County of San Diego v. P.W. CA4/1

Filed 11/28/22 County of San Diego v. P.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, D079477
Plaintiff and Respondent,
v. (Super. Ct. No. 20DF003296C)
P.W.,
Defendant and Respondent,
C.H.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lizbet Muñoz, Commissioner. Reversed and remanded.
Bickford Blado & Botros and Andrew J. Botros for Appellant C.H.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney
General, Gregory D. Brown and Darin L. Wessel, Deputy Attorneys General,
for Plaintiff and Respondent County of San Diego.
Victor Mordey for Defendant and Respondent P.W.
I
INTRODUCTION
The San Diego County Department of Child Support Services
(hereafter, the Department) filed an action against P.W. (Father) to compel
him to pay child support to his ex-wife, C.H. (Mother), for their two minor
children. The trial court ordered Father to pay $650 in support per month—
about one-third the amount requested by the Department. When calculating
the support amount, the court imputed $12,500 in monthly income to Mother,
who left a lucrative job to become a caregiver to the children. It also deviated
downward from the uniform guideline level because Mother’s high-earning
new spouse paid all of her family’s household-related expenses.
Mother appeals the support order, which she believes is too low. She
argues the court erred by imputing income to her because she left her
previous job to care for her children, not to evade her familial or financial
responsibilities. Further, she claims the court violated Family Code
section 4057.5, which generally prohibits a court from considering the income
of a parent’s new spouse when determining child support.1
The trial court did not abuse its discretion by imputing income to
Mother. However, it erred by considering the income of Mother’s high-
earning new spouse to reduce the support ordered below the guideline level.
Therefore, we reverse the support order and remand the matter for further
proceedings consistent with the opinions expressed herein.
1 Further undesignated statutory references are to the Family Code
unless otherwise noted.
2
II
BACKGROUND
A. Factual Background
Father and Mother married in 2003 and separated in 2011. They had
two minor children while they were together.
In 2014, Father and Mother divorced. As part of the marital
settlement, they agreed no child support payments were necessary at the
time and they would share joint physical and legal custody of the children.
At the time of the divorce, Mother worked as a senior software engineer
and earned an annual salary of $146,000. Father worked as a mechanical
engineering manager and earned about the same annual salary as Mother.
In 2014, after the divorce was final, Mother remarried and stopped
working to become a stay-at-home parent. According to Mother, she and her
new husband “agreed that it would be better for [her] to focus more on
parenting.” Job-related factors also contributed to her decision to stop
working. In particular, her employer reduced her pay, outsourced some of
her work abroad, and required her to come into the office rather than
working from home. One year after Mother stopped working, she and her
new spouse had a child together.
In 2017, Mother and her family moved from Los Angeles to Coronado
for quality-of-life reasons and Father moved to Coronado to remain close to
the children. Father maintained his existing employment and worked
remotely most of the time.
B. Procedural Background
On December 16, 2020, the Department—at Mother’s request—filed
the present action and asked the trial court to order Father to pay child
support to Mother at the guideline level. The Department estimated the
3
guideline level was $1,808 per month. Soon after filing the case, the
Department moved for a judgment of guideline support.
In connection with the Department’s motion, Mother and Father filed
income and expense declarations. On her declaration, Mother reported she
had a monthly income of $0 and her new spouse had a monthly income of
$77,439. She stated she had $37,462 in cash and $752,000 in real and
personal property (measured at fair market value minus debts owed). Father
reported he had a monthly income of $19,722. He stated he had $12,000 in
cash and $457,526 in stock, bonds, or other easily-sellable assets.
The trial court set the matter for an evidentiary hearing and issued an
interim order requiring Father to make temporary guideline level support
payments to Mother. At the hearing, the court received into evidence the
parents’ judgment for dissolution of marriage, their income and expense
declarations, and income tax returns and other documents reflecting the
income and assets of Mother and her new spouse. It also heard testimony
from both parents.
