

the terms of the stipulated child support order and judgment, by ignoring Father's assets

that formed the basis of the monthly amount, and thus it improperly failed to permit

relevant evidence to be adduced on the main alleged change of circumstances before the

court. The stipulated judgment was grounded in the substantial assets that Father owned,

that were identified as supporting the fulfillment of his support payment obligation,

without any need for his work income. The SJP anticipated that no such disclosure of

Father's substantial assets would ever be necessary, because of the stipulation.

                                             20
       When a litigant requests a continuance, last minute or otherwise, the court should

take into consideration the degree of diligence in his or her efforts to bring the case to

trial or hearing, including participating in earlier court hearings, conducting discovery,

and preparing for trial. (Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th 1389,

1396.) When a court decides whether to grant a continuance or extend discovery, its

decision must be directed toward achieving substantial justice, by deciding whether " 'the

strong public policy favoring disposition on the merits outweighs the competing policy

favoring judicial efficiency.' " (Ibid.)

       Moreover, admissible evidence of materially changed circumstances is required

" 'as a necessary predicate' " for modification. (Williams, supra, 150 Cal.App.4th 1221,

1234.) The court had to adhere to the principles set forth in section 4053 that each parent

should support the child according to his or her ability, and imputation of income, even

from assets, is permitted where necessary to promote the child's best interests. (§ 4058,

subd. (b); De Guigne, supra, 97 Cal.App.4th at pp. 1359, 1363.) This record supports an

inference that Father may have been using family members and employees to hold title to

assets on his behalf, and this may have prevented Mother from acquiring relevant asset

information. (In re Marriage of Hoffmeister, supra, 161 Cal.App.3d 1163, 1170-1171.)

       Although Father was normally a high earner, who had changed positions within

the Mexican governmental legal system and was employed at the time of the hearings (on

temporary disability), he could not, without a more complete showing about his net

worth, repudiate his prior agreements that a particularly strong showing of a change of

circumstances would be needed to modify child support, and that his earnings were

                                             21
deemed not to be essential to the payment of the agreed amount. This strong showing

was not made here. To the extent that Father was relying on his claimed disability and

reduced monthly income, the court failed to take into account what length this work

restriction would have, and whether it was a material factor that made any difference in

light of the assets he previously possessed. Additionally, in ruling on Father's

modification requests and stating it was a temporary order, the court erroneously placed

the burden on Mother to bring another motion to modify later.

       It was accordingly an abuse of discretion for the family court to discount Mother's

testimony about the extent of her knowledge or lack of knowledge with regard to those

referenced, existing assets, in light of its previous rulings that had denied her requests for

a continuance to obtain such documentation. Although more discovery could have been

sought earlier by Mother's counsel, even before Father's I&E declaration was provided,

that is not a reasonable requirement here. When Father's unsuccessful motion to set aside

was filed in November 2010, he did not provide an I&E declaration, and his admissions

about his possession of extensive assets remained in place. Mother subsequently

presented an adequate showing that she needed to and might be able to obtain more

documentation about the assets, and that she had not done so previously because she was

not put on adequate notice until the filing of Father's April 2011 I&E declaration that he

apparently had divested himself of such assets. Mother's continuance requests were at

least reasonably timely, in light of the court's decision to schedule several days of trial to

address the financial issues, after the motion to set aside the SJP was denied.



                                              22
       On this record, the trial court abused its discretion in denying Mother's request for

continuance to conduct discovery about the value of Father's assets, because the evidence

provided about Father's current earnings and work disability was not sufficient, without

more, to make an appropriate "law-imposed" support calculation under section 3585.

                                             IV

      TERMS OF SJP: DURATION OF SUPPORT; EDUCATIONAL EXPENSES

       Mother next contends the family court misinterpreted the SJP, or abused its

discretion, or exceeded its jurisdiction, in granting the motion to modify and decrease

Father's support obligation, regarding (1) support until age 21 (reduced to 18 or

graduation from high school); (2) payment of all college expenses (only 1/2 payable) and

(3) private high school or postcollege schooling (none payable).

