Unreported / Non-Citable
Background
Adan Fugfugosh, representing himself, appealed a Santa Clara County Superior Court order denying his motion to modify child support payments to respondent Lynn Ariyadej. The order after hearing listed three children Fugfugosh was required to support and stated that the motion was denied due to an insufficient showing of a change in circumstances, with existing orders remaining in full force and effect. The original child support order was not included in the appellate record, and Fugfugosh had submitted an income and expense declaration with earning statements in support of his motion.
No court reporter was provided at the motion hearing, and Fugfugosh failed to comply with the procedure to timely obtain a settled statement of the proceedings. On appeal, he argued the trial court abused its discretion by failing to determine Ariyadej's income or earning capacity, failing to consider cost-of-living differences between his California residence and Ariyadej's Minnesota residence, and relying on his temporary, nonrecurring overtime to establish his income. Neither Ariyadej nor the Santa Clara Department of Child Support Services, participating as a respondent, filed a brief, so the court decided the appeal on the record, the opening brief, and oral argument under California Rules of Court, rule 8.220(a)(2).
The Court’s Holding
The Court of Appeal affirmed. Under Family Code section 3651, a support order may be modified at any time as the court determines necessary, but the party seeking modification bears the burden of introducing admissible evidence of changed circumstances. Denial of a modification request is reviewed for abuse of discretion, and an appellant must provide a record that allows meaningful review; failure to provide an adequate record requires the issue to be resolved against the appellant.
Fugfugosh did not provide such a record. The order after hearing shed no light on the trial court's rationale beyond its conclusion that he failed to demonstrate changed circumstances. Although the California Supreme Court's recent decision in Family Violence Appellate Project v. Superior Court holds that courts must provide indigent litigants meaningful access to an official verbatim record, including electronic recording when no reporter is available, the absence of a verbatim record did not allow the appellate court to impute error to the trial court. Fugfugosh could have sought a settled statement under California Rules of Court, rule 8.137, but he did not timely complete that process; the court denied his motion for permission to use a settled statement without prejudice and then denied his renewed motion because it did not explain his earlier failure to designate the record.
Without an adequate record, the court could not conclude the trial court abused its discretion by failing to require Ariyadej to show her income, by not considering cost-of-living differences, or by calculating Fugfugosh's income from overtime. The order denying modification is affirmed without prejudice to Fugfugosh's ability to bring a renewed motion in superior court articulating how his current financial circumstances constitute changed circumstances. The court noted that under Family Violence Appellate Project the superior court must provide a reporter or electronic recording at any such hearing, and if no verbatim record is provided he may seek approval of a settled statement. The court expressed no opinion on the merits of the substantive issues.
Key Takeaways
- An appellant challenging denial of child support modification must provide an adequate record—a reporter's transcript, agreed statement, or settled statement—or the appellate court will resolve the issue against the appellant.
- The absence of a court reporter does not permit imputing error to the trial court; the appellant must timely pursue a settled statement under rule 8.137 when proceedings are unreported.
- A trial court's order denying modification is presumed correct, and prejudicial error must be affirmatively shown from the record.
- Affirmance without prejudice leaves the appellant free to bring a renewed modification motion on a proper showing of changed circumstances, with a verbatim record guaranteed under Family Violence Appellate Project.
Why It Matters
The decision underscores how the appellate record controls family law appeals, especially for self-represented litigants. Even cogent arguments about financial hardship cannot overcome the absence of a transcript or settled statement, and the opinion gives trial courts and litigants a practical roadmap: ensure a verbatim record through a court reporter or electronic recording, or timely move for a settled statement under rule 8.137.
It also confirms that an affirmance for an inadequate record is not a merits ruling—the appellant may return to superior court with a renewed motion, now with a clearer procedural path to appellate review.