Filed 7/11/17 Marriage of Jones and Formosa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re the Marriage of ANDREA JONES and ANTHONY FORMOSA.

ANDREA JONES,

Respondent,

v.

ANTHONY FORMOSA,

Appellant.


E066153

(Super.Ct.No. SWD1402095)

OPINION


APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed.
Westover Law Group and Andrew L. Westover for Appellant.
Victor Mordey for Respondent.
Appellant Anthony Formosa appeals the denial of his request to modify child support to Respondent Andrea Jones. He contends the trial court erred because it was not permitted, as a matter of law, to include his military basic allowance for housing (BAH) in the support calculation when he was living on base and/or not physically receiving the BAH. We reject his contention and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Anthony married Andrea on March 28, 2005. On February 29, 2016, a stipulated judgment for dissolution of marriage was entered.
On February 2, 2016, Anthony filed a request to modify both child and spousal support “due to a material change in circumstances,” namely, the sale of the marital residence, which terminated his BAH, along with “a hardship deduction due to a new child from a new relationship.” His leave and earnings statement for pay period covering December 1 to December 31, 2015, shows a payment of BAH benefits but no corresponding deduction. However, his leave and earnings statement for pay period covering January 1 to January 31, 2016, shows a payment of BAH benefits and a corresponding deduction for the same amount. Andrea opposed the request for modification. On March 28, 2016, Anthony filed a supplemental brief, conceding that he receives a BAH benefit, but explaining that the entire amount is “kept by the military” because he lives on base. Since he does not receive his BAH benefit directly, Anthony argued that it should not be considered in any support calculation. On April 14, 2016, Anthony filed an updated income and expense declaration, including his leave and earnings statements showing his BAH benefits.
On April 18, 2016, the trial court denied Anthony’s request as to spousal support, but granted it, in part, as to child support. The court granted the request for the inclusion of a hardship deduction for his minor child, who is not a product of this marriage, and reduced the amount of monthly child support from $946 per month to $802 per month. In calculating child support, the court considered Anthony’s BAH as income. The court’s order was entered on May 24, 2016.
II. DISCUSSION
Anthony contends the trial court erred when it deemed his BAH to be “income” when calculating support. We find no error.
A. Legal Background.
“Awards of child support and spousal support are reviewed for abuse of discretion. [Citation.] ‘[W]e do not substitute our judgment for that of the trial court, and we will disturb the trial court’s decision only if no judge could have reasonably made the challenged decision. [Citation.]’ [Citation.] [¶] In reviewing a child support order, ‘we are mindful that “determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule.” [Citation.]’ [Citation.] ‘[T]he trial court’s discretion is not so broad that it “may ignore or contravene the purposes of the law regarding . . . child support. [Citations.]” [Citation.]’ [Citation.]” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1312.)
“Statutory guidelines regulate the determination of child support in California. [Citation.] . . . . The guideline amount of child support, which is calculated by applying a mathematical formula to the relative incomes of the parents, is presumptively correct. [Citations.] ‘The court may depart from the guideline only in “special circumstances” set forth in the child support statutes. [Citation.].’ [Citation.]” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753, fn. omitted; see Fam. Code, §§ 4050 et seq.) Family Code section 4055 provides the mathematical formula that trial courts must use in calculating child support. This formula takes into account both parents’ “net monthly disposable income” (§ 4055, subds. (a), (b)), which is determined based upon the parents’ “annual gross income” (§ 4058). “Annual gross income” is defined as “income from whatever source derived . . . .” (§ 4058, subd. (a).) Section 4058, subdivision (a), sets forth a “non-exclusive list of possible sources of income” (Anna M. v. Jeffrey E. (2017) 7 Cal.App.5th 439, 447), including “[i]n the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.” (§ 4058, subd. (a)(3), italics added.)
B. Analysis.
The inclusion of free housing as income for purposes of calculating child support payments has been discussed in several different cases. In Stewart v. Gomez (1996) 47 Cal.App.4th 1748 (Stewart) the father lived rent free on an Indian reservation. (Id. at p. 1754.) The trial court included the reasonable value of the free rent father received as part of his section 4058 income in calculating child support, and we affirmed. (Stewart, supra, at pp. 1752, 1755-1756.) We concluded there was “no reason to distinguish an employee housing benefit from an Indian reservation housing benefit.” (Id. at p. 1755; see County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1451, 1456-1458.) [trial court erred in excluding from income any consideration of father’s mortgage-free housing when father used his inheritance to pay off the mortgage].)
In In re Marriage of Loh (2001) 93 Cal.App.4th 325, 333-336 (Loh), Division Three of this district disagreed with our approach in Stewart. In Loh, the trial court granted mother’s request for an increase in child support based on evidence of father’s lavish “lifestyle” with his new girlfriend. (Loh, supra, at p. 327, 329.) The appellate court reversed, concluding that a parent’s housing situation (or other lifestyle factors) may not be included as nontaxable income in calculating child support. (Id. at pp. 335-336.) The Loh court stated, “the proper course [is] to first calculate the guideline amount in light of the parents’ incomes as revealed by such evidence as tax returns, income and expense declarations and pay stubs, and then, under section 4057, to adjust the amount upward in light of the free housing benefit. Such an approach respects the rebuttable correctness of the mechanically calculated guideline amount, and allows child support awards to properly reflect the parents’ standard of living without doing violence to the word ‘income’ in a way that would make the Sheriff of Nottingham proud.” (Ibid., fn. omitted; see In re Marriage of Schlafly, supra, 149 Cal.App.4th at pp. 759-760 [mortgage-free housing may not be considered as nontaxable income in calculating child support because section 4058 is limited to employment-related housing benefits].)
Here, we are asked to determine whether the trial court abused its discretion in characterizing Anthony’s military BAH as income pursuant to section 4058 when he does not actually receive it. Andrea contends Stewart governs, while Anthony argues that Loh is instructive. This case differs from Loh in that Anthony’s rent-free housing is a benefit, albeit nontaxable, of his military employment, and section 4058, subdivision (a)(3), specifically permits trial courts to consider employment-related housing benefits as income. Thus, the approach outlined in Stewart is better suited to the facts of this case: Because Anthony receives free housing as a part of his employment, the trial court could properly include the reasonable rental value of his housing as income. (Stewart, supra, 47 Cal.App.4th at p. 1755.) Moreover, because he receives the BAH on a regular basis, failing to characterize it as his income would result in a decrease in the child support award, inhibiting the children’s ability to share in the lifestyle enjoyed by their father.
Alternatively, Anthony contends that “[t]he proper method the trial court should have used was to calculate guideline child support based on the actual income of the parties, then the court should have considered whether a deviation, upward or downward, was appropriate under [section] 4057.” Pursuant to section 4057, the presumptively correct amount of child support established by the formula provided in section 4055 “may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . .” (§ 4057, subd. (b); see Loh, supra, 93 Cal.App.4th at pp. 335-336.) We decline to resolve the case under section 4057 because section 4058 gives the trial court the discretion to consider BAH as income in calculating child support, and Anthony did not invoke section 4057 at the trial level.
In short, we find no abuse of discretion in the trial court’s decision to characterize Anthony’s BAH as income.
III. DISPOSITION
The order is affirmed. Andrea is to recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

MCKINSTER
J.

SLOUGH
J.