Opinion
B306765
06-09-2022
BRIDGETT BUTLER, Petitioner and Appellant, v. DANA DOWERS, Defendant and Respondent.
Joel S. Seidel, for Petitioner and Appellant. Gary J. Cohen, for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BF033356. David S. Weinberg, Temporary Judge. Affirmed.
Joel S. Seidel, for Petitioner and Appellant.
Gary J. Cohen, for Respondent.
WISE, J. [*]
INTRODUCTION
Bridgett Butler (Mother) appeals from a family law order modifying child support. She contends the family court erred in granting a downward deviation from the $16,319 per month guideline amount to $12,000 per month based on the high earner exception. Mother argues the family court erred in refusing to modify the parties' 2015 stipulation that imputed $7,000 per month to her and asserts there was insufficient evidence to support a downward deviation from the guideline amount. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mother and Dana Dowers (Father) share a son, Camden D., born in May 2005. Camden's paternity was legally established in 2009. In November 2010 the parties stipulated to using retired Commissioner David S. Weinberg as a privately compensated temporary judge for their family law proceedings.
In June 2015 the parties entered into a stipulation and order (the "2015 Stipulation") providing for Father to pay Mother child support of $9,000 per month for the first year, then decrease semi-annually by $1,000 per month, until reaching $5,000 per month in September 2017. In the 2015 Stipulation the parties "acknowledge[d] that [Father] is overpaying child support in the earlier years to accomplish the objectives of this Order" and stipulated that "[Mother] has the opportunity and ability to earn $7,000 per month until the minor child attains his nineteenth (19th) birthday or High School Graduation, whichever is last." At the time of the 2015 Stipulation, the parties shared legal and physical custody of Camden.
In September 2018 Mother obtained a temporary domestic violence restraining order in Orange County Superior Court protecting her and Camden against Father and prohibiting Father from visitation with Camden. Mother requested modification of child support at that time. The action was moved to Los Angeles Superior Court and transferred to retired Commissioner Weinberg for hearing. The parties settled numerous custodial and parenting issues including that Mother would have sole physical custody of Camden.
On February 18, 2020, Mother filed a request for order seeking retroactive child support and attorney fees and costs. She included a memorandum of points and authorities and also filed declarations from her and her counsel that referenced the 2015 Stipulation, but did not attach the 2015 Stipulation. Mother's counsel declared that "pursuant to the existing order, [Mother] was previously imputed income, but there is no evidence that she has currently the ability or opportunity to earn same." Mother declared that despite the change in custody, Father "has only paid me $5,000 per month in child support per the existing order," and asserted guideline support would be in Camden's best interests even though "the previously stipulated support order included a deviation from guideline."
Mother also submitted her Income and Expense Declaration (Judicial Counsel Form FL-150), stating she was unemployed and had no income but had received a one-time inheritance of $3,500 (corrected prior to testimony to $35,000). Mother estimated she and Camden had monthly expenses of $18,181 and stated she had over $41,000 in credit card debt and owed $16,000 on a personal loan from her best friend Laura. Mother argued that given the financial disparity between her and Father it would not be in Camden's best interest to deviate from guideline child support, and that the court should not order a lesser amount based on the 2015 Stipulation.
In response Father submitted Judicial Council Form FL-320, entitled "Responsive Declaration To Request For Order." Preprinted Paragraph 10 of the form states: "FACTS TO SUPPORT my responsive declaration are listed below." Father's entry on the form says "See attached Hearing Brief." Father signed the form under penalty of perjury, attesting that "the information contained in this form and all attachments is true and correct." Father's Hearing Brief was signed by counsel and consisted of Father's argument on child support, attorney fees and other issues. Several prior court orders including the 2015 Stipulation were attached to the brief. The orders were listed and described in a section titled "Orders" at the beginning of the brief, each with a sentence attesting "A true and correct copy of this Order is attached hereto as Exhibit '[___]' and incorporated herein by this reference." The brief did not contain any separate express declarations by Father or counsel. Among other things, Father argued that guideline child support would exceed Camden's needs and, pursuant to the 2015 Stipulation, $7,000 in imputed income to Mother must be considered available for Camden's needs.
Prior to receiving testimony at the hearing on February 28, 2020, the parties and court discussed Mother's imputed income of $7,000. The court instructed Mother's counsel that "unless there's evidence showing a change of circumstance such that the imputation should no longer apply, that will be included. . . . [T]hat is the present order for the income attributable to Petitioner." The declarations submitted with Mother's moving papers were admitted as evidence, but the parties and court agreed that Father's responding papers would only be admitted as argument, not evidence.
