Marriage of Sakov and Adut
Filed 6/10/13 Marriage of Sakov and Adut CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re the
Marriage of JOSHUA SAKOV and ESTER ADUT.
JOSHUA SAKOV,
Respondent,
v.
ESTER ADUT,
Appellant;
SAN MATEO
COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,
Intervener and Respondent.
A131936
(San Mateo County
Super. Ct. No. FAM-071155)
Once
again, we are presented with an appeal involving the dissolution of the
marriage of Ester Adut and Joshua Sakov.
It is a happening akin to the rites of Spring or the return of the
swallows. Here, appellant Ester Adut,
makes several arguments in this appeal.
Appellant contends there was an absence of evidence presented to the
trial court to support the amount of income imputed to her and used to
determine a modified child support order.
The Attorney General, appearing pursuant to Family Code section 17406 to
“represent the public interest in establishing, modifying, and enforcing
support obligations,†concedes on behalf of intervener and respondent that
appellant’s claim is clearly meritorious.
income to an unemployed parent, the calculation must be supported by
proper evidentiary hearing allowing
appellant to demonstrate her ability to earn income attributed to her. The ruling by the trial court commissioner
was error and the prejudice requires us to reverse the order appealed. Because we reverse on this issue, we need not
address the numerous other contentions raised by appellant.
STATEMENT OF
FACTS
Appellant
and respondent Joshua Sakov became parents to triplets in 1996. In 2002, Sakov filed for dissolution of the
marriage with appellant. Appellant
obtained custody of all three children and Sakov was directed to pay child
support in the amount of $1,529 monthly in a January 10, 2007 order. Enforcement of the January 2007 order was
assumed by the
County Department of Child Support Services (San Mateo DCSS).
On
March 2, 2010, San Mateo DCSS filed an order to show cause seeking to modify
the January 2007 order. A hearing was
calendared for May 4, 2010. Appellant’s
income and expense declaration was filed with the request, and it indicated
Adut had been unemployed since August 2008.
Appellant filed a subsequent declaration seeking financial support from
Sakov for the cost to send all three children to summer camp (an estimated
$4,550 per child), a proportional share of the tuition for private school for
each child, and proportional share in the expense for field trips each child
may attend. Respondent answered the
request with a declaration arguing the January 2007 support order continue
unchanged. He also filed his own income
and expense declaration.
The
hearing on May 4, 2010, was transferred to a different judicial officer. The matter was set for a “long-cause†trial
on September 14, 2010. Appellant
attended the May 4 hearing and was ordered by the court to be present for the
trial on September 14. The transcript of
the May 4 proceeding does not indicate any objection by appellant to the
transfer.
On
September 14, the department for the trial was unavailable. The matter was continued to October 26,
2010. Counsel for San Mateo DCSS was to
issue notice to the parties of the continuance.
It
appears Sakov and his attorney were present for the trial on October 26, but
appellant was absent. The trial court
determined Adut was notified of the trial date in a timely and adequate
manner. The attorney for San Mateo DCSS,
Sakov’s counsel and respondent had discussions regarding Sakov’s employment
history and his income with the trial court.
Sakov’s attorney maintained his client had earned $50,000 a month from
April 1, 2009, through August 31, 2009, along with additional taxable rental
income of $493 per month. Additionally,
Sakov had monthly health insurance costs for the children in the sum of $1,011
during this period and had filed his 2009 income tax return as “married, filing
separately†with four exemptions. His
counsel advised the court Sakov had wages of $13,493 in addition to $900 in
unemployment benefits and $493 rental income during the month of September 2009. Between October 2009 and December 2009, Sakov
only had unemployment insurance benefits in the monthly amount of $1,950 and
monthly rental income of $493.
Counsel
for San Mateo DCSS advised the court he assessed initial support calculations
for Adut based on an imputed earning capacity for her of $3,750 per month. He reached this amount relying on a 2003 job
evaluation of appellant which was the basis for the January 2007 support order. Sakov’s attorney maintained it was now
appropriate for the trial court to factor in an increase in Adut’s imputed
earning capacity since the County was relying on an assessment made in
2003. Sakov’s counsel asked for a five
percent per annum increase in the imputed monthly figure. Counsel for respondent also argued Adut’s
income and expense declaration filed in support of the increase in support
failed to include the second page which was designed to detail her current
income situation.
