Rodriguez v. Smit
Filed 6/25/13 Rodriguez v. Smit CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
>
ROBERT D. RODRIGUEZ, Plaintiff and Appellant, v. MARGARETHA M. SMIT, Defendant and Respondent. | A136186 (Contra Costa County Super. Ct. No. D10-00553) |
Robert
D. Rodriguez appeals an order for child support of his four-year-old daughter
who lives with her mother, Margaretha Smit, in Nevada.
He contends the court erred in determining the parents’ income and expenses
when setting the amount of child support. We find no error and shall affirm the
order.
STATEMENT OF
facts
Rodriguez
and Smit are attorneys licensed to practice in
In February 2010, Rodriquez, in propria persona, filed a petition to establish
a parental relationship with a child born to Smit in January 2009. Smit
retained counsel. The parties stipulated to paternity in September 2011 and,
two months later, Smit filed a motion for child support. The court awarded
temporary child support of $1,255 monthly and set a hearing date to determine
ongoing support.
The
parties submitted income and expense declarations in advance of the April 2012
hearing. Smit reported that she was laid off work at an Oakland
law firm in January 2012 and was currently unemployed. She listed no income and
monthly expenses of $5,562 for herself and three children. Rodriguez declared
he was self-employed as an attorney with gross business income over the prior
three months of $46,300. Rodriguez claimed business expenses of $43,651,
leaving only $2,649 in net profit over the three-month period. Rodriquez
estimated his average monthly income over the prior twelve months to be $2,650,
with personal expenses for himself, his wife and a step-daughter exceeding his
income. He did not provide a copy of his 2011 tax return, only a 2010 Schedule
C detailing profit or loss from a business. That form showed high business
expenses resulting in a loss.
The
parties’ declarations and economic situations were examined at the hearing.
Smit testified that she moved to Reno, Nevada
in February 2012 to permit easier visitation with her two older children whose
father lives in Truckee, California
and has shared custody. Smit sold her California
house and bought a less expensive house in Nevada.
She and her children were living on proceeds from the sale until she could pass
the Nevada bar exam and secure
employment as an attorney. Smit enrolled for the July 2012 bar exam and was
preparing with a classroom study program she attended weekday mornings and
self-study in the afternoons. Smit testified that she also intended to
volunteer part-time with a family law organization while studying for the bar
exam to network with local attorneys in hope of future employment. Smit wanted
to put the parties’ child in day care to allow her time for study and
volunteering in preparation for work. On cross-examination,
Smit said she applied, without success, for several attorney positions after
she was laid off. She expected to obtain employment after obtaining a license
to practice law in Nevada.
Rodriguez
was cross-examined at length about his income and expense declaration,
particularly his claimed business expenses. On a monthly basis, Rodriguez
averaged $15,433 in revenue from his law practice with claimed expenses of
$14,550. Among those expenses, Rodriguez declared business travel expenses of
$2,445. He had no out-of-state cases or overnight stays and attributed the
entire amount to gasoline, “which is not cheap these days.†He reported
additional business-related car expenses of $2,215, excluding gasoline and loan
payments. Rodriguez attributed the $2,215 in monthly car expenses to
“maintenance and what I use to upkeep†a 2007 Kia Spectra. Rodriguez claimed
monthly meal expenses of $1,741 to “treat clients and . . . other
business associates to lunch, [a] cup of coffee, [or] dinner.â€
The
trial court found that Rodriguez overstated his business expenses and reduced
the amounts claimed by “recapturing 90% of Mr. Rodriguez’s car expenses, 75% of
his meals and 100% of his travel expenses.†The court set his monthly income at
$7,100. The court set Smit’s income “at zero retroactive to January 2012 when
she was laid off from her previous employer.†The court ordered Smit to “seek
work†but expressed satisfaction that Smit was preparing for employment by
studying for the Nevada bar exam
and thus “found no evidence to impute income to Ms. Smit.†The court ordered
Rodriguez to pay $1,203 monthly in guideline child support plus an additional
$386 “as a child care add on for a total of $1,589 per month.†Smit was ordered
to provide Rodriguez “evidence regarding the cost of day care.â€
Rodriguez
filed a timely notice of appeal. Smit
assumed her own representation on appeal and did not file a respondent’s brief.
discussion
Rodriguez
contends the trial court erred in finding that he overstated his business
expenses. He maintains that the court was required, in the absence of contrary
documentary or expert testimony, to accept his income and expense declaration
as true. Rodriguez is mistaken on this point. In setting child support, a
family law court weighs the credibility of witnesses and may reject all or part
of a parent’s representations as to income and expenses, even in the absence of
contrary evidence. (In re Marriage of
Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 36.) Income and
expense declarations, despite being executed under penalty of perjury, far too
often “just don’t ‘add up.’ †(Id. at
p. 38.) Family law courts must determine “which declarations have the
‘ring of truth’ and which do not.†(Ibid.)
This function is part of its larger fact finding role. A family law “court sits
as trier of fact and it is called upon to determine that a witness is to be
believed or not believed. This is the nature of fact finding. ‘The trier of
fact is the sole judge of the credibility and weight of the evidence
. . . .’ †(In re
Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.)
A
family law court may also reject income figures stated on tax returns. A
parent’s income, stated on recent tax returns, is “presumptively correct†but
may be rebutted by other evidence of a parent’s income. (In re Marriage of Calcaterra & Badakhsh, supra, 132 Cal.App.4th
at pp. 34-36.) Here, Rodriguez did not submit a tax return for 2011, only
a 2010 Schedule C listing a business loss but no final income figure. The court
properly considered his current financial situation as reflected in his income
and expense declaration (with attached profit and loss statement for the first
quarter of 2012) and his testimony at the hearing. Ultimately, the court
disbelieved Rodriguez’s undocumented representations that his law practice
generated average monthly revenue of $15,433 yet netted only $883. The court
set his monthly income at $7,100, less than half his business revenue. The
record fully supports the court’s determination.
Rodriguez
next raises the fact that Smit bought her Nevada home with California sale
proceeds, and thus has no mortgage payments. He contends the court should have
included the reasonable value of Smit’s “free housing†as income. The trial
court found the contention “untimely†because it was first raised in a
supplemental brief filed on the day of the hearing. The contention is also
ill-founded. Such imputations of income commonly arise when a parent receives
free housing as an employee benefit. (Fam. Code, § 4058, subd. (a)(3);
Cal.App.4th 747, 757.) There is no basis for imputing income here, where Smit
did not receive benefits from an employer or other third party but from the
sale of an asset she owned.
Finally,
Rodriguez argues the court should have imputed income to Smit based on her
earning capacity. (Fam. Code, § 4058, subd. (b).) “If a parent is
unwilling to work despite the ability and the opportunity, earning capacity may
be imputed†to that parent for purposes of computing child support. (
56 Cal.App.4th 1331, 1338.) The court found that Smit was not unwilling to work
and was, in fact, actively seeking work by studying for the Nevada bar exam.
The court noted that Smit’s time was better spent preparing for a well-paid
attorney job in the near future than taking a lower-paid job immediately. The
court’s finding is reviewed for an abuse of discretion. (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1383.) None
appears here.
At
such time as Smit obtains employment, Rodriguez may of course seek an
appropriate adjustment of his support obligation. (E.g., In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234.)
Iii.
disposition
The
order is affirmed.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
The record consists of a short appellant’s appendix and reporter’s transcript.
Rodriguez alone filed a brief.