One key topic addressed at the hearing was Mother’s ability and
opportunity to work. As noted, Mother previously worked as a senior
software engineer, earned an annual salary of $146,000, and stopped working
to become a caregiver to the children. Based on his experience as a hiring
manager and mechanical engineering manager, Father opined Mother would
be qualified for a senior software engineer position if she were to seek out
work. He testified his employer paid an annual salary of $90,000–$120,000
to new hires with Mother’s skill sets and no prior work experience. He
estimated Mother would earn $150,000 annually due to her prior work
experience. He testified Mother’s programming knowledge may be dated due
4
to her time away from the workforce, but it would not disqualify her from
finding a job because she could adapt and apply her “fundamentals.”
Mother disagreed with Father’s characterization of her ability and
opportunity to work. She testified her previous salary was variable and,
although she earned $146,000 in her final year of work, her salary was as low
as $35,000 in other years. She testified the computer programming industry
had changed considerably since she stopped working and her programming
skills were no longer current. She stated she no longer had any industry
contacts and would need to be retrained to return to work. But, in response
to questioning from the court, she testified she could perform quality
assurance work in the programming field and would enjoy that type of work.
A second topic discussed at the hearing was Mother’s high-earning new
spouse and his payment of household expenses. Mother’s new spouse earned
nearly $1 million per year. Mother testified he paid all of her family’s
expenses, including expenses relating to her children, her credit cards, and
the home she and her new spouse owned in Coronado.2 When asked why she
sought support from Father, Mother testified she did not “believe it[] [was]
[her] current husband’s responsibility to support [her] children. [She]
thought it was the father’s responsibility to support the[] children.”
The last topic of relevance addressed at the hearing was the impact a
support order would have on Father’s finances. Father testified he previously
owned a home in Los Angeles, but lived with his girlfriend in a rental home
in Coronado. He testified his housing costs doubled when he moved to
Coronado and he expected they would rise further. He stated he saved about
$4,000 per month, but spent some of his savings on the children’s college
2 Mother estimated her household had nearly $20,000 in expenses per
month.
5
savings funds, their health savings accounts, and unanticipated expenses like
SAT preparation courses and driver’s education courses. According to
Father, a guideline support order would hinder his ability to maintain his
standard of living and his children’s standard of living while they were in his
care.
At the close of the hearing, the court ruled from the bench. It imputed
a gross monthly income to Mother of $12,500 and, based in part on that
figure, set the presumptively-correct guideline level at $1,205 per month.
After calculating the guideline level, the court ordered Father to pay
about half that amount—$650 per month. It cited three considerations in
support of its downward deviation. First, it noted that Mother’s new spouse
paid all of her family’s expenses. Second, it found both parents had
substantially equal time-sharing of the children, yet a much higher
percentage of Father’s income was used for housing than the percentage of
Mother’s income that was used for housing. (See § 4057, subd. (b)(5)(B).)
Third, it noted Father’s “basic living expenses,” including the “unexpected”
expenses to which he testified.
Thereafter, the court issued a written order requiring Father to pay
$650 in monthly support to Mother. No party requested a statement of
decision. Mother appeals the child support order.
III
DISCUSSION
A. Statutory Framework
“Child support awards in California are governed by … legislation that
established a statewide uniform child support guideline. (See §§ 4050–4076.)
‘The court shall adhere to the statewide uniform guideline and may depart
from the guideline only in the special circumstances’ identified in the statute.
(§ 4052.) The child support guideline is a mathematical formula set forth in
6
section 4055 and the amount generated by the formula is presumptively
correct. (§§ 4053, subd. (k), 4057, subd. (a).)” (In re Marriage of Morton
(2018) 27 Cal.App.5th 1025, 1038 (Morton).) The child support guideline is
“intended to achieve uniformity among like cases.” (In re Marriage of Denise
& Kevin C. (1997) 57 Cal.App.4th 1100, 1105; see also § 4053, subd. (j) [“The
guideline seeks to encourage fair and efficient settlements of conflicts
between parents and seeks to minimize the need for litigation.”].)
