Haley v. Antunovich

Filed 3/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DAVID HALEY,
Plaintiff and Respondent, A161842
v.
SARA ANTUNOVICH, (Alameda County Super. Ct.
Defendant and Appellant. No. HF-16-828657)
David Haley pays child support to Sara Antunovich, the mother of their
child. In February 2020, Haley sought to modify the amount of the court-
ordered support. He also asked the trial court to order Antunovich to seek
employment (seek-work order) as she had not worked since 2013, relying
instead on Haley’s child support and monthly gift income from her father.
The court granted Haley’s requests. In imposing a seek-work order, the court
explained, “the policy of the State of California is that both parents should
work and provide support for their minor child, so I will issue a seek-work
order for [Antunovich] to find work with her skills and experience.” The
court also found the order was in the “best interest of the child.”
Antunovich appeals the seek-work order. She contends the order was
not supported by substantial evidence. She also argues the court
misconstrued Family Code section 4053 — which sets forth principles
regarding the application of the statewide uniform guideline for determining
child support — when it remarked that the state’s policy is that both parents
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should work. (Undesignated statutory references are to the Family Code.)
To the extent one could interpret this brief remark as construing section
4053, we agree the statute does not say “both parents should work.” But that
does not affect a trial court’s discretion to impose a seek-work order in an
appropriate circumstance. Here, substantial evidence supports the court’s
finding that such an order was in the “best interest of the child.” Moreover,
the court’s order is consistent with various principles in section 4053,
including that “[e]ach parent should pay for the support of the children
according to the parent’s ability.” (Id., subd. (d).) We affirm.
BACKGROUND
Antunovich and Haley share joint legal custody of their now five-year-
old child. Initially, the child spent nearly 80 percent of his time with
Antunovich and the remaining time with Haley. In 2017, Haley’s monthly
income was $15,000, and he paid Antunovich $1,525 in child support each
month. In addition, she received $5,000 in monthly gift income from her
father; the gifts later increased to $7,500 each month.
In February 2020, Haley moved to modify the child support order. His
time with the child had increased to 42 percent, and his monthly income had
risen to $17,500 — under the statewide guideline, these changes would have
the effect of reducing the amount of child support. (See § 4055.) Haley also
sought a seek-work order for Antunovich. For her part, Antunovich opposed
any reduction in child support. She indicated she could not “afford such
a decrease” because she was unemployed and relied on Haley’s child support
and her father’s monthly gifts “to survive and to adequately care for [the
child].” Antunovich contended there already was “a shortfall” between her
gift income and her nearly $11,000 in monthly expenses. She also opposed
the requested seek-work order, asserting her lack of skills would require her
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to find a minimum wage job for substantially less money than her father’s
gifts, which totaled approximately $90,000 per year. Moreover, although the
child attended preschool, Antunovich asserted her employment would be
detrimental to the child’s “attachment bond and personal care.”
In August 2020, at a hearing at which both parties were represented by
counsel, the trial court reduced the monthly child support to $891, retroactive
to February 2020. As a result, Antunovich owed Haley $4,438 in child
support. The court also issued a seek-work order, stating “the policy of the
State of California is that both parents should work and provide support for
their minor child, so I will issue a seek-work order for [Antunovich] to find
work with her skills and experience.” The court also found the order was in
the “best interest of the child.”
DISCUSSION
“California has a strong public policy in favor of adequate child
support.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) The
Legislature has declared that, subject to other statutes, both parents “of
a minor child have an equal responsibility to support their child in the
manner suitable to the child’s circumstances.” (§ 3900.) Awards of child
support are governed by a statewide uniform guideline (see §§ 4050–4076)
and, when implementing the guideline, courts must follow principles set forth
in section 4053. (In re Marriage of Hein (2020) 52 Cal.App.5th 519, 527.)
Among them: “(a) A parent’s first and principal obligation is to support the
parent’s minor children according to the parent’s circumstances and station
in life. [¶] (b) Both parents are mutually responsible for the support of their
children. [¶] . . . [¶] (d) Each parent should pay for the support of the
children according to the parent’s ability. [¶] (e) The guideline seeks to place
the interests of children as the state’s top priority.” (§ 4053.)
