Geisness v. Sup. Ct.

Filed 4/24/07 Geisness v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge, (Pursuant to Cal. Const., art. VI,  21.) Petition granted.

Christian Legal Aid Office, Merritt L. McKeon for Petitioner.

No appearance by Respondent.

Law Office of Jones & Roach and Donald E. Roach for Real Party in Interest.

THE COURT:*

This is a proceeding for marital dissolution and child custody. Melinda Pemberton (Melinda)[1] filed a petition for a peremptory writ of prohibition or other extraordinary relief and requested a stay of all court proceedings. Melinda seeks an immediate stay of the superior courts order requiring her to pay child support in the amount of $425 monthly and attorney fees in the amount of $3,000 to her former husband, John Pemberton (John). Melinda challenges the courts decision finding her pregnancy (with her subsequent husband) a voluntary act designed to reduce her income and to avoid paying child support. The trial courts statements cast sufficient doubt on the fairness of the proceedings to issue a peremptory writ in the first instance granting Melinda relief from the child support and sanctions order.

FACTUAL AND PROCEDURAL BACKGROUND

Our factual recitation is based on our review of the superior court file, of which we take judicial notice. (Evid. Code,  452, subd. (d)(1).) Melinda sought dissolution of her two years seven months marriage to John in November of 1999. Melinda and John had one child of the marriage, Dylan, who was two at the time of their separation (date of birth August 30, 1997). The marriage was dissolved March 20, 2001.

Melinda filed a responsive declaration to Johns OSC to modify child support and filed an income and expense declaration. She stated she was 27 years old and a receptionist at a bank and was paid $13.87 per hour, amounting to $2,219.24 per month. She declared her tax status to be married, filing jointly with her husband. She reported Johns income to be $4,000 monthly. Melinda consented to a guideline child support amount of $350 per month. The hearing on Johns OSC took place on April 11, 2006. The parties stipulated to Melinda paying $425 in child support to John, and that became the order of the court.

Melinda then filed an OSC for modification of child support, child custody, visitation, and attorney fees and costs. She asked that minors counsel be appointed and that the court order a child custody evaluation. John responded to the OSC, seeking attorney fees as well.

On June 22, 2006, Melinda filed a declaration informing the court she was placed on disability by her physician on June 15, 2006, and that she currently had no income and did not anticipate a disability check for another five weeks. On the same day, the court heard Melindas motion to set aside and Johns request for sanctions and took the matters under submission. The court then ruled as follows. The court stated [i]t would seem that the Petitioner had been duped into believing that an attorney was representing her, when, in fact she had none.^[[2]] . . . Good cause appearing, the court grants the request of Petitioner to set aside those orders made in regards to custody, visitation, and attorney fees. The court denied each parties request for sanctions, and made no modification of the child support order, pending further hearing. The unresolved issues of custody, visitation, child support, and attorney fees were set for July 19, 2006. Until then, John was granted physical custody and Melinda was granted reasonable visitation.

John filed a request for oral argument on Melindas motion to set aside orders.

On July 7, 2006, Melinda filed an OSC for modification of child support, which was set for hearing on September 6, 2006. Her OSC was supported by her declaration, in which she again stated she had no income because her physician placed her on disability. John filed points and authorities in opposition to Melindas motion to set aside the courts orders. John asked the court to make a guideline child support order and sought $3,000 in attorney fees. Included with Johns points and authorities and declarations was an income and expense declaration.

On the day of the hearing, November 20, 2006, Melinda filed an income and expense declaration. She noted her financial situation had changed significantly over the last twelve months because of her time off on maternity leave and the complications of her pregnancy. Her last date for state disability income (SDI) of $1,180 per month was November 26, 2006. Her new baby, Jessica, was one month at the time.

After the hearing was held the court took the matter under submission. We quote from relevant portions of the nine-page Decision of the Court on Submitted Matter below, omitting the courts history of the case.

