Marriage of Yousefzadeh
Filed 6/3/13 Marriage of Yousefzadeh CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re Marriage of NADER and SABA
YOUSEFZADEH.
B239527
(Los Angeles
County
Super. Ct.
No. BD 470144)
NADER YOUSEFZADEH,
Appellant,
v.
SABA
YOUSEFZADEH,
Respondent.
APPEAL from
a judgment of the Superior Court
of
County, B. Scott Silverman, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed in
part; reversed in part and remanded.
Nader
Yousefzadeh, in pro. per., for Appellant.
Law Offices
of Robert J. Waters and Robert J. Waters for Respondent.
* * * * * *
Appellant Nader Yousefzadeh (father) and respondent Saba
Yousefzadeh (mother) married in 1998 and had three daughters. On August 2,
2007, father filed a petition for dissolution of the marriage. As of that date, the couple’s three daughters
were ages six, two, and one. Father
appeals from the judgment on reserved issues in this matter. He contends the family law court erred in finding he waived his
right to past and future “nanny care†expenses.
Father’s argument has merit and requires a limited reversal with
directions to strike the portion of the judgment that states father waives his
right to future and past due child care expenses, which the parties refer to as
nanny care. We also direct the court to
(1) conduct further proceedings to determine what reasonable nanny care
expenses, if any, father is owed, and (2) enter an amended judgment based on
those proceedings.
On December 26, 2008, the court
entered a status only judgment that also addressed
father and mother. In relevant part, the
court ordered the parents shall have joint legal custody of the minor children
and awarded primary physical custody of the minors to father. The stipulation did not reflect an order for
child support. A later “Stipulation re
Settlement†filed on December 9, 2010, stated the “[c]urrent
child support amount [was] $1,750.â€
Moreover, father “agree[d] to waive his right to future and past due
payment for fees for ‘nanny care’ for the minor children†and “[c]urrently
waive[d] [his] request for $750.00.â€
In January 2011, mother filed an
order to show cause regarding modification of child support. She also moved the court to enforce the December 9, 2010 stipulated settlement in March 2011. The court granted mother’s motion to enforce
the settlement agreement, finding “that the parties[] voluntarily executed the
Settlement Agreement, and that the Settlement Agreement is enforceable as to
those terms contained therein only.†The
court ordered mother’s counsel to prepare a judgment memorializing the parties’
stipulated settlement agreement. The
court also lowered mother’s child support payment from $1,750 to $1,363 per
month.
Section 3.1 of mother’s proposed
judgment on reserved issues was entitled “child care expenses†and stated: “The Court finds [father] waives his right to
future and past due payment of fees for ‘nanny care’ for the minor
children. The Court further finds
[father] currently waives his request for $750.00.†The proposed judgment also found mother owed
child support arrears in the amount of $35,000, which the court offset by
$25,000 for spousal support arrears father owed. Thus, the proposed judgment found mother owed
a net total of $10,000 in child support arrears.
Father filed an objection to mother’s proposed
judgment on the ground that child care was “part and parcel of . . . child
support†and could not be waived as a matter of public policy. Despite father’s objection, the court entered
mother’s proposed judgment on reserved issues on January 23, 2012. Father filed a timely
We review child support awards for
abuse of discretion. The standard is
whether any judge reasonably could have made the order at issue. (In re Marriage of Chandler (1997) 60
Cal.App.4th 124, 128.)
Father’s
sole contention on appeal is the court erred in finding he waived the right to
child support for nanny care expenses.
We agree with father. The court
abused its discretion in making this finding and entering judgment based on it.
California
has a strong public policy in favor of adequate child support that is expressed
in statutory uniform child support guidelines.
(In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 640.) The statutory scheme for child
support consists of two components -- basic support and “additionalâ€
support. (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 472.) Family Code sections 4061 and 4062 provide
for additional support beyond the basic guideline amount in appropriate cases.
at p. 467.) These additional forms of
child support are commonly referred to as “add-ons.†(In re
Marriage of Alter (2009) 171 Cal.App.4th 718, 723.) One of the add-ons the court “shall order†is
“[c]hild care costs related to employment or to reasonably necessary education
or training for employment skills.†(§
4062, subd. (a)(1).) The Family
Code does not further define “child care costs.†We conclude day care, nanny care, and other
similar arrangements for care of children qualify as child care costs. (See In re Marriage of Tavares (2007)
151 Cal.App.4th 620, 627-628 [considering day care a child care cost for
purposes of child support order].)
Parties to pending litigation may
stipulate to settle a case, and the court, upon motion, may enter judgment pursuant
to the terms of the settlement. (Code Civ. Proc., § 664.6.) Section 664.6 applies
in a dissolution action to parties’ settlement agreements, including such
agreements regarding child support. (
Cal.App.4th 1030, 1038.) When the court incorporates an agreement for child
support into a child support order, “the obligation
created is deemed court-imposed rather than contractual.†(Armstrong
v. Armstrong (1976) 15 Cal.3d 942, 947.)
However,
to the extent settlement agreements purport to restrict the court’s
public policy. (In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062,
1069.) “Children
have the ‘right to have the court hear and determine all
matters [that] concern their welfare and they cannot be deprived of this right
by any agreement of their parents.’
[Citation.] Thus, these
and the court retains jurisdiction to set child support irrespective of the parents’ agreement.†(Ibid.)
Moreover, parents cannot, by
agreement, limit or waive a child’s right to support. (Kristine M. v. David P.
(2006) 135 Cal.App.4th 783, 786; In re Marriage of Buzzanca (1998) 61
Cal.App.4th 1410, 1426.) Nor does a
court have discretion to absolve an obligor of child support arrearages, and
parents cannot agree to settle child support arrearages without a bona fide
dispute concerning the debt. (
(2007) 153 Cal.App.4th 1203, 1215; In re Marriage of Tavares, supra, 151
Cal.App.4th at p. 626.) Public
policy protects a child’s continued right to support. (Kristine M. v. David P., supra, at
p. 786.) A judgment terminating the
obligation to support a child “is void as a breach of public policy and as an
act in excess of the court’s jurisdiction.â€
(Ibid.)
In the present case, the court
erred in entering a judgment that father waived child support payments for
nanny care costs. Father may have agreed
to the waiver term in the stipulated settlement, but he had no power to limit
or waive his children’s right to support, including child care costs such as
nanny care. Likewise, the court did not
have the power to terminate the obligation of mother to pay child support in
the form of nanny care costs. A limited
reversal and remand to the trial court is warranted to determine the amount of
support, if any, mother owes for nanny care costs. The judgment refers to a “currently waive[d] . . . request
for $750.00†in the section regarding child care expenses, and $10,000 in child
support arrears in another section. It
is unclear from the record to what extent these amounts included nanny care
costs, either for the past or for that point going forward. We need not try to divine these answers. The determination of reasonable nanny care
costs is a matter within the province of
The judgment is reversed with
directions to strike in its entirety section 3.1 of the judgment on reserved
issues regarding father’s waiver of “nanny care†costs. The court is directed to conduct further
proceedings, consistent with this opinion, to determine what reasonable nanny
care expenses, if any, father is owed, whether for arrears or for nanny care
going forward. The court shall enter an
amended judgment based on those proceedings.
Father to recover costs on appeal.
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1] Further
statutory references are to the Family Code except where otherwise noted.
