County of San Diego v. P.B

Filed 10/8/20 Certified for Publication 10/16/20 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, D075690
Plaintiff and Respondent,
v. (Super. Ct. No. DN143198)
P.B.,
Defendant and Respondent;
L.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Pennie K. McLaughlin, Commissioner. Reversed in part and remanded with
instructions.
Law Offices of David C. Beavans and John T. Sylvester for Defendant
and Appellant.
No appearance for Defendant and Respondent.
L.C. (Mother) appeals from a final order of child support covering
periods from 2014 to 2019, when Child turned 18. One of the components of
the statewide guideline formula for calculating child support is the
“approximate percentage of time that the high earner has or will have
primary physical responsibility” for the child (Fam. Code, § 4055,
subd. (b)(1)(D)), commonly referred to as “timeshare.”1 Mother contends the
trial court’s child support order must be reversed because the court calculated
child support utilizing a 29 percent timeshare for P.B. (Father) during a
period of time when Father had no visitation with the child, purportedly due
to Mother’s interference with Father’s visitation rights. Mother also
challenges the court’s failure to include certain payments Father received
from his parents as income available for child support. We agree with
Mother’s first contention—that it was improper to attribute nonexistent
timeshare in response to Mother’s alleged interference with visitation—and
conclude the order must be reversed so that support can be recalculated
based on Father’s actual timeshare during the disputed time period,
consistent with the statutory guideline under sections 4050-4076. In all
other respects, the order is affirmed.
FACTS
Mother and Father were married in 1998, and Child was born in
September 2001. In 2006, Mother filed for dissolution of marriage. The
parties have been embroiled in litigation ever since. Child resides with
Mother, but both parents share joint legal custody of Child. At some point
the County of San Diego began child support enforcement in the matter, and
since then, all child support matters were held in the Family Support
1 All statutory citations are to the Family Code.
2
Division of the superior court, while child custody matters remained in family
court before different judicial officers.
In 2011, an incident at a restaurant resulted in Father’s visitation
being reduced from an equal timeshare of 50 percent to supervised visitation
only. During the time period from October 2014 through July 2015, Father’s
parenting time resulted in an average timeshare of 29 percent.
In September 2014, Mother filed a motion seeking modification of child
support payable by Father and a determination of arrears.2 While the
parties continued to litigate custody disputes, Mother’s motion was
repeatedly continued.
In October 2015, a counselor with Family Court Services (FCS)
prepared a report in connection with the parent’s custody dispute. The
counselor’s report reflected that Mother “claimed the child fears the father
and does not want to have anything to do with him.” Mother recalled the
2011 incident that she claimed caused the child to be fearful of Father.
Father told the counselor Mother had made multiple false accusations
against him. The counselor noted the Child “recalled events from his early
childhood about his father’s poor parenting, abuse of him, etc. When asked if
he actually remembers these events, he stated he did not, but his mother had
told him about them.” The counselor described Child as “emotionally
stunted” and opined that “the child is not able to psychologically see himself
as a separate person from his mother.” The counselor noted that Child “does
not want to see his father” and Child “views the incident at [the restaurant]
as total validation of the mother’s conceptualization of the father. This
incident may have been the father’s biggest mistake. However, even if
the . . . incident had not happened, the child would have had to find some
2 Mother’s motion does not appear in the record on appeal.
3
other reason to reinforce his (mother’s) view of the father.” The counselor
opined reunification therapy would be unsuccessful if Child had no desire to
reunify. The counselor recommended joint legal custody with Mother
retaining full physical custody and Father having no parenting time at this
time.
In September 2016, the parties entered a stipulation regarding
“custody and timeshare.” The stipulation indicated that Father had “no
timeshare of [Child] for approximately the past year.” The parties stipulated
that Child and Father would commence reunification therapy immediately,
with sessions to occur twice per week. After 60 days of reunification therapy,
Father’s parenting time (and associated timeshare) would increase to
50 percent, unless opposed by minor’s counsel or the reunification therapist
based on Child’s best interests. The parties agreed the stipulation was a final
order pursuant to Montenegro v. Diaz, requiring a “significant change of
circumstances” to modify the order. (See Montenegro v. Diaz (2001)
26 Cal. 4th 249, 256.) The parties stipulated that “[a]ll custody claims and
allegations of either side in the family law case are hereby considered
resolved as of signing this stipulation.”
