Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D483448, Browder A. Willis III, Judge.
HUFFMAN, J.
Appellant Elvira Surposa (Mother) appeals from a postjudgment order modifying a child support award for her three oldest children in the dissolution action between Mother and her ex-husband, Fousto Surposa (Father). Mother first contends that the trial court erred in allowing two hardship deductions from Father's monthly income for his new child and also his nonadopted stepchild from his new marriage. (Fam. Code, §§ 4059, subd. (g), 4070 et seq.) Relying on section 4057.5, Mother also contends that the court abused its discretion in imputing to her amounts representing the income of her new mate (the father of her two new children), on the grounds that the findings required by the statute were not made, and those were "phantom" monies to which she was not guaranteed access.
Because the parties have the same surname, we will call them Mother and Father.
All further statutory references are to the Family Code unless stated.
Father has not filed a respondent's brief. We do not consider this to be a concession, and reach the merits of Mother's appeal. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.)
Our review of the record shows that the trial court's finding that Father was entitled to a hardship deduction for his nonadopted stepchild is not supported by statute or substantial evidence in the record. However, Father is properly entitled to one hardship deduction for his new child from his new marriage. (§§ 4059, subd. (g), 4070, 4071.) It was not resolved at the hearing whether Mother was entitled to any such deductions, but that may be addressed upon remand if appropriately raised.
Next, although this record is somewhat unclear, the only possible interpretation of the trial court's order and reasoning was that it actually attributed Mother's new mate's income to her in making its income calculations, even though the court was not sure whether it could do so or not. However, there is insufficient evidence nor any findings to justify any such attribution of new mate income to Mother at this time. (§ 4057.5, subds. (a)(2), (b).) We accordingly must reverse the order as unsupported by the evidence, with directions to the trial court to utilize its discretion in fashioning a support award that is appropriate to all the circumstances of the parties upon remand, and that reflects these statutory restrictions. (§§ 4057.5, 4059, 4070, 4071.)
BACKGROUND
A. Facts
The marriage of Mother and Father was dissolved in November 2004. They had three children together, who are currently 12, 11, and 7 years old. The judgment of dissolution included, pursuant to a settlement agreement that the parties reached in propria persona, an order that Father should pay Mother monthly child support of $519.
In May 2007, Mother obtained counsel and requested that the court modify the support award for the three children, and the matter was heard in July 2007. Counsel argued that Father's income had increased. Father, acting in pro per, filed a responsive declaration, including an income and expense report. At that time, Mother had a new child with the man that she lives with (her new mate), and they were expecting another child within the next few weeks. Also, Father had remarried, and he had a new child with his new wife, who also had another child who lived with them (the stepchild).
At the hearing, the parties stipulated to facts to assist the court in making the guideline support calculation. Father had a child custody timeshare for the three children of 20 percent, and his gross monthly income as a bus driver was $2,500. He files taxes jointly with his new wife, and has four tax exemptions.
Mother has the ability to earn minimum wage, or $1,100 per month, and she has worked as a meat wrapper in the past and planned to do so again, after the baby was born in the next two weeks or so. She files taxes as head of household, and has four tax exemptions (soon to be five). According to her income and expense declaration, her new mate makes about $2,600 per month, but she stated that he did not pay any of the household expenses.
B. Ruling
At the hearing, the trial court first discussed several issues that were raised in Mother's order to show cause regarding modification, but which are not presented on appeal (e.g., division of Father's retirement account, payment of child care expenses, and a tax debt). Regarding the issues of child support that are raised on appeal, the trial court extensively discussed with the parties the problems of running two households on limited incomes.
On the specific topic of Mother's monthly income, the trial court imputed to her the California minimum wage of $1,100, since she was planning to return to work after the new baby was born. There was no discussion at the hearing about whether she was entitled to any hardship deductions for her two new children. The court initially discussed with the parties whether it should impute to Mother her new mate's monthly income, which appeared to be approximately $2,600, but it later advised Father that new spouse income would not be imputed to Mother on a common law marriage basis.
Upon making its calculations, the court set Mother's income at $1,100 monthly, without any objection from her counsel. The court noted that it had made independent calculations on the standard child support computer program, and that the program would not allow any input of the $2,600 figure of Mother's new mate's income.
