Marriage of Dinovo CA4/1

Filed 12/14/22 Marriage of Dinovo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of DARLYN and
SALVATORE DINOVO.
D080163
DARLYN REBECCA DINOVO,
Respondent, (Super. Ct. No. 17FL003635C)
v.
SALVATORE DINOVO,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Victor N. Pippins, Judge. Affirmed.
A. Stephen Rocha for Appellant.
Darlyn Rebecca Dinovo, in pro. per., for Respondent.
INTRODUCTION
Salvatore Dinovo (Father) appeals the family court’s order granting the
motion of Darlyn Rebecca Dinovo (Mother) to modify his monthly child
support obligation. Father contends the court abused its discretion under
Family Code1 section 4058, subdivision (a)(3), by declining to include in the
calculation of Mother’s gross income the rental value of a church-owned home
she was permitted to reside in for free as a benefit of her employment as the
church’s minister. He further contends the court erred as a matter of fact
and law when it purportedly considered the amount that Father’s current
girlfriend was contributing to his monthly expenses. Finding no merit in
either contention, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Postjudgment Requests for Modification of Child Custody, Visitation, and
Child Support
The parties divorced after being married for nine years and eight
months and having three children. A judgment of dissolution of their
marriage was entered in October 2017. The terms of the judgment were set
forth in a marital settlement agreement granting Mother sole legal and
physical custody of the children, establishing a visitation schedule under
which Father’s total time with the children was approximately 10 percent,
and setting Father’s child support obligation at zero. The court reserved
jurisdiction to make an appropriate child support award upon proper
application by either party.
In August 2020, when the children were ages 5, 7, and 15, Father filed
a request for order modifying child custody and visitation. He explained that
at the time the judgment of dissolution was entered, he had anticipated
moving to Ohio. However, he never moved to Ohio, and he was currently
living in San Diego County. He asked the court to grant him joint legal
1 Further unspecified statutory references are to the Family Code.
2
custody, increase his visitation time with his youngest two children, and
permit him to start reunification counseling with his oldest child.2
In March 2021, Mother filed a request for order modifying child
support. She argued she had received no child support at all and that the
costs associated with raising their three children should be divided between
her and Father. In support of her request, she filed an income and expense
declaration stating she was employed as a minister of a church in La Jolla.
Her compensation included a monthly salary of $5,071 and a monthly
housing allowance of $690. Based on her income, she and the children
qualified for, and were covered by, Medi-Cal. Her average monthly expenses
were $5,834. These expenses did not include rent or a mortgage, because she
and the children were residing rent-free in a church-owned home located in
La Jolla. Mother explained, “Some clergy, like myself, live in a church owned
home (rectory or parsonage).” She also referred to the home as “clergy
housing.”
Father filed an income and expense declaration stating he was a
psychologist with a Ph.D. who was employed by a psychiatric center. He
received an average monthly gross income of $3,796 plus $1,083 in
“collections.” (Capitalization omitted.) He explained that he worked an
average of 135 hours per month at a rate of $28 per hour, which was the basis
of his gross earnings. He received additional, varying amounts—the
“ ‘[c]ollections’ ”—whenever insurance reimbursements exceeded this hourly
rate.
2 Father later withdrew his requests for custody and visitation regarding
his oldest child.
3
Father further stated he was living with his nonmarital partner,
Amanda, whose gross monthly income was “[u]nknown.” He identified total
average monthly expenses of $8,252, of which $4,758 were paid by “others.”
These monthly expenses, as itemized in the form declaration, included
housing costs (consisting of a mortgage payment, homeowner’s insurance,
maintenance, and real property taxes) totaling $1,995, as well as additional
amounts allocated to groceries and household supplies ($1,500), eating out
($320), and utilities ($230), as well as other expenses not at issue here.
In a separate filing, Mother averred that Father was living in
Amanda’s home, and the person contributing to his monthly household
expenses was Amanda.
The chief dispute between the parties in the determination of Father’s
child support obligation centered around whether and to what extent the
family court should consider each parent’s housing expense, or lack thereof,
when calculating that parent’s monthly gross income. Father urged the
court, pursuant to section 4058, subdivision (a)(3),3 to include the fair market
rental value of Mother’s clergy housing benefit in its tabulation of her income.
