Making a Request for Support

Support:

• Ackerman (citation): IN RE: MARRIAGE Of Boris M. and Ann E. Ackerman stands for the principle that:
  • In this case, the wife was married to her husband who was a plastic surgeon. The couple got married in 1991 and was legally separated in September of 2001. The court had an initial ruling for child support and spousal support based on a calculated marital standard of living for the party. They took into consideration monthly cash-flow and came up with around $9k a month for child support and $7k for spousal support. The wife had graduated law school in 1995 and stated that she would be able to be employed within a certain time-frame so spousal support would only be temporary. The wife filed that the court had made an error in their calculations for support in that they didn’t deduct her expenses as they did for the husband. The wife tried to claim that her monthly expenses were $50k a month but the court did not find that feasible in that the gross income for the combined couple was $61k a month. The wife was claiming that the court had made an error in the calculation of the marital standard of living. The court re-affirmed the initial judgement and found there to be no error.
  • Key Finding: The child has a right to an amount of support that is consistent with the parent’s standard of living and the court has the power to calculate the martial standard of living on a needs based analysis.
• Alter: IN RE: MARRIAGE Of Jack and Cindie Alter:
  • In this case, the husband and wife had divorced in 2001. They had previously written and agreed on a Marital Settlement Agreement. In this MSA, the husband agreed to pay the ex-wife spousal support of $3,000 a month and $4,000 in child support plus add-ons. Some of the add-ons included the two minor children’s schooling etc. The ex-husband, Jack, appealed and stated that his income had changed and wanted to modify the support orders. However, the ex-wife, Cindie, attempted to claim that the couple had agreed in the MSA that the child support orders could not be modified downward. The court overruled and stated that it had the discretion at all times to modify support orders whether it be upward or downward. Furthermore, in Jack’s claim that his income had changed, he stated that the $6,000 that his mother had given him every month was not a gift and that it was a loan that he would have to pay back. The court ended up deeming that the money was a gift and that it could be included as income. Overall the court explained that they had the power to modify support orders and that if there is monetary gifts that are consistently received, that the court can deem them to be included as income. The ex-husband Jack had been receiving these “gifts” from his mother for many months, and when he attempted to claim that they were loans, all the promissory notes claiming to having to repay the debt were all dated and signed on the same date.
  • Key Findings: The court can consider consistent/reoccurring gifts or contributions towards income when calculating child support.
• County of Placer v. Andrade: 
  • The County of Placer filed a complaint against Michael Andrade in attempt to establish child support and paternity. Michael agreed that he was the father of a daughter named Candace. The County of Placer was going for child support and Michael had claimed that his gross annual income was around $1,800. However, the county had stated that his income was closer to $2,300 a month because he was working overtime. Initially the court ruled that overtime shouldn’t be included in Michael’s gross monthly income because it was “sporadic and inconsistent”. However, the county argued that the court was in error and that overtime should be included as wages. According to the formula used to calculate child support, the formula relies on gross income and divides it into averages. It states that it includes wages and the county argued that the overtime can be included in the broad term of “wages”. The county also argued that the overtime had been reoccurring for the past 2 and ½ years making it consistent. Overall the court revised the initially ruling and deemed that the overtime could be included in the earnings used for child support calculation.
  • Key Findings: The court can consider consistent/reoccurring overtime as income when calculating income for child support.
• Asfaw v. Woldberhan
  • For this case, the court was looking at the ex-husband’s sources of the income to determine child support. There were two children from the marriage and the wife had been granted sole responsibility for decisions regarding medical and psychological treatments. However, the court awarded the parents joint legal and physical custody of the children. In this case, the ex-husband Zeman, had multiple sources of income. He had apartment businesses and a parking lot that he owned. He calculated his gross annual income from the apartments and then deducted business expenses including depreciation of the apartments. Initially the court included the depreciation as part of the deduction of his gross annual income. However, the ex-wife appealed claiming that nowhere in the statutes was there any literature on deducting depreciation from income for child support purposes. The court ended up reversing the order finding that while depreciation can be used to deduct income for tax purposes, that it can’t be deducted from income for child support calculation.
  • Key Findings: The court found that depreciation of residential real estate cannot be deducted from income for child support calculation purposes.