“The ‘total net monthly disposable income of both parties’ is a
component of the formula used in the statewide uniform guideline for
determining child support. (§ 4055, subd. (b)(1)(E).)” (Morton, supra, 27
Cal.App.5th at p. 1038; see § 4052.5.). A parent’s net disposable income is
calculated by taking the parent’s gross income and then deducting amounts
attributable to various items enumerated in section 4059. A parent’s gross
income is defined broadly as “income from whatever source derived,” subject
to statutory exceptions not relevant to these proceedings. (§ 4058, subd. (a).)
“The court may, in its discretion, consider the earning capacity of a parent in
lieu of the parent’s income, consistent with the best interests of the children,
taking into consideration the overall welfare and developmental needs of the
children, and the time that parent spends with the children.” (Id.,
subd. (b)(1).)
The guideline level is the presumptively-correct amount of child
support, but it may be rebutted. (§ 4057, subds. (a)–(b).) To obtain a
deviation from the guideline, a parent must show, by a preponderance of the
evidence, that “application of the formula would be unjust or inappropriate in
the particular case” due to one or more statutorily-enumerated factors. (Id.,
subd. (b).) These factors include cases with “special circumstances,” such as
when “both parents have substantially equal time-sharing of the children and
7
one parent has a much lower or higher percentage of income used for housing
than the other parent.” (Id., subd. (b)(5)(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).)
We review child support orders for abuse of discretion. (In re Marriage
of Hein (2020) 52 Cal.App.5th 519, 529.) In conducting this review, we assess
“(1) whether the trial court’s factual findings are supported by substantial
evidence, (2) whether the trial court followed applicable legal principles, and
(3) whether the trial court reasonably exercised its discretionary authority—
that is, whether any judge reasonably could have made such an order.”
(Ibid.; see Morton, supra, 27 Cal.App.5th at pp. 1038–1039.)
B. The Doctrine of Implied Findings
Under section 3654, a party to a child support proceeding may request
that the court include a statement of decision with its support order. (§ 3654
[“At the request of either party, an order modifying, terminating, or setting
aside a support order shall include a statement of decision.”]; see In re
Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248 (McHugh)
[statement of decision required in child support modification proceeding].)
“[A] statement of decision is a formal legal document containing the
factual and legal basis for the court’s decision on each principal controverted
issue for which a statement is requested.” (In re Marriage of Buser (1987)
190 Cal.App.3d 639, 642.) It “gives the trial court ‘an opportunity to place
upon [the] record, in definite written form, its view of the facts and the law of
the case, and to make the case easily reviewable on appeal by exhibiting the
exact grounds upon which judgment rests.’ ” (A.G. v. C.S. (2016) 246
Cal.App.4th 1269, 1282, italics omitted; see In re Marriage of Brewster &
8
Clevenger (2020) 45 Cal.App.5th 481, 516 [a statement of decision “ ‘enables a
reviewing court “to determine what [law] the trial court employed” ’ ”].)
If a party fails to request a statement of decision when one is available,
we will apply “ ‘the doctrine of implied findings and presume[] the trial court
made all necessary findings supported by substantial evidence.’ ” (Alvarez v.
Altamed Health Servs. Corp. (2021) 60 Cal.App.5th 572, 581.) “ ‘ “In other
words, the necessary findings of ultimate facts will be implied and the only
issue on appeal is whether the implied findings are supported by substantial
evidence.” ’ [Citation.] The doctrine of implied findings ‘is a natural and
logical corollary to three fundamental principles of appellate review: (1) a
judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error.’ ” (Abdelqader v.
Abraham (2022) 76 Cal.App.5th 186, 197 (Abdelqader).)
Because the implied findings doctrine is merely a corollary to the
presumption of correctness and related principles of review, it applies “only
on a silent record. [Citations.] In contrast, ‘When the record clearly
demonstrates what the trial court did, we will not presume it did something
different.’ [Citation.] Thus, even in the absence of a statement of decision,
we are not compelled to resort to a presumption if the record adequately
demonstrates the legal theory the court applied.” (Border Business Park, Inc.
v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550 (Border); Severson &
Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 950 [“the record
clearly shows what the trial court did at the … hearing, and we will not
presume it did something different”]; Lafayette Morehouse, Inc v. Chronicle
Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“When the record clearly
9
demonstrates what the trial court did, we will not presume it did something
different.”].)
