Marriage of Waina and Keema

Filed 4/12/07 Marriage of Waina and Keema CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

On a date not discernible from the record, the marriage between appellant Bernadette Waina (Bernadette) and David Keema (David) was dissolved.[1] They have one minor daughter. In October 2005, upon motion by respondent Monterey County Department of Child Support Services (Department), the court below issued a temporary order requiring that Bernadette pay $776.00 in monthly child support to David. The court continued the case for review of Bernadettes earned income. After further hearing, the court in March 2006 ordered that monthly child support be fixed at $729.00. Approximately three months laterafter a hearing attended only by Departments attorney in which no evidence was presentedthe court entered a permanent order that Bernadette pay monthly child support of $776.00.

Bernadette challenges that order. She contends that the record reflects that the trial judge intended to make permanent the March 2006 order that monthly child support be set at $729.00, but that the order erroneously stated the higher amount ($776.00) contained in the original temporary order. She asks that we correct the order because it was simply a clerical error. Bernadette argues further that the order reflects an abuse of the courts discretion because there was no evidentiary support for increasing monthly child support from the amount then in effect ($729.00) to $776.00.

We conclude that the lower court abused its discretion by making a permanent order increasing child support to the higher level of $776.00. Accordingly, we will reverse.

PROCEDURAL BACKGROUND

In August 2005, Department filed a motion for modification of the prior family court order of March 21, 2005, pertaining to Bernadette and David. (The prior order contained no provision for child support.) The Department sought in the motion, inter alia, an order that the noncustodial parent, Bernadette, pay the custodial parent, David, monthly child support of $776.00. It based this request in substantial part upon the factual premises that the gross monthly income figures for David and Bernadette were $1,725.00, and $4,928.00, respectively. In support of its motion, Department attached a DissoMaster[2] calculation sheet that reflected that the presumed amount of child support under the statewide uniform support guidelines (using the gross monthly income figures noted in the motion) was $776.00.

Bernadette opposed Departments motion. She questioned the figure used for Davids gross monthly income and contended that David received unreported free rent that should have been included as additional income.

After a hearing on Departments motion on August 31, 2005, the court issued an order that Bernadette pay David child support of $776.00 per month, effective on August 15, 2005. Both the minute order and the formal order (hereafter, collectively, the August 2005 order) reflected that this child support order was temporary. The minute order also reflected that the case was continued to November 9, 2005, for [r]eview of fathers earned income.

The matter was thereafter twice continued; the ultimate hearing date was March 28, 2006. In the meantime, Bernadette filed further opposition, challenging the assumption that Davids gross monthly income was $1,725.00; this opposition consisted of Bernadettes declaration and the declaration of an accounting expert. After the review hearing on March 28, 2006, the court entered a minute order that read, in part: Child support is modified to $729 per month effective August 15, 2005. The formal order entered on April 10, 2006, was consistent with the minute order. The matter was continued to June 20, 2006, for review of mothers possible pay increase [and] fathers income. Neither the minute order nor the formal order (hereafter, collectively, the March 2006 order) noted that the support order was temporary in nature. Attached to both orders was a form reflecting the manner by which child support had been calculated, including a DissoMaster calculation sheet. The material difference between the respective DissoMaster calculation sheets attached to the August 2005 order and the March 2006 order was that the calculation sheet attached to the later order reflected Davids gross income as $2,175.00 (instead of $1, 725.00).

A further hearing was conducted on June 20, 2006; it was attended only by counsel for the Department. The record does not reflect that any additional papers were filed concerning the issue of child support after the March 28 hearing. After the June 20 hearing, the court entered a minute order as follows: THE COURT ORDERS: Current Child Support of $776.00 per month remains in effect. The formal order entered on June 20, 2006, read: ORDER FOR $776.00 PER MONTH IS NOW A PERMANENT ORDER. Neither the minute order nor the formal order had as an attachment any calculation sheets or other findings concerning the basis upon which the court had fixed monthly child support at $776.00.

Bernadette filed a timely notice of appeal. The formal order modifying child support is an appealable order. (Fam. Code,  3554;[3] Code Civ. Proc.,  904.1, subd. (a)(10).)

DISCUSSION

I. Issue On Appeal

The sole issue presented in this appeal is whether the trial court erred in making a permanent order fixing monthly child support of $776. Bernadette argues that the trial court abused its discretion by modifying the prior child support order (1) without evidence of a material change in circumstances, and (2) by failing to comply with sections 4055 and 4056. Bernadette asserts, in the alternative, that the court made a clerical error by reciting that the preexisting (March 2006) order for monthly child support was for $776.00, instead of $729.00. We address these contentions below.[4]

II. Order Modifying Child Support

In 1993, the California Legislature adopted statewide uniform child support guidelines. (See  4050 et seq.) Section 4055, subdivision (a), provides a formula that is labeled as a statewide uniform guideline for determining child support orders.[5] But this label is seriously misleading. The applicable statutes [citation] are far more than mere guidelines; rather, they impose mandatory requirements with the intent that application of the statutory formula yield a presumptively-correct amount of child support . . . . (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2006) 6:131, p. 6-57; see also  4052: The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article.)

Thus, the child support amount as determined by applying the section 4055 formula is presumed to be the correct amount. ( 4057, subd. (a).) That presumption may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . because one or more statutory factor is specifically found to apply by a preponderance of the evidence and the court has stated (either in writing or on the record) the guideline amount, the reasons for ordering an amount that differs from the guideline amount, and that those reasons are in the childs or childrens best interests. ( 4057, subd. (b).)[6] In the event that the court orders child support that is at variance with the guideline formula, [t]he statutory findings [supporting the award] are mandatory. The failure to make them precludes effective appellate review and may constitute reversible error if the missing information is not otherwise discernible from the record. [Citations.] (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183; see also In re Marriage of Hall (2000) 81 Cal.App.4th 313, 317-318 [child support order reversed where court failed to identify presumed guideline amount or reasons amount ordered differed from formula].)