• Bardzik: IN RE: MARRIAGE Of Yvette E. and Jeffrey D. Bardzik:
  • In this case, the couple had two children. One of those children were adopted and had special needs. The husband Jeffrey ended up getting custody of the child with special needs. Previously the couple had shared 50-50 custody of both of the children. However, when Jeffrey received custody of the child with special needs, he requested that the $1,000 that the state gave in aid to help care for the child with special needs go to him. Furthermore, the ex-wife had retired in her 40s well before the retirement age of 65. Previously there had been no support orders since both parties had similar earnings and both had 50-50 custody. However, there was a support order brought on after the wife had retired. Jeffrey wanted the court to take into consideration Yvette’s earning capacity at the time of retirement instead of her income from retirement. However, Jeffrey made no effort to show proof that Yvette was capable of earning that income whether it be through another job or even doing work for her old employer. The court denied his motion for Yvette’s income to be reflective of her pre-retirement income and found that it was Jeffrey’s responsibility to bring forth proof that she was capable of a certain income. This case shows that when a party is bringing for a motion to establish an earning capacity, that it is the burden of the party seeking that establishment to bring forth the proper evidence to calculate earning capacity.
  • Key Findings: When a party is attempting to establish/rebut an earning capacity of the opposing party, it is that party’s responsibility to show proof of the potential earning capacity.
• Barth: IN RE MARRIAGE Of Jeffrey and Andrea Barth:
  • In this case, the ex-husband, Jeffrey, and ex-wife, Andrea, had two children together. Initially the couple lived in Ohio; however, the husband ended up moving to California when he got a job in Orange County. The wife ended up leaving her job in Ohio and moving with the kids to California. When the family got to California to be with the husband, Jeffrey ended up telling his wife that he had engaged in extramarital affairs. Andrea ended up leaving California with the children and submitted a dissolution of marriage in Ohio. However, Jeffrey argued that Ohio did not had jurisdiction over the case. The case ended up making it to the Ohio Supreme Court and they found that Ohio did not have jurisdiction over the case because Andrea had left the state for a certain amount of time which canceled her permanent residency in Ohio. Furthermore, California court ended up making a retroactive child support order that Jeffrey had to pay. Jeffrey had the children 10-30% of the time while Andrea had the children the remainder of the time. Furthermore, they took into consideration Andrea’s and Jeffrey’s separate income. Ultimately, the court found that using Family Code section 4009, that they have the power to make a child support order retroactive to the date of the filing of the notice of motion/order to show cause.
  • Key Findings: According to Family Code 4009, the court has the power to make child support retroactive to the date of the filing of the notice of motion to show cause.
• Bereznak & Heminger: IN RE MARRIAGE Of Bradley Bereznak and Susan Heminger:
  • The parties Bradley Bereznak (Petitioner) and Susan Heminger (Respondent) filed a request to modify child support orders. The court granted orders, agreed to by both parties, that any future modifications of child support would be determined through binding arbitration and appointed Sherrol Cassedy as the arbitrator. Shortly after, the Petitioner requested child support be modified on two separate occasions by Ms. Cassedy. Upon the second decision made during arbitration, the Petitioner wrote her a letter asking for reconsideration and modification of her decision. The arbitrator held her decision in response to his letter. Shortly after, the Respondent filed a petition to confirm the arbitration orders and the Petitioner opposed and filed his own petition to vacate and/or correct the order. The courts denied the Petitioner’s opposition and petition to vacate and granted the Respondent’s petition to confirm the orders made during arbitration. The Petition to vacate the order was denied due to the grounds the Petitioner cited. On appeal, the Petitioner/appellant claimed binding arbitration regarding child support was against public policy. The courts agreed in part with his argument and reversed the order, dismissing both parties’ petitions.
  • KEY FINDING: Although parties can settle child support disputes by agreement, any agreement that restricts the court’s jurisdiction over child support is in fact, against public policy. Therefore, binding arbitration impedes on the court’s jurisdiction to hear and determine support based on the best interest and welfare of the children.[jv1]
• Berger: IN RE MARRIAGE Of Marc and Rachael S. Berger:
  • In this case, the husband Marc was ordered to pay child support of $1,100 for the two daughters from the marriage. The wife, Rachael, stated that the court errd in order that amount of child support. Marc worked in the financial industry, and they used to live a lavish standard of life prior to the divorce. However, Marc decided to defer his income and instead have it re-invested into the business. Initially the court did not include this money as income. Marc was having his income deferred back into investments in the business while living off of other assets. Marc was living a lifestyle that spent up to $21,000 a month. Rachael claimed that the court made an error and that Marc’s deferred income should warrant a “special circumstance” that needed to depart from the normal guideline used to calculate child support. The court heard the appeal and realized that this argument carried weight. They ended up finding that Marc’s deferred income did warrant a “special circumstance” to depart from the normal child support guideline. The court found that whether Marc was living off his savings or living off his income, that the source of the money should still count towards income in regards to child support. The court stated that the money that was being deferred back to investing in the business shows that Marc is still capable of that sort of income and should be considered as such.
