Child Support

Front 1

San Luis Obispo v. Nathanial J. (1996)

Back 1

statutory rape victim can be ordered to pay child support where act was mutual and agreeable

Front 2

San Bernardino v. Martinez (1996)

Back 2

1. Abandonment by kid no defense to reimbursement to county;

2. No duty to collect overpayment from kid.

3. GDL CS in welfare cases, excess to parent.

Front 3

Santa Clara v. Perry (1998)

Back 3

Held CS in paternity action only retro to date of OSC, not Petition. But, this was later changed by law (2000). Now, it is retro to date of Petition -- except if service is delayed by more than 90 day (then retro to service).

FC 17402(c): retro amount is per current GDL formula.

Excess of CS over TANF/AFDC goes to custodial parent.

Front 4

Marriage of Pedregon (2003)

Back 4

Child is not told he was not biological son of Father, but both parents knew. Mom seeks CS, argues paternity by estoppel.

Held: Abuse of discretion NOT to find parent by estoppel -- long duration, enouraged to believe.

public policy to preserve family unit.

Practice pointer: child under 2, query parents re paternity.

Front 5

Marriage of Clevenger (1961)

Back 5

Illegitimate child.

As to an estoppel against the husband from asserting the illegitimacy of the child in order to avoid its support, the record does not show that the husband represented himself to the child as his natural father. Although the findings of fact state that appellant accepted the child, publicly acknowledged and treated the child as his own, the court did not find that the husband made a direct or implied representation to the child that he was the boy's father. The child may have known that appellant was not his father.

If the facts should show, however, that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel.

The representation must be of such long continuance that it frustrates the realistic opportunity of discovering the natural father and truly establishes the paternal relationship of the putative father and the child. We do not discuss here a relationship of some passing days; this relationship continued over the span of a decade.

Front 6

Marriage of Bereznak (1962)

Back 6

Stipulations to binding arbitration of CS void -- against public policy, does not allow for review on the merits, limits court's jurisdiction.

Front 7

Marriage of Alter (2009)

Back 7

1. Court always has jurisdiction to modify CS despite agreements to the contrary. (Mom had argued "non-modifiable down" was ok.)

2. Continuing, predictable, recurring gifts can be "income." Up to the discretion of the trial court.

3. "Income" is broadly defined, while exclusions from income is narrowly defined.
4. "More" is not always "better" for kids. "It cannot be in the best interest of the children if parents are riddled with unpayable debt."

Front 8

Guideline Child Support

Back 8

1. Since Sept. 22, 1992
2. Based on net income
3. CC first, then SS
4. Federal requirement, but state can choose the formula
5. Cost of living, city by city, is not a factor.
6. Special circumstances to go below Guideline, not above it.
7. Principles set forth in FC 4050-4053.

Front 9

Guideline Child Support formula

Back 9

FC 4055

Front 10

FC 4057

Back 10

rebuttable presumption that Guildeline is correct

Front 11

FC 4056

Back 11

before deviating, court must determine Guideline, state it on the record, and state reasons for deviating.

Front 12

FC 4057.5

Back 12

subsequent spouse or nonmarital partner income not a factor, EXCEPT in extraordinary cases where not doing so would lead to extreme hardship.

"Extraordinary case" may include parent who voluntarily or intentionally quits work in reliance on subsequent spouse income.

Discovery of subsequent spouse income limited to W-2 and 1099, unless the court determines it would be unjust.

If included, then hardship for stepchildren is included.

Enactment (1993) constitutes a change in circumstances

Front 13

FC 4058

Back 13

Computation of Annual Gross Income:

1. Broad and inclusive

2. Business income = gross receipts minus REQUIRED expenses. Burden on non-business spouse to prove income; business spouse to prove expenses. Depreciation not "required."
2. Exclude: (a) spousal support of this relationship; (b) new spouse income; (c) public assistance based on need; (d) child support received re another child.

The court may consider earning capacity in lieu of actual income consistent with the best interests of children

Front 14

FC 4059

Back 14

Computation of Net, includes:

taxes; filing status; dependency exemptions; union dues; mandatory retirement; health insurance (self plus all kids, new spouse by practice); CS ordered AND paid; or paid up to Guideline if no order; SS ordered AND paid; job expenses; hardships.

Note: Police, firefighters: remember to change tax default -- they don't pay FICA.

Front 15

Marriage of Carlton (2001)

Back 15

FC 4059 requires use of ACTUAL tax status. (husband filed MFS with new spouse with Pre-nup, but applies even without prenup.)

Does not address issue of scam. . remains open.

Possible argument: GL deviation due to decreased living expenses.

Front 16

County of Ventura v. Gonzales

Back 16

Termination of parental rights terminates child support obligation

Note: We do not terminate 1 parent's rights without an adoption

Front 17

County of San Diego v. Guy (1994)

Back 17

The parent-child relationship and its attendant duty of support do not end when a child is declared a dependent of the juvenile court and removed from the parents' custody.