We have previously noted that the statutory procedures for modification of child support . . . require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification. [Citations.] Where child support orders are concerned, contested factual issues . . . require an evidentiary hearing. [Citation.] (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298.) Thus, a trial court abuses its discretion when it modifies an existing child support order without a factual showing of a substantial change of circumstances occurring after the entry of the original order. (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1288; In re Marriage of Mulhern (1973) 29 Cal.App.3d 988, 992.)

In this instance, the order in effect immediately before the June 20, 2006 hearing called for Bernadette to pay $729.00 in monthly child support. After the prior (March 28) hearing, when the court ordered that the temporary child support figure of $776.00 be reduced to $729.00, there was no evidence presented by Department or David to support a modification of child support. Indeed, the record is devoid of any papers filed with the court between March 28 and June 20, 2006, other than the formal order fixing child support at $729.00 per month.

And the transcript of the June 20, 2006 hearing provides no support for the courts modification order challenged by Bernadette. No evidence was presented at the hearing concerning a change of circumstancesmaterial or otherwisejustifying a modification of child support. In fact, the colloquy between the court and Departments counsel suggests that there were no changes after the March 28, 2006 hearing. While there were brief references to the two reasons that the March 28 hearing was continued for review to Junethe possibility of Bernadette receiving a salary increase and Davids attempts to increase his landscaping clientelethere is nothing in the record suggesting a change in either partys income. Immediately after this discussion, the transcript reads: THE COURT: Well, if they dont care_[,_] we dont care. [] [DEPARTMENTS COUNSEL]: And I would be perfectly content to leave support as it is. The courtafter considering a prior dispute as to the unpaid rental amount of Davids home that should be imputed to him as additional income[7]concluded: Well, Ill just go ahead and leave it as it is. Ill sign the order after hearing now. . . . And then well just make the order for 776 a permanent order. Thats that.

There is no evidence of any change of circumstances that would have justified the courts order increasing child support from $729.00 to $776.00. (See In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 521 [child support modification requires changed circumstances].) Additionally, the statewide uniform guideline support amountas reflected in the courts March 2006 orderwas $729.00. To the extent that the court increased the support amount after the June 20, 2006 hearing, it deviated from that which was statutorily presumed to be the proper amount, and it failed to make any of the requisite findings justifying such deviation. (See 4056, subd. (a), 4057, subd. (b).)

As noted, we review an order modifying child support for abuse of discretion. (In re Marriage of Brinkman, supra, 111 Cal.App.4th at p. 1292.) But as we have recently observed: Of course, the trial courts discretion is not unfettered. It has a duty to exercise an informed and considered discretion with respect to the [parents child] support obligation . . . . [Citation.] [Citation.] (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) Here, the court abused its discretion by modifying the preexisting order by increasing the monthly child support amount from $729.00 to $776.00 without a showing of changed circumstances, and without making any findings warranting a deviation from the statutorily presumed amount. (Cf. In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187 [order modifying child support based upon fictional gross income assumptions of noncustodial parent required reversal].) Therefore, the order entered June 20, 2006, cannot stand.[8]

DISPOSITION

The order is reversed. The matter is remanded to the trial court with instructions to vacate its prior order of June 20, 2006.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] As is customary in family law cases, we refer to the parties by their first names for purposes of clarity and not out of disrespect. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828, fn. 2.)

[2] The DissoMaster is one of two privately developed computer programs used to calculate guideline child support as required by [Family Code] section 4055, which involves, literally, an algebraic formula. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 524, fn. 2.)

[3] All statutory references are to the Family Code unless otherwise specified.

[4] We note that after Bernadette filed her opening brief and after Department and David were given notice by this court pursuant to California Rules of Court, rule 8.220(a), neither party so notified filed a respondents brief. Department advised this court that it would not be filing a respondents brief. Accordingly, the case has been submitted on the record and on Bernadettes opening brief. (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 626.)

[5] It is not necessary for us here to recite the mechanics of section 4055s formula, which has received an unfavorable comparison with the Internal Revenue Code. (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1042, fn. 9.) We do note, however, that the court below did utilize the statewide uniform guidelines formulaas reflected in the DissoMaster calculations attached to the court ordersin arriving at both the initial monthly child support amount of $776.00 in the August 2005 order for temporary support, and the later amount of $729.00 reflected in the March 2006 order.

[6] The only statutory factor that may be potentially applicable here is that [a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case. ( 4057, subd. (b)(5).) But as we discuss, there were no circumstances at all that were identified by the court to warrant a deviation from the guideline amount ($729.00) identified in the March 2006 order.

[7] While the court recited that David and Bernadette proposed imputed income figures of $500.00 and $1,675.00, respectively, it appears that the court satisfied itself that there was no significant ongoing dispute in this regard, since Bernadettes counsel had signed off on the prior order that used the lower imputed income amount.

[8] Bernadette also urges us to reverse the challenged order because it was a clerical error in which the obvious intent was to make permanent the order fixing monthly child support at $729.00. While it would be an educated guess for us to conclude that the court intended to make an award of $729.00 but mistakenly referred to the prior, superseded temporary order, we decline to base our holding on this basis. (See Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035: Whether the error was clerical in nature is a matter for the trial court to determine.)