Despite the stipulation, reunification therapy did not go as planned. At
a hearing on child support in January 2017, the parties explained to the court
that, when Child was scheduled to meet for his first therapy session with
Father, Child refused to attend and threatened suicide. Instead of attending
the session, Child was taken to the hospital for evaluation. Father’s attorney
indicated Father had filed in the family law action a motion “to switch
custody and to eliminate the mom completely,” averring that Child had been
“ ‘brainwashed’ ” by Mother, a “restrictive gatekeeper” who would “go to no
end to keep this child away from the dad.” The court declined to make any
4
findings regarding Mother’s role in Child’s estrangement from Father, noting
a full hearing on the issue would be required. Father’s attorney argued that
child support should be calculated based on a 50 percent timeshare because
that had been the parties’ agreement, and it was solely Mother’s fault that
this timeshare was never achieved. Father’s attorney further argued that
Father “has had contact with [Child]”; he had been participating in
“therapeutic visitation” with Child over the past 12 months, and as such was
entitled to timeshare reflecting that visitation. Nonetheless, the court
indicated it would use a zero percent timeshare for Father in an interim
support order. The court remarked, “If there is a finding that there was
interference by mother, that would allow me to use other timeshares,” but in
the absence of any such finding, the court must calculate support based on
the statutory guideline. Applying the zero percent timeshare, the court set
an interim monthly support amount of $819, “reserving back to October 1,
2014.”
In March 2017, Father submitted a declaration averring that Mother
interfered with Father’s visitation time and failed to support Father and
Child’s reunification therapy.
The parties appeared before the court for a hearing on child support
issues again in May 2017. Effective January 1, 2017, the court determined
the parties had roughly equal incomes, applied a 50-50 timeshare, and set the
interim monthly support amount at zero. The court stated that this interim
support order was based on allegations raised in the custody dispute before
the family court, which the court stated presented “as a case of alienation and
interference of custody and visitation.” The court noted its order was not
final and was made without prejudice, “because if [the family court judge]
reaches a different conclusion based upon the evidence that I have just
5
considered, I will certainly readdress these issues then.” The court stated
that it was “using the timeshare that the parties should have been out [sic]”
and stated its findings were made under section 4057, as application of the
guideline support formula without modification “ ‘would be unjust or
inappropriate due to special circumstances in this case.’ ”3 The court
described the following special circumstances: “[T]here was an agreement for
visitation; there was an agreement and a stipulation for reunification. . . .
[T]o have one party ignore it or specifically interfere with it and then seek
child support based on a change in timeshare would be [inequitable].” The
court referenced In re Marriage of Popenhager (1979) 99 Cal. App. 3d 514
(Popenhager), noting, “ ‘he who seeks equity may not take advantage of his
wrong,’ ” and concluded, “under [section] 4057, this would fall under a very
limited application of a special circumstance due to Mother’s failure to
comply with court-ordered reunification efforts.”4
3 Section 4057 provides that the amount of child support established by
the uniform guideline formula is presumed to be the correct amount of child
support to be ordered. (§ 4057, subd. (a).) The presumption may be rebutted
by evidence showing application of the formula would be unjust or
inappropriate due to special circumstances in the particular case. (Id.,
subd. (b)(5).) The court must find the existence of special circumstances by a
preponderance of the evidence, and must state in writing or on the record
specific information set forth in section 4056 (§ 4057, subd. (b)), including the
amount of support that would have been ordered under the guideline formula
and the reasons the ordered amount of support differs from the guideline
formula amount. (In re Marriage of Williams (2007) 150 Cal. App. 4th 1221,
1234.)
4 In Popenhager, the court rejected husband’s claim he was entitled to
equitable relief from paying child support arrearages because wife denied
him visitation rights. (Popenhager, supra, 99 Cal.App.3d at p. 523.) If the
trial court was relying on Popenhager to award Father a higher timeshare as
a matter of equity, based on Mother’s interference with his visitation rights,
the trial court erred for reasons discussed post.
6
Mother objected, citing section 3556, and arguing “support shouldn’t be
set at zero because of the visitation and custody being what it is, regardless of
any perceived refusal by the custodial parent implementing rights to
visitation.”5
The parties next appeared for a child support hearing in September
2017. They informed the court the custody litigation remained ongoing in
family court. Mother informed the court that Father and Child were
continuing conjoint therapy but that Child refused to go on visitation with
Father. The court made updated, interim support orders. For the time
period October 2014 through July 2015, the court used a timeshare of
29 percent—which represented an average for this time—and set child
support at $286 per month.6 For the time period of August 2015 through
December 2016, the court utilized a two percent timeshare and set child
support at $817 per month. The court noted that it “made [timeshare]
two percent because there were some therapy sessions, and I think [F]ather
should be given credit for that.” For the time period January 2017 forward,
the court applied a two percent timeshare and set child support at $892 per
month. The court also set a monthly arrears payment of $200 effective
October 2017.
