Marriage
of Lim and Carrasco
Filed
2/26/13 Marriage of
Lim and Carrasco CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re the Marriage of LILY LIM
and MICHAEL CARRASCO.
H037845
(Santa Clara
County
Super. Ct.
No. FL006973)
LILY LIM,
Respondent,
v.
MICHAEL CARRASCO,
Appellant.
I. INTRODUCTION
In this marital dissolution action,
appellant Michael Carrasco challenges the trial court’s December
8, 2011 order
directing respondent Lily Lim to pay him monthly
$2,705 and monthly child support of
$1,568, based on Lim’s earnings of $22,076 per month while working an 80
percent schedule as an attorney.
Carrasco contends that the trial
court abused its discretion in calculating support on Lim’s actual income
of $22,076 from her reduced work schedule, rather than her earnings capacity of
approximately $27,595 per month when employed as a full-time attorney.
For reasons that we will explain, we
conclude that the trial court did not abuse its discretion in calculating Lim’s
support obligations on the basis of
her reduced income and we will affirm the December 8, 2011 order.
II. FACTUAL AND PROCEDURAL BACKGROUND
Lim and
Carrasco were married in 2003 and separated in 2011. They have two children who were both under
the age of five when Carrasco filed a petition for dissolution of marriage on August 22, 2011. Carrasco dismissed the petition without
prejudice on August 25, 2011. The record reflects that after an attempt at
reconciliation failed, Lim filed a petition for
Carrasco was employed as a college professor with average monthly earnings of
$9,156. Lim was a partner in a law firm,
where her monthly earnings averaged $27,237.
A. Carrasco’s
Requests for Support
On September 27, 2011, Carrasco
filed an ex parte request for child custody,
child support, visitation, and temporary spousal support. Relevant to support issues, Carrasco stated
in in his supporting declaration that he is a college professor who has a
“flexible work schedule†and was “generally responsible for the children’s
care, such as feeding them their meals, bathing them, and putting them to
bed.†Carrasco also stated that although
Lim is a practicing attorney “able to work from home occasionally, her job
still requires her to work extensive hours, and bill more than 2,500 hours
annually.†The trial court set a hearing
on an order to show cause why the relief sought by Carrasco should not be
granted.
In her
responsive declaration filed in opposition to Carrasco’s request, Lim stated,
with respect to support issues, that she agreed to pay guideline temporary
child support in the amount of $1,612 per month. Lim also stated that she had been on a
medical leave of absence from her job and intended to return to work on October 31, 2011 “at 80% employment,
to allow [her] to care for the children during this difficult transition.†Due to her 80 percent work schedule, Lim’s
“gross monthly income†would “be reduced from approximately $27,595.26, to
$22,076.20†and she would no longer be eligible for a bonus. She sought an order denying temporary spousal
support “as a result of [Carrasco] perpetrating acts of domestic violence
against me, as well as violent behavior toward our children.â€
B. Hearing
on Order to Show Cause
At the hearing on the order to
show cause held on November 14, 2011,
the parties advised the trial court that they had resolved all issues with one
exception. They requested that the court
determine whether the award of temporary child and spousal support from November 28, 2011, forward should be
based on Lim’s full-time salary or her reduced salary from her 80 percent work
schedule.
The trial
court accepted Lim’s offer of proof, as follows: “So if Miss Lim were to testify this
afternoon, she would testify that she has been on medical leave since the [domestic
violence] incident occurred at the end of September. She is scheduled to return to work on
November 28th at an 80 percent reduced schedule. It was actually effective October 31st, but
her leave was extended to November 28th.
. . . [S]he’s employed as a
lawyer partner . . . . Her reduced
schedule would result in [an annual] salary of $264,914.40.†Lim then introduced into a evidence a letter
from her law firm, which the record reflects included an agreement between Lim
and her partners that her 80 percent reduced schedule was effective November
28, 2011.
Lim’s offer
of proof also stated: “And she would
testify that her reduction in her work schedule would be in her children’s best
interests as it would allow Ms. Lim a reasonable work schedule to care for
their young children, who are ages 3 and 4.