Child Support: [] Pursuant to the April 11, 2006, proceeding, it would seem that Petitioner was under the obligation to pay child support of $425, but filed a request to lower that sum on May 15, 2006, when she requested a new court hearing. Of course the court has no ability to rule on an issue unless it is properly before the court, but here Petitioner did not file an income and expense declaration when she filed her request to modify the child support. As stated by Justice Fybel in the case of IRMO Seagondollar, 2006, --C.A.4^th [sic] [] The rules of procedure for reaching family law decisionscontained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rulesare not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement. [] The 2003 California Rules of Court, in rule 5.128 Financial declaration states as follows: [] (a) A current Income and Expense Declaration (form FL-150) or a current Financial Statement . . . when such form is appropriate, and a current Property Declaration . . . must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. Current is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue. [] (b) When a party is represented by counsel and attorneys fees are requested by either party, the section on the Income and Expense Declaration pertaining to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section pertaining to the amount of attorneys fees incurred, currently owed, and the source of money used to pay such fees. [] (c) A Financial Statement (Simplified) is not appropriate for use in proceedings to determine or modify spousal support or to determine attorneys fees. [] . . . [] Even in the income and expense declaration filed by Petitioner on November 20, 2006, she has failed to include the income which her new spouse is earning. Family Code [s]ection 3552 states: [] (a) In a proceeding involving child, family, or spousal support, no party to the proceeding may refuse to submit copies of the partys state and federal income tax returns to the court, whether individual or joint. [] It is proper for a court to deny a partys request to modify a financial order where the party did not file a current income and expense declaration in accordance with local rules of court. [Citation omitted.] [] This court will not modify the child support retroactive from May 15, 2006. [] On July 7, 2006, Petitioner asked the court to rule on the issue of child support, but she did not file an income and expense declaration. That matter was continued a number of times and is presently before the court. To determine child support, the court must determine the income of Petitioner. She states that she is receiving disability, and fails to inform the court as to the income of her new spouse. [] Petitioner informs the court that she is pregnant and is off on maternity leave and complications due to pregnancy and stress. One supposes that Petitioner becoming pregnant was a voluntary act. The law of this state is that a new spouses income may be used in consideration of child support in an extraordinary situation FC 4057.5 b, where a parent has voluntarily or intentionally quit work or reduced income. (See: IRMO Wood, 1995, 37 Cal.App.4^th 1059, County of Tulare vs. Campbell, 1996, 50 Cal.[A]pp.4^th 847[Sic.] [] In IRMO Hinman, 1997, 55 Cal.App.4^th 988, [sic] the court imputed income to the non-custodial parent, a mother who was a physician, even though she had new children in a new marriage. The Court of Appeal held that the trial court has discretion to consider a parents earning capacity, consistent with childs best interests and to hold that a payors motive for reducing income is irrelevant to the trial courts decision to impute earning capacity if ability and the opportunity to work are present. Here, the trial court had not erred in imputing income to the mother, because she had both the ability and the opportunity to find a job, and considering her earning capacity would be in the best interests of the children who needed her support. [] The trial court has the discretion to order child support payments in amounts other than those provided in Section 4055 if there is evidence showing that using the formula would be unjust or inappropriate due to special circumstances in the particular case. [] Some examples of which are laid out in Family Code Section 4057(b)(5) but the court is not limited to those examples. If the court determines that the guideline formula amount is inappropriate or unjust for a particular case, the court must state the amount of support that would have been ordered according to the guideline formula and the reasons why the amount of support ordered differs from the guideline amount. [] A trial court has considerable discretion in determining what events are special circumstances justifying an award deviating from the formulaic guidelines, but the court must use an objective economic analysis rather than consideration of non-economic background family factors and there must be a determination of some sort of unusual or exceptional circumstance. See: IRMO Butler and Gill, 53 Cal.App.4th 462, 467 1977 [sic]. [] This court finds that this is a case of special circumstances which justify this court deviating from the guidelines. Surely the law does not countenance a mother avoiding her obligation to pay child support by merely becoming pregnant and quitting work. That is what Hinman teaches. The court finds that the guideline would be about $165, but that such an order would be unfair to the child. [] As this court presently has no evidence to indicate that the non-employment of Petitioner not [sic] voluntary, the court will impute to her the income as she suggested in the income and expense declaration filed by her April 7, 2006 and the income of her spouse as indicated in that same declaration. [] This court imputes this income to Petitioner for three different reasons: (1) IRMO Hinman as indicated above, (2) Family Code Section 4057.5, and (3) Family Code Section 4055. [] Petitioner is ordered to pay child support to Respondent in the sum of $412.00 monthly commencing July 7, 2006, and continuing each month on the 7^th thereafter. (Italics and underscoring omitted.)

