Dept. of Chiid Support Services v. Gutierrez

Filed 1/22/10 Dept. of Chiid Support Services v. Gutierrez CA3CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Juan Gutierrez (father) appeals from (1) an order requiring him to pay $444 per month in child support for two of his children based on imputed income, and (2) a subsequent order reducing his obligation to $160 per month based on his actual income. He raises various challenges to the courts jurisdiction, its use of the child support guidelines, and its imputation of income; and he claims the court erred in failing to make the new order sufficiently retroactive. We shall affirm in part and reverse in part.

FACTS

In order to understand fathers contentions, it is helpful to set forth information concerning earlier court proceedings. On January 28, 2004, the court ordered him to pay $407 a month in child support for his three children. The childrens mother receives public assistance for two of the children.

Father worked at Goodwill Industries between October 2005 and March 2007, when he was discharged for failing to report for work. According to father, he had a cramp in his foot and was unable to walk to the bus stop or operate the forklift at work. He sought a reduction in child support based upon his unemployment and difficulty in finding work.

On April 1, 2007, the court reduced fathers child support obligation to zero and ordered him to actively look for work and to file a minimum of 10 job applications every two weeks.

Father obtained a temporary full-time job for three weeks in August 2007 during the California State Fair, earning $963 for that time period. On October 24, 2007, he found part-time work in a banquet catering position with the University of California, Davis.

Following a hearing on November 6, 2007, the court ordered child support of $545 per month for the three children, effective December 1, 2007, based on fathers ability to earn minimum wage. The appellate record does not include a transcript of the hearing or the evidence used to impute income to father.

On November 30, 2007, father moved to modify his support obligation on the ground that the mother of his three children did not receive public assistance for one of the children and she declared she had not authorized the county to seek child support for that child and did not want support. Father also believed a reduction was appropriate because he was able to work only limited hours in December due to illness and the lack of catering jobs with his employer. He argued that application of an earning capacity rather than actual income standard was inappropriate because, although he was willing to work, he lacked the ability and opportunity to work. According to fathers declaration, he did not have a high school diploma, did not have a drivers license so he had to rely on public transportation, and he lived with his daughter, whom he paid $300 a month for rent. Between rent, food, and transportation costs, he did not have any money to pay child support.

The hearing on the November 30 motion was held on February 20, 2008. Based upon imputed income, rather than actual income, the court (Commissioner Patricia Wong) modified fathers support obligation to $444 for two children. Rejecting fathers argument that the order should be effective on December 1, 2007, because he filed his motion on November 30, 2007, the court ordered that the modified amount of child support would commence on January 1, 2008. The court did so because it was not going to relitigate the November 6, 2007 order imputing income based on ability to earn.

Father filed a notice of appeal from the February 20, 2008 order.^[1]

From the incomplete record provided, it appears that father moved to modify support sometime thereafter, and it was modified to zero effective August 1, 2008, while he was serving . . . time for parking tickets. The matter was scheduled for another hearing to reassess fathers child support obligation after his release in November.

On August 12, 2008, the Department of Child Support Services (DCSS) moved pursuant to Code of Civil Procedure section 473 to set aside the February 20, 2008 order on the ground that [t]hrough [its] inadvertence, prior to asking the Court to impute an earning capacity of minimum wage to both . . . Father and Mother in this case, [DCSS] failed to establish that there were minimum wage jobs available and that the parents had the ability to earn such jobs. DCSS asked the court to enter an order for child support pursuant to guideline and based on actual income for both parties.

On September 24, 2008, a hearing was held on DCSSs August 12 motion. The court (Commissioner Christopher Longaker) noted the motion would affect only the support obligation for the seven months between January 1 and August 1, 2008, when child support was reduced to zero. DCSS proposed setting child support at zero as of June 1, 2008, because father had a hernia, which affected his ability to work.

Father opposed DCSSs motion on the ground the court lacked jurisdiction to decide the matter under Code of Civil Procedure section 473 because more than six months had elapsed from the date of the order being challenged. The court found the motion was not untimely since it was filed within 180 days from the challenged order.

Father also claimed the court lost jurisdiction over the matter when father filed an appeal from the February 20 order. However, inconsistent with that claim, father asked the court to modify his child support obligation below the guideline level due to exceptional circumstances. He argued an order for child support at guideline level was unwarranted because he lacked sufficient funds to support himself. He also argued the reduced child support amount should be retroactive to December 1, 2007, rather than January 1, 2008, because this should have been the effective date of the February 20 order. Father agreed that, if he wanted the court to reduce his support obligation, it would have to set aside or change the February 20 order.