He filed copies of internet rental listings of homes in La Jolla and asserted
the fair market rental value of the home in which Mother and the children
were residing was between $7,382 and $14,008 per month. He asked the
court to impute at least $7,382 to Mother’s income when determining her
3 The annual gross income of each parent means income from whatever
source derived, except as specified in subdivision (c) and includes, but is not
limited to, the following: [¶] . . . [¶] (3) In the discretion of the court,
employee benefits or self-employment benefits, taking into consideration the
benefit to the employee, any corresponding reduction in living expenses, and
other relevant facts.” (§ 4058, subd. (a)(3).)
4
monthly income. He submitted a DissoMaster4 report in which $4,879 had
been entered as his gross income, and $5,761 in wages and salary plus an
additional $7,382 of “[o]ther nontaxable income” had been entered as
Mother’s gross income. According to this report, Father’s resulting monthly
child support obligation was $480.
Mother opposed inclusion of the rental value of her housing benefit as
income. In a declaration explaining the basis of her opposition, she averred
that clergy housing is not considered income for income tax purposes or for
purposes of determining income for benefits like Medi-Cal. She further
averred that residing in a church-owned home did not add to her income. It
reduced her expenses, but her expenses were still considerable since she was
caring for three children. She also asserted, based on copies of internet
rental listings, that the fair rental value of the home was actually between
$3,000 and $6,000. She stated, “[Father] also lives in a home that is owned
by his girlfriend who covers housing costs/mortgage payments . . . : Shall the
value of that home be imputed to him as income for that reason?”
Mother further averred that Father was underemployed, that the
average income for a licensed clinical psychologist with a Ph.D. was $105,544,
and that Father was able to remain underemployed because “most of his
expenses are paid by his significant other.” She asked the court to impute
income of $105,544 to Father due to his intentional underemployment. She
4 “The DissoMaster is one of two privately developed computer programs
used to calculate guideline child support as required by section 4055, which
involves, literally, an algebraic formula.” (In re Marriage of Schulze (1997) 60
Cal.App.4th 519, 523, fn. 2 (Schulze).)
5
further requested that the court find, pursuant to section 4057.5,5 that
Father’s underemployment constituted an extraordinary case in which
excluding that income would lead to extreme and severe hardship of any child
subject to the child support award, and, based on that finding, consider
Amanda’s income in calculating Father’s support obligation.
Father opposed Mother’s request that the family court consider
Amanda’s income in calculating his support obligation. He argued the
requirements of section 4057.5 were not satisfied because Mother had not
presented evidence of Amanda’s income, nor of extreme and severe hardship
to the children if Amanda’s income were not considered.
II.
Family Court Orders Modifying Child Custody, Visitation, and Child Support
In November 2021, the family court issued a findings and order after
hearing modifying child custody and visitation. The parties were granted
joint legal custody over the two youngest children. Mother retained sole legal
custody of the oldest child. Mother also retained sole legal custody “regarding
all issues relating to the children’s mental health.” On the issue of physical
custody, the court ordered that the children were to reside primarily with
Mother. Father was granted regular parenting time with the two youngest
5 “The income of the obligor parent’s subsequent spouse or nonmarital
partner shall not be considered when determining or modifying child support,
except in an extraordinary case where excluding that income would lead to
extreme and severe hardship to any child subject to the child support award,
in which case the court shall also consider whether including that income
would lead to extreme and severe hardship to any child supported by the
obligor or by the obligor’s subsequent spouse or nonmarital partner.”
(§ 4057.5, subd. (a)(1).)
6
children from Wednesday afternoon until Thursday morning and on alternate
weekends, in addition to annual holidays and vacation time.
In December 2021, the family court issued an ex parte minute order
modifying Father’s child support obligation to $1,199 per month. Attached to
the court’s minute order was a DissoMaster report into which the court had
entered $4,879 as Father’s monthly wage and salary income, and $5,761 as
Mother’s monthly wage and salary income. No other monthly income was
attributed to Mother or Father. Based on these income amounts and other
monetary information not at issue here, the DissoMaster computed Father’s
monthly child support obligation to be $1,199.