Based
on these contentions raised by respondent’s counsel, the court asked the attorney
for San Mateo DCSS if he had any recent evidence concerning Adut’s current
income, information dealing with her previously owned rental income property,
and any other information to answer the issues raised by respondent. The county counsel denied having any
additional figures for the court but he did relate a recent conversation with
Adut where she told him she was unemployed and wanted the court to consider her
current income as zero. The trial court
refused to believe her income to be zero and decided it was going to impute a
particular earning capacity for Adut, with the issue being what appellant would
earn if she sought employment based on the job evaluation developed in 2003.
With
a further opportunity to argue, counsel for respondent reiterated his point
that the imputed 2003 income for Adut should be increased by five percent per
annum to reach a current figure of monthly income. Because Adut had failed to provide evidence
she attempted to obtain employment and essentially had been unemployed since
2007, respondent argued the increase should be larger as a penalty.
The
trial court proceeded to make several orders regarding the application by
Adut. The court eventually determined a
pay increase of five percent per year of Adut’s imputed monthly income was
proper. This increased her imputed
income from $3,750 to $5,276 or $63,312 yearly.
The court decided this was reasonable in view of appellant’s advanced
level of education and training.
The
trial court ordered the attorney for San Mateo DCSS to calculate a child
support schedule after assigning imputed income to Adut in the amount of $5,276
per month. DCSS Counsel was to use that
figure in recalculating Sakov’s monthly child support as well as a proper date
for a monthly payment. The matter was
continued to February 16, 2011, for further hearing on child support.
On
December 20, 2010, appellant petitioned for a statement of decision based on
the rulings of the October 26 hearing, but the court denied her request. The basis for the denial was a statement of
decision could only be requested by a party who attended the proceeding, and
Adut failed to attend the October hearing.
Adut
filed objections with DCSS’s proposed order.
She filed additional objections on December 22, 2010. The trial court filed its formal order based
on the October 26, 2010 rulings on March 3, 2011. Adut filed a timely
order on April 29, 2011.
STANDARD OF
REVIEW
We
review a decision involving earning capacity in child support cases based on
the abuse of discretion standard. (
Cal.4th 225, 234.) Findings of fact by
the trial court in a child support order are reviewed from the substantial evidence
standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282–283.)
We
will generally affirm a child support order except where the trial court abused
its discretion and will reverse only if prejudicial error is found based on our
review of the record. (
Cal.App.4th 223, 229; In re Marriage of
Drake (1997) 53 Cal.App.4th 1139, 1150–1151.) The abuse of discretion standard serves as a
limitation on appellate courts where the trial court made its decision based on
substantial evidence and appropriately exercised its discretion. (In re
Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.)
DISCUSSION
In
this appeal, appellant presents numerous arguments covering an opening brief of
101 pages. In the issue we address here,
she alleged the trial court erred by imputing any income to her based on
earning capacity when, at the time of the hearing, she was not employed and had
exclusive custody of the triplets. Appellant
errs when she claims the trial court lacked discretion to impute income to
her. Family Code section 4058,
subdivision (b), provides the trial court may, in its discretion, consider a
parent’s earning capacity in lieu of
that parent’s income, when it is consistent with the best interests of the
children. Whether earnings may be
imputed to a parent who is either unemployed or underemployed is left to the
discretion of the trial court. (
Cal.App.4th 988, 999.) Any contention by
appellant contrary to this principle is erroneous.
Nevertheless,
a review of the record here supports Adut’s claim there was no evidence before
the trial court supporting the dollar amount imputed to her and used to
calculate the modified child support sum.
There is simply no evidence, let alone substantial evidence, to allow us comfort in the figure decided by
the trial court. Consequently, the trial
court’s order must be reversed and the case remanded for an evidentiary
hearing. At that time, Adut should be
provided the opportunity to present evidence on her opportunity to be employed
and at what income level.