Although Mother appears to object that the trial court should not have imputed the minimum wage income to her personally, particularly since the same was not imputed to Father's new wife, there was nothing improper about the trial court recognizing that Mother has an earning capacity and must do her part to support her own children monetarily. (§ 4058, subd. (b); In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.) To the extent she is actually pursuing this portion of the argument, it is not supported on appeal.
The trial court then turned to the task of determining Father's monthly income and expenses. The judge noted that his own efforts to run the child support calculation computer program showed that certain hardship factors could be potentially available to adjust the income of both parents, due to the new children they both had. Specifically, with regard to Father's $2,500 monthly income, the trial judge stated that without any hardship deductions, and with a new spouse income calculation, the guideline support for Father to pay would be $968, which the court felt would reduce Father's net spendable income too much (down to $1,400). Further, this would increase Mother's net income greatly (up to $2,380), "when there is some concern as to what the partner's bringing into the household. That 's the inequity that I am struggling with here."
Therefore, the trial court issued the following order, as reflected in the reporter's transcript: In light of Father's monthly income, two hardship deductions were awarded, for a hardship deduction of $530, which reduced his child support payment to $790. Other orders were made regarding childcare payment arrearages (to begin when Mother went back to work). The trial judge then acknowledged that he was aware that the Family Code did not allow stepchildren to be included in a hardship calculation, but he had nevertheless done so because he thought it was unconscionable not to recognize the current family compositions, when ordering the distribution of available income. The court believed that as a court of equity, it was required to engage in some balancing of the various factors.
Both the minute order and the formal order prepared by Mother's counsel reflect that the trial court added new spouse income of $2,600 to Mother. Although these written findings were not prepared according to the required format, their content is apparently not disputed. The court ordered a review in two months, with further documentation to be provided regarding Mother's new mate's income. Mother filed a notice of appeal from this order.
DISCUSSION
I
STATUTORY STANDARDS
A. Rules of Review
We review a child support order for any abuse of discretion, particularly where there has been a departure from the statutory guideline amounts. (In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1066 (Wood), disapproved on other grounds in In re Marriage of Fellows (2006) 39 Cal.4th 179, 187.) Under this standard, we also consider whether the court's factual determinations are supported by substantial evidence, such as whether the elements necessary to support a judgment or order are present. Specifically, a trial court may not invoke a hardship deduction without proof of the statutory elements being present, such as extreme financial hardship. (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215, fn. 2; § 4070 et seq.)
"[I]n reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]" (In re Marriage of Butler & Gill (1995) 53 Cal.App.4th 462, 465 (Butler & Gill).) The trial court may not "ignore or contravene the purposes of the law regarding . . . child support. [Citations.]" (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1425.) Thus, the court "may depart from the guideline only in 'special circumstances' set forth in the child support statutes. [Citation.]" (Id. at p. 1419.) The definition of such special circumstances is found in section 4057, subdivision (b)(5), which provides for deviation from the guideline child support amount when "[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case." Additionally, the terminology "circumstances" is used in evaluating whether certain hardship deductions should be allowed under section 4070 et seq. (§ 4059, subd. (g).)
B. Guidelines; Income Deductions for Hardship
The above child support principles must be applied with a recognition that several important, separate provisions are intertwined in this case, with respect to determining the respective incomes of the two parents, as well as any proper hardship deductions for their new family responsibilities. Under our reading of the record, the trial court, in making its order and its express and implied findings, clearly took into account its concern that there ought to be some new child and stepchild hardship deductions on Father's side, regardless of whether the statutes would allow them. Also, the trial court's oral and written rulings show its related concerns, regarding Mother, that her new mate was bringing income at some level into her household: "That 's the inequity that I am struggling with here." We accordingly must discuss both topics in reviewing the ruling.
In determining the guideline amount of a child support award, the trial court must first consider the annual income of each parent. "The annual gross income of each parent means income from whatever source derived . . . ." (§ 4058, subd. (a).) Section 4059, subdivision (g) allows for income deductions from a parent's net disposable income, where there is "hardship" as defined by section 4070 et seq. and applicable appellate court authority.