In ruling on Johns request for sanctions and attorney fees, the court stated: This court deems it unreasonable that a request for child support reduction would have been filed by Petitioner without the legally required income and expense declaration. [] The court deems it unreasonable that Petitioner would file an income and expense declaration on November 20, 2006 and not include the income of her new spouse within the required information. [] The court deems it unreasonable that neither party has filed their tax returns as the law demands. [] As and for a contribution towards attorney fees, and as a domestic support obligation pursuant to 11 USC sec. 523, it is ordered that Petitioner shall pay to counsel for Respondent the sum of $3,000.00 payable at the rate of $100.00 per month commencing January 1, 2007, and with a like payment each month until the entire sum is paid in full.

DISCUSSION

The trial court imputed income to Melinda and ordered her to pay child support in an amount greater than the guideline amount. After quoting from In re Marriage of Seagondollar, the trial court found that Melinda failed to file a financial statement in compliance with California Rules of Court, rule 5.128. The court concluded it could deny Melindas request for modification of child support for that reason. In Seagondollar, a panel of this court emphasized the trial courts obligation to follow the rules of procedure for resolving family law disputes. Melinda did not file a financial statement showing her spouses income. The financial statement she did file appears also to have been defective in failing to include income tax forms.

The trial court had discretion to deny Melindas OSC for failure to submit the requisite financial statement. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572.) However, the trial court went further, commenting that Melindas pregnancy was a voluntary act constituting special circumstances justifying a deviation from the support guidelines. Citing In re Marriage of Hinman (1997) 55 Cal.App.4th 988, the trial court commented, [s]urely the law does not countenance a mother avoiding her obligation to pay child support by merely becoming pregnant and quitting work.

We find the courts comments legally erroneous. We disagree with the trial courts interpretation of Hinman, and strongly disagree that becoming pregnant is a voluntary act designed to reduce income and avoid the payment of child support.

In Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 461, the trial court made remarks giving the appearance the court held preconceived ideas based on stereotypes of illegal aliens. A panel of this court reversed and remanded for a new trial, concluding the trial courts comments raise doubts about the fairness and impartiality of the proceeding and cast the judicial system itself in a bad light in the eyes of the litigants and the public at large. (Id. at p. 455.) The panel declined to engage in a harmless error analysis, stating: Where, as here, the appearance of judicial bias and unfairness colors the entire record, we depart from the general rule requiring plaintiff to make an affirmative showing of prejudice. The test is not whether plaintiff has proved harm, but whether the courts comments would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings such as would necessitate reversal. The record here inspires no confidence in either case. (Id. at p. 461.)

Applying this standard, we conclude the trial courts comments would undermine a reasonable persons confidence in the fairness of the proceedings. Thus, we need not engage in a harmless error analysis in order to issue a writ of mandate. We will direct the case to be returned to the trial court and reassigned to a different trial court. (See Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 246-247, 262.)

DISPOSITION AND ORDER

Let a peremptory writ of mandate issue, commanding respondent Orange County Superior Court to (1) vacate and set aside its order requiring the payment of $412 in monthly child support (retroactive to the date of the trial court order) and imposing monetary sanctions in the amount of $3,000 against petitioner Melinda Pemberton Geisness and to (2) hold a new hearing on the issue of child support taking into account the current circumstances at the time of the new hearing. The Presiding Judge of the Orange County Superior Court is directed to assign the matter to a different judge. (Code Civ. Proc.,  170.1, subd. (c); Rose v. Superior Court (2000) 81 Cal.App.4th 564, 576.) Petitioner shall recover her costs in this proceeding.

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* Before Sills, P.J., Aronson, J., and Fybel, J.

[1] We refer to the parties by their first names for clarity; no disrespect is intended.

[2] The evidence on this issue is not material to the issue before us and is not included in this opinion.