Filed 11/15/13 County of San Diego Dept. of Child Support Services v. Maki CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO DEPARMENT D061443

OF CHILD SUPPORT SERVICES,

Plaintiff and Appellant, (Super. Ct. No. DF128247) v.

CHRISTOPHER ALEX MAKI,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Kelly

Doblado, Judge. Reversed.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney

General, Linda M. Gonzalez, Marina L. Soto and Ricardo Enriquez, Deputy Attorneys

General, for Plaintiff and Appellant.

Christopher Alex Maki, in pro. per., for Defendant and Respondent.

San Diego County Department of Child Support Service (County) moved for an

order to increase the child support obligation of Christopher Maki. The court order granted only an $11 per month increase, raising Christopher's support obligation to $636

per month, rather than raising his support obligation to the "guideline" amount of $953

per month. The court allowed Christopher two "hardship" deductions to reflect his

financial burden to support children with whom he currently lived. County appeals,

asserting the order must be reversed because the court did not make the requisite findings

to support the hardship deductions and the omission was prejudicial.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

Christopher and his former wife Corrine are the parents of Nathan. In 2009, the

court issued a child support order requiring Christopher to pay Corrine $625 per month as

child support for Nathan.

In early 2012, County filed a motion for an order modifying the child support

order, relying principally on the Income and Expense Declarations (I&E) filed by

Christopher and Corrine. Christopher's I&E listed his pre-tax income at $5579.60 per

month, and stated he lived with his wife (whose pre-tax income was $5971.33 per month)

and three children. He listed $6983.41 in monthly expenses, not including child support

for Nathan or installment obligations on credit cards and auto loans, and that his wife

paid $3774.33 of those expenses. He claimed to spend 15% of the time with Nathan, and

that Corrine spent only 25% of the time with Nathan because Nathan lived with his

grandparents and Corrine lived elsewhere.

2 Corrine's I&E stated she had been unemployed since February 2010, and received

public assistance of $1038 per month. Corrine and her four children (including Nathan)

allegedly lived with her mother and stepfather, who paid some of her monthly expenses.

She asked the court to consider, as a special hardship, that the father of her three children

other than Nathan was incarcerated and provided her with no help.

Christopher filed two responses, one of which asserted that Nathan did not live

with Corrine and therefore the support order should be vacated or changed to the

grandmother with whom Nathan lived. He also asserted the calculus for the support

order should include what Corrine was capable of earning.

B. The Hearing

At the hearing, the trial court found Christopher had only a 2% timeshare with

Nathan and, using guideline support calculations, determined his guideline support for

Nathan should be $953 per month. Christopher then asked whether he could obtain a

hardship deduction because he had three other children for whom he was responsible.

County objected that Christopher wife's income, which was more than Christopher

earned, was meeting all of the needs of these three children. The court stated it would

grant Christopher two hardship deductions because "this is an active aid case," which

resulted in a guideline calculation of $636 per month in child support for Nathan. Over

County's objection, the court awarded $636 per month in child support for Nathan.

3 II

ANALYSIS

A. Legal Framework

California's strong public policy in favor of adequate child support "is expressed in

statutes embodying the statewide uniform child support guideline." (In re Marriage of

Cheriton (2001) 92 Cal.App.4th 269, 283.) A trial court must adhere to the guidelines

and may not depart from them except in the special circumstances enumerated in the

statutes. (Fam. Code, §§ 4052, 4053, subd. (k)1; County of Stanislaus v. Gibbs (1997) 59

Cal.App.4th 1417, 1419; In re Marriage of Carter (1994) 26 Cal.App.4th 1024, 1026

["when ordering child support the trial court lacks discretion to vary from the

presumptively correct amount, calculated by applying the algebraic formula in the statute,

unless one or more of the statutorily enumerated rebuttal factors is found to exist"].)

The guidelines seek to make the interests of children the state's top priority

(§ 4053, subd. (e)), and is expressed as a mathematical formula whose key component is

each parent's net monthly disposable income, determined based on annual gross income

less allowable deductions. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th

1331, 1336.) When setting the amount of child support, the courts are required to adhere

to certain principles, including that "[a] parent's first and principal obligation is to support

his or her minor children according to the parent's circumstances and station in life"

(§ 4053, subd. (a)), "[e]ach parent should pay for the support of the children according to

1 All further statutory references are to the Family Code unless otherwise specified. 4 his or her ability (id. at subd. (d)), and "[c]hildren should share in the standard of living

of both parents. Child support may therefore appropriately improve the standard of living

of the custodial household to improve the lives of the children." (Id. at subd. (f).)

One statutorily enumerated basis for departing from the mathematical formula set

forth in the statute is extreme financial hardship on the supporting parent. Accordingly,

when calculating the net disposable income of parents for purposes of the section 4055

support formula, a trial court is authorized to make a deduction from gross income "for

hardship, as defined by Sections 4070 to 4073, inclusive, and applicable published

appellate court decisions." (§ 4059, subd. (g).) 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 . . . necessary to accommodate those circumstances." (Italics

added.) Among the statutory circumstances evidencing hardship are "[t]he minimum

basic living expenses of either parent's natural . . . children for whom the parent has the

obligation to support from other . . . relationships who reside with the parent. The court,

on its own motion or on the request of a party, may allow these income deductions as

necessary to accommodate these expenses . . . ." (§ 4071, subd. (a)(2).)