[¶] . . . [¶]
She would testify that for the last fiscal year at her firm . . . that
was during the time their youngest child . . . was adopted and brought to this
country from China,
she was only able to bill 1,674 hours for that year. That was 80 percent of the 2,000 hour annual
goal that’s required for partners.†On
cross-examination, Lim stated that she was only able to bill 1,600 hours due to
being off work for 10 weeks, having a second child, and not having support from
her spouse. When questioned by the
court, Lim made a further offer of proof that she would testify that to bill
2,000 hours per year, she would have to work 80 hours per week.
Carrasco’s
attorney stated in turn that “the only offer of proof I have is my client
maintains full-time employment, just like he’s supposed to under the
statute. I think that if the court were
[to] allow Ms. Lim to work less than her earning capacity, that would start a
very dangerous precedent, and that would not be supported by the scope of the
statutory law on this topic.â€
After
hearing argument, the trial court ruled that it had the discretion to determine
“whether to apply actual income or whether to apply some kind of imputed
income.†The court further stated, “It’s
common knowledge among lawyers that the big firms generally require a lot of
hours . . . and that my questions of [Lim] really were trying to get to that,
as to what is full time work? Full time
work is not a 40-hour work week. Full
time work is a certain number of billable hours per year which a full time
employee is required to work regardless of the number of hours that day. . . .
[¶] And it does appear from the
testimony today that an 80 percent work load, which would be . . . 1,600
billable hours, really is going to take full time hours. . . .
[¶] . . . Even working at 80 percent time is going to
be working a substantial amount of the time.
[¶] So I do find that it’s in the
best interests of the children that she work an 80 percent work week, given
that that is work at a big law firm. . . .
So then the child support should be based on her actual income at
[$]22,000 a month . . . .â€
C. Support
Order
The trial court issued its
findings and order after hearing on December
8, 2011. Regarding support
issues, the order states: (1) “Child
support and spousal support shall be calculated based on [Lim’s] 80% employment
schedule, with earnings of $22,076.00 per monthâ€; (2) “Commencing December 1,
2011, child support shall be paid from [Lim] to [Carrasco] in the amount of
$1,568.00 per month and temporary spousal support shall be paid by [Lim] to
[Carrasco] in the amount of $2,705.00 per month, for a total of $4,273.00 per
month, as shown in the Dissomaster attached hereto as Exhibit A.â€
Carrasco
subsequently filed a timely notice of appeal from the December 8, 2011 order.
DISCUSSION
On appeal,
Carrasco’s chief contention is that the trial court erred by calculating Lim’s
temporary spousal support and child support obligations on the basis of her
voluntarily reduced income from her 80 percent work schedule. We will begin our evaluation with the
applicable standard of review.
A. Standard
of Review
The standard of review that
applies to an order for temporary spousal support is abuse of discretion. (In re
Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) “[I]n exercising its broad discretion, the
court may properly consider the ‘big picture’ concerning the parties’ assets
and income available for support in light of the marriage standard of
living. [Citation.] Subject only to the general ‘need’ and ‘the
ability to pay,’ the amount of a temporary spousal support award lies within
the court’s sound discretion, which will only be reversed on appeal on a
showing of clear abuse of discretion.
[Citation.]†(
Child
awards are also reviewed for abuse of discretion. (In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283 (
has ‘a duty to
considered discretion with respect to the [parent’s child]
support obligation . . . .’ [Citation.]
Furthermore, ‘in reviewing child support
orders we must also recognize that determination of a child
support obligation is a highly regulated area of
the law, and the only discretion a trial court possesses is the discretion
provided by statute or rule.
[Citations.]’ [Citation.]†(Ibid.)
This court
has explained that “ ‘[t]he abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial
court’s findings of fact are reviewed for substantial evidence, its conclusions
of law are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.’
[Citation.]†(
B. The
Parties’ Contentions
Carrasco
argues that since Lim’s actual income as a full-time attorney, at the time of
the November 14, 2011
support hearing, was approximately $27,500 per month, the trial court abused
its discretion in failing to base its calculation of her temporary spousal
support and child support obligations on that amount. He asserts that Lim had the ability and the
opportunity to work a full-time employment schedule while caring for the
children, as she had done during the parties’ marriage, and therefore it is in
the children’s best interest for her to work full-time. Carrasco also contends that the trial court
erred under Family Code section 4056
by failing to state on the record the amount of guideline support, the
reasons for deviating from guideline support, and why deviation is consistent
with the best interest of the children.
