Marriage of Crane

Filed 5/31/06 Marriage of Crane CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Barbara A. Crane (Mother) appeals the order modifying John C. Crane's (Father) child support. She asserts evidentiary errors, abuse of discretion in making the modification retroactive and not providing support during school vacation, and insufficient evidence to justify sanctions.

BACKGROUND

The parties separated on January 19, 1993. At the time their daughter, Cameron, was five and a half years old and their son, John (Jack), was three months old. In September 1994, pursuant to the parties' stipulation, the court ordered them to have joint legal custody of the children, with Mother having sole physical custody. A stipulated judgment of dissolution was filed October 13, 1994.

On April 25, 1996, pursuant to the parties' stipulation, Father was ordered to pay Mother $2,400 per month for child support, plus $900 per month for child care expenses and the children's' extracurricular activities, i.e., $3,300 in total monthly support payments. These amounts were based on Father's annual gross earned income of $139,200 and annual nontaxable perquisites of $6,800 and Mother's annual gross earned income of $42,500.

The parties and their children lived together again from 1999 until May 2003. The children returned to Mother's physical custody after the parties moved apart.

In June 2004, Father moved for a modification of child support. His motion was based on the decrease of his advertising business since 1996 due to the general economic downturn and Mother's increased income since 1996, resulting from the establishment of her own law practice which emphasized family law. He also sought attorney fees if necessary to retain counsel to litigate the motion. His accompanying income and expense declaration listed an annual earned income of $22,968, annual perquisites of $9,516, and annual unearned income of $43,092.

Mother opposed the motion on the grounds Father misrepresented his income. She asserted, generally, that he was capable of earning more income if he chose to do so, and that he had substantial unearned income from his family.

Following a hearing on November 29, 2004, the court filed its statement of decision, as amended, and order after hearing on February 10, 2005. Pertinent to this appeal it contains the following findings and orders:

Father's 2004 income was approximately $90,000. The gifts to Father from his own mother were not income; however, if he received such gifts, he should be required to pay a portion thereof as child support because such a gift increased his standard of living, and it was in his children's best interest to share in his increased standard of living. Mother's request to impute income to Father or to require him to seek work outside his own business was denied. There was no evidence of bad faith in Father's attempt to earn wages and salary from his marketing business, insofar as corporate budgets for marketing had decreased significantly since September 2001. Father's increased list of clientele indicated that he was seeking clients, but the total income from those clients had decreased due to the clients' decreasing budgets. Mother's 2003 income increased to $120,000. Child care costs had decreased because the children were older.

The court reduced Father's child support to $1,220 per month, plus $400 per month for child care expenses and one half of all the children's extra-curricular, medical, dental, and therapy expenses, commencing June 15, 2004. He was ordered to pay Mother 12.5 percent of the gross amount of any monetary gift he received from his mother for additional child support. Mother was ordered to pay $45,067 in attorney fees for Father, plus $10,000 for insupportable discovery.

Mother's motions for reconsideration and vacation of the February 10, 2005 statement of decision and order, for new trial, and for attorney fees and costs were denied.

DISCUSSION

I. Evidentiary Errors

A. Expert Vocational Consultant Eliaser

i. Background

On August 11, 2004, Mother, who represented herself, designated Peter Eliaser, a vocational consultant, to be her expert in matters related to Father's earning capacity. She declared, inter alia, that he would be sufficiently familiar with the action â€