The court took the matter under submission.

On October 2, 2008, the court filed its ruling on submitted matter, granting the motion to set aside the February 20, 2008 order and, in lieu thereof, ordering father to pay guideline support of $160 a month, effective January 1, 2008, based on evidence of fathers actual income.

Father filed a notice of appeal from that order, which was served upon him on November 14, 2008.

DISCUSSION

I

Despite the fact father asked the trial court to set aside or modify the February 20, 2008 child support to reduce his support obligation retroactive to December 1, 2007, he claims on appeal that the court lacked jurisdiction to do so for two different reasons.

A

In fathers view, the essence of the DCSS motion was that the trial court in the prior hearing did not make written findings in the minute order to support its imputation of minimum wages. He also asserts that DCSS did not provide a copy of the required proposed pleading (a motion to modify the amount of child support) necessary for the court to grant the relief requested. These omissions, father suggests, were errors of law and, he argues, Code of Civil Procedure section 473 did not authorize the trial court to correct errors of law.

Father forfeited this contention by failing to raise it in the trial court. He simply argued that DCSSs motion was untimely, not that relief was unavailable pursuant to Code of Civil Procedure section 473 even if the motion was timely. Indeed, rather than object to a modification reducing his child support obligation, father sought a modification, albeit in an amount lower than that requested by DCSS. The court explicitly confirmed that father wanted to change the February 20 order by modifying his child support obligation.

In other words, father treated DCSSs motion as a motion to modify child support, and he fully litigated the matter. Thus, his claim that the trial court lacked jurisdiction to modify the child support obligation is forfeited. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501 [An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] [Citations.] [] Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. [Citation.] [Citation.]], italics omitted.)

B

Fathers second procedural attack on the courts modification of the February 20, 2008 child support order is based on his claim that his pending appeal from the February 20 order deprived the court of subject matter jurisdiction to modify the order.

In most circumstances, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Code Civ. Proc., 916, subd. (a).) [W]hether a matter is embraced in or affected by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the effectiveness of the appeal. (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381 (hereafter Horowitz).) The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (hereafter Varian).)

A postjudgment or postorder proceeding is . . . ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal. (Varian, supra, 35 Cal.4th at p. 191.) Such is the case with a motion to modify child support. (Horowitz, supra, 159 Cal.App.3d at pp. 382-383 [no automatic stay because the result of the proceeding to modify support could have been achieved through other procedures regardless of the outcome of the appeal].) Modification of a trial judges order for child or spousal support based on a change of circumstances while the issue of the validity of that amount is on appeal does not interfere with the jurisdiction of the appellate court. (Id. at p. 384; accord, In re Marriage of Varner (1998) 68 Cal.App.4th 932, 935-936; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) 7:41, 7:44, pp. 7-15 to 7-16.)

Because the parties treated DCSSs motion as a motion to retroactively modify the February 20, 2008 child support order based on new evidence demonstrating a change of circumstances with respect to need and ability to pay, and litigated it as such a motion, the trial court (Commissioner Longaker) had jurisdiction to modify the February 20 order despite fathers pending appeal from that order.

II

Father contends that he rebutted the presumption in favor of using the guideline amount of child support; thus, the trial court abused its discretion in imposing the guideline amount. (See Fam. Code, 4057; further section references are to the Family Code unless otherwise specified.) We find no abuse of discretion. (County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1105 [a trial courts child support award is reviewed for abuse of discretion].)

The amount of monthly child support payments calculated by using the statutory formula in section 4055 is presumed to be the correct amount to be ordered. ( 4057, subd. (a).) Subdivision (b) of the section 4057 states that the presumption may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053,^[[2]] because one or more of the following factors is found to be applicable by a preponderance of the evidence . . . : [] . . . [] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: [] (A) Cases in which the parents have different time-sharing arrangements for different children. [] (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. [] (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount. (Italics added.)

The enumerated three special circumstances are not relevant here, but the statute states that special circumstances demonstrating that the guideline amount is unjust are not limited to those listed. ( 4057, subd. (b).)

