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A147119 (Cal. Ct. App. Mar. 20, 2017)



NATHAN COOK, Plaintiff and Respondent, v. SHARON D. SILVERMAN, Defendant and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. D08-03382)

Sharon D. Silverman (Mother) appeals the family court's order regarding child support. A previous support order, issued in September 2014, ordered Father to pay Mother guideline child support based on the parties each having their two sons 50 percent of the time. In October 2015, Father filed a motion seeking credit against child support arrears because one son had been living with Father 100 percent of the time since July 2015. Father's motion also requested, inter alia, the prior support order be modified in light of changed circumstances, including the son's full-time residence with Father. Both parties submitted updated income and expense declarations. In December 2015, the family court issued an order declaring no arrearages were owed and prospectively modifying child support using guideline calculations based on Father's 100 percent time share for one of the sons.

Respondent Nathan Cook (Father) did not file a response brief.

Mother first argues the family court lacked jurisdiction to retroactively modify child support. Although retroactive modification of child support is prohibited, " '[t]he trial court may determine that nothing is owed for child support amounts that accrued during the period the supported child was living with the obligor parent. This does not effect an improper "retroactive modification" because the arrearages are deemed satisfied by the obligor's direct provision for the child's needs during the applicable period of time.' " (Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 733 (Helgestad); accord, Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1074-1075 (Trainotti).) Mother seeks to distinguish Trainotti, arguing in that case "one parent was seeking to quash a writ of execution with respect to child support arrearages . . . ." Mother provides no reason why Father must wait for a writ of execution to have his arrearages deemed satisfied. In any event, Trainotti did not involve a writ of execution; instead, the issue arose, similarly to this case, "in a postdissolution action denominated by the parties as a 'modification proceeding.' " (Id. at p. 1075; see also Helgestad, at p. 722 [issue arose in father's motion seeking a determination of his arrearages].) Mother also contends Father "effectively kidnapped" the child and therefore has "unclean hands," yet cites no record support for this assertion.

Father's motion, filed in propia persona, included a request that the court "[r]ecalculate" support dating back to 2014 due to Father's unemployment. At the outset of the hearing, the family court stated: "I can't go back a year because he lost a job. [¶] We're not doing the retroactive modification. We are doing current moving forward, and perhaps some credit for a couple months he had a hundred percent custody of one of the kids."

In fact, the record indicates the 16-year-old made the decision "alone." --------

Mother argues the prospective modification is improper because Father did not first file a motion to modify the previous custody order. Mother failed to raise this argument below; moreover, while she asserts there was a custody order in effect, the record citations provided do not correspond to any such order. (In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418 ["As a rule, parties are precluded from urging on appeal any points that were not raised before the trial court."]; Dominguez v. Financial Indem. Co. (2010) 183 Cal.App.4th 388, 391, fn. 2 ["because [the] brief fails to provide a citation to the appellate record for these facts, we do not consider them"].) In any event, the guideline formula's "time-share percentage is based on ' "the parents' respective periods of primary physical 'responsibility' for the children rather than physical 'custody.' " ' [Citation.] . . . '[U]se of this terminology is purposeful: i.e., to clarify that [Family Code section] 4050 et seq. is not intended to alter current child custody law in any manner (no struggle for "custody" is necessary to apply the statutory formula).' " (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 981.) Mother's reliance on In re Marriage of Gruen (2011) 191 Cal.App.4th 627, which provides that a prospective modification of child support must be based on a pending motion for modification showing a material change in circumstances, is inapposite.


The order is affirmed. Father shall recover his costs on appeal.


SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________