Opinion
I. Summary
This family law appeal arising out of a proceeding to modify child support offers two highly unusual facts: First, the mother was able to retire from her *1294job as a deputy sheriff after 20 years service at the age of 42, while still young enough to have two teenage boys.
That doesn’t happen often. Indeed, we know of no other case involving “early” retirement in a child support context.1
Second, the existing order that was the object of the modification proceeding—that is, the status quo going into the modification proceeding—involved no existing obligation on the part of either parent to pay child support. It was a zero-zero order.
The zero-zero order is unusual too. The reason was that in 2000, when the last operative child support order was made, both parents were working as deputy sheriffs, both made about the same amount of money, and both agreed to share custody of the two boys 50-50.
The case also requires us to confront an anomalous result at the trial court level: The modification proceeding resulted in a change of custody of one of the boys, an adopted “special needs child,” to the father, with 50-50 custody remaining for the other boy. That is, the father now clearly has more time in terms of the total custody than mother, and has primary custody of the couple’s special needs teenager. And yet the ensuing child support order now requires the father to pay the mother! The reason for this anomaly is the wider disparity in incomes in the wake of the mother’s retirement. (The father’s payment to the mother is $388 a month.) To put the result another way, this is a case where the “custodial” parent and the “payor parent” are the same person.
And yet, despite the unusual facts and the anomalous result, the resolution of this appeal ultimately turns on a very common point: If one parent seeks to modify an existing order so as to have income imputed to the other parent, the parent seeking imputation—that is, in that context, the parent seeking to overturn the status quo—bears the burden of proof of showing that the other parent has the ability and opportunity to earn that imputed income. (Compare In re Marriage of Regnery (1989) 214 Cal.App.3d 1367 [263 Cal.Rptr. 243] [need to show ability and opportunity] with In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317 [16 Cal.Rptr.3d 489] [no imputation at order to show cause hearing where parent seeking order imputing income based on earning capacity failed to present any competent evidence other parent had ability or opportunity to earn imputed income].)
*1295In this case, the father brought an order to show cause (OSC) proceeding to ratify the change of custody of the special needs teenager from 50-50 to primary to him. He also sought an order that the mother turn over to him a certain $1,000 a month that the state was paying as adoption assistance on behalf of the special needs teenager. He did not, however, bring an OSC to change the existing child support order of zero-zero.
For her part, the mother, having recently retired, brought her own OSC, also seeking the same change of custody, and merely (and ambiguously) requesting that the court make a guideline support order in light of that anticipated change. In his responsive pleading to the mother’s OSC, the father requested that the trial court impute income to the mother based on her final salary as a deputy sheriff just prior to her retirement. (See Fam. Code, § 213, subd. (a) [“In a hearing on an order to show cause ... the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party . . . .”].)
When the combined proceedings came on for hearing, the father devoted almost all his evidentiary case to his request that the mother not be allowed to keep the $1,000 adoption assistance monies, and that the court direct it to go to him. He prevailed on that request, which is otherwise not before us in this appeal.
However, other than presenting evidence of what the mother had been making at the time of her retirement, the father presented no evidence of her vocational abilities or of any opportunities she might have to earn additional income. The father didn’t, for example, show that the mother even could go back to work as a deputy sheriff, or that there were opportunities for her to work in related fields. He didn’t, for example, show that she had the opportunity to earn money as a supervisor in a security company, or might have worked in some auxiliary capacity for her old employer. The father was content merely to point to the fact of her retirement and the fact of what she had earned at the time of her retirement. Indeed, the trial court was just a little surprised that the father rested his case after proving so little, and correctly recognized that the father simply had not carried his burden of showing ability and opportunity to earn imputed income and declined to make an order imputing income to her.
We are required to affirm the order. Simply showing that the mother had retired before the age of 65 and what she made before her retirement was not enough to show ability and opportunity to earn.
*1296II. The Procedural History
Jeffrey D. Bardzik (father) and Yvette E. Bardzik (mother) were married and were both Orange County deputy sheriffs when they were divorced in 1994. They had two sons. One, Brian, was about 16 years old by 2006; the other, Kevin, was about 15. Kevin is the special needs child referred to above. He had been adopted toward the end of the couple’s marriage. His biological mother had been a drug addict, and to this day he suffers from attention deficit disorder.