In the minute order, the family court explained:
“As reflected in the Disso Master [sic] report, the Court declines
to include the fair rental value of the home that [Mother] lives in
to calculate support. Family Code 4058(a)(1) [sic] gives the court
discretion to include the value of employee benefits, including
reductions in living expenses, in calculating income for the
purposes of support. [Father] argues that the Court should
include the fair market rental value of the home that [Mother] is
permitted to live in, rent free, as a benefit of her employment as a
minister. The Court finds that it would be inequitable to include
the value of this benefit to [Mother] while ignoring the fact that
[Father], according to his own income and expense declaration,
has $4,758 of his expenses paid by his current partner. If the
Court were to follow [Father’s] requests regarding income
calculations, it would result in an inadequate amount of support
to his children, which is contrary to the goals of the [F]amily
[C]ode.”
Father filed a notice of appeal, identifying the order from which he was
appealing as the court’s December 2021 order.6
6 An order modifying child support is appealable “as an order after final
judgment.” (County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246,
1250.)
7
DISCUSSION
Father challenges the family court’s December 2021 minute order in
two respects. First, he challenges the court’s denial of his request to consider
the fair market rental value of Mother’s church-provided home as her income
for purposes of child support. Second, he purports to challenge, in his words,
“the Trial Court’s finding that Appellant’s girlfriend’s contributions to
household expenses was a special circumstance to deviate from the guideline
formula for child support.”
I.
Legal Principles
A. Standards of Review
“The standard of review for an order modifying a child support order is
well established. ‘[A] determination regarding a request for modification of a
child support order will be affirmed unless the trial court abused its
discretion, and it will be reversed only if prejudicial error is found from
examining the record below.’ [Citations.] Thus, ‘[t]he ultimate determination
of whether the individual facts of the case warrant modification of support is
within the discretion of the trial court. [Citation.] The reviewing court will
resolve any conflicts in the evidence in favor of the trial court’s
determination.’ ” (In re Marriage of Williams (2007) 150 Cal.App.4th 1221,
1233–1234 (Williams).)
However, “the trial court has ‘a duty to exercise an informed and
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.] In short,
8
the trial court’s discretion is not so broad that it ‘may ignore or contravene
the purposes of the law regarding . . . child support.’ ” (In re Marriage of
Cheriton (2001) 92 Cal.App.4th 269, 282–283 (Cheriton), superseded by
statute on other grounds as stated in In re Marriage of Morton (2018) 27
Cal.App.5th 1025, 1049.)
Although Mother has not filed a response brief on appeal, we adhere to
the requirement that Father, as the appellant, must affirmatively
demonstrate prejudicial error. (County of San Diego v. P.B. (2020) 55
Cal.App.5th 1058, 1068.)7
B. The Child Support Guidelines
“California has a strong public policy in favor of adequate child support.
[Citations.] That policy is expressed in statutes embodying the statewide
uniform child support guideline. (See [§§] 4050–4076.) ‘The guideline seeks
to place the interests of children as the state’s top priority.’ (§ 4053, subd.
(e).) In setting guideline support, the courts are required to adhere to certain
principles, including these: ‘A parent’s first and principal obligation is to
7 On August 9, 2022, Mother filed a motion to dismiss Father’s appeal
based on the disentitlement doctrine, under which a court has the inherent
discretionary power to dismiss an appeal where a party refuses to comply
with lower court orders. (See Stoltenberg v. Ampton Investments, Inc. (2013)
215 Cal.App.4th 1225, 1229.) Dismissal of an appeal under the
disentitlement doctrine is an equitable remedy subject to our discretion.
(Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259,
265.) We have reviewed Mother’s motion, which appears to be based on the
contention that Father is in contempt of the 2017 judgment of dissolution,
which required the parties to notify one another promptly of any changes in
employment, because Father has either provided false information regarding
his employment and income, and/or has repeatedly refused to provide
updated employment and income information. We deny the motion and elect
to reach the merits of this appeal rather than impose the extreme sanction of
dismissal.
9
support his or her minor children according to the parent’s circumstances and
station in life.’ (§ 4053, subd. (a).) ‘Each parent should pay for the support of
the children according to his or her ability.’ (§ 4053, subd. (d).) ‘Children
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.’ (§ 4053, subd. (f).)” (Cheriton,
supra, 92 Cal.App.4th at p. 283, fn. omitted.)
“To implement these policies, courts are required to calculate child
support under the statutory guidelines. (See §§ 4052–4055.) ‘[A]dherence to
the guidelines is mandatory, and the trial court may not depart from them
except in the special circumstances enumerated in the statutes. (§§ 4052,
4053, subd. (k); [citation].)’ [Citation.] The guideline amount of child
support, which is calculated by applying a mathematical formula to the
parents’ incomes, is presumptively correct.” (Williams, supra, 150
Cal.App.4th at p. 1237.)