C. The Court Did Not Err When It Imputed Income to Mother
When calculating the presumptively-correct guideline level, the trial
court found Mother had an earning capacity of $12,500 per month and
imputed that income to her, even though she had no actual earnings. Mother
challenges the imputation of income to her. She claims the court “explicitly
found that [she] did not have the ability and opportunity” to work, yet it
nonetheless imputed income to her based exclusively on the fact that she
voluntarily stopped working seven years earlier. According to Mother, the
court erred in relying solely on her voluntary divestiture of income without
considering her reasons for leaving her job.
When a court determines the guideline level, section 4058 permits the
court, in the exercise of its discretion, to consider a parent’s earning capacity
in lieu of actual income, so long as it would be “consistent with the best
interests of the children, taking into consideration the overall welfare and
developmental needs of the children, and the time that parent spends with
the children.” (§ 4058, subd. (b)(1).) “ ‘ “Earning capacity is composed of ...
the ability to work, including such factors as age, occupation, skills,
education, health, background, work experience and qualifications ... and ...
an opportunity to work. ...” [Citation.]’ [Citation.] ‘The “opportunity to work”
exists when there is substantial evidence of a reasonable “likelihood that a
party could, with reasonable effort, apply his or her education, skills and
training to produce income.” ’ ” (McHugh, supra, 231 Cal.App.4th at p. 1246,
fn. omitted.)
Historically, a court’s exercise of its discretion to consider a parent’s
earning capacity in lieu of income “ ‘was limited to situations where the
parent was found to be deliberately shirking family responsibilities by
10
refusing to seek or accept gainful employment.’ ” (McHugh, supra, 231
Cal.App.4th at p. 1245; see In re Marriage of Bardzik (2008) 165 Cal.App.4th
1291, 1299 [“For most of California legal history, courts confined [the] power
[to impute income] exclusively to situations where supporting parents or
spouses had reduced their actual incomes out of a bad motivation to reduce
their support payments.”]; see, e.g., In re Marriage of Williams (1984) 155
Cal.App.3d 57, 62; Philbin v. Philbin (1971) 19 Cal.App.3d 115, 121.)
However, courts have since clarified that “ ‘ “[b]ad faith” (deliberate
avoidance of family financial responsibilities) is not a condition precedent to
imputation of income in setting the amount of child support.” (In re Marriage
of Hinman (1997) 55 Cal.App.4th 988, 998; In re Marriage of Padilla (1995)
38 Cal.App.4th 1212, 1216 (Padilla); In re Marriage of Ilas (1993) 12
Cal.App.4th 1630, 1638 (Ilas).) As these courts have recognized, section 4058
itself contains no such limitation. (Hinman, at p. 999; accord Moss v.
Superior Ct. (Ortiz) (1998) 17 Cal.4th 396, 424.) Thus, it is now established
that, “ ‘[a]s long as ability and opportunity to earn exist … the court has the
discretion to consider earning capacity when consistent with the child or
children’s best interests....’ ” (State of Oregon v. Vargas (1999) 70
Cal.App.4th 1123, 1126.) These principles apply both to caregiver and non-
11
caregiver parents alike.3 (In re Marriage of LaBass & Munsee (1997) 56
Cal.App.4th 1331, 1340 [“[w]e decline to carve out an exception to
section 4058 for caregiver parents”]; Hinman, at p. 999 [“we decline the
request to adopt a per se rule prohibiting the imputation of income to parents
who refrain from employment in order to care for preschool-age children in all
cases”].)