Following the discussion with the court, Mother and Father each testified. They did not dispute Father's income of $213,332 per month. Mother testified she last worked as an actress around 2002, the last tax return she filed was for the year 2001 and she had not applied for a job other than acting in the 10 years prior to the hearing. Mother stated that in 2015 or earlier she had periodically worked as an assistant for her best friend Laura, but she was unable to recall the exact timeframe or what she was paid, stating "it would just depend." She also testified she had helped a friend who owns a medi-spa, but that Camden's needs interfered with her ability to work there, and she had yet to receive a paycheck for that employment.
The family court issued findings on April 25, 2020. With respect to child support, the court found custodial circumstances had materially changed since the 2015 Stipulation from joint custody to Mother having sole physical custody. The court also found that the parties' income levels "have not significantly altered," that the parties had stipulated to Father's income of $213,332 per month for the calculation of child support and that Mother "reports essentially making negligible efforts to earn actual income." As to Mother's income, the court stated: "In the prior stipulation setting child support, the Petitioner agreed, and as such established her ability to earn $7,000 per month. She has offered no persuasive evidence that would cause this Court to alter, adjust or modify that income finding for the calculation of child support in these proceedings. Therefore, child support shall be calculated utilizing $7,000 per month for the Petitioner." Using Father's stipulated income of $213,332 per month and Mother's imputed income of $7,000 per month, the court calculated guideline support at $16,319 per month.
The court found that Father's income qualified him as an extraordinarily high wage earner under section 4057, subdivision (b)(3). It also found that he had substantially complied with California Rules of Court, rule 5.260(b), which requires "a declaration stating the amount of support alleged to be proper and the factual and legal bases justifying a deviation from guideline support under Family Code section 4057." The court found that although there was "no express declaration in the record," "there is sufficient substantial compliance with that requirement given the detailed identification by the Respondent, in his hearing brief, of the amount of support alleged to be proper and the factual basis justifying a deviation from guideline support under FC 4057. The Respondent testified and was subject to examination on those very points, which the Petitioner had advance notice of and an opportunity to prepare for as envisioned by CRC 5.260(b)."
The family court concluded, "[b]ased upon all the evidence in the record, the Court finds a deviation from the guideline calculation is warranted and supported by the evidence. The order made herein is in the minor child's best interest as it will provide the necessary support for him to not only maintain the standard of living he was experiencing as a result of the parties['] 2015 stipulation, but will improve that standard, permitting him a greater ability to share in the standard of living enjoyed by the Respondent. A guideline order, taken together with the Petitioner's income would exceed what the Petitioner reports are her and the minor child's proposed or estimated needs." The court then set child support at $12,000 per month, retroactive to October 2018.
Mother timely appealed.
DISCUSSION
A. Standard of Review
"A trial court's determination to grant or deny a request for modification of a child support order will be affirmed unless the trial court abuses its discretion, and it will be reversed only if prejudicial error is found from examining the record below." (In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 527.) The appellate court also reviews for an abuse of discretion a family court's decision to impute income to a parent for child support purposes based on the parent's earning capacity. (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393; accord In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) "Under this standard, we consider only 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] 'We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order.'" (In re Marriage of Macilwaine, at p. 527.) "We will not overturn a child support award absent a showing of a clear abuse of discretion resulting in prejudicial error." (In re Marriage of Zucker (2022) 75 Cal.App.5th 1025, 1043.)
When an appeal "raises a question regarding the proper interpretation of a statute, or the proper application of the law to uncontested facts, the standard of review is de novo." (In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1145.)
B. Relevant Law
1. Modification of child support order
"An order of child support 'may be modified or terminated at any time as the court deems to be necessary.' ([Family Code], § 3651, subd. (a).) Statutory procedures for modification of child support 'require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.'" (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.) "The party seeking the modification bears the burden of showing that circumstances have changed such that modification is warranted." (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1054.) The party opposing a request to modify child support must respond using Form FL-320 (Responsive Declaration to Request for Order), and "[t]he Responsive Declaration to Request for Order (form FL-320) must set forth facts sufficient to notify the other party of the declarant's contentions in response to the request for order and in support of any relief requested." (Cal. Rules of Court, rule 5.92(g)(1); see also id., rule 5.111 [requirements for declarations served with Form FL-320].)
Further undesignated statutory references are to the Family Code.