To calculate child support according to the guideline formula, a court
must determine each parent’s monthly disposable income. (See § 4055,
subds. (a), (b)(2) [“[t]o compute net disposable income, see [s]ection 4059”].)
Monthly disposable income, in turn, is derived from annual gross income,
which is defined in section 4058. (See §§ 4059 [annual net disposable income
is computed by deducting amounts from the parent’s annual gross income],
4058 [defining annual gross income].)
Section 4058 broadly defines annual gross income as “income from
whatever source derived[.]” Relevant here, subdivision (a)(3) of section 4058
provides that annual gross income includes, “[i]n the discretion of the court,
employee benefits or self-employment benefits, taking into consideration the
10
benefit to the employee, any corresponding reduction in living expenses, and
other relevant facts.” (Italics added.)
II.
The Family Court Did Not Abuse Its Discretion When It Declined to Consider
the Fair Market Rental Value of Mother’s Clergy Housing as Her Income
Father challenges the family court’s refusal to include in its calculation
of Mother’s gross income the fair market rental value of the church-owned
home in which she was residing.8 He contends the value of Mother’s housing
8 Father spends a considerable portion of his opening brief recounting
Mother’s position from the child support proceeding that her housing benefit
was exempt from taxable income. He argues the court had discretion under
section 4058 to consider the value of the benefit as income notwithstanding
its characterization under federal tax law. Courts have reached different
outcomes on the effect of federal tax law on the interpretation of section 4058.
(See In re Marriage of Scheppers (2001) 86 Cal.App.4th 646, 650 [federal law
is persuasive on the interpretation of section 4058]; cf. In re Marriage of Alter
(2009) 171 Cal.App.4th 718, 735 [holding recurring gifts of money could be
considered income for purposes of child support even though gifts are not
included as income under federal tax law; “federal tax law is not
conclusive”].) Here, the family court implicitly resolved this dispute in
Father’s favor when it found it had the authority under section 4058 to
consider Mother’s housing benefit as income. As Father acknowledges, “[i]t is
clear from the record . . . that the Trial Court rejected [Mother’s] argument[.]”
We therefore do not need to review this aspect of the court’s decision, because
it is unchallenged by Mother and was resolved favorably to Father. (See In re
Marriage of Moore (1980) 28 Cal.3d 366, 374 [reversal unwarranted where
the mother did not appeal, and the father suffered no prejudice from the trial
court error]; Marich v. MGM/UA Telecommunications, Inc. (2003) 113
Cal.App.4th 415, 431 [where a trial court’s ruling appeared to have been in
appellants’ favor, appellants could not challenge it on appeal].) Father also
offers a lengthy critique of Mother’s argument that the family court should
rely on rents in National City to determine the value of her housing benefit.
We disregard Father’s criticisms because he fails to establish that the court
relied on Mother’s argument to his prejudice. (In re Marriage of Falcone &
11
benefit was substantial and increased Mother’s standard of living, and that
by failing to include it in the calculation of Mother’s income, the court
“create[d] an unequal standard of living in both households favoring
[Mother.]” He complains there was no showing that his own lifestyle was
“enhanced at all by residing with Amanda.” He contends the resulting child
support award violated policies of ensuring that children share in the
standard of living of both parents, “equaliz[ing] the living conditions . . . in
the non-custodial parent’s home,” and “ensur[ing] that the non-custodial
parent does not overpay child support.”
As Father recognizes, subdivision (a)(3) of section 4058 makes the
consideration of an employee benefit a matter of judicial discretion. Father
fails to establish the family court abused this discretion.
As we have noted, when determining the amount of a parent’s child
support obligation, courts must adhere to the principles codified in section
4053. First and foremost, “ ‘[t]he guideline seeks to place the interests of
children as the state’s top priority.’ ” (Cheriton, supra, 92 Cal.App.4th at
p. 283, quoting § 4053, subd. (e).) Further, “California has a strong public
policy in favor of adequate child support.” (Cheriton, at p. 283.)