In
response, Lim argues that the trial court acted within its discretion when it
calculated her support obligations on the basis of her actual income from her
80 percent work schedule, since doing so was in the best interest of the
children. She explains that she had “a
grueling [work] schedule†during the marriage due to her law firm’s requirement
that she bill 2000 hours annually, which limited her time with her young
children and deprived her of sleep. Lim
emphasizes that even working an 80 percent schedule as a law firm partner, she
will earn $264,914 per year and remain “substantially responsible for the
support of the family†in light of Carrasco’s lesser income of $100,000 per
year. In Lim’s view, the trial court
properly considered that she will be more able to meet the needs of the
children by working a reduced schedule.
Lim also
disputes Carrasco’s contention that the trial court erred in deviating from
guideline child support, asserting that the court did not deviate since it used
her actual income effective November
28, 2011, as evidenced by the letter from her law firm, to
calculate guideline support.
C. Earning
Capacity
Since we
understand Carrasco’s chief contention on appeal to be that the trial court
erred in calculating temporary spousal support and child support on the basis
of Lim’s actual income as of November 28, 2011,
when she began working an 80 percent schedule, rather than her greater
earning capacity as a full-time law firm partner, we will review the general
rules regarding earning capacity.
“ ‘It has
long been the rule in this state that a parent’s earning
capacity may be considered in determining spousal and
child support. [Citations.]’ [Citation.]
‘[F]or purposes of determining support, “earning
capable of earning based upon the spouse’s age, health, education, marketable
skills, employment history, and the availability of employment
opportunities.’ [Citation.]†(Cheriton,
supra, 92 Cal.App.4th at p.
301.) “By express statutory provision,
trial courts have discretion to impute income to a parent based on
supra, at p. 301.) “But no authority permits a court to impute
doing so is in the best interest of the children. By explicit statutory direction, the court’s
determination of earning capacity
must be ‘consistent with the best interest of the children.’ (§ 4058, subd. (b); [citations].)†(Cheriton,
supra, at p. 301; see also
56 Cal.App.4th 1331, 1340.)
The
California Supreme Court has considered the issue of whether earning capacity
“should, as a general matter, properly be measured by the work regimen engaged
in by the supporting spouse during the marriage even if such regimen was
extraordinary, requiring excessive hours or an onerous work schedule.†(In re
Marriage of Simpson (1992) 4 Cal.4th 225, 234 (Simpson).) The court
concluded “that earning capacity generally should not be based upon an extraordinary
work regimen, but instead upon an objectively reasonable work regimen as it
would exist at the time the determination of support is made. [Citation.]â€
(Id. at pp. 234-235.)
Our Supreme
Court further determined that “[a] reasonable work regimen, as opposed to an
extraordinary regimen, however, is not readily or precisely determined and is
dependent upon all
including the choice of jobs available within a particular occupation, working
hours, and working conditions. Established
employment norms, such as the standard 40-hour work week, are not controlling
but are pertinent to this determination.
In certain occupations a normal work week necessarily will require in
excess of 40 hours or occasional overtime and thus perhaps an amount of time
and effort which may be considered reasonable under the circumstances. A regimen requiring excessive hours or
continuous, substantial overtime, however, generally should be considered
extraordinary.†(
Cal.App.3d 469, 476 [working 60 hours per week constitutes excessive hours].)
D. Analysis
In the
present case, the trial court declined to impute income to Lim based on her
earning capacity as a full-time law firm partner. The court implicitly found that as a
full-time law firm partner Lim worked excessive hours, and determined that an
80 percent schedule would require her to work at least 40 hours per week in
order to meet her law firm’s billable hours requirement. The trial court further determined that an 80
percent schedule was in the children’s best interest, and therefore calculated
guideline child support and temporary spousal support on the basis of Lim’s
reduced income of $22,076 per month.
We are not
convinced by Carrasco’s argument that the trial court abused its discretion in
failing to impute income to Lim based on her earning capacity of $27,595.26 per
month as a full-time law firm partner.
The relevant authorities do not support the proposition that the
supporting spouse’s income must be based upon an earning capacity that has been
demonstrated by an onerous, excessive work regimen.
In
Supreme Court was whether the lower courts had properly imputed income to the
husband, for purposes of calculating his temporary spousal support and child
support obligations, based on the earning capacity he had demonstrated during
the marriage while working 16-hour days as a stage hand. (Simpson,
supra, 4 Cal.4th at pp.