  • Key Findings: When a party has a deferred salary, the court can use it as a special circumstance in which they depart from the normal guideline used to calculate child support.
• Beust: IN RE MARRIAGE Of Walter and Beverly Beust:
  • In this case, the husband Walter and wife Beust were married for 30 years. They got divorced and Walter was ordered to pay spousal support. The spousal support order was for 6 years and would be reduced to $1 a year after that. However, the order stated that the court had the discretion to increase/decrease the amount of support or increase/decrease the length of the support. Initially the order expected that by the end of the 6 years that Beverly would be self-supporting. However, when at the time of divorce, Beverly was already 50 years old. Beverly had no indication of any type of formal education or special training in a field of work. At the end of the 6 years of spousal support, Beverly put in an order to modify the spousal support. She claimed that although she was employed, she still could not make enough funds in order to cover her monthly living expenses. Walter tried to claim that the order stated that after the 6 years of spousal support that the order would be reduced to $1 a year. Although the order did claim to be reduced, the order was also left open to modification by the court if deemed necessary. Beverly had clearly shown that she was trying to become self-supporting; however, the initial expectation of Beverly being fully self-support at the end of the 6 years of spousal support was not realistic. In this case, the court deems that failure to meet expectations can be the basis for an increase/extension of support. The couple had been married for 30 years and at the time of divorce Beverly was already 50 years old. She had done all that she could in acquiring employment in order to be self-sufficient and still could not meet her monthly expenses. Furthermore, Walter had the means to be able to pay spousal support. The court reversed the initial ruling denying Beverly’s motion for modification of spousal support.
  • Key Findings: Failure of expectations that were not due to a party misusing assets can be used as a basis to extend/increase a support order.
• Blazer: IN RE MARRIAGE Of Scott and Karen Blazer:
  • The parties involved got divorced in 2002. There was a business created by the husband in 1996. The court ended up valuing the business’s community interest at around $5.6 million. Initially there was temporary spousal support order in which the court terminated and created a permanent spousal support order. Both parties ended up filing appeals that the court ended up denying. The wife felt that the court abused its discretion and erred in calculating the husband’s income. In the end the court affirmed their initial decision in creating the permanent spousal support order and found that they had a wide discretion to determine the amount and source of spousal support.
  • Key Findings: The court has broad discretion given from Family Code statues in determining the amount and source when calculating spousal support.
• Calcaterra & Badakhsh: IN RE MARRIAGE Of Kathyrn Calcaterra and Omid Badakhsh:
  • In this case, the couple had gotten married in 1988 and was separated in 1991. They had one child that was born in 1991. After the marriage was dissolved, the father was ordered to pay child support for $350. The ex-wife ended up not being able to work because of fibromyalgia syndrome. The court later increased the amount of the child support and the ex-husband attempted to appeal the order. The ex-husband, Omid, claimed to have a lower monthly income that he actually did. Omid filed tax returns for multiple years that showed that he had a lower income than he actually did. The court came across a loan that was signed by Omid that stated his monthly income was drastically more than he had initially claimed from his tax return. The court had the discretion to use the info from the loan as sufficient information to calculate Omid’s monthly income and justify the order for child support.
  • Key Findings: The court can use loan applications that were signed under penalty of perjury to find income information rather than tax returns.
• Carlton: IN RE MARRIAGE Of Carlton:
  • In this case, the couple had gotten divorced and had 2 children during the marriage. The mother initially had custody of the children and the husband was ordered to pay support. The husband ended up getting remarried and had entered a premarital agreement with his new spouse. The new spouse wanted a premarital agreement because she had separate property and funds that she wanted to maintain. The new spouse paid all of her own expenses and filed her taxes separately. The husband wanted to change his custody and ended up getting custody of his minor son. However, after receiving custody, his support orders increased. The court claimed that even though he was filing married but separately, he was capable of filing married and jointly. Furthermore, the new spouse had claimed her mortgage interest deduction on her taxes from the property that she owned separately and paid for with her own funds. However, the court attributed this deduction to the husband even though he was not the owner nor filing jointly with his new spouse. The court ended up vacating the support order and was going to re-determine the support obligations using the husband’s actual tax filing status excluding the mortgage interest deduction that the new spouse was entitled to.