2. High earner exception to guideline child support
Statutory guidelines govern the standard child support computation. (See § 4050 et seq.) Guideline child support, which is calculated using a mathematical formula that weighs the relative incomes of the parents, is presumptively correct. (Anna M. v. Jeffrey E. (2017) 7 Cal.App.5th 439, 446.) In computing child support under the mandatory statewide guideline, a family court has the discretion to "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).) "[A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 284.)
One of the circumstances under which the presumptive amount of child support may be rebutted is when "[t]he parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children." (§ 4057, subd. (b)(3).) The high earner parent has the burden to prove, by a preponderance of the evidence, that the guideline amount, "exceeds his children's reasonable needs." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 297.) However, the high earner's "burden of proof may be satisfied with evidence supplied by the party without the burden." (S.P. v. F.G. (2016) 4 Cal.App.5th 921, 930.) A child's need is measured by the parents' current station in life; when a child "has a wealthy parent, that child is entitled to, and therefore 'needs' something more than the bare necessities of life." (White v. Marciano (1987) 190 Cal.App.3d 1026, 1031; see also § 4053, subd. (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."] & subd. (f) ["Children should share in the standard of living of both parents."].)
Under California Rules of Court, rule 5.260(b)(1), "[i]f a party contends that the amount of support as calculated under the statewide uniform guideline formula is inappropriate, that party must file a declaration stating the amount of support alleged to be proper and the factual and legal bases justifying a deviation from guideline support under Family Code section 4057." California Rules of Court, rule 5.250(b)(2) also states, "In its discretion, for good cause shown, the court may deviate from the amount of guideline support resulting from the computer calculation."
A court deviating from the guideline amount must write or state on the record: "(1) The amount of support that would have been ordered under the guideline formula. (2) The reasons the amount of support ordered differs from the guideline formula amount. [and] (3) The reasons the amount of support ordered is consistent with the best interests of the children." (§§ 4056, subd. (a), 4057, subd. (b); Cal. Rules of Court, rule 5.260(b)(2).) "However, the requisite findings can be implied from the record where they are not explicitly stated." (In re Marriage of Zucker, supra, 75 Cal.App.5th at p. 1043.)
C. The Family Court Did Not Abuse Its Discretion in Determining Mother's Imputed Income Remained the Same as Stipulated in 2015
The crux of Mother's argument is that the court erred in imputing $7,000 income to her based on the 2015 Stipulation. On appeal, the parties do not dispute Father's income or the court-calculated guideline amount of $16,319 per month. They also do not dispute that if $7,000 per month income is imputed to Mother, the amount considered available to her with guideline support (i.e. $16,319 plus $7,000) exceeds her and Camden's estimated monthly expenses of $18,181. We must therefore determine whether the family court abused its discretion when it imputed $7,000 in income to Mother.
"The imputation of income relates to an input in the guideline calculation, and is not a deviation from the final guideline amount." (In re Marriage of Schlafly, supra, 149 Cal.App.4th at p. 757.) Mother's argument, that Father did not comply with the declaration requirement of California Rules of Court, rule 5.260(b)(1), only applies to Father's request for a deviation from the child support guideline calculation. Thus, Mother's focus on characterizing the 2015 Stipulation as improper "evidence" used by Father to obtain a deviation from guideline evades the primary inquiry: whether she showed in the first instance a change of circumstance in her earning capacity that warranted modifying the existing order on that basis. The 2015 Stipulation was already squarely before the court as the operative child support order Mother was asking the court to modify. There is no dispute Mother stipulated she had the ability and opportunity to earn $7,000 per month until Camden turned 19 or graduated high school. Accordingly, it was Mother's burden to show that circumstances had changed since the 2015 Stipulation and a modification of child support was warranted. (In re Marriage of Cryer, supra, 198 Cal.App.4th 1039, 1054.)
"'"[I]n general a change of circumstances may be anything that affects the financial status of either party."'" (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 549.) "A change of circumstances must be shown whether the original award arises from an evidentiary hearing or by stipulation." (In re Marriage of Farrell (1985) 171 Cal.App.3d 695, 701.) "'The court, by including the stipulation in its own decree, presumes that the parties arrived at a fair support award, after arm's-length negotiations, that took into consideration all of the circumstances as they then existed. The court thereafter should not permit a party to change this contractual arrangement, absent changed circumstances, as it would allow a party to repudiate and change a legal contract for no reason at all.' [Citation.]" (Ibid.)
