Filed 7/28/22 Lang v. Lang CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Jonathan Lang appeals a post-judgment order modifying child support and denying his request for spousal support. (Fam. Code, §§ 4053, 4320.)[1] He contends the trial court erred by imputing income to him based on past earnings and by failing to consider whether the child support rulings were in his children’s best interests. He also contends the court failed to consider the statutory factors for modifying spousal support.

We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Jonathan and Marina Lang stipulated to a status-only judgment of dissolution of marriage on December 19, 2019. They filed a settlement agreement on the same date in which Jonathan agreed to pay Marina $2,500 per month for both child support and childcare. A DissoMaster report attached to the Agreement reflected “Wages + salary” of $9,974 for Jonathan and $12,253 for Marina. The settlement reserved the issue of spousal support for future determination based on the noticed motion of either party.

Jonathan quit his job in construction sales less than a month later. He made partial child support payments in February and March of 2020 but ceased paying entirely in April. In June he filed a request for order (RFO) seeking to modify his child support obligations and to receive spousal support from Marina to help him pay basic living expenses. He now claimed to earn no income. Marina opposed the RFO and requested the court continue the current child support order, or, in the alternative, increase the amount. She described how the COVID-19 pandemic had increased her reliance on day programs and other childcare expenses. Recalculating support to the guideline amounts, Marina argued, would increase Jonathan’s obligations significantly. She asked the court to impute the same level of income to Jonathan as he earned before quitting his job and submitted revised DissoMaster calculations to this effect. Jonathan disputed the amounts Marina claimed to pay for childcare and confirmed that he was now earning money driving for a food delivery service.

The court denied the RFO in May of 2021.[2] It imputed $9,974 in monthly earnings to Jonathan because “he himself caused the change in circumstance by quitting his prior employment.” The court set child support at $2,351 per month until the children reached majority. It also ordered Jonathan to pay one-half of Marina’s daycare expenses going forward on the condition Marina provide him with invoices and proof of payment. Lastly, it ordered him to pay retroactive child support and daycare expenses incurred by Marina over the past year.[3] Jonathan appealed the order. (Code Civ. Proc., § 904.1, subd. (a)(2)&(10); Fam. Code, § 3554.)

DISCUSSION

Jonathan challenges the order increasing child support and denying his request for spousal support. We review these decisions for abuse of discretion. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273 (Shimkus); In re Marriage of Butler & Gill (1997) 53 Cal.App.4th 462, 465.)

A. Child Support Increase

A court must consider each parent’s actual income when setting child support. (§ 4053, subd. (c).) In its discretion, a court may “consider the earning capacity of a parent in lieu of the parent’s [actual] income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.” (§ 4058, subd. (b), italics added.) Jonathan contends the court misapplied section 4058, subdivision (b) when it imputed his prior earnings under In re Marriage of Padilla (1995) 38 Cal.App.4th 1212 (Padilla) without considering whether doing so served the best interests of his children. He takes issue with the order’s focus on the financial impact of quitting his job while ignoring evidence that his decision helped him remain sober and thereby become a better parent. “The trial court abused its discretion,” he argues, “by failing to consider the totality of the circumstance[s].” We do not agree.

Sobriety, stress reduction, and better parenting were not the reasons Jonathan gave the trial court for quitting his job. He instead blamed poor training and disagreements over his job duties. Perhaps realizing this, Jonathan asserts on appeal that references to his alcoholism in Marina’s papers should have prompted the trial court to analyze the impact of his addiction in greater depth. This is to no avail. We decline to consider issues appellant did not raise below. (Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1399.)

Jonathan next argues the trial court increased support without evidence of a material change in circumstances or his ability to pay. Again, we disagree. “Change of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs.” (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, italics added.) Jonathan opened the door to support recalculation when he filed his RFO. In response, Marina submitted evidence that her childcare needs and healthcare expenses had increased significantly since they signed their settlement agreement in December 2019. The trial court stated in the support order that it “read and considered” all moving and response papers as well as the parties’ income and expense declarations prior to ruling. The trial court’s imputing of income to Jonathan under Padilla was just one component of its decision.

We find Padilla analogous as well. There husband quit his regular job soon after the court entered a support order so he could pursue a new career with better long-term prospects. The case for imputing income appears even more persuasive here. The evidence before the court supported its finding that Jonathan’s decision to quit was a luxury he could ill afford. His subsequent struggle to find comparable work does not change the fact that he left stable employment, it appears, without first scanning the horizon for alternative prospects. Attesting to his dissatisfaction with the company did not entitle him to alter the financial status quo so abruptly. (See, e.g., Padilla, supra, 38 Cal.App.4th at p. 1218 [parent may pursue lower-paying job “when the children’s reasonable needs are satisfied”].) He must bear the consequences of his decision, not his children. “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 the children’s reasonable needs.” (Padilla, supra, 38 Cal.App.4th at p. 1220.)

B. “Double dipping” Childcare Expenses

Below, Jonathan consistently questioned the veracity of Marina’s claimed childcare expenses. The court addressed his concern by ordering Marina to provide invoices and proofs of payment going forward. The order does not fix the amount, but instead directs Jonathan to reimburse Marina for one-half of her expenses once he receives the required documentation.