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In determining a guideline award, one significant factor is the parents’
annual net income (see § 4055), which generally means “income from
whatever source derived.” (§ 4058.) That can include, as here, recurring and
predictable monetary gifts to a parent. (In re Marriage of Alter (2009)
171 Cal.App.4th 718, 736.) Courts can also “consider the earning capacity of
a parent in lieu of the parent’s income, consistent with the best interests of
the children” (§ 4058, subd. (b)) and impute income to an unemployed or
underemployed parent. (In re Marriage of Hinman (1997) 55 Cal.App.4th
988, 999.) Moreover, a court may require an unemployed parent who is in
default of a child support order to submit evidence that the parent is seeking
employment (§ 4505, subd. (a)), and it “may require either parent [in
a proceeding involving child or family support] to attend job training, job
placement and vocational rehabilitation, and work programs . . . and provide
documentation of participation in the programs . . . in order to enable the
court to make a finding that good faith attempts at job training and
placement have been undertaken by the parent.” (§ 3558.)
With the foregoing in mind, we turn to Antunovich’s argument that the
trial court’s seek-work order must be reversed because it was not supported
by substantial evidence. 1 We disagree. We review the court’s order for abuse
of discretion. (Barron, supra, 173 Cal.App.4th at p. 298; see In re Marriage of
Wittgrove (2004) 120 Cal.App.4th 1317, 1327 [child support orders reviewed
for abuse of discretion].) In doing so, we “ ‘cannot substitute our judgment for
1Both parties appear to agree the trial court had the authority to
impose a seek-work order (cf. § 4505, subd. (a) [authorizing seek-work order
when unemployed parent is in default]), and its order should be reviewed for
abuse of discretion. We assume, for purposes of this appeal, that the court
had discretion to impose such an order. (Barron v. Superior Court (2009)
173 Cal.App.4th 293, 298 [assuming trial court had discretion to impose
a seek-work order on nondefaulting parent].)
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that of the trial court, but only determine if any judge reasonably could have
made such an order.’ ” (Ibid.) “Findings will be normally implied to support
judgments or orders if supported by substantial evidence.” (In re Marriage of
Ackerman (2006) 146 Cal.App.4th 191, 197.)
Substantial evidence supports the seek-work order. Antunovich’s own
statements established that her income was insufficient to adequately
support the child. In her “Income and Expense Declaration,” filed June 30,
2020, Antunovich reported having estimated monthly expenses of $10,979.
Her monthly gift income and the modified child support totaled $8,391
($7,500 in gifts and $891 in child support), leaving a monthly shortfall of
$2,588. Indeed, in her declaration opposing a reduction in child support,
Antunovich noted she was unemployed, and she urged the court to impute
income to Haley or to depart upward from the statewide guideline for
determining child support because she would otherwise be unable “to survive
and to adequately care for [the child].” (Italics added.) She also indicated she
would be unable to maintain “[t]he level of care and lifestyle [the child] is
used to” if child support were reduced. Moreover, the retroactive reduction of
child support resulted in Antunovich owing Haley $4,438 in arrearages,
which was to be repaid at a rate of $200 per month — meaning Antunovich
would have even less money each month.
There was also ample evidence that Antunovich had the ability and
opportunity for employment. (See In re Marriage of Hinman, supra,
55 Cal.App.4th at pp. 999–1000 [discussing factors supporting imputation
of income to underemployed parent].) Antunovich averred that she had
earned a Bachelor of Arts degree and had previously been employed.
Additionally, there was evidence that, between Haley’s increased child
custody time and the child’s enrollment in preschool, Antunovich had ample
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time during which she could work. Even a minimum wage job could have
significantly closed the gap between her monthly expenses and the income
Antunovich indicated was necessary “to adequately care for” the child and
maintain the “level of care and lifestyle” to which he was accustomed.