While there were a number of proceedings between the couple during the 1990’s, for purposes of this appeal we may begin with the status quo as it stood as of an order made in November 2000. Custody of the two boys was to be split 50-50, and, given the relatively similar incomes that each party had as a deputy sheriff, child support was set at zero-zero.
That status quo was reiterated in the outcome of a modification OSC held in February 2006. (The February 2006 OSC is not the one we are concerned with in this appeal.)2 There were only a few substantive changes resulting from the February 2006 proceeding, namely that both parents attend conjoint counseling, and that mother have the sole right to determine type and dosage of medication for Kevin. Other than that, the basics of the status quo—50-50 custody and zero-zero child support—remained as the parties entered the spring of 2006.
Then, in mid-April—before there was even a formal document embodying the findings and orders of the OSC held two months before—mother brought another OSC to modify the existing order. As we have noted, this case has some unusual facts, and mother’s OSC was itself unusual: In her moving papers mother asked that the trial court change the 50-50 custody arrangement so that father would have primary custody of Kevin. Essentially, mother’s request was a ratification of a de facto change already brought about by some behavior problems Kevin had been having (he had just been expelled from the ninth grade). Mother (modestly) asked only for generous visitation for herself. She also (ambiguously) asked for a “guideline” support order, without making it clear whether, in light of the change, she would be *1297paying father or father would be paying her. And she asked that the previous order requiring conjoint counseling be lifted.3
Another unusual fact to be found in mother’s declaration was the fait accompli of her retirement from the sheriff’s office the previous year. (We may presume that if the support order had been something other than zero-zero, the impact of mother’s retirement would have been litigated earlier.) In any event, at the hearing mother would testify that she retired in order to spend more time with her children (including two more sons from a new marriage) given the stress of her duties as a jailer in the maximum security jail, including working midnights, being in a “dangerous situation,” and being “constantly sick.” Mother’s accompanying income and expense declaration showed a monthly income of $2,577, which was her retirement pay.
Mother’s OSC was set for June 8, 2006. A week before the hearing, however, father filed his own OSC for modification. Like mother, he wanted an order formally changing physical custody of Kevin to him. Unlike her, his OSC did not raise the issue of support. Rather, to the degree that it was focused on financial issues, father wanted an order requiring “100% of the adoption assistance monies received” on Kevin’s behalf to go to him; after all, he now had primary physical custody of Kevin. The result was that the two OSC’s were combined for hearing on August 22.
Father did not file his own OSC attempting to have income imputed to mother in the wake of her recent and early retirement. His responsive pleadings simply requested “the Court set child support in an amount in accordance with the California guideline, taking into consideration the parties’ gross incomes and time share each parent shares with the children.”
The issue of retirement was, however, addressed in father’s trial brief, and, in contrast to the mother’s request, was ««ambiguous. Father asserted that mother “should be imputed income at her pre-retirement ability to earn” because mother had not given any “health reason or any other reason for her early retirement other than the desire to be a ‘stay-at-home’ mom.” In that regard, father confidently put forth DissoMaster figures based on mother’s preretirement income ($7,325 a month) suggesting that, with Kevin being mostly with him, mother would owe him about $742 a month.
*1298At the hearing, though, the only evidence father presented on the imputation issue was from mother herself, and she merely testified that she had served 20 years as a deputy sheriff, she was 43 years old, that if she went back to work in the office she would have to go in as a “new deputy,” and that she retired because her family was suffering from the extreme stress of her working in the maximum security part of the Orange County Jail.
There was also some brief testimony (no more than three questions) about mother having signed up, prior to retirement, to be something called an “extra-help deputy.” The subject was, however, quickly dropped after mother testified that she had not been an extra-help deputy after retirement, so there was no evidence before the court that it was even a paying position or, if so, how much of mother’s time or how much income to her it would entail.4
In his case-in-chief, father testified almost entirely about the adoption assistance issue.