       As outlined above, the family court denied Father's motion to set aside the entire

SJP, and it proceeded to hear the remaining financial issues, and interpreted the parties'

SJP on child support after age 18, and on educational expenses. Section 3587 provides

authorization for the court to approve a "stipulated agreement by the parents to pay for

the support of an adult child or for the continuation of child support after a child attains

the age of 18 years and to make a support order to effectuate the agreement." However,

the power of the court to set aside such a stipulated agreement, that was confirmed by a

judgment, is not expressly provided for in the statutes. Father is essentially seeking to

collaterally attack those provisions of the stipulated judgment, but in the guise of

modifying such contractual terms. (See In re Marriage of Stanton, supra,

190 Cal.App.4th at p. 554.)

                                              23
       "A support order based on the parties' stipulated agreement to pay for the support

of an adult child is enforceable by contempt, even though there is no applicable statutory

support obligation apart from the stipulation. Having been approved by the court and

entered as a court order, the obligation is deemed law-imposed (not a 'debt').

[Citations.]" (Family Law, supra, ¶ 18:120, p. 18-37.)

       We are required to interpret independently the questions of law presented by the

statutorily authorized support agreement, as it was incorporated into the judgment,

including its provisions on changed circumstances. Such agreements are construed

utilizing the general rules governing the interpretations of contracts. (In re Marriage of

Iberti, supra, 55 Cal.App.4th 1434, 1439.) We give effect to the evident mutual intention

of the parties, and " '[i]f contractual language is clear and explicit, it governs.' " (People

v. Shelton (2006) 37 Cal.4th 759, 767; Davis, supra, 120 Cal.App.4th at p. 1018;

E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470.)

       First, with regard to the duration of the support obligation, section 3901,

subdivision (b) provides that a parent's ability to agree to provide additional support, past

age 18 or until the completion of high school, is not limited by this section, and the court

retains the power to inquire whether an agreement to provide additional support has been

made. Such an agreement for child support is deemed to be separate from all other

provisions of the agreement, and "[a]n order for child support based on the agreement

shall be law-imposed and shall be made under the power of the court to order child

support." (§ 3585.) Since there was no marriage here, there are no other severable,



                                              24
relevant property or spousal support provisions. This child was born in 2006, and only

the issues litigated at these hearings in 2011 are now before us.

       All of the child support provisions in the stipulated judgment are premised upon

Father's statement in it that he would not provide an I&E declaration, but instead

represented that he will have sufficient assets and income to pay all of the expenses and

support provided for in the agreement, and any current or future employment was not

necessary for him to meet those obligations. Father further agreed that he would not

request a downward modification of child support, "absent a very strong and specific

showing of changed circumstances." His I&E declarations omitted any information

about real property or business assets, such as Mother's testimony indicated that he had

previously owned at various times, and she had some basis in her personal knowledge to

make those claims. As discussed above, more information about his assets was

potentially available and necessary for the court to make an informed exercise of

discretion.

       Likewise, although the stipulated judgment provides that Father shall pay all of the

child's college expenses, the court reduced that by half, and omitted the private high

school and postcollege schooling expense entirely. The court stated its personal views

that the public schools in Chula Vista were very good and Mother's two other children

seemed to be doing well there. However, the parties had previously set forth their

agreement that their child should attend private high school and that Father would pay

additional child support consisting of the child's clothing expenses, including shoes and

any school uniforms, without regard to the amount of his monthly income. On this

                                             25
record, the court did not have an adequate basis to disregard and vacate those portions of

the judicially confirmed agreement.

       When counsel for Mother pointed out that these rulings were a total departure

from the parties' agreement, the court stated as justification, "I think this is more fair than

what was in the agreement, to be honest with you. I think this is what is normally done in

every family law case. The 21-year age was totally different from -- in my short period

of being in family law and in talking to other people, and I'm going to go back to what is

normally done on Family Code section 3901." However, this record does not show that a

"very strong and specific showing of changed circumstances," as required by the

stipulated agreement, and by case law, was made at these hearings. The family court was

not authorized, in these modification proceedings, to disregard the language of the

agreement by stating that it was more customary to end child support at age 18. The

parties had statutory authorization under section 3585 et seq. to agree otherwise on the

duration and nature of child support, and they did so. Father failed to show adequate or

material grounds to modify those obligations, with regard to providing child support up

until age 21 and the agreed-upon educational expenses.

       We need not discuss Mother's additional arguments about abuse of discretion, and

express no opinion on whether Father can show the relevant material change of

circumstances at a later time. The reversal is an open reversal, except as specified above

(the unchallenged denial of Father's motion to set aside the stipulated judgment).




                                              26
                                    DISPOSITION

       The order modifying the stipulated judgment is reversed. Appellant is to recover

all costs on appeal.




                                                                          HUFFMAN, J.

WE CONCUR:



              McCONNELL, P. J.


                  McDONALD, J.




                                           27