According to father, he demonstrated the requisite special circumstances to rebut the presumption, based on evidence of his dire financial circumstances that warranted a downward modification of child support to an amount less than the $160 awarded by the trial court. He relies primarily on City and County of San Francisco v. Miller (1996) 49 Cal.App.4th 866, 868 (hereafter Miller).

Miller held a trial court did not abuse its discretion in ordering below-guideline child support given that the parent, who had very minimal income, had physical responsibility for his children 20 percent of the time and had to be able to feed them during that time. (Miller, supra, 49 Cal.App.4th at p. 869.) Thus, in setting the amount of support, the trial court adhered to the statutory principle of considering first what is in the childrens interests. (See 4053, subd. (e).)

Here, father has physical custody of his children only five percent of the time. Accordingly, the best interest of the children, which is the states top priority ( 4053, subd. (e)), does not weigh in favor of reducing fathers obligation to them below the guideline child support amount.

Moreover, it bears emphasis that Miller simply found that the trial court did not abuse its discretion in lowering child support to below-guideline amounts. This does not mean that, conversely, the court would have abused its discretion had it resolved the case differently. (See County of Lake v. Antoni, supra, 18 Cal.App.4th at p. 1106 [in context of special circumstances warranting deviation from guideline support amounts, courts are vested with considerable discretion to approach unique cases on an ad hoc basis].)

Here, the trial court was cognizant of fathers limited income of $684 per month and acknowledged that, when a partys income falls below the federal poverty level, the court has discretion to deviate from the guideline support amount if doing so would be in the best interest of the children. It appears the court opted to not go below the guideline and, instead, simply made a low-income adjustment pursuant to section 4055, subdivision (b)(7), setting child support at the low end of the $160 to $241 guideline amount.^[3]

Although father pays his adult daughter $300 a month in rent from his limited income, he has a greater obligation to his minor children. There was no evidence that his daughter would evict him for nonpayment of rent as the result of his meeting his child support obligation to her half-siblings. And, in light of fathers declaration that his friends and relatives feed him when necessary, there was no evidence that he would be unable to meet his basic necessities as a result of the $160 per month support obligation.

Consequently, the trial court (Commissioner Longaker) did not abuse its discretion in declining to set child support below the low-income adjusted, guideline support amount.

III

Before addressing fathers next contention concerning the imputation of income, it is helpful to revisit certain facts.

On November 6, 2007, the trial court ordered father to pay child support of $545 per month, effective December 1, 2007, based on his ability to earn minimum wage.

On February 20, 2008, the trial court (Commissioner Wong) reduced child support to $444, effective January 1, 2008, after father moved to modify his support obligation on two grounds: (1) the childrens mother was receiving SSI for one child, was not receiving state public assistance, and did not seek child support from father for this child; and (2) support for the remaining two children should be reduced because fathers income was so minimal, as evidenced by his declaration concerning his income in December 2007.

It appears the trial court reduced fathers support obligation based solely on the mothers agreement to receive support for only two of their three children because of her receipt of federal assistance for the third child. The court said it would continue to impute income to father for the remaining children and would not relitigate the appropriate amount of support for December 2007, which was based on imputed income.

Before a court may use a parents earning capacity rather than actual income in computing child support, certain factors must be demonstrated. Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [Citation.] If a parent is unwilling to work despite the ability and the opportunity, earning capacity may be imputed. [Citation.] (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338.)

Father contends that DCSS presented no evidence of available full-time employment he was unwilling to take; hence, there was no evidence to support the imputation of full-time minimum wage income to him, and the court erred in imputing income at the February 20, 2008 hearing, rather than basing child support on fathers actual income.

DCSS appears to have conceded this point in the trial court when it moved to set aside the February 20 order and to modify the support amount based on fathers actual income, rather than his earning capacity. The concession is appropriate.

The sole evidence presented at the February 20 hearing was fathers declaration as follows:

Father has a 10th grade education, cannot read or write very well, and is not able to follow written instructions at work based on this limitation. He was employed as a forklift operator between October 2005 and March 2007, and he unsuccessfully looked for full-time employment until he was hired as a seasonal employee at the California State Fair in August and September 2007. In October 2007, he learned of a banquet catering position with the University of California, Davis and applied for the job. He was hired for the position, which is part-time but has the potential to become full-time. He worked when the University had events; however, there were no events when the University was closed.