With this background in mind, we return to Mother’s argument. She
claims the trial court erred because it supposedly found that she did not have
the present ability or opportunity to work, yet it imputed $12,500 in monthly
income to her anyways based on her voluntary divestiture of income seven
years earlier. The record does not support Mother’s argument. The court
made no express findings in its support order concerning Mother’s ability or
opportunity to work. Instead, it simply stated that her monthly gross income
was $12,500, and that it was imputing income to her in the best interests of
the children. Because Mother waived a statement of decision, we must apply
the doctrine of implied findings and presume the court made all necessary
findings of ultimate fact favorable to the support order, so long as those
findings are supported by substantial evidence. (Abdelqader, supra, 76
3 A parent’s bad faith conduct is no longer recognized as a requirement
for a court to consider the parent’s earning capacity, but it is one factor,
among other factors, a court may consider when assessing whether it would
be in the children’s best interests to rely on the parent’s earning capacity in
lieu of income. (McHugh, supra, 231 Cal.App.4th at p. 1256; Ilas, supra, 12
Cal.App.4th at p. 1638; but see Padilla, supra, 38 Cal.App.4th at p. 1218 [“A
parent’s motivation for reducing available income is irrelevant when the
ability and opportunity to adequately and reasonably provide for the child are
present.”].) Mother does not argue that the trial court erred in finding that
the use of earning capacity rather than actual income was consistent with the
best interests of the children. Therefore, we do not address that issue.
12
Cal.App.5th at p. 197.) Here, the findings of ultimate fact include findings
that Mother had the ability and opportunity to work.
Substantial evidence supported these implied findings. Mother
testified she had a bachelor’s degree and years of work experience in the
computer programming industry. Father testified about the computer
programming languages with which Mother was familiar and how she could
adapt and apply those languages in new ways. Father—who hired and
managed engineers with software and computer backgrounds—testified his
company would pay an annual salary of up to $120,000 to new hires with
Mother’s skill sets, and an annual salary of $150,000 to someone with her
work history. Further, Mother herself admitted she could perform quality
assurance work. Collectively, this testimony constituted substantial evidence
that Mother had both the ability and opportunity to work.
Further, the record does not preclude us from applying the doctrine of
implied findings in this instance. While pronouncing its ruling, the court
opined that Mother may not be able to perform “exactly” the same work she
once did if she were to return to work “tomorrow.” However, the court never
stated that Mother lacked the present ability or opportunity to work. On the
contrary, it stated that Mother “ha[d] the ability” to work because she had a
bachelor’s degree and could get her programming skills “up to speed pretty
quickly.” Further, it noted that, by Mother’s own admission, “she could do
quality assurance” work. This record supports—not undermines—the court’s
implied findings that Mother had the ability and opportunity to work.
Because the trial court impliedly found that Mother had the ability and
opportunity to work, and those implied findings were supported by
substantial evidence, we discern no error in the court’s imputation of income
to Mother in the amount of $12,500 per month. (See § 4058, subd. (b).)
13
D. The Court Erred By Considering the Income of Mother’s New Spouse
After the court calculated the presumptively-correct guideline level, it
exercised its discretion to order support payments below the guideline level.
Mother contends the court erred in making this downward modification
because it based its modification, at least in part, on the income of her highly-
paid new spouse. She claims the court’s consideration of her new spouse’s
income contravened section 4057.5. We agree.
In relevant part, section 4057.5 states: “The income of the obligee
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 obligee or by the obligee’s
subsequent spouse or nonmarital partner.” (§ 4057.5, subd. (a)(2).) “[A]n
extraordinary case may include a parent who voluntarily or intentionally
quits work or reduces income, or who intentionally remains unemployed or
underemployed and relies on a subsequent spouse’s income.” (Id., subd. (b).)
Prior to 1993, the laws governing child support payments granted
courts greater leeway to consider a new spouse’s income when determining
the proper support level. Former Civil Code section 4721 set forth the
method by which courts should calculate the guideline level. (Former Civ.