Section 4070 states: "If a parent is experiencing extreme financial hardship due to justifiable expenses resulting from the circumstances enumerated in Section 4071 , on the request of a party, the court may allow the income deductions under Section 4059 that may be necessary to accommodate those circumstances." (Italics added.) Allowable extreme financial hardship income deductions under section 4070 are limited to the items set forth in section 4071. (Butler & Gill, supra, 53 Cal.App.4th 462, 465-466 .) Section 4071 defines the circumstances evidencing hardship, as relevant here, in subdivision (a)(2), "[t]he minimum basic living expenses of either parent's natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent." (Italics added.) Adequate findings are required under section 4072.
Clearly, nonadopted stepchildren who live with an obligor parent, such as Father, do not expressly fall within the scope of the statute as qualifying the stepparent for such a hardship deduction under section 4071. The trial court order is not supported by this portion of the statutory scheme. (§§ 4059, subd. (g), 4070 et seq.). Nor does the ruling deal with any potentially applicable hardship factors regarding Mother's new children.
C. Guidelines; Rebuttable Presumption
Alternatively, under section 4057, subdivision (b)(5), the trial court may apply a statutory "special circumstances" reduction in child support, where application of the usual formula would be unjust or inappropriate "due to special circumstances in the particular case." In Butler & Gill, supra, 53 Cal.App.4th 462, 465-466, this court explained that this subdivision enumerates several sets of special circumstances; none of these is particularly applicable here (different time-sharing, different housing expenses, special medical needs). In any case, the proper definition of such "special circumstances" is not statutorily limited to those examples as stated above. (Id. at pp. 466-467.)
However, as explained in Wood, supra, 37 Cal.App.4th at pages 1066 to 1071, such discretion of the trial court under section 4057, subdivision (b)(5) to deviate from a guideline amount, when it would be "unjust or inappropriate due to special circumstances," does not give the court the ability to indirectly consider the new mate's income in the absence of a resulting extreme hardship to the supported children, because this has been forbidden by section 4057.5. Thus, even though section 4057 requires that the amount of child support must be established according to statutory formula, and allows the correctness of that amount to be characterized as a rebuttable presumption (so that an obligor parent may attempt to show how application of the formula would be unjust or inappropriate), that section is still subject to the dictates of more specific law, such as section 4057.5, as we next explain.
D. Guidelines; Departures
Until 1994, when section 4057.5 went into effect, trial courts had the authority and discretion to consider a new mate's income when setting a child support award. (Wood, supra, 37 Cal.App.4th 1059, 1066.) However, section 4057.5 now expressly prohibits courts from considering a subsequent mate or nonmarital partner's income when determining or modifying child support, except in very limited circumstances:
"The income of the obligor parent's [Father's] subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent mate or nonmarital partner." (§ 4057.5, subd. (a)(1), italics added.)
Section 4057.5, subdivision (a)(2) then deals with an obligee parent (here, Mother), as follows:
"The income of the obligee parent's [Mother'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." (Italics added.)
Section 4057.5, subdivision (b) then defines for the purposes of this section that "an 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." (Ibid.) Further, if any such consideration of new spouse income may properly be made, this section provides at subdivision (d):
"If any portion of the income of either parent's subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, the court shall allow a hardship deduction based on the minimum living expenses for one or more stepchildren of the party subject to the order." (§ 4057, subd. (d).)
Any applicability of section 4057.5, subdivision (d) has not yet been established on this record with regard to any hardship deductions for stepchildren, and we express no opinion on that matter. (See Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 17:54, p. 17-19 [legislative history of § 4057.5 shows that any consideration of new mate income in a child support case should be decided on a case-by-case basis, in the court's discretion].)
In this manner, the Legislature has limited a trial court's authority to consider a new mate's income in determining child support, to specified situations in which the failure to do so would result in "severe and extreme hardship" to the supported children. "We are mindful of the general provisions respondent cites to us regarding each parent's duty to support his or her children, and the privilege of the children to share in the standard of living of their parents. Nonetheless, here we are facing a direct statutory prohibition on the consideration of a particular factor in the child support scenario." (Wood, supra, 37 Cal.App.4th at pp. 1067-1068.) In the absence of evidence to support such a finding of "extreme and severe hardship" (§ 4057.5, subd. (a)(2)), the trial court may not impute the income of a new mate to the supported (obligee) parent. (See also In re Marriage of Romero (2002) 99 Cal.App.4th 1436, 1444, following Wood.)