During December 2007, father was ill with a strep throat, which required medical care at the emergency room on December 11. He was told he should not return to work until December 14. His supervisor had not scheduled father for work that week due to uncertainty about his health, but scheduled him for December 19, which was the last available work date in December before the University closed between December 20, 2007, and January 3, 2008. The supervisor informed father that he would be working substantially more hours in January. Once he completed the three-month probationary period, father would be eligible for full-time employment. He planned to apply for a permanent job.

Father earned $102.40 in October, $610.80 in November, and $193.60 in December. He sought to reduce his support obligation as of December 1, 2007, because of his minimal income and because the mother did not wish to receive support for one of their three children. Father argued the court should not apply the earning capacity standard because he was willing to work and had tried unsuccessfully to obtain full-time employment.

DCSS did not refute fathers declaration, and did not present any evidence at the February 20 hearing to show that there actually were available full-time job opportunities for father but that he was unwilling to work.

The court (1) calculated child support based on two children instead of three; (2) continued to impute income to father based on his earning capacity--because the prior court order imputed income, and the court refused to relitigate whether imputation of income based on a minimum wage earning capacity was appropriate despite fathers declaration outlining his difficulties in obtaining work; and (3) made the new order effective January 1, 2008.

Given the lack of evidence that jobs were available but father was unwilling to take one, the record does not support Commissioner Wongs use of imputed income, rather than fathers actual income, in calculating fathers child support obligation.

However, on October 2, 2008, Commissioner Longaker modified the February 20 order and directed father to pay child support of $160 per month, effective January 1, 2008, based on his actual income between January 1 and May 15, 2008.

Thus, fathers contention concerning the erroneous imputation of income is moot except as to the amount of support ordered for December 2007. In this respect, his contention is intertwined with his claim that Commissioner Wong should have made the February 20 order reducing child support retroactive to December 1, 2007, which is the day after he filed his motion to modify the November order directing him to pay $545 per month in child support. (See 3653 [(a) An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666(a)(9)). [] (b) If an order modifying or terminating a support order is entered due to the unemployment of either the support obligor or the support obligee, the order shall be made retroactive to the later of the date of the service on the opposing party of the notice of motion or order to show cause to modify or terminate or the date of unemployment, subject to the notice requirements of federal law (42 U.S.C. Sec. 666(a)(9)), unless the court finds good cause not to make the order retroactive and states its reasons on the record].)

Here, Commissioner Wong abused her discretion in continuing to impute income for December 2007, rather than use fathers actual income to compute his child support obligation for two children, and in not making her order retroactive to December 1, 2007. Commissioner Longakers subsequent modification of child support effective January 1, 2008, did not rectify Commissioner Wongs error because Commissioner Longakers order did not modify the support for December 2007.

Accordingly, the matter must be remanded for the trial court to recalculate the appropriate amount of child support for December 2007, using fathers actual income in December 2007.

DISPOSITION

The October 2, 2008 order directing father to pay child support of $160 per month, effective January 1, 2008, is affirmed.

The February 20, 2008 order filed on May 1, 2008, is reversed, and the matter is remanded to the trial court with directions to calculate fathers child support obligation in December 2007, using his actual income that month.

The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

SCOTLAND , P. J.

We concur:

SIMS , J.

ROBIE , J.

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^[1]The order was entered on May 1, 2008, and served on May 22, 2008, but the parties refer to it as the February 20, 2008 order. So shall we.

^[2] Relevant principles set forth in section 4053 include: (a) A parents first and principal obligation is to support his or her minor children according to the parents circumstances and station in life and (e) The guideline seeks to place the interests of children as the state's top priority.

^[3] In all cases in which the net disposable income per month of the obligor is less than one thousand dollars ($1,000), there shall be a rebuttable presumption that the obligor is entitled to a low-income adjustment. The presumption may be rebutted by evidence showing that the application of the low-income adjustment would be unjust and inappropriate in the particular case. In determining whether the presumption is rebutted, the court shall consider the principles provided in Section 4053, and the impact of the contemplated adjustment on the respective net incomes of the obligor and the obligee. The low-income adjustment shall reduce the child support amount otherwise determined under this section by an amount that is no greater than the amount calculated by multiplying the child support amount otherwise determined under this section by a fraction, the numerator of which is 1,000 minus the obligors net disposable income per month, and the denominator of which is 1,000. ( 4055, subd. (b)(7).)