Marriage of Eranio

Filed 7/6/06 Marriage of Eranio CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Lori Frost Eranio appeals an order denying her application for increased child support and reimbursement of expenses incurred for her daughter's stay at a private school. The trial court denied the motion to modify child support and ordered reimbursement for some, but not all, costs related to the daughter's schooling. The trial court also denied her motion for attorney's fees. We reverse and remand.

FACTS

The marriage of Robert Eranio (husband) and Lori Frost Eranio (wife) was dissolved July 15, 2003. Wife was given sole legal and physical custody of their older daughter (daughter) and the parties were awarded joint legal and physical custody of their younger daughter. The parties stipulated that husband would pay wife child support in the amount of $1,557 per month. In this regard, the stipulation states:

". . . Husband shall pay to Wife for the support, maintenance, and education of the minor children . . . the sum of $1,557.00 per month. The parties agree that this amount and allocation is reasonable and sufficient for the needs of each of the children and it is based upon the Husband's financial ability to pay support. . . . The provisions of this Agreement relating to child support may be modified or revoked at any time at the discretion of a Court of proper jurisdiction, except as to any amount that may have accrued prior to the date of filing of Notice of Motion or Order to Show Cause to modify or revoke. The parties acknowledge that they are fully informed of their respective rights and obligations to support their minor children and agree that the award of support, as set forth herein, will adequately meet their children's needs and that this Agreement is made without coercion or duress. . . .

". . . Husband shall maintain said minor children for so long as legally eligible on all medical, hospital, orthodontic, optometric, psychiatric, psychological, dental and health insurance available through his employment at reasonable cost. Each party shall pay one-half of all reasonable and necessary medical, hospital, orthodontic, optometric, psychiatric, psychological, dental and health expenses of the minor children not paid for by insurance. Both parties shall be bound by the provisions of Family Code § 4063 in regard to making claims for reimbursement of such costs.

". . . The provisions set forth herein with respect to child support and spousal support are predicated on the following: [¶] A. Husband has represented that his gross income is $6,903.00 per month. . . . [¶] B. Wife has agreed that her gross earning ability is $4,000.00 per month."

Approximately one and one-half months after the entry of the dissolution judgment, wife filed a motion for an upward modification of husband's child support obligation. She also sought an order that husband pay one-half the costs of daughter's care at Red Rock Canyon School, a private, residential, psychological care facility in Utah, and attorney's fees and costs.

Wife contended that husband had additional income not disclosed at the time of the stipulation and judgment. She also asserted that she was coerced into agreeing she had an earning capacity of $4,000 per month and that her income was much less--approximately $1,180 per month.

In response, husband submitted an income and expense declaration showing $7,070.90 in gross income in the previous month. Husband asserted that the parties were bound by the terms of the stipulation, his income had not materially changed and that the judgment already provided for his contribution to the children's education through the child support award.

At the hearing on September 29, 2003, the parties stipulated and the court ordered husband to reimburse wife for unreimbursed medical costs incurred to September 23, 2003, for therapy costs incurred for daughter through October 30, 2003, and to pay "equally the cost of [daughter's] counseling/therapy at Red Rock Canyon School from November 1, 2003, until [daughter's] discharge from Red Rock Canyon School. Such cost currently is $1,445.00 per month." The issues of child support modification, husband's liability for costs associated with daughter's schooling, and wife's request for attorney's fees were continued to June 24, 2004.

On June 24, wife submitted an updated income and expense declaration, showing gross income of $2,000 per month.[1] She also submitted documentation showing husband's earnings and income from rental property that purportedly had not been disclosed at the time the parties entered into the child support stipulation.[2] In addition, she submitted documents showing the money she had paid to Red Rock and requested that she be reimbursed the sum of $13,327.50. Wife testified that she had paid her attorney $3,266 and owed an additional $1,075.

Husband filed an updated income and expense declaration and testified he had monthly earnings in the approximate amount of $10,000 and rental income of $600.

The trial court issued a tentative decision after hearing, purportedly without reviewing the financial information submitted by wife. The trial judge found that wife had not shown a material change in circumstances and husband was not obligated to pay for any other costs associated with daughter's schooling. He ordered each party to bear their own attorney's fees. Wife's counsel urged the trial court to review the documentary evidence submitted at the hearing before making a final decision, and the court took the matter under submission.

The trial court issued its decision August 2, 2004, affirming its tentative decision. The court found that wife had not shown a material change in circumstances, that husband's obligation for child support and daughter's school expenses were limited by the terms of the stipulation, and that wife had an earning capacity of $4,000 per month.

DISCUSSION

Modification of Child Support

Child support orders are reviewed for an abuse of discretion. (In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1066.) However, the trial court's discretion is not so broad that it may ignore the law. (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1425.) The only discretion provided a trial court with respect to child support awards is that set forth by statute or rule. (Ibid.)

The trial court abused its discretion in finding wife's requests for increased child support and reimbursement for daughter's schooling were limited by the terms of the stipulation. Parents do not have the power to restrict the court's authority to act on behalf of the child. (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 469.) The right of minor children to adequate financial support has priority over any contractual agreement between the parties. A child support order may be modified in consideration of the best interest and welfare of the children despite an agreement to limit a child support obligation. (Singer v. Singer (1970) 7 Cal.App.3d 807, 812; see also Lusby, at p. 469 ["'Agreements and stipulations compromising the parents' statutory child support obligation or purporting to divest the family court of jurisdiction over child support orders are void as against public policy'"].)