  • Key Findings: Overall, in this case, the court can include a mortgage deduction in fixing child support guideline, unless it was deducted on the new spouse’s separate return.
• Castle, County of Kern v.
  • In this case, the County went after the father of a daughter for child support. They ended up doing a DNA test and tested the paternity of Castle and found him to be the father of the daughter. Castle had 0 visitation or custody of the daughter. The court initially ordered a child support order; however, they changed the order and Castle was ordered to pay a little more than the previous order. The problem is, Castle’s mother passed away and he had inherited some money and property. The county claimed that the court didn’t properly take into consideration the inheritance when calculating the new child support order. Castle received a lump sum of $240,000 and the properties. Castle claimed that the money was spent shortly after used to pay back taxes and debts. This lump sum of money was never considered when calculating child support. The court ended up reversing the initial decision and gave directions that the trial court consider the appropriate factors including inheritance when calculating child support. Furthermore, the child should have the same standard of living based on the capabilities of the parents.
  • Key Findings: The court can impute earnings based on liquid capital asset.
• Cauley: IN RE MARRIAGE Of Gerald and Eileen Cauley:
  • In this case, the husband filed for a dissolution of marriage in 2002. The couple had agreed on spousal support and that the order was not modifiable nor could it be terminated. However, the ex-wife had begun to harass the ex-husband. Gerald, the ex-husband, ended up getting a restraining order in which the ex-wife, Eileen, repeatedly violated. Eileen ended up getting arrested and charged with an aggravated stalking. She was placed on 5 years of probation and another restraining order was set in place. Eileen violated probation and the restraining order. Eileen had gone to Gerald’s residence and damaged his property while also assaulting him. The court ended up granting Gerald’s request to terminate spousal support.
  • Key Findings: The court terminated spousal support based on the fact that wife had a series of domestic violence against the husband.
• Chakko: IN RE MARRIAGE Of Jacob and Asha Chakko:
  • In this case, the husband, Jacob, claimed to make less money that the court had found him to make. The court ordered Jacob to comply with submitting tax returns and other forms regarding proof of income. However, Jacob did not comply and did not submit the required documents. Jacob was ordered to pay child support for his youngest daughter who was still a minor. The court ended up finding Jacob’s gross monthly income to be $40,000 based on a loan application that Jacob applied for. However, Jacob claimed that the loan application was filled out by his broker and that the signature on the application was not genuine. Consequently, the loan officer that was responsible for the financing testified that the information was accurate and that the loan application was legit. The court found that the $40,000 a month income was representative of Jacob’s income and made the child support order based off that.
  • Key Findings: The court can draw adverse inference from documents presented in order to set support.
• Chapman: IN RE MARRIAGE Of Chapman:
  • This case starts off with the divorce of Myrtle and Jonathan. They had been married for 19 years and decided that things were not working out. However, before the divorce finalized, they decided to give things another chance. The couple ended up going through with the divorce to get rid of the “emotional garbage” but got remarried after. The second marriage only lasted around 3 months and they ended up getting divorced. The court did a spousal support order for around $600 a month. However, the court only looked at the second marriage when determining spousal support. Moreover, they appealed the order and the court reconsidered the initial decision for the support order. The court ordered that they would reconsider the amount and duration of the support order.
  • Key Findings: The court can combine the length of two marriages when determining spousal support.
• Charisma R. v. Kristina S. II
  • In this case, the couple was a same-sex domestic partnership. The couple had gotten sperm donation and Kristina was artificially inseminated. There was a chance that the pregnancy was due to Charisma inseminating Kristina at the home; however, there was no way to prove whether it was Charisma’s doing or that it happened from the doctor’s insemination. Furthermore, 7 weeks after the child was born, Kristina ended the domestic partnership and moved to Texas. Charisma wanted visitation of the child but at the time had no standing in asking for visitation. Eventually the court ordered reunification of the daughter and Charisma. However, Charisma asked that the court order Kristina to share the travel expenses that Charisma would be paying in order to visit the daughter. The court found that since there was no child support order, that they couldn’t order Kristina to help pay for the expenses. The court ended up reversing the order and leaving it at the court’s discretion to determine whether having Kristina help with the financial burden for traveling expenses would be in the best interest of the daughter.
