Child Support Services v. Maki
Filed 11/15/13 County of San Diego Dept. of Child Support Services v. Maki CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
COUNTY
OF SAN DIEGO DEPARMENT OF CHILD
SUPPORT SERVICES,
Plaintiff and Appellant,
v.
CHRISTOPHER ALEX MAKI,
Defendant and Respondent.
D061443
(Super. Ct.
No. DF128247)
APPEAL from
an order of the Superior Court
of
County, Kelly Doblado, Judge.
Reversed.
Kamala D.
Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General,
Linda M. Gonzalez, Marina L. Soto and Ricardo Enriquez, Deputy Attorneys
General, for Plaintiff and Appellant.
Christopher
Alex Maki, in pro. per., for Defendant and Respondent.
San Diego
County Department of Child Support Service (County) moved for an order to
increase the child support obligation of Christopher Maki. The court order granted only an $11 per month
increase, raising Christopher's support obligation to $636 per month, rather
than raising his support obligation to the "guideline" amount of $953
per month. The court allowed Christopher
two "hardship" deductions to reflect his financial burden to support
children with whom he currently lived.
County appeals, asserting the order must be reversed because the court did
not make the requisite findings to support the hardship deductions and the
omission was prejudicial.
I
FACTUAL
AND PROCEDURAL BACKGROUND
A. Facts
Christopher
and his former wife Corrine are the parents of Nathan. In 2009, the court issued a child support order
requiring Christopher to pay Corrine $625 per month as child support for
Nathan.
In early
2012, County filed a motion for an order modifying the child support order,
relying principally on the Income and Expense Declarations (I&E) filed by
Christopher and Corrine. Christopher's
I&E listed his pre-tax income at $5579.60 per month, and stated he lived
with his wife (whose pre-tax income was $5971.33 per month) and three
children. He listed $6983.41 in monthly
expenses, not including child support for Nathan or installment obligations on
credit cards and auto loans, and that his wife paid $3774.33 of those
expenses. He claimed to spend 15% of the
time with Nathan, and that Corrine spent only 25% of the time with Nathan
because Nathan lived with his grandparents and Corrine lived elsewhere.
Corrine's
I&E stated she had been unemployed since February 2010, and received public
assistance of $1038 per month. Corrine
and her four children (including Nathan) allegedly lived with her mother and
stepfather, who paid some of her monthly expenses. She asked the court to consider, as a special
hardship, that the father of her three children other than Nathan was
incarcerated and provided her with no help.
Christopher
filed two responses, one of which asserted that Nathan did not live with
Corrine and therefore the support order should be vacated or changed to the
grandmother with whom Nathan lived. He
also asserted the calculus for the support order should include what Corrine
was capable of earning.
B. The Hearing
At the
hearing, the trial court found Christopher had only a 2% timeshare with Nathan
and, using guideline support calculations, determined his guideline support for
Nathan should be $953 per month.
Christopher then asked whether he could obtain a hardship deduction
because he had three other children for whom he was responsible. County objected that Christopher wife's
income, which was more than Christopher earned, was meeting all of the needs of
these three children. The court stated
it would grant Christopher two hardship deductions because "this is an
active aid case," which resulted in a guideline calculation of $636 per
month in child support for Nathan. Over
County's objection, the court awarded $636 per month in child support for
Nathan.
II
ANALYSIS
A. Legal Framework
California's
strong public policy in favor of adequate child support "is expressed in
statutes embodying the statewide uniform child support guideline." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269,
283.) A trial court must
adhere to the guidelines and may not depart from them except in the special
circumstances enumerated in the statutes.
(Fam. Code, §§ 4052, 4053, subd. (k)
of Stanislaus v. Gibbs (1997) 59
Cal.App.4th 1417, 1419; In re Marriage of Carter (1994) 26 Cal.App.4th
1024, 1026 ["when ordering child support the trial court lacks discretion
to vary from the presumptively correct amount, calculated by applying the
algebraic formula in the statute, unless one or more of the statutorily
enumerated rebuttal factors is found to exist"].)
The guidelines seek to make the
interests of children the state's top priority (§ 4053, subd. (e)), and is
expressed as a mathematical formula whose key component is each parent's net
monthly disposable income, determined based on annual gross income less
allowable deductions. (
(1997) 56 Cal.App.4th 1331, 1336.) When setting
the amount of child support, the courts are required to adhere to certain
principles, including that "[a] parent's first and principal obligation is
to support his or her minor children according to the parent's circumstances
and station in life" (§ 4053, subd. (a)), "[e]ach parent should
pay for the support of the children according to his or her ability (
should share in the standard of living of both parents. Child support may therefore appropriately
improve the standard of living of the custodial household to improve the lives
of the children." (
(f).)
One
statutorily enumerated basis for departing from
mathematical formula set forth in the statute is extreme financial hardship on
the supporting parent. Accordingly, when
calculating the net disposable income of parents for purposes of the section
4055 support formula, a trial court is authorized to make a deduction from
gross income "for hardship, as defined by Sections 4070 to 4073,
inclusive, and applicable published appellate court decisions." (§ 4059, subd. (g).) Section 4070 states, "If a parent is
experiencing extreme financial hardship due to justifiable expenses
resulting from the circumstances enumerated in Section 4071, on the request of
a party, the court may allow the income deductions . . . necessary to
accommodate those circumstances." (Italics
added.) Among the statutory
circumstances evidencing hardship are "[t]he minimum basic living expenses
of either parent's natural . . . children for whom the parent has the
obligation to support from other . . . relationships who reside with
the parent. The court, on its own motion
or on the request of a party, may allow these income deductions as necessary to
accommodate these expenses . . . ." (§ 4071, subd. (a)(2).)