The trial court also erred in requiring wife to show "changed circumstances." Ordinarily, a party is required "to introduce admissible evidence of changed circumstances as a necessary predicate for modification." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298.) Where, as here, the court failed to make required findings at the time of approving a stipulation for child support, a spouse is not required to show a change in circumstances in order to obtain an increase in child support. (§ 4065, subd. (d); In re Marriage of Thomas (1981) 120 Cal.App.3d 33, 34-35; Singer v. Singer, supra, 7 Cal.App.3d at pp. 812-813.)

In basing its decision on wife's purported failure to show changed circumstances, the trial court placed on wife a burden of proof not required by statute. We note, however, that even if the changed circumstances test were applicable, the court erred in not considering the undisputed evidence presented at the hearing that husband's monthly income was $10,600, substantially more than that stated in the stipulation. (See, e.g., In re Laudeman (2001) 92 Cal.App.4th 1009, 1015, fn. 4 ["'An existing order for child support may be modified when there has been a significant change in one of the parent's net income'" (italics omitted)].)

On remand, the court must make a guideline formula calculation pursuant to Family Code section 4055.[3] (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 317.) There is a rebuttable presumption that the guideline formula is correct. (§ 4053.) This presumption can be rebutted where the court states in writing or on the record why application of the guideline is "unjust or inappropriate." (§§ 4057, subd. (b)(5), 4056, subd. (a)(1)-(3); Hall, at pp. 318, 320-321.)[4]

The court erred for the further reason that it failed to make findings to support imputing to wife income of $4,000 per month even though the evidence showed her actual earnings at the time of the hearing were $2,000 per month. "[N]o authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children. . . . [¶] In this case, the trial court made no express or implied finding that imputing earning capacity to [wife] would be in the children's best interest. We find it difficult to imagine how the children's interests are served by doing so, since the imputation of earning capacity to [wife] effectively reduces overall monetary support for the children." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 301-302; see also In re Marriage of Eggers (2005) 131 Cal.App.4th 695 [collecting imputed income cases].)

Reimbursement for School Expenses

To be entitled to reimbursement for daughter's school expenses, wife must show that the expenses accrued after the date the order to show cause (OSC) was filed. Sections 3651, subdivision (c) and 3653, subdivision (a) expressly prohibit reimbursement for expenses accrued prior to the date the OSC is filed.[5] (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446.) These provisions are consistent with the general rule that orders operate prospectively. (In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80; In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 844.)

The evidence shows that most, if not all, of the expenses for which wife seeks reimbursement were incurred prior to the filing of the OSC in August 2003. To the extent that wife seeks reimbursement for expenses incurred after the filing of the OSC, on remand, the court will determine whether reimbursement is appropriate in light of husband's substantial increase in income.

Attorney's Fees

"The decisions whether and in what amount to award attorney's fees and costs are in the broad discretion of the trial court and will not be reversed on appeal unless a clear showing of abuse of discretion is made." (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 244.)

Section 2030, subdivision (c) governs post-judgment fee awards.[6] Under section 2030, an attorney's fee award is designed to ensure the parties are in positions of relatively equal strength in light of their incomes. (In re Marriage of Perry, supra, 61 Cal.App.4th at pp. 310-311.) Section 2032, subdivision (a) provides that "[t]he court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." The "circumstances" considered are the current circumstances of the parties. (In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 893.)

The award must be based on need and ability to pay. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) The statute states: "The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b).) A spouse is not required to exhaust resources before obtaining a "need" based award. (§ 2032; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166-1167.) "'A disparity in the parties' respective circumstances may itself demonstrate relative "need" even though the applicant spouse admittedly has the funds to pay his or her fees.'" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 318.)

The record must reflect the trial court's consideration of the following factors: The parties' ability to pay, their respective litigation needs, and whether the amount of fees requested is reasonably necessary for the cost of maintaining and defending the proceedings. (§ 2030, subd. (a); In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866-867; In re Marriage of Braud, supra, 45 Cal.App.4th at p. 827.) Here, the trial court made no such findings. These findings will be required on remand.

The order of the trial court is reversed and remanded. Upon remand, the court shall make the calculations required by section 4055 using the financial information in the documents submitted to the court on August 24, 2004.[7] If the trial court makes an award different from the guideline amount, the court shall make findings required by section 4056. We also reverse the denial of attorney's fees and direct the court to use the parties' current financial information and make the requisite findings under section 2032. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 318.)

Nothing in this opinion shall preclude wife from recovering attorney's fees and costs incurred on appeal; however, such a request for fees and costs must be directed to the trial court in the first instance. (In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140-141.)

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Ruben A. De La Torre, Judge

Superior Court County of Ventura

______________________________

Gina S. Berry for Appellant.

Goldenring & Prosser, Peter A. Goldenring, James E. Prosser, Edwin S. Clark for Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Real Estate Lawyers.

[1] We granted wife's motion to augment the clerk's transcript with these documents.

[2] Wife's motion to augment the clerk's transcript with these documents is granted.

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

[4] Section 4056, subdivision (a) states: "To comply with federal law, the court shall state, in writing or on the record, the following information whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula amount under this article: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children."

[5] Neither party raised sections 3651 and 3653 in their briefs. Prior to oral argument, we requested the parties file letter briefs discussing the applicability of these statutes.

[6] Section 2030, subdivision (c) states: "The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded."

[7] Pursuant to In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1081-1082, the court must determine whether the spouses' current incomes are a reasonable prediction of future earnings.