And that was it. At the very end of father’s testimony, mother’s attorney told the court that mother was willing to stipulate to having a vocational evaluation. At that point the court noted that father hadn’t made the “case yet on the imputation of income” and inquired if there were any other witnesses. There were none. Then followed oral argument, with the court making it clear that it was “not going to impute income without further evidence that she has the ability to earn what she earned before.” The court made a support order which, given the relative incomes and time shares, resulted in father owing mother $388 a month. The order also expressly refused “to impute income” to mother “without further evidence.” From that order father timely appealed, primarily asserting that the trial court was obligated as a matter of law to impute income to mother based on her early retirement.5
*1299HI. The Imputation Issue
A. Background
California courts have long asserted the power to impute income to supporting spouses and parents based on ability to earn income, as distinct from actual income. The first mention of the idea in the California reported decisions appeared at the very beginning of the Grant administration. (See Eidenmuller v. Eidenmuller (1869) 37 Cal. 364, 366.)6
However, historically, California courts also put self-imposed restraints on their power to impute income where it does not actually exist. For most of California legal history, courts confined that power exclusively to situations where supporting parents or spouses had reduced their actual incomes out of a bad motivation to reduce their support payments. A memorable example of such bad motivation was Pencovic v. Pencovic (1955) 45 Cal.2d 97 [287 P.2d 501], where there was evidence that the father went into the religious guru business (he changed his name to Krishna Venta and founded a religious society in which he was its “Master,” but ostensibly held no income or wealth in his own name) precisely in order to hide his real income. (He earlier admitted to the mother that he would “ ‘plan his life accordingly so he would be protected.’ ” (Id. at p. 100.)) Needless to say, the scam did not work, with the Supreme Court holding that the religious “gifts” he was receiving really were his income, and further saying, in any event, since he was “an able-bodied man,” the “trial court could reasonably conclude that he had the earning capacity to discharge the obligation of the support award.” (Id. at p. 102.) He could not “evade” his obligation by “refusing for religious reasons to seek or accept gainful employment.” (Ibid.)
By the third quarter of the 20th century, there had been enough cases of courts limiting the use of the power that Justice Lillie could observe, in Philbin v. Philbin (1971) 19 Cal.App.3d 115, 121 [96 Cal.Rptr. 408], that the power had been “applied only when it appears from the record that there is a deliberate attempt on the part of the husband to avoid his financial family responsibilities by refusing to seek or accept gainful employment. . . wilfully refusing to secure or take a job . . . deliberately not applying himself to his business . . . intentionally depressing his income to an artificial low ... or intentionally leaving his employment to go into another business.” (Citations omitted.) For Hollywood celebrity Regis Philbin, for example, who was *1300simply going through a patch of (relatively) low income, having done nothing to “depress his income,” a modification downward was perfectly in order. (Ibid.)
While technically dicta (there was no showing of any possibility of Regis Philbin earning any more money regardless of his motives), perception of the Philbin case soon hardened into the “Philbin rule.” As this court would later put it in In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1217 [45 Cal.Rptr.2d 555], the Philbin rule permitted “consideration of a parent’s earning capacity in determining child support only when the payor’s actions are motivated by a deliberate attempt to avoid family financial responsibilities.” (Original italics.)
Perhaps the best latter-day example of the newly hardened “rule” was in In re Marriage of Williams (1984) 155 Cal.App.3d 57 [202 Cal.Rptr. 10], where the payor parent and his new spouse had quit their jobs to move to Nevada to avoid high California living costs, and the custodial parent sought modification upward based on a supposed increase in income to the payor parent from his new spouse. Citing Philbin, the Williams court applied this blanket rule: “The [imputation] standard is not imposed unless there is some conduct by the supporting spouse indicating deliberate behavior designed to avoid his financial responsibilities to his children.” (Williams, supra, 155 Cal.App.3d at p. 62.)
Federal welfare reform beginning in the 1980’s pushed states toward uniform standards for child support awards. (See generally Clark v. Superior Court (1998) 62 Cal.App.4th 576, 578-580 [73 Cal.Rptr.2d 53].) With the enactment of the Agnos Child Support Standards Act of 1984, the Legislature observed, in Civil Code former section 4720, subdivision (a), enacted in 1984, that “California has no single standard to promote equitable, adequate child support awards.” In subdivision (b) of Civil Code former section 4720, the Legislature also found—“lamented” would be just as accurate a word— that “The current method of setting child support awards has led to a substantial variation in these awards among families with similar circumstances and resources.” (See also In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951 [238 Cal.Rptr. 691] [“In adopting the Agnos Act, the Legislature made express findings that the lack of a single standard to promote fair and adequate child support awards led to substantial variation in awards among similarly situated families.”].)