5 Section 3556 provides, “The existence or enforcement of a duty of
support owed by a noncustodial parent for the support of a minor child is not
affected by a failure or refusal by the custodial parent to implement any
rights as to custody or visitation granted by a court to the noncustodial
parent.”
6 Mother does not dispute this time period on appeal. The court later
explained that the 29 percent timeshare was derived from Mother’s filing
dated January 12, 2017 (which does not appear in the record) in which
Mother “laid out all of the visitation in a chart.”
7
The parties appeared for a custody hearing in family court in December
2018. At the hearing, the court observed this was “a tragic case” and
bemoaned the case’s tortured procedural history and the failure of the courts
and the parents to resolve the issues between Father and Child. The court
recounted that Father’s last regularly scheduled visitation with Child ended
in August 2015, and, outside of a few joint therapy visits, Father “had very
little contact with [Child]” and had “only attempted to contact [Child] once in
the previous year when he mailed [him] a birthday card.” The court observed
that Child was now 17 years old, and “there is no more time.” The court
declined to modify custody, finding that it was not in the child’s best interest
and there was no change in circumstance warranting modification of the
parties’ September 15, 2016 stipulation. The court observed that, “in some
sense,” Mother “might have caused a rif[t] in the father/[child] relationship,”
but that Father could have contributed to the deterioration in their
relationship as well.
The court found that Child “was estranged from his Father,” but it was
“unclear whether the estrangement was caused by intentional actions by
Mother.” The court found there was no evidence of concealment and
emphasized that estrangement was not a defense to paying child support,
telling Father, “You still owe the support because child support is for the
benefit of [Child]. . . . [I]t flows to [Child], not to Mother.” The court
concluded that “[t]he parties shall share joint legal custody. The child shall
reside primarily with Mother, and visitation with Father shall be as mutually
agreed upon by [Child] and the Father.”
Following the family court’s disposition of the custody issues, the
parties appeared before the court for a final evidentiary hearing regarding
child support. The court acknowledged the findings made by the judge in the
8
family court proceedings. However, the court commented the evidence
indicated that Mother “put into play much of the conduct that resulted in the
feelings . . . that led to . . . the estrangement [between father and son] that we
see.” Father argued that special circumstances existed to rebut application of
the presumptive child support guideline and urged the court to apply the
“special circumstances” provision of section 4057: “the mother’s interference
with the visitation is the reason why the timeshare is the way it is. And
that’s [section] 4057. That’s special circumstances.”
On January 18, 2019, the court entered a final child support order. For
the time period October 1, 2014 through July 31, 2015, the court left in place
the child support order made on September 29, 2017, applying a 29 percent
timeshare and setting child support at $286 per month. For the time period
August 1, 2015 through December 31, 2016—during which time the court
acknowledged Father had no visitation with Child—the court utilized a
timeshare for Father of 29 percent and entered a child support order of $529
per month. For the time period January 1, 2017 through October 31, 2017—
again, during which Father had no visitation with Child—the court utilized a
timeshare for Father of 29 percent and entered a child support order of $649
per month. For the time period of November 1, 2017 “going forward,” the
court utilized the “actual” timeshare for Father of zero percent and entered a
child support order of $970 per month.
With respect to the applicable timeshare percentages, the court made
the following comments:
“For the period of 11-1-17 through the present, and for the
ongoing order, the Court . . . changes timeshare to [zero
percent] based upon the fact that it has been some time
since Father has spent any time with [Child]. For the
earlier time periods, the Court made a finding of
29 [percent] for the time period of 8-1-15 through 10-31-17
9
over Mother’s objection due to the review of substantial
evidence of Mother’s earlier interference in [Child’s]
relationship with his Father. The court found this to be an
unusual case and that to deprive Father of this amount of
timeshare and to award Mother’s specific behaviors that
contributed greatly to the estrangement, balanced against
the needs of [Child] in setting this order for months that
have long passed, finds that it is appropriate and just to set
the timeshare at 29 [percent]. The Court is mindful that
visitation was limited during this time period, and in spite
of the parties having come to an agreement on a way
forward to reunite Father and [Child] through conjoint
therapy.”7
Regarding the downward adjustment of the timeshare from 29 percent
to zero applicable to the November 2017 period and going forward, the court
noted that it “is mindful yet of Mother’s conduct and Father’s perceived lack
of effort to bridge the wide divide that has resulted between the Father and
[Child]. On balance, and with the recognition as detailed by the family court
of [Child’s] maturing age, the Court sets timeshare to the actual amount of
[zero].”