  • Key Findings: The support for travel expenses is not considered a form of child support and using the normal guideline to determine child support is still required.
• Cheriton: IN RE MARRIAGE Of Cheriton:
  • In this case, the couple had 4 children together and divorced after 14 years of marriage. The ex-wife, Iris, was a teacher and performed music. The ex-husband, David, was a professor at Stanford University and also was a consultant to a major business. David received stock from the business valued at more than $45 million. Iris ended up appealing the initial support orders stating that the court did not look at all of David’s assets when calculating support. The court ended up reversing the initial decision and looked more closely at the marital standard of living. They took into consideration David’s income, stocks, options, etc. The court also realized that they had the discretion to look at all factors when looking at the marital standard of living and that they had an obligation to not ignore any factors.
  • Key Findings: The court found that there are multiple factors that are included in looking at the marital standard of living and that the court can consider those factors when calculating support.
• Cryer: IN RE MARRIAGE Of Jon and Sarah Cryer:
  • In this case, the couple were married and had a son together. They ended up getting a divorce and Sarah initially had primary physical custody of the child. Jon was ordered to pay a substantial amount of child support. However, there was a dependency action that took place and the child was then placed with Jon. Jon had primary physical custody of the child yet still was ordered to pay child support to Sarah. Jon attempted to request a modification order to change the amount of child support that he had to pay; however, the judge decreased the amount but not to the extent that Jon wanted. Jon attempted to appeal but the court found that there was special circumstances that existed justifying the child support order.
  • Key Findings: Child support paid to the non-custodial parent can be surpass the guideline if it is in the best interest of the child.
• De Guigne: IN RE MARRIAGE Of Christian and Vaughn de Guigne:
  • In this case, Christian and Vaughn got married in 1984 and had two children. In 1996 the couple got separated and Christian was ordered to pay spousal/child support. Christian was born into a family of wealth. He had lived a lavish life and did not work for great periods of time. Christian received a lot of his money from the family’s trusts. During the marriage, the couple would spend upwards over $450,000 on monthly expenses which exceeded Christian’s income. The court ordered Christian to pay $15,000 a month in child support and $12,500 a month in spousal support. Christian attempted to appeal the support stating that the court erred because they looked at the marital standard of living during the marriage which was not representative of their means. He said that the couple was clearly living above their means and that he felt it was unrealistic to use as a basis for support. The court affirmed stating that they acted within their discretion and that they looked at the history of expenses in determining support.
  • Key Findings: The court has discretion to look at the history of living expenses in order to set support.
• Destein: IN RE MARRIAGE Of Destein:
  • In this case, Joseph and Patricia were married with 4 minor children. The couple got divorced in 1999 and had a marital settlement agreement that resolved all the issues except for child support. The court ended up ordering Joseph to pay $2,835 a month in child support. Joseph was retired and had multiple separate properties; however, some of those separate properties did not generate income. The court ended up calculating a rate of return that those properties could generate and included it as part of Joseph’s income. Joseph attempted to appeal the order but the court affirmed stating that they had no limitations on the court’s discretion to impute income when it’s in the child’s best interests.
  • Key Findings: The court can impute a reasonable rate of return on non-income producing assets when setting child support.
• Dick: IN RE MARRIAGE Of Dick:
  • In this case, John appealed the spousal support order that the court had put in place. John claimed that the court calculated the spousal support order based on John’s ability to borrow money and not on John’s income. However, the court denied this and stated that assets including property or non-income assets can be used when calculating the ability to pay for spousal support. Spousal support is based on the needs and the ability to pay. John has assets of up to $20,000,000 that he had placed out of his control but for his benefit. The court took these assets into consideration when they calculated the spousal support that John was ordered to pay.
  • Key Findings: The court has a discretion in what it can use to calculate for temporary spousal support and can order temporary spousal support to meet “reasonable” needs of the spouse.
• Dietz: IN RE MARRIAGE Of Laura and Park Dietz:
  • In this case, Park was ordered to pay spousal support to Laura. They had community property/assets and retirement funds that had been divided at the time of the divorce. Park had requested to reduce/modify his spousal support because Laura had come of age where she could access her retirement funds without penalty. Initially the court granted his reduction in spousal support; however, the decision was remanded. The court stated that they erred and that access to previously granted retirement funds didn’t constitute a material change of circumstances. The court stated that they made a mistake and that the reduction in spousal support wasn’t justified.