The goal of uniform standards applying to families with similar circumstances and resources remains to this date, currently embodied in Family Code section 4050, enacted in 1993. Section 4050 reads: “In adopting the statewide uniform guideline provided in this article, it is the intention of the Legislature *1301to ensure that this state remains in compliance with federal regulations for child support guidelines.” The strength of that policy is best exemplified by the adoption of a complex algebraic formula used to calculate the “statewide uniform guideline for determining child support orders.” (Fam. Code, § 4055, subd. (a).)
Also part of the 1984 Agnos Child Support Standards Act was the addition of language, first appearing in Civil Code former section 4721, subdivision (a), that in setting what was then a “minimum mandatory” award, the “court shall also consider, to the extent consistent with the best interests of the child or children, the earning capacity of either or both parents.” (See Stats. 1984, ch. 1605, § 4, pp. 5664, 5666.) Because this language contained no limitations concerning “deliberate behavior” aimed at avoiding financial responsibilities, it would be construed by later courts as effectively abrogating the Philbin rule. (E.g., In re Marriage of Nolte (1987) 191 Cal.App.3d 966, 972-973 [236 Cal.Rptr. 706]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 994-995 [64 Cal.Rptr.2d 383].)7
The consideration of earning capacity was a natural accompaniment to the adoption of the complex child support formula now embodied in Family Code section 4055. Just before the adoption of the Family Code—the last time “earning capacity” language was seen in the Civil Code—it was in the same statute, Civil Code former section 4720.2, which set forth the algebraic formula (in subd. (a)). The statute contained language giving the court discretion (the word “shall” that first appeared in the 1984 version dropped out along the way) to “consider the earning capacity of a parent in lieu of that parents income, consistent with the best interests of the child” (in Civ. Code, former § 4720.2, subd. (g)(l)(C)(2)). When the Family Code was enacted, Civil Code former section 4720.2 subdivision (g)(l)(C)(2) appeared as a section in its own right, as Family Code section 4058, subdivision (b).
However, it is readily apparent that the authority to impute income based on earning capacity exists in some tension with the goal of uniform standards for families with similar circumstances and resources. Without evidence of ability or opportunity to earn the money, the power to impute income would easily devolve into a trial judge’s power to arbitrarily establish a support order at any given level, plucked from midair, just as long as it is over the level otherwise required by the payor parent’s actual, taxable income. Appellate courts have countered that danger with what might be *1302termed the “Regnery rule,” after In re Marriage of Regnery, supra, 214 Cal.App.3d 1367, 1372-1373.
The “Regnery rule” is essentially a judicial gloss on the words “earning capacity” as they appear in Family Code section 4058, subdivision (b).8 Citing from a digest of words and phrases and a workers’ compensation case, the Regnery court announced a “three-prong test before the capacity to earn standard may be applied.” The three tests are: “ability to work,” “willingness to work,” and “opportunity to work which means an employer who is willing to hire.” (Regnery, supra, 214 Cal.App.3d at p. 1372, citing 14 Words and Phrases (1952) Earning Capacity, pp. 27-28 and West v. Industrial Acc. Com. (1947) 79 Cal.App.2d 711, 722 [180 P.2d 972].)
Later courts, recognizing that the second element, willingness to work, should be taken for granted, recast Regnery's three-prong test as a simple two-prong test: ability and opportunity. (E.g., In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1392 [111 Cal.Rptr.2d 487] [“So long as a parent has an earning capacity, that is, the ability and the opportunity to earn income, the trial court may attribute income.”]; State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1126 [83 Cal.Rptr.2d 229] [“This mle has been modified to include only the first and third prongs; thus, the definition of earning capacity is satisfied when the payer has both the ability and opportunity to work.”].)9
*1303B. The Burden of Proof
A modification proceeding by definition presumes a change in an already-determined status quo. As is almost the case throughout the law, the moving party in a modification proceeding bears the burden of proof of showing changed circumstances that justify a new court order. (We do not and need not in this case address the impact of the burden of proof on an imputed income issue in the context of an initial judgment of dissolution.)
So it is with family court OSC’s to modify support orders. As to such proceedings, there can be no doubt that it is the moving party who bears the burden of showing sufficient facts to establish the change of circumstances that justifies modifying what a previous court order has already wrought. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556 [14 Cal.Rptr.3d 482]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ][ 17:26, p. 17-11 (rev. # 1, 2007); accord, In re Marriage of Stephenson, supra, 39 Cal.App.4th 71.10)
We say the case throughout almost all the law, because there is one instance, also in the context of a previously established court child support order, where the moving party effectively bears no burden at all to show a change of circumstances. Or, perhaps better put, it is an instance where the moving party’s burden is so light—literally nothing more than filing a modification proceeding in the first place—that it really cannot be described as a “burden.”