Jonathan contends an ambiguity in the court’s order may compel him to pay Marina twice for childcare. He identifies an attached DissoMaster report for 2021 as the source of this ambiguity.[4] The report includes a childcare add-on of $3,919. Jonathan asserts Marina may cite In re Marriage of Tavares (2007) 151 Cal.App.4th 620 (Tavares) to argue the add-on creates a vested, prospective monthly childcare obligation of $1,960 (one-half of $3,919) that he must pay regardless of whether Marina documents her expenses. He worries this will enable her: (a) to seek arrearages on amounts he withholds in good faith for lack of documentation; and (b) to demand reimbursement a second time by belatedly providing invoices and proofs of payment.

Marina’s counsel served the order in its proposed form, including attachments, on Jonathan along with a cover letter inviting him to comment or object within 10 days. The court signed and filed the order without revision three weeks later. Nothing in the record shows Jonathan raised concerns over its form or substance prior to appeal. He thus waived the purported defect. Had he not, we would nevertheless conclude the order presents no risk of double payment.

The order addressed in Tavares required father to pay $140 each month toward mother’s childcare expenses. Father fell behind on this obligation. He later argued mother needed to itemize and “corroborate” her actual childcare expenses before she could seek arrearages. The court rejected this argument. The order itself established father’s obligation to pay mother; he could not retroactively modify the obligation by insisting mother prove she incurred expenses equal to or exceeding the amount ordered. Father’s sole remedy was seeking to modify the support award prospectively. (Tavares, supra, 151 Cal.App.4th at pp. 627-628.)

In contrast, Jonathan’s fixed monthly childcare obligation of $1,960 ended on April 30, 2021. From that point forward, the order expressly conditions Marina’s right to be reimbursed, and, conversely, Jonathan’s obligation to reimburse, on Marina providing him invoices and proofs of payment. The 2021 DissoMaster report does not override or nullify this condition as it applies to prospective childcare reimbursements. The report serves only to elucidate the basis of the court’s child support and retroactive childcare reimbursements.

C. Denial of Spousal Support

Jonathan contends the trial court failed to consider the factors listed in Family Code section 4320 when it denied his request for spousal support. He cites the order’s lack of analysis into these factors, particularly into the marital standard of living, as showing the court ended any meaningful inquiry into his request after finding he quit his job voluntarily. Jonathan also challenges the court’s finding that Marina “currently has no income” as contradicted by Marina’s own evidence.

The written order’s lack of an itemized analysis into each of section 4320’s 14 factors does not mean the court sidestepped the statute. Again, the court confirmed it “read and considered all moving, responsive and reply pleadings filed by the parties” as well as their income and expense declarations. Marina’s original responsive declaration included a section devoted to Jonathan’s ability to earn, including a chronology of his employment in construction sales throughout their marriage. Jonathan’s pre-hearing declaration described his work history and included a resume. He cited the marital standard of living, his support of Marina’s career during marriage, his limited earning capacity, and the growing income disparity between the former spouses’ incomes and as reasons he should receive spousal support from Marina. We consider it curious Jonathan faults the court for focusing too much on the financial impact of his decision to quit when this very event prompted him to file his RFO originally. Jonathan’s explanation sums up the trial court’s reasoning: “I am no longer employed and need support to meet my basic living expenses.”

Jonathan states the court’s finding Marina that “had no current income” is inaccurate. We do not think so. Marina filed a detailed declaration in lieu of testimony describing her current financial situation. She explains how her recent promotion to an equity partnership resulted in her compensation being delayed during the first quarter of 2021. She also took time off from work to spend with her terminally ill father. We also note the court’s order incorporates a 2021 DissoMaster report attributing $13,000 per month to Marina in the “other income” category. While it may have found she had no current income, the court appears to have also considered Marina’s long-term earning capacity when crafting the revised support figures.

CONCLUSION

Judgment is affirmed. Respondent shall recover her costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Michael S. Lief, Judge

Superior Court County of Ventura

______________________________

Law Office of Laurie Peters, Laurie Peters, for Defendant and Appellant Jonathan Lang.

Law Offices of Michael T. Frawley, Michael T. Frawley, for Plaintiff and Respondent Marina Lang.

[1] Unlabeled statutory references are to the Family Code.

[2] The parties agreed the court could decide the RFO based on their moving papers and declarations in lieu of an evidentiary hearing.

[3] The court set child support at $2,299 per month from May 15, 2020 to December 31, 2020 and $2,351 per month from January 1, 2021 to April 30, 2021. It calculated Jonathan’s one-half share of childcare costs at $1,796 per month and $1,960 per month for these periods, respectively. This brought Jonathan’s total retroactive support obligation to $4,095 for May-December 2020 and $4,311 per month for the January-April 2021 periods.

[4] The DissoMaster calculations attached to Marina’s proposed order were not attached to the order eventually signed and filed by the court. Both versions are included in the record and provide an adequate basis for review.