229-231.) Our Supreme Court found that
the record did not show that the husband could earn the imputed income while
“working a reasonable number of hours.â€
(Id. at p. 236.) The court therefore concluded that “the
record fails to establish the trial court properly determined [his] earning
capacity in accordance with the standard of an objectively reasonable work
regimen.†(Ibid.)
In so
ruling, the Simpson court established
the rule “that earning capacity generally should not be based upon an
extraordinary work regimen, but instead upon an objectively reasonable work
regimen as it would exist at the time the determination of support is
made. [Citation.]†(Simpson,
supra, 4 Cal.4th at pp.
234-235.) We therefore determine that
the trial court acted within its discretion in declining to impute income to
Lim based on her earning capacity as a full-time law firm partner with an
extraordinary work regimen. (See
Moreover,
we reiterate that this court has determined that “no authority permits a court
to impute earning capacity to a parent unless doing so is in the best interest
of the children. By explicit statutory
direction, the court’s determination of earning capacity must be ‘consistent
with the best interest of the children.’
(§ 4058, subd. (b); [citations].)â€
(Cheriton,
supports the trial court’s implicit finding that it was not in the children’s
best interest to impute earning capacity to Lim based on her previous income as
a full-time law partner.
The
evidence showed that Lim’s income remained high, at $22,076.00 per month, even
working an 80 percent schedule as a law firm partner. There was nothing to suggest that Lim had
divested herself of her earning capacity at the expense of Carrasco or their
children. (See, e.g.,
Cal.App.4th 988, 999.) Further, Lim’s
evidence, as stated in her offer of proof, was that a reduced work schedule
would allow her more time to care for her young children. The trial court did not err in finding that
Lim’s reduced work schedule was in the best interest of the children, since
“sometimes ‘the best interests of the children’ are promoted when parents [reduce their work hours] so as to be able to
spend more time with their children.’
[Citation.]†(
Cal.App.4th 1375, 1390; see also In re
Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1312-1313 [§ 4058
does not require “squeeze-the-last-drop workaholism†from either parent].)
Thus, we
determine that Carrasco has not shown that the trial court abused its
discretion when the court calculated Lim’s temporary spousal support and child
support obligations on the basis of her reduced income from her 80 percent work
schedule, rather than her earning capacity as a full-time law firm partner with
an extraordinary work regimen. The trial
court’s determination was not arbitrary or capricious and was consistent with
the California Supreme Court’s instruction in Simpson that earning capacity generally should be based upon an
objectively reasonable work regimen at the time support is calculated. (Simpson,
supra, 4 Cal.4th at pp. 234-235.)
Finally, we
are not convinced by Carrasco’s argument that the trial court’s award of child
support deviated from the guidelines and the court failed to comply with the
requirements of section 4056 where there is a deviation from guideline
support. In making this argument,
Carrasco relies on section 4053, which provides in part: “In implementing the statewide uniform
guideline, the courts shall adhere to the following principles: [¶]
parent’s first and principal obligation is to support his or her minor children
according to the parent’s circumstances and station in life. [¶]
Both parents are mutually responsible for the support of their children. [¶]
The guideline takes into account each parent’s actual income and level of
responsibility for the children.â€
We agree
with Lim that the trial court did not deviate from guideline child support by
failing to base its support calculation on her previous income of $27,595.26
per month as a full-time law partner.
The trial court found, as the evidence showed, that as of November 28, 2011, Lim’s actual
income from her 80 percent work schedule was $22,076 per month and used that figure in calculating child
support without any deviation from the guidelines. The trial court therefore complied with the
directive of section 4053, that the guideline calculation “tak[e] into account
each parent’s actual income.†(§ 4053,
subd. (c).)
For these
reasons, we conclude that the trial court acted within its discretion when the
court awarded temporary spousal support and child support on the basis of Lim’s
reduced income from her 80 percent work schedule, and we will affirm the December 8, 2011 order.
DISPOSITION
The December 8, 2011 order is
affirmed. Costs on appeal are awarded to
respondent Lily Lim.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
The letter confirming the agreement between Lim and her partners regarding her
reduced work schedule was not included in the record on appeal.
further statutory references are to the Family Code unless otherwise indicated.