The particular instance to which we refer is where a previous child support order does not already conform to the guideline formula in Family Code section 4055 (which would normally—unless something has gone wrong—be *1304an order predating the adoption of section 4055). Section 4069 of the Family Code provides that the very existence of the guideline itself is enough by itself to modify an existing, preguideline support order to bring it into compliance with the guidelines set out in Family Code section 4055. (See also Hogoboom & King, Cal. Practice Guide: Family Law, supra, f 17:26, p. 17-11 [“Ordinarily, & factual change of circumstances is required . . . . However, by statute, child support orders predating the Fam.C. §4050 et seq. ... are per se modifiable when application of the current formula and standards would yield a different amount of support . . . .”].)
Then again, as a matter of the linguistic canon, expressio unius, the exception set out in Family Code section 4069 only proves the more basic rule that it is the moving party who has the burden of showing a change of circumstances warranting modification. (Cf. In re Marriage of Kepley, supra, 193 Cal.App.3d 946.)11
The burden of proof as to ability and opportunity to earn imputed income (or lack thereof) plays out differently depending on the status quo going into the modification proceeding. For example, in the very ordinary situation where the payor parent loses his or her job and seeks a reduction in court-ordered support based on the changed circumstances of lack of income, it will be the payor parent, as moving party, who bears the burden of showing a lack of ability and opportunity to earn income. (E.g., In re Marriage of Leonard, supra, 119 Cal.App,4th 546 [burden carried as to current income, but retroactivity to date of loss of job discretionarily denied because of substantial assets to bridge gap]; In re Marriage of Eggers (2005) 131 Cal.App.4th 695 [32 Cal.Rptr.3d 292] [reversing denial of requested change in light of involuntary job loss]; In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373 [74 Cal.Rptr.2d 636] [burden carried in spousal support case where supporting spouse was a doctor who was fired from job at age 66 and subsequent efforts to find work or open practice were futile].)
Contrast that situation with another one—relatively common in the published cases—where the payor parent is the one seeking imputation of income to the custodial parent, based upon a recent decision of the custodial parent to quit work. In effect, in such cases the payor parent seeks an order lowering child support in light of a contribution only hypothetically made *1305(imputed) to the custodial parent based on the custodial parent’s ability and opportunity to earn. (E.g., In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331 [66 Cal.Rptr.2d 393] [burden carried]; In re Marriage of Hinman, supra, 55 Cal.App.4th 988 [burden carried].)
Before turning to what sort of evidence will (or won’t) carry a burden and in what context, one more rule must be noted. This rule is grounded in the commonsense proposition that you can lead someone to a want ad but you can’t make them apply for the job. That is, when a parent does have the burden of showing that the other parent has the ability and opportunity to earn at a given level, that burden does not include actually showing that the parent to whom the income would be imputed would have gotten a given job if he or she had applied. As we just said, the rule is only common sense: Readers need only use a little imagination to think of all the ways that a parent with both ability to do a job and the opportunity to get it could subtly sabotage a job application or interview.12
In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th 1331, nicely illustrates the distinction between (1) a payor parent’s having a burden of proof that the custodial parent has the ability and opportunity to earn a given income, and (2) a payor parent’s not having a burden of proof that the other parent would necessarily have gotten the job if applied for. In LaBass & Munsee, the moving party was the payor parent, who was left behind in Sacramento when, just before the divorce became final, the custodial parent moved with the children to a rent-free quarters (provided by her parents), taking the children with her. During the marriage the custodial parent had worked as a full-time high school teacher and then later at Home Depot. (Her master’s degree was in English literature.) Upon moving to Southern California, though, she took only part-time community college teaching jobs so as to pursue a second master’s degree, this time in fine arts. (Id. at p. 1335.) (The court allowing her to move contemplated that she would do so and obtain full-time work or pursue a full Ph.D.) The custodial parent also had a substitute teaching credential, which would have allowed her to teach anywhere in the Los Angeles Unified School District. While the court did not say it explicitly, it appears that the support order established at the time of the divorce itself had been predicated on the custodial parent’s full-time employment. (That’s the natural implication of the court’s narrative.) (See id. at pp. 1334-1335.)