DISCUSSION
I.
Timeshare Determination
Mother challenges the court’s calculation of child support using a
29 percent timeshare for the period of time between August 2015 through
October 2017, when Father’s actual timeshare was zero (or nearly zero).8 We
7 The court further noted that “conjoint therapy ended in October of 2017
when Mother sent Child to the appointment with an armed security guard,
the presence of whom was not acceptable to the therapist.”
8 Father previously contended he was entitled to some modicum of
timeshare reflecting his participation in “therapeutic visitation” during some
of this time.
10
agree and reverse the child support order so that the court can recalculate
guideline child support using Father’s actual timeshare during this time
period.
We review child support awards for abuse of discretion. (In re
Marriage of Simpson (1992) 4 Cal. 4th 225, 234 (Simpson); In re Marriage of
Macilwaine (2018) 26 Cal. App. 5th 514, 527.) “We review factual findings
regarding a child support award for substantial evidence. [Citations.] That
review requires us to consider the record in a light most favorable to the
respondent, and to presume the existence of every fact that reasonably could
be deduced from the evidence.” (S.P. v. F.G. (2016) 4 Cal. App. 5th 921, 934
(S.P.).) Even in the absence of a responding brief by Father, we adhere to the
requirement that the appellant affirmatively demonstrate prejudicial error.
(County of Lake v. Antoni (1993) 18 Cal. App. 4th 1102, 1104.)
Section 4055 sets forth the “statewide uniform guideline” for
determining child support. Under the guideline, child support obligations are
divided “among the parents based on income and amount of time spent with
the child by each parent.” (§ 4052.5.) The amount of child support
established by the uniform guideline formula is presumed to be the correct
amount of child support to be ordered. (§ 4057, subd. (a).) The court may
deviate from the presumptively correct guideline and order a different
amount only in limited circumstances, and only after making certain
required findings. (§ 4057; In re Marriage of McHugh (2014) 231 Cal. App. 4th
1238, 1245.) “Determining the amount of child support therefore is a highly
regulated area of the law, and the only discretion the trial court has is the
discretion conferred by statute or rule.” (McHugh, at p. 1245.)
A crucial component in the formula is timeshare: the “approximate
percentage of time that the high earner has or will have primary physical
11
responsibility for the children compared to the other parent.” (§ 4055,
subd. (b)(1)(D).) As the timeshare of the higher income earner increases, the
guideline amount of child support decreases. Here, the facts are undisputed:
the court used a 29 percent timeshare for Father, during a period of time
when Father was not seeing Child at all, and had no “physical responsibility”
for him because Child was refusing all contact with Father. By disregarding
these facts in calculating child support, the trial court failed to comply with
the statutes governing this highly regulated area of the law, and therefore
abused its discretion. (See § 4057 [statutory guideline formula is
presumptively correct]; § 4055, subd. (b)(1)(D) [statutory guideline formula
includes timeshare component]; see also § 4053, subd. (c) [“The guideline
takes into account each parent’s actual . . . level of responsibility for the
children.”], italics added.)
The trial court did not identify a valid legal or factual basis for using
something other than Father’s actual timeshare in calculating child support.
