Opinion
2d Civil No. B196335
5-5-2008
MARRIAGE OF LINDA AND DEAN PORTER, LINDA HATELEY PORTER, Respondent, v. DEAN PORTER, Appellant.
Edward L. Somogyi and Jeffrey W. Doeringer for Appellant. Bernard N. Wolf and Daniel L. Helbert for Respondent.
NOT TO BE PUBLISHED
Dean Porter appeals orders of the family law court requiring him to pay increased child support, and one-half of the placement and tuition expenses at "Discovery Academy," a therapeutic educational institution. We affirm.
FACTS AND PROCEDURAL HISTORY
On September 12, 2001, the family law court dissolved the nearly fifteen-year marriage of Dean and Linda Porter. The couple had a daughter ("D"), then age 10, and a son, ("S"), then age eight. The court divided substantial marital real property, and ordered Dean to pay spousal support. The court found that the children had "special needs including tutoring for [S.] and counseling for both." It ordered Dean to pay $1,134 monthly child support and one-half of the childrens "tutoring and counseling expenses."
To ease the readers task, we shall refer to the parties as "Dean" and "Linda."
Subsequently, the children manifested serious psychological and behavioral problems. D. was expelled twice from local schools. At age 13, she had a sexual relationship with a 28-year-old man. At age 15, she had a sexual relationship with a 23-year-old man who was later imprisoned for an unrelated criminal offense. D. corresponded with and received sexually explicit letters from him during his incarceration.
Local schools also expelled S. He threatened other students, threatened to harm himself, and committed theft crimes. In a declaration filed with the court, Dean stated: "My son has stolen money from my wallet, and from guests at my business. He has told my sister-in-law that he would like to poison me so he could get the farm, tear down my house, and build a house to his liking. He has been expelled from two (2) schools, he has slashed his teachers tire, and he has alluded to shooting me."
On August 17, 2005, Dean filed a motion seeking to reduce child and spousal support. He declared that his alfalfa farm was less profitable and that his small monthly income was insufficient to pay support obligations.
Meanwhile, heeding professional advice, Linda placed D. in a wilderness intervention program, "Redcliff Ascent." D. successfully participated in the wilderness program for two months. Thereafter, Linda placed D. in Discovery Academy, a therapeutic boarding school in Utah.
February 2006 hearing and order
At the hearing regarding his motion to reduce support payments, Dean argued that he was not financially responsible for D.s tuition at Redcliff Ascent because Linda did not consult him beforehand.
After receiving evidence and hearing argument, the family law court ordered Dean to pay $912 total monthly child support, and continued spousal support. The order rested upon a finding that Dean received $1,286 monthly taxable income and $2,187 monthly non-taxable income. The court did not order Dean to pay any portion of the Redcliff Ascent tuition, deciding that "Lindas approach [to D.s problems] is extreme [and D.] was taken to Redcliff without notice to Dean." The court did not determine apportionment of the Discovery Academy tuition because that expense was "not yet before the court. . . ." In addition, it set a review hearing for August 15, 2006, "to review both spousal and child support." The court stated that "[t]he purpose of the review hearing is to determine what efforts Linda has made toward becoming self-supporting."
Later motions and orders thereon
Prior to the review hearing, Dean filed a motion seeking joint legal custody and sole physical custody of the children. The childrens attorney opposed Deans motion and asserted that the children had "significant mental health issues" and that D. was "at risk of being seriously harmed both physically and psychologically." Linda also resisted Deans motion and explained that she placed D. in Redcliff Ascent "as an emergency matter." The family law court denied Deans motion.
September 2006 review hearing and orders thereon
At the review hearing, the court received evidence and heard argument. In an income and expense declaration, Linda declared that Deans timeshare with the children was zero, her monthly expenses were approximately $11,865, and her debt was approximately $167,867, due in part to D.s tuition. Linda stated that she paid Discovery Academy an enrollment fee of $1,250 and monthly tuition of $5,100. She also declared that she was employed as a bird taxidermist and had mortgaged her real property to pay D.s tuition and expenses.