At the hearing on the modification motion, the payor parent did a model job of showing ability and opportunity to earn on the part of the custodial parent. He presented: The fact she had a teaching credential allowing her to *1306be a substitute teacher in a large school district (ability); opinion testimony (with proper foundation) that the custodial parent could secure full-time employment in that district13 (opportunity); numerous want ads soliciting applications from persons with the custodial parent’s qualifications (opportunity) and a pay scale obtained from the large school district showing what a person with the custodial parent’s qualifications would make as a starting salary (thus correlating ability and opportunity with the income to be imputed). (See In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th at p. 1335.) An order based on a capacity to earn at that starting salary was easily affirmed. (Id. at pp. 1337-1339.) (Of course, the custodial parent didn’t help her case any by flat out testifying that she would not take a full-time job in Los Angeles even if after-school childcare was available.) (Id. at p. 1338.) In the process, the appellate court stated that the payor parent “bore no burden to convince the court” that the custodial parent “would have secured a full-time [teaching] job had she applied.” (Id. at p. 1339, original italics.)14
C. What Meets, and What Doesn’t Meet, the Burden
A similar example of a moving party bearing its burden of showing ability and opportunity to earn at a reasonably exact salary range is to be found in In re Marriage of Hinman, supra, 55 Cal.App.4th 988, which the authoring court essentially treated as “Hinman VIII.” We will follow suit because the *1307“VIII” emphasizes the contentious nature of the couple’s relationship in the six years after their divorce, which was itself a factor in the order examined in the opinion.15
The status quo going into the hearing in Hinman VIII was that the custodial parent had been allowed to move out of state. The protracted postjudgment litigation of the previous six years had forced him into bankruptcy. And the enrollment of the eldest child in college had put a severe strain on his finances. However, by this time, the payor parent had quit her previous work in the insurance industry, and was busy raising three very young children from her subsequent marriage. In seeking modification, the custodial parent presented these facts: What the payor parent made in two jobs working for insurance companies ($44,000 at one company and $38,400 most recently at another company) (ability); a resume showing a degree in computer science and significant employment experience in the computer field (ability); two letters from employment agencies, one stating that she had an earning potential of between $35,000 and $45,000 and the other giving her earning potential at between $34,500 and $50,000 annually (opportunity, correlated with the income to be imputed); and letters from previous employers showing their satisfaction with her work (at least an inference of opportunity, i.e., that they would be happy to have her work for them again). (Hinman VIII, supra, 55 Cal.App.4th at p. 993.)16
Against that evidence, the payor parent pointed to the fact that she had (her own) three young children all under age three for whom she was the exclusive caregiver. She did not, however, dispute any of the basic facts involving her ability or opportunity to earn income. (Hinman VIII, supra, 55 Cal.App.4th at p. 993.) Accordingly, the trial judge made a support order based on earning capacity of about $38,000 a year (id. at p. 994 [imputing $3,200 per month]), which the appellate court readily affirmed.17
*1308In re Marriage of Wittgrove, supra, 120 Cal.App.4th 1317, presents an important contrast with Hinman VIII, and with LaBass & Munsee (discussed above). In Wittgrove, both parents were doctors, but the mother (an ob-gyn) was not working at the time of the separation. She brought an initial OSC seeking child support. The father sought to have income imputed to her, but—other than putting into evidence the fact that she was indeed a doctor with a specialty in obstetrics and gynecology—presented no other evidence. The court dismissed the father’s contention that die trial court was required to impute income to the mother: “Moreover, Alan’s assertions that the child support guideline amount is wrong . . . because the court failed to properly impute additional income to Perri fails because he did not present any competent evidence that Perri had both an ability and an opportunity to earn the attributed income he sought to impute to her.” (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1329.)
D. The Burden As It Plays Out Here
We cannot stress too much that the trial court’s (correct) decision in the present case is necessarily the result of highly unusual facts going into the combined modification proceedings, together with a minimalist trial litigation strategy on father’s part. Put another way, being pennywise at trial may get you into difficulties that no amount of pounds (euros or dollars) spent on appeal will be able to cure.
As we have noted, the support order going in was zero-zero. Now, it was zero-zero precisely because both parents were working when the order was made, both parents made close to the same income when the order was made, and the “time share” was equal.