Given the evidence that Antunovich’s income was insufficient “to
survive and to adequately care for” the child and that she had both the ability
and opportunity to work, we conclude the trial court did not abuse its
discretion in determining a seek-work order was in the “best interest of the
child.” (See In re Marriage of Hinman, supra, 55 Cal.App.4th at p. 1000
[courts have discretion to impute income where ability and opportunity to
work exist].) To the contrary, the order was consistent with various
principles identified in section 4053, including that “[a] parent’s first and
principal obligation is to support the parent’s minor children according to the
parent’s circumstances and station in life” (id., subd. (a)), “[e]ach parent
should pay for the support of the children according to the parent’s ability”
(id., subd. (d)), and “the interests of children [are] . . . the state’s top priority”
(id., subd. (e)).
Antunovich also contends the trial court erred by failing to require
evidence that her father’s recurring gifts would continue if she were
employed. We disagree. No one disputes Antunovich received “a regularly
occurring gift of $7500” from her father, which could properly be treated as
income. (In re Marriage of Alter, supra, 171 Cal.App.4th at p. 737.) At the
August 2020 hearing, Haley’s counsel argued any income Antunovich earned
from employment would be in addition to her ongoing gift income; by
contrast, Antunovich’s counsel argued any income from employment would
supplant the gifts, which “could drop away at any time.” Absent evidence
that Antunovich’s employment would trigger an end to the gifts, the court did
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not abuse its discretion in assuming the gifts would continue. 2 (Id. at
pp. 736–737 [gifts can be treated as income even if “there was no guarantee
that the parent would continue to receive such gifts in the future”].)
Antunovich next argues there was no evidence of the impact the seek-
work order would have on the child, nor “any evidence whatsoever that the
child’s needs are not being met under the current circumstances.” Not so.
Antunovich herself averred that a reduction in child support would leave her
unable “to survive and to adequately care for [the child]” or to uphold the
“level of care and lifestyle” to which the child was accustomed. She was also
the one who noted she was unemployed and had an already ongoing
“shortfall” between her income and monthly expenses. On the other hand,
she offered no evidence that the seek-work order would have a detrimental
impact on the child — especially since the child was enrolled in preschool and
spending over 40 percent of his time with Haley. It is undisputed Antunovich
had no childcare responsibilities and could seek part-time work during those
times. The court further acknowledged that the type and frequency of
employment Antunovich sought could be tailored to the needs of the child.
Thus, there was substantial evidence that Antunovich’s current income was
insufficient to adequately care for the child and no evidence that the seek-
work order would have a detrimental effect on the child.
Finally, Antunovich contends the trial court erroneously imposed the
seek-work order after incorrectly construing section 4053 to provide that
“both parents should work and provide support for their minor child.” At the
outset, Antunovich forfeited this argument on appeal by failing to raise it in
2Of course, should the gifts from her father cease for any reason,
Antunovich could seek to modify the amount of child support given the
change to her income.
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the trial court, but we exercise our discretion to consider this pure question of
law. (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1127; Phillips v. TLC
Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1141.) We further doubt the
court’s brief remark could accurately be characterized as construing section
4053. Leaving that aside, we agree that nothing in the Family Code
necessarily requires parents to be employed to support their children.
Rather, courts take “into account each parent’s actual income and level of
responsibility for the children” when setting child support orders. (§ 4053,
subd. (c).) So, for example, employment might be unnecessary when a parent
is otherwise able to meet their child’s financial needs through other private
financial resources, such as monetary gifts, investments, or other sources of
income. (§ 4053, subd. (h) [“The financial needs of the children should be met
through private financial resources as much as possible.”].) In any event,
after making the brief misstatement regarding California policy, the court
clarified it was issuing the seek-work order in the “best interest of the child.”
As previously explained, we conclude the court’s order was an appropriate
exercise of discretion.
DISPOSITION
The seek-work order is affirmed. The parties shall bear their own costs
on appeal.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A161842
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Superior Court of Alameda County, Hon. Clifford T. Blakely.
Lvovich & Szucsko, Terry A. Szucsko and Hannah R. Salassi for appellant.
Law Offices of David Korsunsky and David D. Korsunsky for respondent.
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