II
ANALYSIS
By statute, we must keep our focus upon the three children of Mother and Father in evaluating this support order, not upon the parents' younger children with their respective new mates. The presence of the younger children may, however, give rise to appropriate hardship deductions under sections 4059, subdivision (g) and 4070 et seq. The circumstances here also include potentially available new mate income on Mother's side. We must next apply section 4057, subdivision (b)(5) (allowing a deviation from a guideline amount, when it would be "unjust or inappropriate due to special circumstances"), together with section 4057.5, to these facts, to review the trial court order.
A. New Children
Mother asserts the trial court should not have allowed a hardship deduction for Father's new children, in particular, his nonadopted stepchild. Mother does not specifically object to the hardship deduction from Father's income for his own new child, and that portion of the order appears to be justified under sections 4070 and 4071, subdivision (a)(2), which allow a deduction from the income calculation based on the expenses of supporting a new natural or adopted child. Mother did not object at the hearing to the trial court's failure to allow her any of her own hardship deductions for her own two new children, but upon remand, that matter may be reconsidered, upon request, as part of the relevant circumstances.
With respect to the nonadopted stepchild of Father, we have already noted that nonadopted stepchildren who live with an obligor parent do not expressly fall within the language of the statutes that allow such hardship deductions. (§§ 4059, subd. (g), 4070 et seq.). Nor do any other statutes support such a deduction under these circumstances. Upon remand, the court must remove that hardship deduction, in the absence of any evidence to support it (such as a showing of adoption).
B. New Mate Income
Regarding Mother's new mate's income, under section 4057.5, subdivision (a)(2), the trial court in its order imputed to Mother the income of her new mate, although the discussion of this was unclear. In any case, no such ruling was justified, without the determinations required by this statute of whether this case is "extraordinary," and whether excluding Mother's new mate's income would lead to extreme and severe hardship to the three children subject to the support award. (§ 4057.5, subd. (a)(2), (b).)
On this record, there is no evidence of the circumstances faced by the supported children that would be sufficient to justify application of such a factor. More evidence and findings would be needed before the trial court could appropriately take any such action. As explained in Wood, supra, 37 Cal.App.4th 1059, when the terms of section 4057.5 become involved, the focus of the child support modification hearing remains upon the supported children: "Only if a [supported] child would suffer may the trial court look to new mate income, and then it must do so. Otherwise, under our current legislative scheme, consideration of new mate income is not permitted." (Wood, supra, at p. 1071.)
We are mindful that these facts do not involve the typical situation described by section 4057.5, subdivision (b), in which the spouse requesting or paying child support has a new mate with a high income, and the spouse requesting or paying support is not utilizing his or her own earning capacity. Nevertheless, this section still requires that a court make certain findings before any new spouse income may be imputed, either to an obligor or an obligee parent in a child support matter. No such findings were attempted here.
Upon remand, the proper procedure will be to use the statutory formula, insert the income or attribution of earning capacity to Mother and Father, as adjusted by any requested and justified hardship exceptions for their new natural or adopted children, and arrive at a guideline figure. (§ 4070 et seq.) The court should then determine whether the three supported children will suffer extreme hardship under the guideline amount. (§ 4057.5.) Only if the evidence supports such a finding may the court then undertake to consider the income of the new spouses of either party, as appropriate, including any stepchild deductions under subdivision (d) of section 4057.5.
The order is reversed and the matter is returned to the trial court to reconsider the child support award under the views expressed above.
DISPOSITION
We reverse the trial court's order awarding child support. Upon remand, the trial court shall allow any appropriate further proceedings to enable it to recalculate the child support award in light of the current circumstances of the parties. Absent any supporting evidence, this award shall not include a hardship deduction for a nonadopted stepchild, and shall not include new mate income unless the required preliminary findings are justifiably made under section 4057.5. Appellant is awarded costs on appeal.
WE CONCUR: McCONNELL, P. J., HALLER, J.