Let us be plain: The zero-zero support order effectively gave mother the chance to retire without risk of running the gauntlet of an OSC to modify support in light of that change of circumstances. We note specifically that, had there not been a zero-zero order, and mother retired and initiated a reduction of her share of support, the dynamics would have been different: Mother would have been in the more conventional situation of a payor parent who experiences a reduction in income and (as was the case in In re Marriage of Leonard, supra, 119 Cal.App.4th 546, In re Marriage of Eggers, supra, 131 Cal.App.4th 695, and In re Marriage of Reynolds, supra, 63 Cal.App.4th 1373) it would have been her burden to establish a lack of ability and opportunity to earn. That dynamic might have prompted her to think twice about retiring quite so early. In any event though, that is not what happened: *1309Because of the highly unusual circumstances of this case (almost a lab experiment in the dynamics of burden of proof as they relate to imputation), the burden fell to father to show the presence of ability and opportunity.
Which the father might have done here, he just didn’t. Conspicuously absent are the sorts of things that helped parents seeking imputation to carry their burden in Hinman VIII, and with LaBass & Munsee, e.g., the imputee’s resume, want ads for persons with the credentials of the potential imputee, opinion testimony (e.g., from a professional job counselor) that a person with the imputee’s credentials could readily secure a job with a given employer (or set of employers), or pay scales correlating ability and opportunity with the income to be imputed. Nor was there any vocational examination. What there was—merely the fact of retirement and previous income—was not sufficient, and thus the trial court’s order denying imputation was clearly correct.18
*1310IV. Miscellaneous Comment of the Trial Judge: “Padilla Jail”
The father also asserts that a miscellaneous comment by the trial judge somehow constitutes grounds for automatic reversal. The argument is not persuasive.
Specifically, as a wholly passing comment made toward the end of the brief hearing, the trial judge asked, rhetorically, “when do you get out of ‘Padilla jail?’ ”19 The father here asserts that the comment evidenced a prejudicial “mistaken premise” that led to the court’s decision not to impute income to the mother.
There are two answers to the assertion. The first is: No, the comment was not evidence of proceeding on the wrong premises. The trial court correctly divined that the father simply had not produced enough evidence on which to base imputation.
The second is: The comment was, in context, nothing more than a metaphor for the trial court’s rejection—and we think a correct rejection—of an overly rigid reading of Padilla. That is, the trial court did not understand this court’s opinion in Padilla as standing for the Dickensian proposition that a payor parent can never do anything that reduces income without a requirement that income be imputed; “jail” was simply a figure of speech to underscore that overly rigid and incorrect reading.
A few words on Padilla are now in order. There can be no doubt that the Padilla decision was correct under its particular facts: The payor parent could not, “within weeks” of a court hearing in which his income was at issue, quit a “well-paying job” held “for many years”—in the process reneging on a previous agreement to pay support at the new levels—and then, six months later, when the business had not been as successful as hoped for, expect his *1311income not to be calculated at prebusiness startup levels. (See In re Marriage of Padilla, supra, 38 Cal.App.4th at pp. 1215, 1219.) The quitting of a well-paying job so soon before a hearing where an obligation is to be determined based on income simply does not stand the smell test.
To be sure, there is some language in the Padilla opinion that might be described as exuberant dicta, and that dicta can be, if read superficially, taken for a rigidity that transcends the discretion the Legislature wrote into the text of Family Code section 4058, subdivision (b). At one point, for example, the opinion indicates that “A parent’s motivation for reducing available income is irrelevant when the ability and opportunity to adequately and reasonably provide for the child are present.” (In re Marriage of Padilla, supra, 38 Cal.App.4th at p. 1218.) Perhaps there is some reasonable wriggle room in the words “adequately . . . reasonably provide” in that sentence, but the sentence may be too easily taken for the blanket proposition that motivation is per se irrelevant. An inflexible rule of per se irrelevance, however, is inconsistent with Family Code section 4058, subdivision (b)’s treatment of earning capacity as a discretionary matter considering the best interests of the children. There may be times, however, when the “best interests of the children” are promoted when parents leave stressful, time-consuming, albeit high-paying jobs, so as to be able to spend more time with their children. The case of In re Marriage of Everett (1990) 220 Cal.App.3d 846 [269 Cal.Rptr. 917] is particularly instructive in that regard.