To recite these principles is to reveal the fundamental flaw in Father’s
arguments: whereas our state’s child support laws make the children’s
interests the top priority, Father, through his arguments, seeks to prioritize
himself. Furthermore, although Father does not acknowledge it in his
appellate briefing, granting his request would have resulted in a monthly
child support obligation of $480 rather than $1,199. The family court
expressly found that following Father’s income calculations “would result in
Fyke (2008) 164 Cal.App.4th 814, 830 [undeveloped assertions of error may
be treated as waived].)
12
an inadequate amount of support to his children[.] (Italics added.) At no
point in his appellate arguments does Father attempt to refute or undermine
this factual finding. In the absence of any such challenge, we treat the
finding as true.
Accepting Father’s position and reversing the court’s order would, given
this finding, result in an inadequate amount of support to his children—a
circumstance contrary to his children’s interests. As one Court of Appeal
observed in the analogous context of imputing income to a parent pursuant to
section 4058, subdivision (b), “There are very few— ‘a handful’ overstates it—
published appellate decisions which have upheld the imputation of income to
custodial parents. [Citations.] The reason is pretty obvious. Since the child
support statutes expressly state the purpose of California’s guideline child
support system is to ‘place the interests of children as the state’s top priority’
(§ 4053, subd. (e)), it is counterintuitive—often counterproductive—to impute
income to a custodial parent, because the objective effect of such an
imputation will be to reduce the money otherwise available for the support of
any minor children.” (In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 18–
19.)
Given the family court’s unchallenged finding that considering the
value of Mother’s housing benefit as income would have resulted in the
children receiving inadequate support, we are at a loss to see how we could
conclude that the court abused its discretion. Even so, we address Father’s
individual arguments.
Father’s claim that the child support award “create[d] an unequal
standard of living . . . favoring [Mother]” is based on County of Kern v. Castle
(1999) 75 Cal.App.4th 1442, 1451 (Castle). The father in Castle was a
noncustodial parent who had no visitation with his minor child. (Id. at
13
p. 1445.) After the trial court set temporary child support at $341 per month
based on his monthly salary of $2,500, the father inherited his mother’s
$1 million estate, which included several residential properties as well as a
$240,000 lump sum. (Id. at pp. 1445–1447.) The father quit his job, used the
lump sum to pay off his mortgage, and rented out the residences he had
inherited. (Ibid.) And yet when it set the father’s permanent child support
obligation, the trial court excluded consideration of most of the benefits he
received from his inheritance. (Id. at pp. 1444–1445, 1447, 1456.) “The net
result of the father’s good financial fortune was his $341 child support
obligation went up to $361—a meager $20 increase per month.” (Id. at
p. 1445.)
The Court of Appeal, understandably troubled by this result, reversed.
It explained, “[U]nder the current support order, [the minor child] will not
benefit from the substantial assets [the father] received. There is no basis for
concluding this was somehow in [the child’s] best interests. The court failed
to articulate any reasons why this should be so.” (Castle, supra, 75
Cal.App.4th at p. 1456.) It held that at a minimum, “the court should have
taken into consideration the additional disposable income [the father] enjoyed
monthly by having paid off the mortgage on his home.” (Id. at p. 1457.)
As this description of Castle makes clear, the circumstances in that
case are in no sense comparable to the circumstances present here. Unlike
Castle, in which the minor child was prevented from sharing in the fortunes
of the noncustodial parent, the family court’s support award here did not
have such a result. Mother has primary physical custody of the children, who
directly share in Mother’s housing benefit because they are able to reside in
the church-provided home along with her. (See § 4053, subd. (i) [“It is
presumed that a parent having primary physical responsibility for the
14
children contributes a significant portion of available resources for the
support of the children.”].) Unlike Castle, in which the trial court made no
finding that its refusal to recognize much of the father’s inheritance as
income was in the children’s best interests, here the court explicitly found
that recognizing the value of Mother’s free housing benefit would result in
inadequate support to the children. In short, Castle is inapposite, and
nothing about that decision suggests that the court’s refusal to consider the
rental value of Mother’s home as income constituted an abuse of discretion
here.
Father’s other arguments are just as unavailing. Citing subdivision (f)
of section 4053, he asserts that “[a] support award must reflect both parents’
standard of living.” His characterization of this provision is inaccurate.
Subdivision (f) of section 4053 states, “Children 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.” We discern no violation of this principle. As we have explained,
Mother has primary physical custody of the children. To the extent her
housing benefit raises her standard of living, it improves the children’s
standard of living, too, since they are primarily residing with her.