Code, § 4721, subds. (a)–(b).) Subdivision (e) of that statute permitted courts
to deviate from the guideline level if the application of the guideline formula
would be unjust or inappropriate, the revised amount was in the children’s
best interests, and one or more statutorily-enumerated factors applied. (Id.,
subd. (e).) One such factor justifying a deviation was when “[a] parent’s
subsequent spouse or nonmarital partner ha[d] income that help[ed] meet
14
that parent’s basic living expenses, thus increasing the parent’s disposable
income available to spend on the children.” (Id., subd. (e)(3).)
In 1993, the bill that ultimately codified a predecessor version of
section 4057.5 into law was introduced in the state legislature. (Sen. Bill
No. 145 (1993–1994 Reg. Sess.) § 2.) According to Senator Charles Calderon,
the author of the measure, the bill was necessary because “the obligation to
support a child should rest primarily with the biological mother and father.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill
No. 145 (1993−1994 Reg. Sess.) as amended July 16, 1993.)
A report from the Assembly Committee on the Judiciary elaborated on
the arguments in support of the bill. It noted that one of the proffered
reasons for considering a new spouse’s income was that “additional income of
the new mate helps pay some of the household expenses, and thus may free
some additional amount of the obligee’s or obligor’s income that can be used
to increase the amount of support being provided for the child of the
oblige/obligation.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 145
(1993–1994 Reg. Sess.) as amended June 28, 1993, pp. 3–4.) But the report
criticized this approach. It stated that the routine allocation of “a set portion
of new mate income ignores the fact that in many cases, the new mate may
bring additional expenses, as well as additional income and so there may be
no factual basis in a given case for finding there is some additional amount of
obligee/obligor income available for support.” (Id., at p. 4.) The report
identified numerous additional concerns with courts’ routine consideration of
new mate income, noting for instance that a “new mate is not a party to the
[child support] action and has no ability to come into court and participate in
the proceedings that are affecting him or her,” which could result in “a taking
of the stepparent’s property without due process.” (Id., at p. 5.)
15
Few cases have interpreted section 4057.5 since it was codified into law
in 1993. However, those cases that have interpreted the statute have
concluded that it broadly prohibits a court from considering a new spouse’s
income—either directly or indirectly—except when it is an extraordinary case
and the exclusion of the new spouse’s income would lead to extreme and
severe hardship to the child. An instructive case in this regard is In re
Marriage of Wood (1995) 37 Cal.App.4th 1059 (Wood), disapproved on
another ground by In re Marriage of Fellows (2006) 39 Cal.4th 179.
In Wood, an ex-husband requested a reduction in the child support
payments he owed to his ex-wife on grounds that she remarried a wealthy
man. (Wood, supra, 37 Cal.App.4th at p. 1062.) In ruling on the request, the
trial court stated it was not considering the income of the ex-wife’s new
spouse, yet it took the ex-wife’s new “lifestyle” into account in order to deviate
from the guideline level. (Id. at pp. 1065–1066.) As the Wood court
explained, the trial court’s consideration of the ex-wife’s lifestyle, or standard
of living, was “tantamount to considering new mate income.” (Id. at p. 1066.)
It “was another way of considering [new spouse] income, as it impacted the
lifestyle of [the ex-wife] and the three children.” (Id. at p. 1064; see id. at
pp. 1067–1068 [“While the trial court here claimed to be looking to the
lifestyle or ‘standard of living’ evidence, we find it abused its discretion by
considering [the new spouse’s] income.”].) Because there had been no finding
that the exclusion of the new spouse’s income would lead to extreme and
severe hardship to the children, the Wood court concluded the trial court’s
indirect consideration of new spouse income violated section 4057.5. (Id. at
p. 1071; see also In re Marriage of Loh (2001) 93 Cal.App.4th 325, 337 [citing
Wood and concluding the trial court violated section 4057.5 by indirectly
considering new partner income under the guise of lifestyle evidence]; accord
16
In re Marriage of Romero (2002) 99 Cal.App.4th 1436, 1444 [statutory
prohibition against consideration of new spouse income when making spousal
support decisions precludes a court from considering the indirect effect of new
spouse income on the obligee spouse’s ability to pay or standard of living].)