In Everett, the payor parent had worked at a supermarket as a bakery manager, then salesperson, then lost his job “shortly before separation due in part to drinking problems.” (In re Marriage of Everett, supra, 220 Cal.App.3d at p. 851.) He then started working at a small bakery and married the proprietor, and tried to make a go of things with his new wife—which was difficult when the business lost a major account and tottered near bankruptcy. (Id. at p. 858.) But at least the job stresses were less, which was of some importance given his condition as a recovering alcoholic (nothing to drink in the previous six years). (Ibid.) When the payor parent moved to modify visitation, though, his ex-wife requested a wage assignment, and he responded with a request for modification of support. At the hearing the trial court based its order “solely on earned income” and not on earning capacity based on his work as a “skilled baker.” (Id. at pp. 856, 858.)
The Everett court upheld the decision not to impute income as against the ex-wife’s claim on appeal that the court abused its discretion in not doing so. The court noted that the payor parent (a) was working “full time on a continuous basis since the marital dissolution” and (b) there was no evidence of “shirking” and reasoned that just because the payor parent was employed in a “different setting” (Everett, supra, 220 Cal.App.3d at p. 861, original *1312italics) was no basis for imputation. In doing so, the appellate court actually seemed to acknowledge the legitimacy of the payor parent’s desire to work in a less stressful job. Said the Everett court in a remarkably sensitive passage: “The trial court’s task is more delicate than simply deciding that because a parent might be able to earn more money, additional income should be imputed to that parentMaybe the restructuring would not work out and the parent’s financial situation and mental well-being would deteriorate. All of these factors are interrelated; while ultimately the court must consider earning capacity to the extent consistent with the best interests of the children, their best interest of course is affected by the economic as well as emotional strength of the supporting parent.” (Id. at p. 862, italics added.)
We need only add that, of all people, judges should be the first to recognize the validity of good faith decisions to trade, as our Supreme Court put it in In re Marriage of Simpson (1992) 4 Cal.4th 225, 234-235 [14 Cal.Rptr.2d 411, 841 P.2d 931], “an extraordinary work regimen” for an “objectively reasonable work regimen.” (In Simpson, the high court upheld the trial court’s decision not to impute earning capacity based on a history of working overtime.) Most (all?) judges, after all, would make more money if they returned to private practice, but the phrase “extraordinary work regime” does not even begin to describe the often typical 2,200 (or is it 22,000 these days?) billable hours a year that might be required. And indeed, the Padilla opinion itself correctly intuited that point. (See In re Marriage of Padilla, supra, 38 Cal.App.4th at p. 1220, fn. 7.)
In that regard, the most exuberant dicta in Padilla, though, was in the opinion’s penultimate paragraph.20 Language in that paragraph might easily be taken for the proposition that parents may never try to change their circumstances so as to “lead a simpler life,” “change professions,” or— perhaps the Padilla court was making an allusion to California’s reputation for being a New Age lotusland—seek “self-realization” or “self-fulfillment,” unless they are prepared to pay child support based on theoretical income based upon a previous earnings level. That dicta was simply too broad: It confused the legitimate attempt to attain some balance in one’s life and maybe even actually spend some time with one’s children with self-indulgent shirking. As noted above, the discretionary and best interest elements in *1313Family Code section 4058, subdivision (b) certainly temper any such proposition. Indeed, to the degree that the “self-realization” dicta from Padilla can be read as standing for an inflexible income-ratchet rule (a payor parent can never change positions without having child support calculated on the last and highest income level) we think, on reconsideration, that such a rule is in conflict with the test of earning capacity announced by our Supreme Court in In re Marriage of Simpson, supra, 4 Cal.4th 225, 234-23521 as well as our First District colleagues’ decision in Everett. Both decisions, we think, correctly perceived that the discretion inherent in Family Code section 4058 is not a one-way street requiring a squeeze-the-last-drop workaholism from either parent. (One should remember in this regard that a number of the cases, including LaBass & Munsee and Paulin involved the imputation of earning capacity directed at the stay-at-home caretaker parent.) We have every confidence that trial judges can sniff out shirking and efforts to skirt legitimate obligations well enough that a per se “last and highest income rule” is not only contrary to statute, but unwise and unnecessary as well.
V. Disposition
The court’s order is affirmed. However, in light of the unusual circumstances of this case, where the parent with the greater custody has ended up paying the parent with the lesser custody, we believe that the interests of justice require that each side bear its own costs on appeal.
Rylaarsdam, J., and Bedsworth, J., concurred.