In limited circumstances, the trial court has discretion to allocate a different
timeshare to a parent even though the child is not in that parent’s actual
physical care. Those cases typically arise when the minor child is not in the
physical presence of either parent. (See, e.g., DaSilva v. DaSilva (2004)
119 Cal. App. 4th 1030, 1034 (DaSilva) [“Timesharing has been credited to
parents having full responsibility for the physical situation and care of a
disabled adult child [citation], and may also include the time spent during
court-ordered ‘grandparent’s visitation (§ 3103, subd. (g)(1)), as long as that
parent is responsible for the child during that time.’ ”]; In re Marriage of
Katzberg (2001) 88 Cal. App. 4th 974, 981-983 [court properly allocated all of
the time that the parties’ son was away at boarding school to the father, who
was the primary custodial parent and who would be responsible for any
12
emergencies that arose]; In re Marriage of Whealon (1997) 53 Cal. App. 4th
132, 145 [rejecting father’s claim that he should receive credit for part of
child’s time in day care, stating: “It is the custodial spouse who, after all, has
the burden of finding, arranging and fronting the money for appropriate day
care, who must deliver and pick up the child, and whose work day will be
interrupted if there are any medical or other emergencies.”].) These
authorities are inapposite here because Child was with Mother (not a third
party) and she had physical responsibility for Child’s care at all times.9
The trial court calculated child support using a 29 percent timeshare
for Father in response to Mother’s perceived interference with Father’s
reunification efforts and visitation rights, effectively applying an equitable
credit in Father’s favor to offset Mother’s purported interference. This was
error. The law is well-settled that one parent’s interference with the
visitation rights of the other does not affect the duty of support. (§ 3556
[“The existence or enforcement of a duty of support owed by a noncustodial
parent for the support of a minor child is not affected by a failure or refusal
by the custodial parent to implement any rights as to custody or visitation
granted by a court to the noncustodial parent.”].) Our Supreme Court in
9 Even if these authorities were applicable, allocating a 29 percent
timeshare to Father would not be supported by an examination of the
relevant factors typically considered in such situations. (See DaSilva, supra,
119 Cal.App.4th at pp. 1034-1035 [“[I]f a parent desires credit for time the
child is not physically with him or her, then the parent has the burden of
producing admissible evidence demonstrating he or she is primarily
responsible for that child during those challenged times. Relevant factors
include: (1) who pays for transportation or who transports the child; (2) who
is designated to respond to medical or other emergencies; (3) who is
responsible for paying tuition (if any) or incidental school expenses; and
(4) who participates in school activities, fundraisers, or other school-related
functions.”].)
13
Moffat v. Moffat (1980) 27 Cal. 3d 645, 651-652 (Moffat), made clear that a
parent must pay child support even if the custodial parent interferes with the
paying parent’s right to visitation. The Court held that “the enforcement of
child support orders shall not be barred by the contumacious behavior of a
party to a dissolution proceeding.” (Id. at p. 653.) Recognizing the perceived
inequity from the paying parent’s perspective, the Court nonetheless
explained: “Regardless of whether we might view this as an unjust result
from the noncustodial parent’s point of view, in such circumstances the
child’s need for sustenance must be the paramount consideration.” (Id. at
p. 651.) The Court reiterated these principles in In re Marriage of Comer
(1996) 14 Cal. 4th 504, 517, stating that, the “denial of rights to custody and
visitation does not affect a parent’s obligation to provide child support”
because “a child support obligation ‘. . . runs to the child and not the parent.’ ”
(Ibid.; see also Williams v. Williams (1970) 8 Cal. App. 3d 636, 640 [“In
essence, the parent, to whom such support is paid, is but a mere conduit for
the disbursement of that support.”].) Indeed, “[e]ven deliberate sabotage of
visitation rights does not justify withholding payment of support.” (Cooper v.
O’Rourke (1995) 32 Cal. App. 4th 243, 246 (Cooper); see also In re Marriage of
Anderson (1981) 125 Cal. App. 3d 553, 559 [“denial or frustration of visitation
rights does not justify termination or reduction of child support payments”];
In re Marriage of Condon (1998) 62 Cal. App. 4th 533, 548, fn. 10 [“We
recognize in an ordinary domestic child custody case the supporting parent’s
duty to pay child support remains even if the other parent fails to obey the
custody and visitation provisions of the court’s order.”].)