There
was no evidence current income or earning capacity was provided to the trial
court for a recalculation of modified child support. The only evidence regarding Adut’s current
situation was her income was zero. While
Adut was not present at the hearing, the fact is a party does not need to
object at the time of hearing to a judgment that is not supported by evidence
to raise the issue on appeal. (
1401, 1406.) Even if there is a failure
to object, an appellate court may find insufficiency of the evidence to support
the finding. (Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc. (1978)
77 Cal.App.3d 742, 761.) “It would be
idle to attempt to elaborate the proposition that a failure to object to
evidence, or to move for a nonsuit, . . . precludes an appellant from
attacking a finding on the ground of insufficiency of the evidence to sustain
it.†(First Nat. Bank v. Maryland Cas. Co. (1912) 162 Cal. 61,
72–73.)
Under
current standards, earning capacity is established when a parent has both the
ability and opportunity to work. (
Cal.App.4th 988, 995, fn. 6.) It
represents the income a spouse is reasonably capable of earning based on “the
spouse’s age, health, education, marketable skills, employment history, and the
availability of employment opportunities.â€
(In re Marriage of Simpson, supra,
4 Cal.4th 225, 234.) Yet, the
figures used in this determination cannot be manufactured out of whole cloth or
guess work; tangible factual foundations must be referenced. (In re
Marriage of Smith (2001) 90 Cal.App.4th 74, 82.) Here, respondent must “present competent
evidence [the other parent] had both an ability and an opportunity to earn the
attributed income.†(
Cal.App.4th 1317, 1329.) We do not
substitute our judgment for that of the trial court, but we must decide if the
trial court reasonably could have made the order that was made. (In re
Marriage of Hinman, supra, at p. 994; White
v. Marciano (1987) 190 Cal.App.3d 1026, 1033.)
A
review of the record in this matter suggests appellant had the ability to earn
income. She earned a bachelor’s degree
in psychology in 1983, a master’s degree in management in 1986, and a law
degree from Santa Clara University Law School in 1999. In 2002, she was admitted to the State Bar of
California. For 13 years she was
employed as a senior financial analyst at United Airlines, from 1988 to
2001. She also had a real estate agent
license, and had been employed by Coldwell-Banker selling homes from 2001 to
2004. The 2003 job assessment concluded
appellant could work in any of the former fields she worked, or as an
entry-level associate attorney. She was
found qualified as an unlicensed social service worker based on her psychology
degree.
What
was missing from the evidentiary hearing was any evidence Adut could earn any
amount approaching the sum of $5,276 per month which was the current income
imputed to her. The trial court
arbitrarily used a five percent per annum increase and applied that to the 2003
imputed income figure for its determination in 2010 of imputed income. Respondent’s counsel provided the court no
basis Adut had the opportunity to earn this amount per month.
Indeed,
there was no evidence presented, especially in light of the economic situation
in California in 2010, that it was reasonable to believe Adut would enjoy a
five percent salary increase per year from 2003 to 2010. “Here, there were no sworn declarations, no
offers of proof, and no testimony on the disputed factual issues. The trial court’s decision was based upon
unsworn opening statements of counsel, not upon evidence. It cannot stand.†(County
of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1427, disapproved on other
grounds by Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1361, fn. 15.)
Of course, it may eventually become the decision of the trial court that
appellant has engaged in sham when she argues she is unemployable. (In re
Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1373–1374.) However, we cannot make that conclusion based
on the minimal record before us.
The
March 3, 2011 support order is reversed and remanded for an evidentiary hearing
where each side may present evidence on the employment opportunities currently
available for a person of appellant’s experience and ability, as well as the
financial arrangements for such positions.
Once this evidence is presented, the trial court can make proper
findings to support a legitimate amount of income to impute to appellant.
Each
party to bear their own costs.
Appellant’s
requests for judicial notice are denied.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Margulies,
Acting P. J.
__________________________________
Banke,
J.
name="_ftn1" title="">[1] See Family Code section 17400, subdivision (k), and
section 17407.
name="_ftn2" title="">[2] This is a most contentious case. Since 2008, issues in this case have been
before us in 10 separate direct appeals and/or writ petitions. Judicial resources on remand would be wisely
spent in resolving legal issues fully and carefully.