  • Key Findings: The court must follow along the rules set out by legislation when modifying/terminating support orders.
• Drake: IN RE MARRIAGE Of Drake:
  • In this case, James and Miriam got a divorce and had one child together. The child ended up being diagnosed with schizophrenia later in life sometime after the divorce. Miriam was taking care of the child and was paying most of the expenses regarding the child’s care. Once the child was an adult, Miriam was still the primary person taking care of her adult child and James was paying child support. However, Miriam’s health was declining and was no longer able to take care of the child by herself. Miriam had to hire someone to come in the home and help take care of the adult child that was diagnosed with progressive schizophrenia. Furthermore, Miriam’s monthly expenses had drastically increased. Miriam requested a modification of child support in order to compensate for the expenses regarding the couple’s adult child. The court ordered James to pay more child support based on the child support guidelines.
  • Key Findings: Child support guidelines apply to adult children that have the insufficiency/incapability to care for themselves.
• Drapeau: IN RE MARRIAGE Of Drapeau:
  • In this case, Louis and Jennifer were married for 21 years before they got divorced. They had 2 children, one who was 18 but still living at home, and one who was a minor. After getting divorced, Louis was making upwards of $1 million per year and Jennifer was making $50,000 a year. Louis was ordered to pay spousal support to Jennifer. Furthermore, Louis had a big retirement plan that was part of his package at work that was constituted during the time of marriage. Initially the court ordered that the retirement plan was Louis’s separate property; however, they remanded the initial decision and stated that it was acquired during the marriage with marital labor. Furthermore, the couple had always put a good amount of money into their savings on a monthly basis. Jennifer appealed stating that the court did not take into consideration the couple’s monthly savings when calculating marital standard of living. The court remanded the initial decision and made corrections when looking at the marital standard of living.
  • Key Findings: There are multiple factors that should be considered when calculating permanent spousal support from the marital standard of living including investments and savings.
• Fam C 4326
  • When a child comes of age, assuming there are spousal support orders in place, the parties may utilize this event as a change of circumstances for the basis of their request to modify spousal support orders. There are a few requirements to utilizing this as a basis for the modification. The request must be filed within 6 months and the child support must not be a result of a marital settlement agreement. Provisions must not be in the judgment determining what would happen after the child turns of age, if spousal support orders are nonmodifiable in the judgment and if spousal support has been previously terminated
  • Key Finding: Child support termination may be the basis for modification of spousal support and may be considered a change of circumstances.[jv2]
• Ficke: IN RE MARRIAGE Of Julie and Greg Ficke:
  • In this case, Julie and Greg had two minor children at the time of their divorce. Julie had the children 95% of the time and was granted spousal support. Greg was making $8,000 a month and Julie was making $251 a month. However, Julie had a startup business and other assets which caused the court to impute a monthly earning of $13,000 a month to her. This ended up causing the court to order Julie to be paying spousal support to Greg. Julie appealed the support orders stating that the court had abused its discretion in making the support orders without substantial evidence that the imputation was in the best interest of the children. The court remanded their decision and found that the orders need to be reconsidered.
  • Key Findings: The imputation of a party’s earning capacity needs to take into consideration the best interest of the child when creating support orders.
• Frietas: IN RE MARRIAGE Of Christine and Kevin Freitas:
  • In this case, the parties were married and had two children together. Christine Freitas petitioned the court for a dissolution of marriage. At the time of the trial, the court made temporary spousal support orders payable to the wife and temporary child support orders payable to the husband. The trial court reserved jurisdiction on the support amounts until the Husband provided additional evidence as to the wife’s income. Because the orders were temporary, a time frame was given on when the additional evidence was to be submitted to the court and the timing of the formal orders were not signed until after the fact, the trial courts were within their jurisdiction to retroactively modify the temporary support orders.