As for Father’s claim that a purpose of the child support laws is to
“equalize the living conditions . . . in the non-custodial parent’s home,” he
does not identify the authority he relies on for this proposition. The only
policy in section 4053 that speaks to this issue is contained in subdivision (g),
which provides, “Child support orders in cases in which both parents have
high levels of responsibility for the children should reflect the increased costs
of raising the children in two homes and should minimize significant
disparities in the children’s living standards in the two homes.” (Italics
15
added.) To the extent this is the policy Father means to rely on, he fails to
establish that it applies to this situation. Under the current custody
arrangement, Father has no visitation with his oldest child, and his visitation
with his two youngest children is limited to one overnight per week plus
alternating weekends, in addition to annual vacation time and alternating
holidays. The child support award was based on the children spending 12
percent of their time with Father. As such, Father fails to satisfy the
statutory criterion that his level of responsibility for the children is “high.”
Therefore, even assuming there are “significant disparities in the children’s
living standards in the two homes” (§ 4053, subd. (g))—a matter Father also
fails to establish—the family court was not required to tailor the child
support award so as to minimize them.
Finally, as for Father’s claim that a purpose of child support awards is
“to . . . ensure that the non-custodial parent does not overpay child support,”
he cites no authority establishing that such a policy exists. He also fails to
support his implied claim that he is overpaying child support. To the extent
he contends that when a non-custodial parent overpays child support,
“this . . . can have a negative effect contrary to the best interest of the
children by reducing the standard of living in the non-custodial parent’s
household” and “require a significant other to then make up the difference . . .
for the overpayment,” he cites no record evidence establishing that the
hypothetical harms he identifies are grounded in the facts of this case. As a
result, we reject this claim. (See Supervalu, Inc. v. Wexford Underwriting
Managers, Inc. (2009) 175 Cal.App.4th 64, 79 [an appellate court may treat
as waived a point unsupported by citation to record].) We likewise reject as
legally unsupported his argument that the value of Mother’s housing benefit
should have been considered for the sole reason that it was “substantial.”
16
(See In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, fn. 3
[conclusory assertions advanced on appeal without foundation require no
consideration].)
III.
The Family Court Did Not Commit Factual or Legal Error by Considering the
Effect of Ignoring That Father’s Expenses Were Paid by His Current Partner
Father contends the family court, in Father’s words, erroneously
“consider[ed] Amanda’s contribution to the household expenses as a special
circumstance to deviate from the guideline formula to negate [Mother’s] free
housing.”
Father mischaracterizes the court’s ruling. As we have noted, child
support calculated pursuant to the guideline formula is presumptively
correct. (§ 4057, subd. (a).) A parent may rebut this presumption and obtain
a deviation from the guideline by presenting evidence showing that
“application of the formula would be unjust or inappropriate in the particular
case” due to one or more statutorily-enumerated factors. (§ 4057, subd. (b).)
These factors include cases with “special circumstances,” such as when “the
parents have different time-sharing arrangements for different children,” or
when “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.” (§ 4057, subd. (b)(5)(A), (B).) If the court issues a
support award that differs from the guideline level, it must state, in writing
or on the record: (1) the guideline amount, (2) the reasons the support
ordered differs from the guideline amount, and (3) the reasons the support
ordered is consistent with the best interests of the children. (§ 4056, subd.
(a).)
17
Contrary to Father’s characterization of the support order, the family
court did not deviate from the guideline formula. It ordered support in the
precise amount calculated by the DissoMaster software (see Schulze, supra,
60 Cal.App.4th at p. 523, fn. 2); Father does not contend the software
computed his support obligation incorrectly. Not only did the court award
child support in the presumptively-correct amount, it made no express
finding of a special circumstance and did not make the written or on-the-
record statements required by section 4056. We presume that if the court
had found a special circumstance and deviated from the guideline formula, it
would have complied with section 4056 by stating the required findings in
writing or on the record. In short, Father’s characterization of the court’s
order is entirely unsupported by the record.
As we read the family court’s ruling, it simply declined to exercise its
discretion under section 4058, subdivision (a)(3), to include the value of
Mother’s housing benefit in the calculation of her income, and explained its
reasons for this decision. Section 4058 guides a court’s calculation of support
under the guideline formula by establishing the scope of items and benefits
that may be considered as gross income. Since subdivision (a)(3) makes
inclusion of the value of an employee benefit a matter of judicial discretion, a
court exercising that discretion is necessarily following the guideline formula,
not deviating from it.
