Unemployed Father Didn’t Meet Burden to Lower His Child Support

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Dwayne Lucious, representing himself, asked the Court of Appeal to lower his child support payments by quoting a phrase from California Civil Code §3526, enacted in 1872. Lucious told the court, that “No man is responsible for that which no man can control.” The Court of Appeal unanimously disagreed.

In an unpublished 3-0 memorandum opinion, authored by Associate Justice William Dato of Division One of California’s Fourth Appellate District on March 20, the appellate court rejected all of Lucious’ challenges to the ruling by San Diego County Commissioner Deborah A. Cumba that required him to pay $577 per month in child support. The opinion was concurred by Acting Presiding Justice Terry B. O’Rourke and Associate Justice Martine N. Buchanan.

Lucious, referred to in the opinion as D.L., sought to lower his child support obligations to his daughter A.L., which had been in place since October 2022. He challenged the order on several grounds, the first of which charged that Judge Cumba failed to implement Family Code Sections 4050-4077, which provide a statewide uniform guideline for child support.

Justice Dato rejected this argument because of one particular section of the Family Code. He explained that §4058 (b), which addresses how to determine the income of the parents, “authorizes a trial court to ‘impute to that parent an income different from his or her actual income –i.e. an income amount that corresponds with that parent’s earning capacity.” Therefore, the fact that Lucious was out of work did not require the court to lower his child support obligations. Family Code section §4058 (b) “authorizes imputing to a parent income that is commensurate with his or her earning ability,” Dado explained.

The father’s next argument asserted that the court applied an improper burden of proof, although he put forth no evidence of his lack of income while the mother, referred to as S.H., failed to produce any evidence that would support the current child support arrangement. Dato said that neither the County nor S.H. was required to produce such evidence because it was Lucious who was seeking the child support reduction. Therefore he bore the burden of showing changed circumstances and “a lack of ability and opportunity to earn income.” (Italics in original)

Dato went on to reject Lucious’ contention that there was insufficient evidence for Cumba to find that he had an opportunity to work full-time. Lucious failed to offer a court reporter’s transcript so the appellate court could not find proof of any error on the record. Dato cited precedent that said, “When no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all the evidentiary matters. (Italics in original.)

In fact, a footnote in the appeal explained that Lucious had checked a box when he filed for an appeal that said he wanted to proceed “WITHOUT a record of oral proceedings in the superior court.” (Caps in original)

Lucious’ third argument failed as well. He said he was “immune” from child support because he did not have custody of his daughter. For this contention, he relied on the language of California Civil Code §3526 to the effect that “No man is responsible for that which no man can control,” which Dato characterized as “a maxim of jurisprudence intended to aid in the just application of the Civil Code.” However, this too was unpersuasive as Dato said that “a statutory obligation may not be nullified by a legal maxim.” In addition, he said that Lucious’ lack of “physical responsibility for A.L.” actually weighed in favor of his obligation to pay child support.

The father’s final argument was that his constitutional rights to due process and equal protection were violated. However, since the appellate court found no error in Cumba’s ruling, and lacking a court reporter’s transcript, these claims were unsupported as well. The appellate opinion thus affirmed the trial court’s order and gave the County and S.H., the mother, their costs.

In a related action, Lucious had sued Judge Terrie E. Roberts, who had previously handled domestic relations matters, for violating his civil rights. Additionally, he sued Pennie K. McLaughlin (now a San Diego family court Judge) based on her conduct during his child support hearings. Both of these actions were dismissed with prejudice because of judicial immunity.

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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