Although the
presence of other children is a valid consideration when evaluating a hardship
deduction, "a hardship deduction is not a 'foregone conclusion' on the
birth of new children; . . . the family's income, as well as
purported expenses, have to be considered in making the 'hardship'
determination; and [the supporting parent's] responsibility as a parent '[is]
not to seek to provide less for some of his children because he had others, but
to provide adequately for all of them.' " (In re
Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382.) Thus, the allowance of a hardship deduction
is discretionary (id. at p. 1383),
but if the court does decide to allow a hardship deduction, "the court shall
do both of the following: [¶] (1) State the reasons supporting the
deduction in writing or on the record [and] [¶] (2) Document the amount of the deduction and
the underlying facts and circumstances." (§ 4072, subds. (a)(1)
& (a)(2), italics added.) Moreover, "the
court shall state, in writing or on the record, the following information
whenever the court is ordering an amount for support that differs from the
statewide uniform guideline formula amount under this article:
The amount of support that would have been ordered under the guideline formula[;]
The reasons the amount of support ordered differs from the guideline formula
amount[; and]
The reasons the amount of support ordered is consistent with the best interests
of the children." (§ 4056,
subd. (a).)
In
Cal.App.4th 212, the court explained section 4072 represented a legislative
determination that "it is the obligation of the trial court to identify in
a support order the evidence on which it bases its decision to allow a hardship
deduction and its reasons for allowing it . . . ." (Carlsen,
at p. 217.) Because the statutory scheme
"has limited the deduction for hardship to the unusual situation" (
represented a legislative requirement for "an articulation of the reasoning
by which the court has determined that the minimum basic living expenses of
resident dependent minors from other relationships constitute a hardship rather
than an expense the . . . parent is expected to bear without
assistance from the [other] parent . . . ." (Carlsen,
at p. 217, fn. omitted.)
of reasons serves multiple purposes: "The purpose in requiring findings is
to demonstrate to a losing
party the possible futility of any appeal, and to focus the appellate review on
the pertinent portions of the record underlying the trial court's
determination. [Citations.] Required findings are also intended to ensure
that the trial court does not abuse its power to act only in the exceptional
case." (Id. at pp. 217-218.)
When the
record does not contain the required statement of reasons, the error is
prejudicial and requires reversal unless the missing information is "otherwise
discernible from the record." (
Cal.App.4th 175, 183.) Not making a
material finding may be deemed nonprejudicial "when the missing finding
may reasonably be found to be implicit in other findings . . . [citation]
. . . [or] when, under the facts of the case, the finding would
necessarily have been adverse to the appellant." (Rojas
v. Mitchell (1996) 50 Cal.App.4th 1445, 1450.) Absent those circumstances, however, the
matter must be reversed and remanded to permit the court to make the requisite
record. (Id. at p. 1451.)
B. Analysis
Here, after
considering the documentary evidence
and arguments submitted on behalf of the parties, the court did make the
required finding of the amount of support that would have been ordered under
the guideline formula. However, when the
court gave its "reasons the amount of support ordered differs from the
guideline formula amount" (§ 4056, subd. (a)(2)), it specified it was
granting Christopher two hardship exemptions without stating (either in writing or on the record) the
reasons for its conclusion that Christopher would suffer extreme
financial hardship without the deductions, and without documenting the amount
of the deduction and the underlying
facts and circumstances, as mandated by section 4072, subdivisions (a)(1)
and (a)(2).
title="">[2] Moreover, it did not state "[t]he
reasons the amount of support ordered is consistent with the best interests of
the children." (§ 4056, subd.
(a)(3).)
Because the
trial court's noncompliance with sections 4056 and 4072 was erroneous (
Cal.App.4th at p. 217), we consider whether the error may be considered
harmless. We conclude not stating any
reasons for departing from the guideline amounts cannot be considered harmless because
"the missing reasons cannot be implied in the court's express findings and
we cannot conclude that the missing information would necessarily have been
adverse to appellant." (
at p. 1451.) There are no express
findings concerning Christopher's financial condition from which anything can
be implied and we cannot conclude the missing findings would necessarily have
been adverse to County. Although the
evidence showed Christopher and his new wife had three children under school
age, it also showed Christopher's new wife earned nearly $6000 monthly gross income,
which gave Christopher's household more than $11,000 in monthly gross income
from which to pay the expenses for his three new children as well as pay child
support for Nathan.
title="">[3] Moreover, the evidence showed many of
Christopher's "monthly expenses" were discretionary allocations, and
we cannot conclude a court would necessarily
have found those allocations represented "[t]he minimum basic living
expenses" (§ 4071, subd. (a)(2)) of Christopher's new children or
would necessarily have found that
reallocating some of those discretionary funds toward Nathan's child support
would have caused Christopher extreme financial hardship within the
meaning of section 4071.
Although the
error requires us to reverse and remand for further proceedings to allow the court
to consider whether to make the required findings and information under sections 4072, subdivisions (a)(1)
and (a)(2), and 4056, we do not mean to imply the support order is otherwise defective,
and we do not express any opinion on whether substantial evidence might support
hardship exemptions. We merely reverse
and remand to permit the court to comply with its obligations if, on remand, it
determines to grant any hardship exemptions.
DISPOSITION
The order is
reversed and the matter is remanded to the trial court for further proceedings
consistent with this opinion. Each party
shall bear its own costs on appeal.
McDONALD,
J.
WE CONCUR:
HUFFMAN,
Acting P. J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further
statutory references are to the Family Code unless otherwise specified.
name="_ftn2" title="">[2] The court's only statement of reasons was, "Since this
is an active aid case I will grant [Christopher] two hardships." However, the only "aid" was being
received by Corrine, and there is no statutory basis (or even any logical
nexus) for granting an obligor father a hardship exemption based on the
custodial mother's financial condition.