Even so, to say the family court exercised its discretion pursuant to the
guideline does not establish that it abused that discretion. Setting aside
Father’s mischaracterization of the court’s order, he makes two arguments
that could, if they had merit, establish such an abuse. First, he contends the
court committed factual error when it stated Father “has $4,758 of his
expenses paid by his current partner.” (Italics added.) Father claims the
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court’s characterization of the expenses as “his” was unsupported by
substantial evidence. Second, he contends the court violated section 4057.5
when it took into account Amanda’s contribution to household expenses. We
address these contentions, and reject them.
A. The Family Court Did Not Prejudicially Err When It Stated Father’s
Expenses Were Paid by His Current Partner
Father challenges on substantial evidence grounds the family court’s
statement that “[Father], according to his own income and expense
declaration, has $4,758 of his expenses paid by his current partner.” (Italics
added.) He argues that because he stated in his income and expense
declaration that he was living with Amanda, the reasonable inference is that
the household expenses listed in the declaration (housing, utilities, and
groceries and eating out) were shared with Amanda. He asserts his landlord
was Amanda and the contribution he paid to her was rent. He refers to his
combined expense of $1,820 for “ ‘groceries’ ” and “ ‘eating out’ ” and suggests
it is unreasonable to infer, based on his modest income, that he incurred this
food cost on his own.
Father’s substantial evidence challenge fails, for two reasons. First, it
is based on an impermissible weighing of the evidence. (See In re Marriage of
Chakko (2004) 115 Cal.App.4th 104, 109.) Father does not dispute that he
listed in his own income and expense declaration, a document he signed
under penalty of perjury, expenses totaling $8,252, of which he claimed
$4,758 were paid by “others.” Mother averred in a declaration filed with the
court that Amanda was paying “his” (i.e., Father’s) household expenses.
Father was in a non-marital relationship with Amanda. It was not
unreasonable for the court to infer, based on these facts and circumstances,
that the expenses Father listed in his income and expense declaration were
his sole obligations rather than the joint obligations of himself and Amanda.
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Second, even assuming the family court committed factual error,
Father fails to establish that any such error was prejudicial. (See Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 573–574 [error of state law does
not warrant reversal unless, under the particular circumstances, “there is a
reasonable probability that in the absence of the error, a result more
favorable to the appealing party would have been reached”].) The expenses
Father claims were shared with Amanda, rather than “his,” are as follows:
mortgage ($1,465), real property taxes ($394), homeowner’s insurance ($61),
maintenance and repair ($75), utilities ($230), groceries and household
supplies ($1,500), and eating out ($320). The sum of these expenses is
$4,045. Amanda’s contribution to Father’s overall expenses was $4,758.
Even if the foregoing expenses were shared, Amanda was paying one
hundred percent of them. So even assuming the court erred, its point was
still sound: Father was not paying all of his own expenses. Under these
circumstances, we see no reasonable probability the court would have
exercised its discretion differently absent the purported factual error. (Ibid.)
B. The Family Court Did Not Violate Section 4057.5
Father contends the family court abused its discretion by indirectly
considering Amanda’s income in determining his support obligation in
violation of section 4057.5, In re Marriage of Wood (1995) 37 Cal.App.4th
1059 (Wood), disapproved on other grounds by In re Marriage of Fellows
(2006) 39 Cal.4th 179, 187, and In re Marriage of Loh (2001) 93 Cal.App.4th
325 (Loh). We disagree.
Section 4057.5 provides, in relevant part: “The income of the obligor
parent’s subsequent spouse or nonmarital partner shall not be considered
when determining or modifying child support, except in an extraordinary
case where excluding that income would lead to extreme and severe hardship
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to any child subject to the child support award, in which case the court shall
also consider whether including that income would lead to extreme and
severe hardship to any child supported by the obligor or by the obligor’s
subsequent spouse or nonmarital partner.” (§ 4057.5, subd. (a)(1); see also
id., subd. (a)(2) [identical prohibition precluding consideration of the income
of the obligee parent’s subsequent spouse].)