Front 18

County of Contra Costa v. Lemon (1988)

Back 18

$100,000 lottery winnings constitute income (not property) and should be included in Guideline calculation

(welfare case -- distinguishing factor?)

Front 19

Marriage of Kirk (1990)

Back 19

voluntary reduction in debt cannot be a basis for discretionary finding of reduced net for CS.

Note: Court states outcome might be different if the debt repayment was involuntary condition of employment

Note: Court found that original funds were NOT used for the benefit of the wife or kids.

Front 20

Marriage of Berger (2009)

Back 20

Husband reducted income so that he could reinvest in lanscaping business.

Held: We don't care how he spends his money. Court imputed deferred income.

Violates public policy to allow deferral, live off savings, pay no CS.

Front 21

Marriage of Riddle (2005)

Back 21

The time period on which income is calculated must be long enough to be representative, as distinct from extraordinary; abuse of discretion to use a small unrepresentative sampling.

Past high income not alone indicative of future high income -- no imputation based on past high income alone.

Foregiveness of hiring advance not factored. Cf Berger, but here the funds benefitted community.

Front 22

FC 4060

Back 22

Net monthly calculated by dividing annual by 12.

If this does not accurately reflect actual or prospective earnings of the party at the time of determination, court may adjust as appropriate

Front 23

Marriage of Chakko (2004)

Back 23

mortgage loan application is substantial evidence of income

Front 24

Stewart v. Gomez (1996)

Back 24

Employee benefits, i.e., meal allowance counts as income;

Free indian tribe housing, counts as income; though not employee-related, comparable, because both result in a 'reduction in living expenses' and therefore in an increase in money available for child support.(FC 4058(a)(3))

May impute income in addition to disability (not mutually exclusive)

Front 25

Marriage of Loh (2001)

Back 25

Tax returns presumptively correct.

Lifestyle evidence a last resort

New mate asset irrelevant

Rejects reasoning in Stewart; free housing provided by spouse not included in income.

Front 26

County of Kern v. Castle (1999)

Back 26

million dollar inheritance including $240,000 lump sum, while not income, still had to be considered in setting support level; reduction in living expenses.(FC 4058(a)(3))

must give reasons and cite best interest of child if no imputation on return

Note: Lemon is exception for welfare purposes; Alter for pattern of gifts

Front 27

Marriage of Corman (1997)

Back 27

SS received from party to the action is NOT a special circumstances; While income inclusion is read broadly, exclusions are read narrowly.

Front 28

FC 4061

Back 28

Apportionment of add-ons; SS substracted from payor, added to payee; CS deducted from payor, NOT added to payee; then ratio.

Front 29

FC 3667

Back 29

If a party submits an income and expense declaration that is incomplete or inaccurate, the party may be ordered to pay "all costs of the [subsequent] motion" as sanctions

Front 30

FC 3666

Back 30

The usual practices of civil discovery applicable to the enforcement of family law discovery

Front 31

Marriage of Rocha

Back 31

Income subject to repayment is NOT included. (student loans NOT income)

Front 32

Marriage of Elsenheimer

Back 32

SSI is NOT income (need-based public assitance per FC 4058(c)

Front 33

Marriage of Scheppers (2001)

Back 33

Life insurance not included.

Reasoning: under FC 4058, life insurance is neither included nor excluded, but other insurance is included, therefore intention must be to exclude life insurance

corpus of gifts and inheritance not included, but interest on corpus is.

Lemon distinguished citing AFDC and gambling (lottery).

Front 34

Marriage of Cohn (1998)

Back 34

prior earnings, absent proof of ability to earn, insufficient to impute income.

with self-employed people: what an person of comparable background, age, qualifications, and experience could be expected to earn in his business.

"opportunity to work" is the substantial likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income.

Front 35

Marriage of Destein (2001)

Back 35

may impute income to unproductive grown investment property by applying rate of return to equity.

investment practice of the parties during marriage is not relevant; divorce is a change

rate of return based on experts; risk-free ok

Front 36

Marriage of Schulz (1997)

Back 36

employee benefits (rent and car) are income, but taxable

Front 37

Marriage of Dacumos (1999)

Back 37

may impute rental value to non-primary residence properties

2nd job could be excluded as replacement of unpaid child support -- not indicative of future income.

Front 38

Marriage of Cheritan (2001)

Back 38

1. Rate of return should be imputed on wealth -- children entitled to share in the wealth.

2. stock options -- considered income when exercised

Front 39

Marriage of Wood (1995)

Back 39

child support awards are reviewed for abuse of discretion.

new mate income NOT a special circumstance under 4057.5 -- exception for extraordinary hardship to the children not found

Front 40

County of Placer v. Andrade

Back 40

court cannot deduct predictable overtime and bonuses in determining prospective earnings merely because they occur sporadically; but FC 4060 allows adjustments if that does not accurately reflect prospective income

Front 41

State of Oregon v. Vargas (1999)

Back 41

incarcerated parents are not per se exempt from imputed income, but must show CURRENT opportunity

Front 42

Marriage of Regnery (1989)

Back 42

1. Two-part test for imputation: Ability and Opportunity; (used to also include willingness, but later subsumed). (same for CS and SS, but see Reynolds -- over 65.)