The trial court here was understandably concerned about Mother’s role
in frustrating Father’s visitation rights and interfering with his relationship
with Child. A parent’s interference with the other parent’s visitation rights
14
“may provide grounds for a contempt action, for modification of custody, or for
other sanctions.” (Cooper, supra, 32 Cal.App.4th at p. 246; see also In re
Marriage of Burgess (1996) 13 Cal. 4th 25, 36, fn. 6 [“ ‘Conduct by a custodial
parent designed to frustrate visitation and communication may be grounds
for changing custody.’ ”]; In re Marriage of Ciganovich (1976) 61 Cal. App. 3d
289, 294 [“[A] mother’s sabotage of the father’s visitation right furnishes no
ground for withholding child support payments. It does provide a ground for
a motion to modify the decree which the court should consider as part of the
array of circumstances affecting custody and support.”].) But as recognized
by a leading treatise, “the court cannot modify child support simply to coerce
the custodial parent into compliance with the other parent’s visitation rights
or to penalize the custodial parent for ‘interfering’ with the other parent’s
visitation rights.” (Hogoboom & King, Cal. Practice Guide: Family Law (The
Rutter Group 2020), ¶ 17:68.)10
10 At the custody hearing in family court, the court described Mother’s
actions as “horrific.” In its final order, the court found that “[Child] was
estranged from his Father. However, the Court is unclear whether the
estrangement was caused by intentional actions by Mother.” At the child
support hearing in the Family Support Division, the court concluded there
was “substantial evidence of Mother’s earlier interference in [Child’s]
relationship with his Father,” and did not want “to award Mother’s specific
behaviors that contributed greatly to the estrangement.” We do not condone
a parent’s interference with court-ordered visitation. Regardless of who is
responsible, the child here has undoubtedly suffered as a result of the
deterioration in his relationship with Father. The trial court indicated it was
balancing Mother’s actions “against the needs of [Child] in setting this order
for months that have long passed.” But the appropriate remedies do not
include reducing the noncustodial parent’s timeshare to an amount
unsupported by the record. (See Lass v. Eliassen (1928) 94 Cal. App. 175, 179
[“Rules of equity cannot be intruded in matters that are plain and fully
covered by positive statute.”].) Terminating or modifying child support by
arbitrarily adjusting a parent’s timeshare is contrary to the best interests of
the child who is generally entitled to guideline child support. The fact that
15
Mother discusses two additional points in her brief. First, she contends
the trial court cannot rely on the “ ‘concealment defense’ ” to support its child
support order. The trial court did not rely on this theory to calculate
support, and it has no application here in any event. (See In re Marriage of
Damico (1994) 7 Cal. 4th 673, 676, 683 [a parent who has concealed a child
until the minor reaches adulthood may be estopped from seeking child
support arrearages because concealment, unlike even extreme interference
with visitation rights, “defeats the entire purpose of the [support] order,
which is to provide support to a third party, the child”].)11 Second, Mother
contends the support award cannot be justified under the “ ‘special
circumstances’ ” exception. (§ 4057, subd. (b)(5) [the presumptive correctness
of the guideline child support amount may be rebutted by evidence showing
application of the formula would be unjust or inappropriate due to special
circumstances in the particular case]; see In re Marriage of Rodriguez (2018)
23 Cal. App. 5th 625, 636 [a trial court has broad discretion to determine when
special circumstances apply]; but see In re Marriage of Wood (1995)
37 Cal. App. 4th 1059, 1069 [courts are not allowed to adjust the guideline
calculation under § 4057, subd. (b)(5) if a statute expressly forbids
consideration of the requested factor in determining child support],
disapproved on other grounds in In re Marriage of Fellows (2006) 39 Cal. 4th
179, 187.) Although the court alluded to “ ‘special circumstances’ ” under
section 4057 when setting an interim support order in May 2017, there was
several months passed before final support orders were made does not
provide any basis for disregarding the guideline formula.
11 The judge handling the custody hearing recognized this defense does
not apply here. The court “decline[d] to make concealment findings,” and
“note[d] there is no evidence showing Mother sequestered or concealed the
child from Father under [the] Damico [case].” The commissioner calculating
child support similarly made no findings of concealment in this case.
16
no reliance on (or mention of) section 4057 in the final support order from
which this appeal lies. We therefore need not address this issue.
In sum, the law is well-settled that a court is prohibited from
terminating or otherwise using child support as a way to penalize or secure
the cooperation of a parent who is allegedly frustrating or interfering with
the obligor parent’s custody or visitation rights. The trial court utilized a
29 percent timeshare, but it is undisputed Father did not have primary
physical responsibility for Child 29 percent (or anywhere close to that
amount) of the time. Calculating child support in this manner is tantamount
to withholding child support and is inconsistent with the governing law in
this highly regulated area. (§ 3556; Moffatt, supra, 27 Cal.3d at p. 651.)
Because there is no valid legal or factual basis to support application of a
29 percent timeshare for the disputed time period, we must reverse the
support award. (S.P., supra, 4 Cal.App.5th at p. 934.)
II.
Income Determination
Mother challenges the trial court’s refusal to include certain payments
Father received from his parents as income available for child support. We
find no abuse of discretion in the court’s conclusion that the gifts here did not
amount to income available for child support. (See Simpson, supra, 4 Cal.4th
at p. 234 [child support orders are reviewed for an abuse of discretion]; In re
Marriage of Williamson (2014) 226 Cal. App. 4th 1303, 1312 (Williamson)
[under the abuse of discretion standard, the appellate court “will disturb the
trial court’s decision only if no judge could have reasonably made the
challenged decision”]; see also In re Marriage of Wittgrove (2004)
120 Cal. App. 4th 1317, 1327 [we review factual findings made in connection
with a child support ruling under the substantial evidence test].)