Dean asserted that the family law court did not have jurisdiction to consider the Discovery Academy expenses and that it was a private institution beyond the parties financial means. In an income and expense declaration, he stated that his monthly income as a farmer was $859, and that he owned real estate of an unknown value.
The family law court ordered Dean to pay $2,842 monthly child support for the children, effective March 1, 2006. It also ordered Dean to reimburse Linda for one-half of the Discovery Academy expenses, past and continuing.
In a statement of decision, the court determined that D. receives "critically needed therapy" at Discovery Academy and that her placement was "to improve her chances of surviving to her next birthday and of reaching adulthood without a drug addiction or an attachment to a criminal gang." The court also determined that S. was "as troubled" as his sister and that he required continued therapy and close monitoring. The court also determined that although Dean possesses real property worth more than $2,000,000, he produced "only enough income to allow him to enjoy an ascetic, rural lifestyle that provides little more than the bare necessities of life." The court concluded that Dean "has the ability to access a portion of the equity in his real property to help meet the cost of saving his daughters life."
Post-order events
Following a nine-month placement at Discovery Academy, D. graduated in December, 2006. Thereafter, Linda placed D. in a therapeutic boarding school in Ojai. By February, 2007, D. had run away from the Ojai school and could not be found.
In a declaration later filed with the family law court, Dean stated that his medical insurer has agreed to pay one-half of the expenses of Discovery Academy.
Dean appeals and contends that the family law court: 1) lacked jurisdiction to recompute his income and redetermine child support; 2) erred by ordering retroactive support; 3) erred by imputing income based upon a 5 percent return on his farm-residence and farmlands; 4) erroneously believed that Family Code section 4062, subdivision (b), was mandatory, not discretionary; and 5) did not determine whether Linda had made efforts toward financial self-sufficiency.
DISCUSSION
I.
Dean argues that the family law court lacked jurisdiction to recompute his income and redetermine child support. He points out that the court stated in its February 6, 2006 order that "[t]he purpose of the review hearing is to determine what efforts Linda has made toward becoming self-supporting." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 57, fn. 4 [court commits jurisdictional error when it decides issue not assigned to it for decision].) Dean asserts the earlier support award is res judicata and cannot be modified, particularly because Linda did not file a motion seeking court-ordered reimbursement for tuition. (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 839, 844 [original child support order may be retroactive only to the date of the filing of the motion or order to show cause for support].) He adds that one court may not vacate a prior court order except as set forth by statute. (Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal.App.3d 1583, 1588 ["The power of one judge to vacate an order duly made by another judge is limited."].)
The family law court had jurisdiction to issue its orders regarding increased child support and payment of tuition expenses for D. As a question of law, we interpret the prior court order concerning child support and the review hearing. (Mendly v. County of Los Angeles (1994) 23 Cal.App.4th 1193, 1205 [interpretation of the effect of an order or judgment is a question of law].) The prior order stated that the review hearing would concern "both spousal and child support." Although it stated the purpose of the review hearing was to determine Lindas efforts toward financial self-sufficiency, the order did not limit review to that issue. Moreover, the February 6, 2006 order stated that it governed until "further court order."
Although Linda did not file a motion to modify child support or an order to show cause, Dean received sufficient notice that his support obligations, including payment of tuition expenses, would be litigated at the review hearing. The 2001 judgment requires Dean to pay one-half of his childrens tutoring and counseling expenses; the February 6, 2006 order advised that the review hearing concerned "both spousal and child support;" and the February 6, 2006 order did not concern the Discovery Academy tuition because the expense was "not yet before the court." The review court did not lack jurisdiction or act in excess of jurisdiction.
II.
Dean contends that the family law court may not order retroactive support because Linda did not file a notice of motion or an order to show cause. (Fam. Code, §§ 3651, subd. (c), 3653, subd. (a) ; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 [filing date of motion or order to show cause establishes "the outermost limit of retroactivity"].) He points out that such notice provides support obligors and obligees notice of possible changes in support awards. (In re Marriage of Goosmann, supra, 26 Cal.App.4th 838, 843-844.) Dean asserts that the retroactive award violates his constitutional rights to due process of law.