In Wood, the Court of Appeal held this statutory prohibition extended
to consideration of the lifestyle enjoyed by a parent thanks to the income of a
new mate. (Wood, supra, 37 Cal.App.4th at pp. 1066–1068.) Wood involved a
family court order granting a father’s motion to reduce his child support
obligation based on the income of the mother’s new mate. (Id. at p. 1064.)
The court attributed no income to the mother, although she previously had
been working, but it did rely on the “ ‘upper middle class lifestyle’ ” she was
enjoying due to the many financial successes of her new mate, a corporate
takeover artist. (Id. at pp. 1064–1065.) It set the father’s child support
obligation at a level below the presumptively correct guideline amount. (Id.
at pp. 1065, 1066.)
The Court of Appeal reversed, finding the trial court violated section
4057.5. It explained, “Although the trial court claimed only to take into
account [the new mate’s] income as it related to [the mother’s] standard of
living, this was tantamount to considering new mate income.” (Wood, supra,
37 Cal.App.4th at p. 1066.) “In our view, the only time a trial court may
consider new mate income is when not considering it will result in extreme
hardship to a child. Otherwise, according to the Legislature, this new mate
income is a factor which may not be taken into account.” (Id. at pp. 1069–
1070.)
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In Loh, the father, in opposition to a request for an increase in his
monthly child support obligation, submitted an income and expense
declaration in which he reported gross monthly income of less than $5,700.
(Loh, supra, 93 Cal.App.4th at p. 328.) The mother disputed this level of
income and presented evidence the father was living in his girlfriend’s
$800,000 house and was driving her luxury cars. (Id. at pp. 328–329.) The
mother argued it was “ ‘inconceivable’ that one could ‘duplicate’ [the father’s]
‘lifestyle . . . for a sum less than $400,000 per annum.’ ” (Id. at p. 329.) The
court, explicitly relying on the father’s high standard of living, found his
monthly income was $9,000 and used this number to calculate his child
support obligation. (Ibid.) The Court of Appeal reversed. Relying on Wood,
it held the trial court considered the girlfriend’s income “under the ‘guise of
lifestyle’ ” and thereby violated section 4057.5. (Loh, supra, 93 Cal.App.4th
at p. 337.)
Turning back to this case, we find no violation of section 4057.5.
Unlike Wood, the family court did not set Father’s support obligation outside
the presumptively correct guideline amount. Unlike Loh, the court did not
impute additional income to Father beyond the $4,879 that he reported.
True, the family court did reference Amanda’s contribution to Father’s
living expenses when explaining why it was declining to exercise its
discretion under section 4058, subdivision (a)(3), to consider the rental value
of Mother’s housing benefit as an item of her income. However, we do not
agree with Father’s contention that the court violated section 4057.5 by doing
so. The court’s order stated, “it would be inequitable to include the value of
[Mother’s housing] benefit to [Mother] while ignoring the fact that [Father],
according to his own income and expense declaration, has $4,758 of his
expenses paid by his current partner.” (Emphasis added.) Ignoring Amanda’s
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payment of Father’s living expenses is entirely consistent with the mandate
of section 4057.5, subdivision (a)(1). The court did not purport to rely on
Amanda’s income, either directly or indirectly. Rather, it ignored her
contributions to Father’s expenses as it was required by statute to do, and
considered that circumstance in deciding how to exercise its discretion under
section 4058, subdivision (a)(3). However broad the prohibition against
consideration of new mate income may be, nothing in the text of section
4057.5, subdivision (a)(1), suggests that it extends to disregarding the
prohibition itself.
The family court in this case was not the first to recognize the
unfairness that can result from application of section 4057.5. In Loh, the
appellate court declined to follow cases adopting an expansive “ ‘anything
that reduces living expenses’ ” approach to income under section 4058. (Loh,
supra, 93 Cal.App.4th at p. 334.) It explained that “such an approach creates
serious anomalies when one realizes that the most common instances of
‘things that reduce living expense’ are new mate or nonmarital partner
income, items which the Legislature has specifically forbidden, in section
4057.5, to be taken into account in ‘determining or modifying’ child support.”
(Ibid.) Here the court, much like the Loh court, foresaw the inequity and
harm to the children that would arise if it were to recognize Mother’s housing
benefit as income while ignoring the assistance Amanda was providing
Father, and exercised its discretion under section 4058 accordingly. We
disagree that the court, by recognizing this anomaly, inadvertently violated
section 4057.5.
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DISPOSITION
The order is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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