17
A. Additional Factual Background
Throughout the support litigation, Father submitted income and
expense declarations identifying the amount of attorney fees he incurred.12
In March 2017, Father submitted a declaration explaining that his
parents were paying his attorney fees by putting them on a credit card.
Father stated his parents intended to deduct these payments from his future
inheritance.
At a deposition in May 2018, Father testified that his parents had
previously paid his attorney directly, but they had stopped making payments
as they were unhappy with the results being achieved in the custody battle,
since Father “technically” already had 50 percent custody but such custody
was “not being enforced.”13 He testified he had not paid his family law
attorney in “at least two” years and stated his parents had paid “[o]ver a
hundred thousand [dollars in attorney fees that] [he] kn[e]w [of].”
In November 2018, Father stated his parents had previously paid his
attorney fees by putting them on a credit card, but that they were no longer
“ ‘able to help’ ” and the fees paid would be deducted from his future
inheritance. In later testimony, he acknowledged making this statement, but
12 In December 2017, Father attested he had paid his attorney
$239,393.00, using “credit card/income” and still owed $9,389 in fees. In July
2018, Father attested he had paid his attorney $55,000 in the last 12 months
with “income/credit card” and still owed approximately $6,700 in fees. In
November 2018, Father attested he had paid $96,474.39 in attorney fees
between October 2016 and November 2018 with “[l]oans and income” and still
owed nearly $2,000 in fees.
13 Father explained that his parents paid his attorney “directly, not
through [Father],” and he “never saw the bill,” “never saw the credit card.”
Father did not receive the attorney’s monthly bills; they were sent directly to
his parents for payment.
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also stated he was “not aware of what the inheritance is or if there is one”
because he did not discuss the matter with his parents.
In January 2019, Mother filed a declaration in anticipation of the final
evidentiary hearing on child support. In her declaration, she stated that
Father’s income and expense declarations admitted as evidence in the family
court proceedings reflected Father’s receipt of recurrent monetary gifts of
attorney fees paid by Father’s parents. She further declared that, at the
custody hearing, Father was cross-examined on his income and Father’s
mother was cross-examined regarding her contribution to Father’s attorney
fees. According to Mother’s declaration, Father acknowledged under oath
that his parents assisted him with attorney fees, and claimed that, as of
November 19, 2018, his attorney had been paid $69,464.39 over the prior two
years. Mother’s declaration posited her belief that Father’s parents had in
fact paid over $210,000 in attorney fees throughout the litigation. During the
December 2018 hearing on custody, the court confirmed that Father’s
“parents have assisted him with his attorney’s fees. As of November 19,
2018, he has paid his attorney $69,474.39 [sic].” Based on the record before
us, the court did not confirm Mother’s additional claim that his parents paid
over $210,000 in attorney fees.
Mother requested that the court consider the attorney fee payments
Father received from his parents as gifts includable in Father’s income
pursuant to In re Marriage of Alter.14 The court declined to do so, stating,
“My tentative is, no. Alter doesn’t cover that. [¶] . . . [¶] I don’t see those
facts here.” Ultimately, the court “decline[d] to add income for Father for any
14 In re Marriage of Alter (2009) 171 Cal. App. 4th 718 (Alter) is discussed
further post.
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gifts he may have received from his parents for attorney’s
fees . . . and . . . decline[d] to add it to Father’s [income].”
B. Applicable Law
For purposes of the guideline child support calculation, the annual
gross income of a parent “means income from whatever source
derived . . . and includes, but is not limited to, the following: [¶] (1) [i]ncome
such as commissions, salaries, royalties, wages, bonuses, rents, dividends,
pensions, interest, trust income, annuities, workers’ compensation benefits,
unemployment insurance benefits, disability insurance benefits, social
security benefits, and spousal support actually received from a person not a
party to the proceeding to establish a child support order under this article[,]
[¶] (2) [i]ncome from the proprietorship of a business, such as gross receipts
from the business reduced by expenditures required for the operation of the
business[, and] [¶] (3) [i]n 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).)
“[N]othing in the law prohibits considering gifts to be income for
purposes of child support so long as the gifts bear a reasonable relationship to
the traditional meaning of income as a recurrent monetary benefit.” (Alter,
supra, 171 Cal.App.4th at pp. 736-737.) “But while regular gifts of cash may
fairly represent income, that might not always be so. Therefore, the question
of whether gifts should be considered income for purposes of the child support
calculation is one that must be left to the discretion of the trial court.” (Id. at
p. 737)
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C. Analysis
Mother contends the facts here are “factually analogous to Alter in that
[Father’s] parents provided substantial cash gifts over the period of 2015-
2019 that were of a ‘periodic and regular nature.’ ” We disagree.