Here, the family court concluded circumstances had materially changed from 50/50 custody to Mother having sole physical custody. But regarding Mother's stipulated earning capacity of $7,000 in the existing order, the family court found Mother "has offered no persuasive evidence that would cause this Court to alter, adjust or modify that income finding for the calculation of child support in these proceedings."
We conclude the family court was within its discretion to conclude Mother was equally as capable of earning $7,000 per month in 2020 as she had been in 2015. At the hearing Mother also made only a conclusory argument that the custodial time change should affect the imputation of income. Mother never offered specific evidence to explain why increased custody of Camden, who was then 15 years old, impacted her ability to earn income, even though the family court specifically stated it needed evidence of changed circumstances to modify imputed income. Instead Mother only asserted that she was unemployed with no income and that Camden's needs had interfered with her helping at her friend's medi-spa. It was not an abuse of discretion for the court to conclude this testimony was unpersuasive and Mother had failed to meet her burden to show a material change of circumstances warranting a change in her imputed income.
D. The Family Court Did Not Abuse Its Discretion in Deviating Downward From The Guideline Figure.
Having found no change of circumstance as to Mother's income, the family court then addressed Father's request for a downward deviation from guideline support and concluded that "[a] guideline order, taken together with the Petitioner's income would exceed what the Petitioner reports are her and the minor child's proposed or estimated needs." The court awarded $12,000 per month in child support, deviating downward from the guideline figure by $4,319 per month ($16,319 minus $12,000). The court stated "[t]he order made herein is in the minor child's best interest as it will provide the necessary support for him to not only maintain the standard of living he was experiencing as a result of the parties['] 2015 stipulation, but will improve that standard, permitting him a greater ability to share in the standard of living enjoyed by the Respondent."
We find no abuse of discretion with the family court's decision or explanation. On appeal, Father does not dispute the reasonableness of Mother's figure of $18,181 in estimated expenses and proposed needs. Because the parties also do not dispute that Father is an extraordinarily high earner, the only relevant question for the family court was whether a guideline award would exceed Camden's reasonable needs as stated by Mother. (§ 4057, subd. (b)(3).) The family court calculated whether guideline support would exceed those needs and exercised its discretion whether to deviate downward from there.
The court's award of $12,000 per month was $6,181 less than Mother's estimated monthly expenses of $18,181. But, having determined it was appropriate to continue imputing $7,000 in income to Mother (which would result in Mother, if she were working, having a total income of $19,000, an amount that exceeded her estimated monthly expenses), the family court was within its discretion to deviate downward from the guideline calculation. The family court also adequately explained its $12,000 award was in Camden's best interest because it provided him with an improved standard of living from the $5,000 Mother was previously receiving, while not exceeding Mother's estimated needs.
The statewide uniform guideline for determining child support utilizes the "total net monthly disposable income of both parties." (§ 4055, subd. (b)(1)(E).) It is unclear whether in the 2015 Stipulation the parties agreed that the $7,000 of income imputed to Mother was intended to be gross or net. It appears on the one hand the court treated it as gross income when inputting the amount into the guideline calculator, leaving Mother with $5,280 of net monthly (imputed) income); on the other hand the court used $7,000 as Mother's net income when the considering the disposable income available for Mother to contribute to her and Camden's monthly expenses. Because Mother did not raise this issue on appeal or with the family court we do not address this issue further. (Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 ["'"'Issues not raised in an appellant's brief are [forfeited] or abandoned.'"'"]; Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 555 [same].)
Mother argues the attachments to Father's Hearing Brief, specifically the 2015 Stipulation, are inadmissible evidence because Father failed to provide an express declaration when he requested a downward deviation from the child support guideline calculation. However, as Mother notes, despite concluding Father substantially complied with the declaration requirement of California Rules of Court, rule 5.260(b) the family court did not in fact admit Father's Hearing Brief as evidence. Nor did it need to. The family court based its decision not to modify the $7,000 monthly imputed income to Mother (as agreed by the parties in the 2015 Stipulation) on Mother's failure to show a material change of circumstances as to her earning ability. Mother repeatedly referenced the 2015 Stipulation in her moving papers, as it was her burden to show a change of circumstances warranting its modification. The facts on appeal are undisputed. The family court did not abuse its discretion by imputing $7,000 in income to Mother in its guideline calculation.
DISPOSITION
The order of the family court is affirmed. Respondent is awarded his costs on appeal.
We concur: PERLUSS, P. J., FEUER, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution .