Unreported / Non-Citable
Background
Alper Nese petitioned in 2023 to dissolve his marriage to Minhee Chang; the couple has one son born in 2011. In June 2024, Nese filed a request for order seeking guideline child support, temporary spousal support, and fees, claiming he earned nothing while working 40 hours per week as co-founder and CEO of a Palo Alto startup called cogniDNA, while Chang earned a six-figure salary. Nese asserted a rough 50 percent timeshare with the child, but Chang countered that the boy stayed with her weekdays and most weekends, that Nese's housing was unstable, and that his actual timeshare was 28 percent. Chang, who reported monthly wages of $10,417, asked the court to impute income to Nese and require him to seek work.
After hearings in August and October 2024, the trial court entered an order stating the parties agreed Nese's timeshare was 28 percent, then adopted Chang's proposed calculation and ordered Nese to pay $662 per month in guideline child support. Relying on Chang's October 3, 2024 declaration—with exhibits including Nese's Carnegie Mellon biography, evidence he earned $110,000 to $125,000 as a scientist in 2016–2017, and two local job postings offering $120,000 to $155,000—the court imputed $125,000 in annual income to Nese and issued a seek-work order. Nese appealed, proceeding by settled statement because no court reporter was present, and Chang did not participate in the appeal.
The Court’s Holding
The court first held that Nese forfeited his challenge to the 28 percent timeshare because rule 5.125 gave him the opportunity to object to Chang's proposed order after the August 26 hearing and the record showed no objection. On the merits, the court pointed to Nese's own declaration stating he agreed to the 28 percent figure as a historical calculation so the judge could calculate support, and noted he never proposed an alternative percentage at either hearing. The court also rejected Nese's reliance on In re Marriage of Drake, explaining that Drake expressly permits a written order to differ from oral rulings not entered in the minutes, so it supported rather than undermined the trial court's order.
On imputed income, the court held that Family Code section 4058 permits consideration of earning capacity consistent with the child's best interests, and that substantial evidence—Nese's doctoral education, work history, prior $110,000 to $125,000 earnings, and available local positions paying $120,000 to $155,000—established both ability and opportunity to earn the imputed amount. The court rejected the claim that vocational expert testimony or a formal labor-market analysis was required, citing LaBass for the proposition that any competent admissible evidence suffices. Finally, the court held the seek-work order was not an abuse of discretion: Simpson and Regnery addressed earning capacity rather than seek-work orders, and bad faith or deliberate underemployment is not a required showing. The court assumed without deciding that the trial court had authority to issue a seek-work order against a nondefaulting parent, and deemed Nese's separate challenge to international travel orders forfeited and moot.
Key Takeaways
- A party who fails to object to a proposed order's language under California Rules of Court rule 5.125 forfeits appellate review of that language, and the appellant's own concessions in the record can independently confirm the disputed finding.
- Trial courts may impute income under Family Code section 4058 based on any competent admissible evidence of ability and opportunity to earn—such as education, earnings history, and local job postings—without requiring vocational expert testimony or a formal labor-market analysis.
- A seek-work order does not require evidence of bad faith or deliberate underemployment; Simpson and Regnery govern earning-capacity determinations, not the standards for seek-work orders.
- An appellant proceeding on a settled statement bears the burden of an adequate record, and statements in briefs lacking record support—such as Nese's claim of equity compensation—will be disregarded under rule 8.204(a)(1)(C).
- Issues raised only in writ petitions but omitted from the opening brief are waived on appeal, and challenges to expired travel authorizations are moot.
Why It Matters
Although unpublished and noncitable, the decision illustrates how California appellate courts apply the appellant's burden on a limited record in family law support appeals, particularly where the respondent does not appear. It underscores that founders of pre-revenue startups who draw no salary remain subject to income imputation based on their education and prior earnings, and that seek-work orders are discretionary tools not conditioned on proof of bad faith.
The opinion also offers practical guidance on forfeiture in family law procedure: litigants must timely object to proposed orders under rule 5.125 and must raise every issue in the opening brief, because courts will deem unbriefed challenges waived and will disregard factual assertions that lack record citations.