The Wood case is on-point. In the present case, the trial court
expressly found the children would not suffer extreme and severe hardship if
the income of Mother’s high-earning new spouse was excluded from the
support determination.4 Nonetheless, it deviated from the guideline level
based on the fact that Mother’s new spouse paid all of her family’s expenses.
Like the lower court’s consideration of “lifestyle” evidence in Wood, the trial
court’s decision was tantamount to a finding that the support payments
should be reduced because of new spouse income. Absent a finding that the
exclusion of new spouse income would cause extreme and severe hardship for
the children, the consideration of new spouse income violated section 4057.5.
On appeal, the Department defends the court’s deviation from the
guideline level.5 It cites section 4057, subdivision (b)(5)(B), which permits a
court to deviate from the guideline level when “[a]pplication of the formula
would be unjust or inappropriate due to special circumstances in the
particular case,” such as when “both parents have substantially equal time-
sharing of the children and one parent has a much lower or higher
percentage of income for housing than the other parent.” The Department
contends the trial court did not violate section 4057.5 because it “simply
4 The court stated, “I don’t think it would rise to the level where it would
lead to extreme and severe hardship to the children.”
5 The Department filed the case against Father and sought a guideline
support order, but on appeal argues that the trial court acted within its
discretion when it ordered Father to pay less than the guideline level.
17
looked at the amount of each parent’s own income that was spent on housing
each month,” as authorized by section 4057, subdivision (b)(5)(B).
The problem with the Department’s argument is that the court did not
merely rely on disparities in the parents’ housing expenses when it deviated
from the guideline level. Instead, it stated it was relying on the fact that
Mother’s new spouse paid all of the family’s expenses, including both housing
and non-housing expenses. At the evidentiary hearing, for instance, it opined
as follows: “[W]hen I consider my deviation … there’s no doubt that there are
more resources in Mom’s home. [The new spouse’s] income is not fiction. I
mean, it’s real. It’s paying all the expenses. So the Court is considering that
as a fact when … looking at the deviation. ... [T]he fact that [new spouse] is
covering all the expenses … that comes in as to [the] deviation.”
Later on in the evidentiary hearing, the trial court discussed the
disparities in the parents’ housing expenses and cited them as one reason for
the downward deviation. But then, immediately afterwards, it clarified that
the disparities in the parents’ housing expenses were not the sole reason for
the downward deviation. It stated it was ordering a reduced level of support
“not only for those [housing expense] reasons but for the other reasons … that
there was testimony about ... all the expenses are being paid by new
husband. ... And so the Court is relying on that.” (Italics added.) In other
words, the court cited the new spouse’s payment of all the family’s expenses
(i.e., new spouse income) as a reason for the downward deviation, separate
from any disparities in the parents’ housing-related expenses.
Father mounts a different defense of the trial court’s downward
deviation from the guideline level. He points out that Mother waived a
statement of decision and notes that the written support order does not
expressly articulate why the court reduced his child support obligations below
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the guideline level. According to Father, we should apply the doctrine of
implied findings, presume the court made all findings of ultimate fact
necessary to uphold the order, and assess only whether there was sufficient
evidence to support the downward deviation.
In short, Father asks us to turn a blind eye to the actual reasons the
trial court deviated downward, which it articulated quite clearly during the
evidentiary hearing. We decline Father’s invitation. Because the doctrine of
implied findings is merely a corollary to the presumption of correctness, we
will not presume the trial court acted properly and within its discretion when
the appellate record unmistakably demonstrates it based its decision on an
impermissible factor. (See Border, supra, 142 Cal.App.4th at p. 1550.)
On remand, the court shall recalculate the proper amount of child
support in a manner that does not violate section 4057.5. We express no
opinion regarding the proper amount of child support. We also express no
opinion on whether a deviation from the guideline level would be warranted
under section 4057 for reasons other than the income of Mother’s new spouse.
IV
DISPOSITION
The order is reversed and the matter is remanded. Each party shall
bear its own appellate costs.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
DO, J.
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