Although the presence of other children is a valid consideration when evaluating a

hardship deduction, "a hardship deduction is not a 'foregone conclusion' on the birth of

new children; . . . the family's income, as well as purported expenses, have to be

considered in making the 'hardship' determination; and [the supporting parent's]

responsibility as a parent '[is] not to seek to provide less for some of his children because

5 he had others, but to provide adequately for all of them.' " (In re Marriage of Paulin

(1996) 46 Cal.App.4th 1378, 1382.) Thus, the allowance of a hardship deduction is

discretionary (id. at p. 1383), but if the court does decide to allow a hardship deduction,

"the court shall do both of the following: [¶] (1) State the reasons supporting the

deduction in writing or on the record [and] [¶] (2) Document the amount of the deduction

and the underlying facts and circumstances." (§ 4072, subds. (a)(1) & (a)(2), italics

added.) Moreover, "the court shall state, in writing or on the record, the following

information whenever the court is ordering an amount for support that differs from the

statewide uniform guideline formula amount under this article: [¶] (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).)

In In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, the court explained

section 4072 represented a legislative determination that "it is the obligation of the trial

court to identify in a support order the evidence on which it bases its decision to allow a

hardship deduction and its reasons for allowing it . . . ." (Carlsen, at p. 217.) Because

the statutory scheme "has limited the deduction for hardship to the unusual situation" (id.

at p. 217, fn. 5), Carlsen concluded section 4072 represented a legislative requirement for

"an articulation of the reasoning by which the court has determined that the minimum

basic living expenses of resident dependent minors from other relationships constitute a

hardship rather than an expense the . . . parent is expected to bear without assistance from

6 the [other] parent . . . ." (Carlsen, at p. 217, fn. omitted.) Carlsen explained the

requirement for a statement of reasons serves multiple purposes: "The purpose in

requiring findings is to demonstrate to a losing party the possible futility of any appeal,

and to focus the appellate review on the pertinent portions of the record underlying the

trial court's determination. [Citations.] Required findings are also intended to ensure that

the trial court does not abuse its power to act only in the exceptional case." (Id. at

pp. 217-218.)

When the record does not contain the required statement of reasons, the error is

prejudicial and requires reversal unless the missing information is "otherwise discernible

from the record." (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183.) Not

making a material finding may be deemed nonprejudicial "when the missing finding may

reasonably be found to be implicit in other findings . . . [citation] . . . [or] when, under the

facts of the case, the finding would necessarily have been adverse to the appellant."

(Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1450.) Absent those circumstances,

however, the matter must be reversed and remanded to permit the court to make the

requisite record. (Id. at p. 1451.)

B. Analysis

Here, after considering the documentary evidence and arguments submitted on

behalf of the parties, the court did make the required finding of the amount of support

that would have been ordered under the guideline formula. However, when the court

gave its "reasons the amount of support ordered differs from the guideline formula

amount" (§ 4056, subd. (a)(2)), it specified it was granting Christopher two hardship

7 exemptions without stating (either in writing or on the record) the reasons for its

conclusion that Christopher would suffer extreme financial hardship without the

deductions, and without documenting the amount of the deduction and the underlying

facts and circumstances, as mandated by section 4072, subdivisions (a)(1) and (a)(2).2

Moreover, it did not state "[t]he reasons the amount of support ordered is consistent with

the best interests of the children." (§ 4056, subd. (a)(3).)

Because the trial court's noncompliance with sections 4056 and 4072 was

erroneous (In re Marriage of Carlsen, supra, 50 Cal.App.4th at p. 217), we consider

whether the error may be considered harmless. We conclude not stating any reasons for

departing from the guideline amounts cannot be considered harmless because "the

missing reasons cannot be implied in the court's express findings and we cannot conclude

that the missing information would necessarily have been adverse to appellant." (Rojas v.

Mitchell, supra, 50 Cal.App.4th at p. 1451.) There are no express findings concerning

Christopher's financial condition from which anything can be implied and we cannot

conclude the missing findings would necessarily have been adverse to County. Although

the evidence showed Christopher and his new wife had three children under school age, it

also showed Christopher's new wife earned nearly $6000 monthly gross income, which

gave Christopher's household more than $11,000 in monthly gross income from which to

2 The court's only statement of reasons was, "Since this is an active aid case I will grant [Christopher] two hardships." However, the only "aid" was being received by Corrine, and there is no statutory basis (or even any logical nexus) for granting an obligor father a hardship exemption based on the custodial mother's financial condition.

8 pay the expenses for his three new children as well as pay child support for Nathan. 3

Moreover, the evidence showed many of Christopher's "monthly expenses" were

discretionary allocations, and we cannot conclude a court would necessarily have found

those allocations represented "[t]he minimum basic living expenses" (§ 4071, subd.

(a)(2)) of Christopher's new children or would necessarily have found that reallocating

some of those discretionary funds toward Nathan's child support would have caused

Christopher extreme financial hardship within the meaning of section 4071.

Although the error requires us to reverse and remand for further proceedings to

allow the court to consider whether to make the required findings and information under

sections 4072, subdivisions (a)(1) and (a)(2), and 4056, we do not mean to imply the

support order is otherwise defective, and we do not express any opinion on whether

substantial evidence might support hardship exemptions. We merely reverse and remand

to permit the court to comply with its obligations if, on remand, it determines to grant any

hardship exemptions.

3 Although Christopher's wife's income would ordinarily be excluded when setting Christopher's child support obligation, the statute contemplates that the income of the obligor parent's subsequent spouse may be considered in extraordinary cases where excluding that income would lead to extreme and severe hardship to children subject to the child support award or children supported by the obligor's subsequent spouse (§ 4057.5, subd. (a)(1)), and "it is perfectly reasonable to take into account the fact that a new spouse may be earning income in determining the hardship deduction for the expenses of a child of that spouse." (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 145.) 9

DISPOSITION

The order is reversed and the matter is remanded to the trial court for further

proceedings consistent with this opinion. Each party shall bear its own costs on appeal.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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