2. Specious or incredible reason for quitting irrelevant.

3. Past payment record irrelevant.

4. Failure to seek low-level jobs is unacceptable. Take time to find higher paying, but after too much time, enough is enough.

Note: if we impute income, we include virtual child care.

Front 43

Marriage of Reynolds (1998)

Back 43

Cannot impute income for SS past the age of 65;

Note: You CAN for CS

Front 44

Marriage of Sinks (1998)

Back 44

Supporting spouse cannot retire prematurely in order to avoid paying spousal support ('shirking")

Payor has burden to prove non-shirking

Front 45

Marriage of Bardzik (2008)

Back 45

party seeking modification has burden of proof. Thus if M seeks to modify, she has burden to prove imputation to H, AND disprove imputation to herself.

Front 46

Marriage of LaBass and Munsee (1997)

Back 46

court imputed income to a teacher who was voluntarily teaching only part-time in order to spend more time with her children

No public policy exception for custodial parents

copy of newspaper job ad is ok as "offer to bargain"

Front 47

Marriage of Hinman (1997)

Back 47

court properly imputed income to a parent with a computer science degree when she dropped out of the marketplace to remarry and have three more children

Cannot stay home for 1 child (to new husband) at the expense of providing CS for another child

No more Philbin bad faith requirement

No per se rule excepting new parents (distinguish Garcia as welfare case).

Front 48

Marriage of Ilas (1993)

Back 48

court refused to lower parent's child support when he quit his pharmacy job in order to return to medical school

Best interest of children is proper test; not bad faith / motive

Front 49

Marriage of Paulin (1996)

Back 49

court imputed income to a parent, a registered nurse, who voluntarily reduced her income in order to remarry and have new children

Front 50

Marriage of Padilla

Back 50

parent may change professions or start a business, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs of their children

Front 51

Marriage of Meegan (1992)

Back 51

A man in his mid-50's could stop paying spousal support when he left his job as a sales executive in order to enter a monastery. (bona fide motive)

Note: SS case; apply to CS?

Front 52

Marriage of Everett (1990)

Back 52

imputation permitted without bad faith, but not required where good faith.

Best interests of children must be considered with imputation of EC AND includes the emotional health of the payor.

Note: FC 4058 -- court may impute "consistent with the best interests of the children."

Front 53

Marriage of Mosley (2008)

Back 53

past income not always indicative of future income -- use of Smith/Ostler for bonuses is ok.

reduction in base pay / uncertainty of future bonus is a change of circumstances
Not necessary to identify a specific job to impute income

Front 54

Marriage of Simpson (1992)

Back 54

earning capacity measured by reasonable work regimen considering (1) availalable jobs w/in occupation; (2) usual working hours in occupation; and (3) usual working conditions within occupation

Front 55

Estevez v. Superior Court (1994)

Back 55

father does not need to provide information regarding income in support modification proceeding where father stipulated he was a high earner who "would pay any reasonable amount," and the guideline amount would greatly exceed the child's needs

Front 56

County of Yolo v. Garcia (1993)

Back 56

In welfare cases only: cannot impute income to parents if child is under 3 y/o b/c W&I Code exempts them from work requirement.

Front 57

Marriage of Olson (1993)

Back 57

1. court may impute reasonable withdrawals from retirement accounts post-retirement age; must balance needs of retiree and public policy in this regard

abuse of discretion to order an amount of spousal support based on funds in a retirement plan which if withdrawn, would be subject to this penalty

CS application by analogy?

Front 58

Marriage of Serna (2000)

Back 58

2nd job not required in SS case;

new spouse income can't be considered in SS or CS: FC 4323(b)

Improper to consider support for adult children (declined to follow Siegal and Paul), as it circumvents FC 3901 (duration of CS)

Front 59

Marriage of Siegel (1972)
Marriage of Paul (1985)

Back 59

moral requirement to support adult children MAY be a consideration in SS

Front 60

Marriage of McElwee (1988)

Back 60

"indirect" able-bodied adult child support by means of increased spousal support was improper (did not address the Siegel and Paul cases)

Front 61

Marriage of Stephenson (1995)

Back 61

H's early retirement in lieu of termination does not require imputation; Trial court has discretion to consider totality of the circumstances.

But, H still has burden to prove he lacks present ability and opportunity (he's the moving party)

Front 62

FC 3558

Back 62

If case involves CS or FS, court may require job training, vocational rehab, work program; including proof of participation