Filed 4/17/18 A.L. v. J.B. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



A.L.,

Plaintiff and Respondent,

v.

J.B.,

Defendant and Appellant.
D072362



(Super. Ct. No. D544691)


APPEAL from an order of the Superior Court of San Diego County, Matthew C. Braner, Judge. Affirmed.
J.B., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant J.B. and respondent A.L. have one minor child together. From their child custody judgment, J.B. appeals an order modifying his child support obligation, which added an imputed monthly income amount to his previously ordered support payment. (Fam. Code, § 4058, subd. (b) [in making child support ruling, court has discretion to consider earning capacity of parent in lieu of income].) J.B. receives monthly pension payments as a retired member of the military, and contends that the family court abused its discretion or otherwise acted unlawfully in imposing such an imputed amount for calculation of his child support obligation, over his retirement income. We affirm.
I
BACKGROUND
From 2013 through 2017, J.B. was subject to a child support order of $265, based solely on his monthly retirement income. Through counsel, A.L. requested an order to modify that amount. The parties supplied income and expense declarations for the modification hearing. A.L. reported she earns $2,800 on average and has the child 75 percent of the year. J.B. pays $522 child support from another relationship and listed no other employment or income, other than his monthly pension of $3,106.
Representing himself, J.B. appeared at the hearing and argued that he spent 26 years in the military, no longer works, and his federal retirement is his only source of income. A.L. requested that the court impute income to J.B., in addition to his retirement, based on his having a bachelor's degree and on case law stating that the court can consider earning capacity in addition to unearned income. (Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1752-1754 (Stewart) [parent's ability to earn at minimum wage utilized as part of child support income calculation, in addition to his disability income].) The court made a "DissoMaster" guidelines calculation to reach net incomes for the parties.
The family court determined that J.B. needed to seek employment and established an imputed monthly minimum wage income of $1,820 for him, in addition to his pension income, for purposes of establishing his child support obligation, $507 per month. This order would not go into effect for a few months, to give J.B. time to get a job. He appeals.
II
APPLICABLE STANDARDS; CONTENTIONS
We review the family court's decision to impute income to J.B., based upon earning capacity, under an abuse of discretion standard. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 994.) An appellate court "should not substitute its own judgment for that of the trial court; it should determine only if any judge reasonably could have made such an order." (White v. Marciano (1987) 190 Cal.App.3d 1026, 1033.) Abuse of discretion occurs if the family court exceeds the bounds of reason, by failing to apply correct legal standards and thereby taking action outside the confines of the applicable principles of law, or without substantial support in the evidence. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)
Section 4058, subdivision (a) provides, "[t]he annual gross income of each parent means income from whatever source derived," including pension payments, but delineates some exceptions (not argued here). Instead, J.B. appears to be making a federal preemption argument, by claiming that title 10 United States Code section 3914 (establishing his entitlement to retire from military service) should supersede the child support law being applied here and prevent the court from imputing a minimum wage income to him.
J.B. has the burden to show the applicability of the federal preemption doctrine. (In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 556 (Stanton).) An issue of federal preemption is a pure question of law we review independently. (Ibid.; Paduano v. American Honda Motor Co., Inc. (2009) 169 Cal.App.4th 1453, 1489.)
III
ANALYSIS
Under section 4058, "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (§ 4058, subd. (b).) In attempting to show the modification order is unlawful, J.B. does not acknowledge there is a discretionary aspect of the ruling. Case law shows there is "an 'emerging consensus . . . that the only limitation against imputing to an unemployed or underemployed parent is where the parent in fact has no "earning capacity" . . . or relying on earning capacity would not be consistent with the children's best interest.' " (In re Marriage of Hinman, supra, 55 Cal.App.4th 988, 998.) J.B. makes no argument that he is unable to obtain a minimum wage position. He only claims that the family court inappropriately applied the holding in Stewart, supra, 47 Cal.App.4th 1748, when it imputed such additional income to him.
In Stewart, supra, 47 Cal.App.4th 1748, 1752-1754, the court analyzed whether the paying father's ability to earn minimum wage should be a factor in calculating his child support amount, in addition to the amounts he received in disability income. The appellate court rejected the father's contentions that the family court erred by considering as gross income both his earning capacity and his disability benefits, rather than only earning capacity or disability benefits. (Id. at p. 1753.) It was the father's contention that the words "in lieu" in section 4058 meant that the court could consider either his income or his earning capacity, but not both. (Stewart, supra, at p. 1753). However, the appellate court decided that imputing income was allowed under the statute, because the father had the ability to earn at least minimum wage, and he would receive his disability benefits whether he worked or not. The two sources were not mutually exclusive and could properly be added together. (Id. at pp. 1752, 1754.)
At the hearing in this case, the family court inquired into J.B.'s circumstances and on the record as presented to it, was given no reason to conclude that J.B. was unable to earn at the minimum wage level. On its face, the record fully supports the discretionary finding in this respect.
We next address J.B.'s apparent contention that it was contrary to federal law, specifically title 10 United States Code section 3914, for the court to calculate a new monthly gross income, by including imputed income based on his earning capacity. (See fn. 3, ante.) J.B. claims that his retirement benefits are "170 percent over the minimum wage income," and this should prevent him from being subjected to any new imputed income finding. He claims he has reached his earning capacity and the family court was therefore barred from calculating his monthly income by adding an imputed amount for purposes of child support.
J.B. has made no showing of any ability to carry his burden of showing federal preemption principles apply here. (Stanton, supra, 190 Cal.App.4th 547, 556.) Nowhere in title 10 United States Code section 3914 is there any mention of imputed income, child support, or earning capacity. It merely outlines when an enlisted individual is permitted to retire from the armed services. In any event, the federal courts have "consistently recognized that 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States.' [Citations.] 'On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has "positively required by direct enactment" the state law be pre-empted.' [Citations.] Before a state law governing domestic relations will be overridden, it 'must do "major damage" to "clear and substantial" federal interests.' " (Rose v. Rose (1987) 481 U.S. 619, 625.)
"Express preemption arises when Congress has explicitly stated its intent in statutory language." (Stanton, supra, 190 Cal.App.4th at p. 556, citing Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936.) In Stanton, the paying spouse attempted to demonstrate that the inclusion of military allowances, a basic allowance for housing (BAH) and a basic allowance for subsistence (BAS), within his gross income for purposes of family support was preempted by federal law. (Stanton, supra, at p. 552.) This court determined that he had not met his burden, because he did not cite to any direct enactment that showed Congress "intended to disallow a state court's inclusion of military allowances such as BAH and BAS in a parent's gross income for purposes of family support." (Id. at pp. 556, 560.)
Likewise, J.B. has not cited to any direct enactment showing Congress intended to prevent states from imputing income in addition to military retirement income for these purposes. The provisions of title 10 United States Code section 3914 do not conflict with any state law provisions dealing with the amount J.B. should pay as child support. As we acknowledged in Stanton, supra, 190 Cal.App.4th 547, there is out of state case law confirming that " 'the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfill their family commitments.' " (Id. at p. 560.) The family court's interpretation of section 4058 in the present case did not do any "major damage" to "clear and substantial" federal interests. (Rose v. Rose, supra, 481 U.S. 619, 625.) The child support modification order is well supported by statute and was a proper exercise of the family court's discretion.


DISPOSITION
The order is affirmed. J.B. to pay the ordinary costs on appeal.


HUFFMAN, J.

WE CONCUR:



McCONNELL, P. J.



IRION, J.