In Alter, the father had been receiving regular cash payments from one
of his parents for over a decade—the payments were periodic and regular in
nature, such that the money was available to the father for the support of his
children. (Alter, supra, 171 Cal.App.4th at p. 737.) Under these
circumstances, the Court of Appeal determined the trial court did not abuse
its discretion in considering the $6,000 per month that father regularly
received as a gift to be part of his income for purposes of calculating child
support. (Id. at pp. 731, 737.)
By contrast, in Williamson, the Court of Appeal held that certain gifts
from father’s parents were not includable in father’s income available for
support. (Williamson, supra, 226 Cal.App.4th at p. 1313.) The evidence
established that the father had received lavish gifts and cash advances to
purchase and renovate the family home and for the family’s living expenses.
(Id. at p. 1314) The payments were made upon request and were irregular.
In some years, the father received large sums of cash, but in other years, he
received none. (Ibid.) Under these circumstances, the Court of Appeal held
that including the value of the gifts as part of the father’s income would lead
to a child support order based on money that the father did not have. (Id. at
p. 1313.)
There is substantial evidence in the record to support the trial court’s
conclusion that Alter does not apply, and this case is more like Williamson.
Unlike Alter, where the grandparents had made regular payments even
before the divorce proceedings, and continued providing regular cash
21
payments to the father after the parties’ separation, the payments here were
made for a discrete purpose and they have since ceased. The parties were
embroiled in an extended custody dispute, with Father contending that
Mother was interfering with his visitation rights. Father’s parents directly
paid for his attorney so Father could obtain necessary representation during
this dispute, then stopped paying when they could no longer afford to pay and
became dissatisfied with the results. Mother has not established that the
payments were made at regular time intervals or in recurring amounts; she
also contends Father’s parents paid a total amount that is significantly
higher than the amount stated by the trial court. And the payments were for
a specific purpose—Father’s attorneys—and are not available to Father for
the support of Child. (See M.S. v. O.S. (2009) 176 Cal. App. 4th 548, 560
[holding that trial court erred when it characterized as income an Indian
tribe’s direct payment of the obligor father’s attorney fees, where the tribe
paid the attorneys directly, and thus “the payments are not part of [the
father’s] regular income or included in his cashflow”]; Anna M. v. Jeffrey E.
(2017) 7 Cal. App. 5th 439, 449 (Anna M.) [“a child support award should
usually not be based on monies the parent does not actually have available
for support”]; id. at p. 454 [cash gifts not considered income when provided
“on an as-needed basis to pay particular expenses”].) As the court stated in
Williamson, “[g]enerous relatives do not have a duty to support a family
member’s minor children.” (Williamson, supra, 226 Cal.App.4th at p. 1315.)
On this record, we conclude the trial court did not abuse its discretion
in rejecting Mother’s claim that Father was receiving the type of recurring
and regular monetary gifts that may be treated as income under
section 4058. (Alter, supra, 171 Cal.App.4th at p. 737 [“the question of
whether gifts should be considered income for purposes of the child support
22
calculation is one that must be left to the discretion of the trial court”];
Williamson, supra, 226 Cal.App.4th at p. 1314 [trial court did not err in
concluding payments “were irregular and outside ‘the traditional concept of
income as a recurrent, monetary benefit’ ”]; see also Anna M., supra,
7 Cal.App.5th at p. 452 [“legal authorities . . . indicate regular, recurrent gifts
to a parent may be characterized as income to that parent for purposes of
calculating guideline child support, but they do not indicate gifts must be so
characterized in every case”].)
DISPOSITION
The order is reversed in part. The matter is remanded to the trial court
to recalculate the guideline amount of child support owed by Father for the
time period of August 2015 through October 2017, based on Father’s actual
timeshare during this period of time. In all other respects, the order is
affirmed.
GUERRERO, J.
WE CONCUR:
BENKE, Acting P. J.
O’ROURKE, J.
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Filed 10/16/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, D075690
Plaintiff and Respondent,
v. (Super. Ct. No. DN143198)
P.B., ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendant and Respondent;
L.C.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed October 8, 2020, was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports"
appearing on page 1 of said opinion be deleted and the opinion herein be
published in the Official Reports.
BENKE, Acting P. J.
Copies to: All parties
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