All further statutory references are to the Family Code.
Deans argument fails because the family law court set the review hearing and provided notice to all parties of the scope of the hearing. It matters not that Linda did not file a notice of motion or an order to show cause. The statutory and decisional authorities cited by Dean are inapplicable because the family law court, not Linda, set the review hearing and defined its scope. (I., ante.) Moreover, Dean received informal notice that the Discovery Academy tuition expenses were in issue. Indeed, he argued the merits of the issue at the review hearing.
III.
Dean asserts that the family law court erred by imputing income of $8,333 monthly based upon a 5 percent return upon his farm-residence and farmlands. He relies upon In re Marriage of Henry (2005) 126 Cal.App.4th 111, 114, wherein the reviewing court held that unrealized gain on a parents residence may not be considered income for support purposes. Dean also claims that the statement of decision does not explain the factual and legal basis for the order, and is reversible for that reason.
The family law court acted properly in imputing income to Dean based upon his farmlands. In the judgment of dissolution, the family law court imputed income to Dean, finding that he determined the amount of profits that his farming endeavors created. At the review hearing, the family law court found that Deans bank accounts contained high monthly balances ($5,000-$12,000 and $30,000-$63,000), his farmlands are unencumbered, and at the time of dissolution the farmlands were worth approximately $2.2 million. (Indeed, at dissolution, Dean paid Linda an equalizing community property payment of approximately $900,000.) The court then attributed an additional earning capacity of $100,000 per year.
Payment of appropriate support is a parents primary obligation. (§ 4053, subds. (a) & (d).) Child support obligations must be considered whenever a parent wishes to pursue a particular lifestyle or business endeavor. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1220.) "Once persons become parents, their desires for self-realization, self-fulfillment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens reasonable needs." (Ibid.)
In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393-1394, is persuasive here. It affirmed the family law courts exercise of discretion to impute a rate of return to a parents non-income producing real estate assets. The reviewing court relied upon the statutory grant of discretion to the court and the strong policy of the law favoring the support of children. (Id., at p. 1394.) The reviewing court also noted that imputation of income is "particularly fact intensive." (Id., at p. 1396.)
Moreover, the 13-page statement of decision here sufficiently explains the reasoning and findings of the family law court at the review hearing. The court was not required to respond to Deans voluminous objections. The court accepted the value of the farmlands at the time of dissolution, and applied a reasonable rate of return. Although Dean lived on a portion of the farmlands, he operated an alfalfa farm and a recreational facility upon the remainder of the real property.
IV.
Dean argues that the family law court erroneously believed that it was required to order him to pay Ds tuition expenses pursuant to section 4062, subdivision (b). He points to this statement in the Statement of Decision: Subdivision (b) of [section 4062] declares that child support must also include an order requiring the parents to pay "costs relating to the education[al] or other special needs of the children." Dean correctly asserts that the statute is discretionary, not mandatory, regarding education expenses. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 760.)
Nevertheless, any error is harmless because the 2001 dissolution order requires Dean to pay one-half of the childrens tutoring and counseling expenses. Moreover, given the statements and reasoning of the family law court set forth in the Statement of Decision, there is no reasonably probability that Dean would obtain a more favorable result if the court exercised its discretion regarding the expenses.
V.
Dean asserts that the family law court erred by not determining whether Linda had made reasonable efforts at financial self-sufficiency. He contends that the courts failure to determine this specific issue denies him due process of law.
The court did determine this issue. It found that Linda earns approximately $1,100 monthly, roughly the amount that Deans expert testified in an earlier hearing that Linda might earn based upon her education and work experience. The court also found that Linda had rental income of $1,000 monthly. These express findings resolve the issue of Lindas self-sufficiency.
We affirm the orders. Respondent shall recover costs and attorneys fees on appeal.
We concur:
YEGAN, J.
COFFEE, J.