  • Key Findings: Trial court is within its jurisdiction to modify temporary support orders retroactively, in lieu of additional evidence. [jv3]
• Gruen
  • Deborah Gruen and Arthur Gruen were in a marital relationship. Mrs. Gruen petitioned the court for a dissolution of marriage and an OSC for child and spousal support. Mr. Gruen, the Respondent was a doctor and was temporarily ordered at the OSC to pay the Petitioner $40,000 per month in temporary support, pending the following hearing. Shortly after, the Respondent requested a continuance on the OSC, later he requested to have it removed off calendar and to continue the temporary support ordered ($40,000) until the expert completed their report regarding his income. About six months after having the matter off calendar, he requested “retroactive reimbursement” and a reduction of the initial $40,000 support amount. Following the expert’s report, the amount of support was less than the initial amount of $40,000 awarded to the Petitioner. However, due to the timing of the orders, the courts lacked jurisdiction to retroactively modify the orders made more than a year prior.
  • Key Finding: The trial courts exceed their jurisdiction in attempting to retroactively modify temporary support orders. In contrast to Frietas, the timing of attempting to retroactively modify orders was over one year and violated section 3603. Temporary orders “may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.[jv4] ”
• Haggard v. Haggard
  • In this case, Robert and Barbara were divorced and had 2 children from the marriage. Robert remarried and had a daughter with his new wife. Furthermore, Robert was taking care of his new wife’s 3 children from a previous relationship. Robert was paying child support to Barbara for their 2 children that they had together. Barbara was awarded physical custody of the children after the couple had divorced. Robert requested a modification of his child support order due to the fact that he was taking care of his stepchildren as well. The court denied this hardship deduction and found that they did not have the discretion to award a hardship deduction from child support due to the fact of supporting stepchildren.
  • Key Findings: The court cannot issue a hardship deduction for stepchildren.
• Hubner II: IN RE MARRIAGE Of Hubner:
  • In this case, William and Ursula had one child during their marriage. William was an extremely high earner and was ordered to pay Ursula child support. Ursula had sole legal and physical custody of the child. The child left to Japan during high school to participate in an American Field Studies academic foreign exchange program. During this time the court ordered that the child support payments would be suspended until the child returned back to the states and re-enrolled in high school. However, the court remanded their decision and found that the child’s time in Japan was going to be beneficial to the child in regards with high school/college.
  • Key Findings: Just because a child is not going to be in the home, does not mean that child support would not be proper.
• Iberti: IN RE MARRIAGE Of Iberti:
  • In this case, the couple had divorced and set up a marital agreement regarding spousal support. The husband was going to pay the wife spousal support for 4 years. In the agreement, it stated that the spousal support would be non-modifiable and would end after the 4 years. However, there was an agreement that spousal support would terminate if the wife was not a full-time student pursuing her bachelor’s degree and taking a minimum of 10 units each semester/quarter. The ex-husband found out that his ex-wife was no longer attending college and quit paying spousal support. The ex-wife appealed and claimed that the agreement was that she would continue to receive spousal support unless she stopped going to school and pursued a job earning income. The court denied this appeal and found that the appeal carried no weight. The court did not see that the ex-wife’s interpretation of the agreement was valid.
  • Key Findings: The language used in agreements to terminate spousal support must be clear and explicit with no ambiguity.
• Jones
  • In this case, the couple had entered a marital agreement after the dissolution of marriage. The husband was ordered to pay the wife spousal support for a specific amount of time and length. The court increased the amount and length of the ordered spousal support. The husband appealed stating that the marital agreement had explicitly stated that the amount and length of spousal support. However, the court denied the appeal stating that nowhere in the agreement was there any statement restricting the court from modifying the order.
  • Key Findings: The court holds jurisdiction in awarding a party spousal support if there is no clear statement denying modification.
• Katzberg: IN RE MARRIAGE Of Richard and Susan Katzberg:
  • In this case, the child was going to a boarding school on the east coast. The father’s family and family’s trust was paying for the boarding school. The father filed for a modification of child support and the court reduced his support order. The mother appealed stating that the court erred in awarding the time that the child was at boarding school to the father. The court denied the appeal stating that since the father was the primary custodial parent and that his family was paying for the tuition fees, that the time the child is at boarding school should be imputed towards the father’s parenting time.
  • Key Findings: For purposes of calculating child support, the time that a child is in boarding school can be counted towards the timeshare of a custodial parent.
• Kerr: IN RE MARRIAGE Of Kerr:
  • In this case, the court ordered ex-husband to pay spousal support and child support. The couple was married for 20 years before they got divorced and had 2 children in which they shard joint legal custody of. The kids primarily resided with the mother. The father made good money and had future stock options as part of his employment. The court ordered support based off of the income of the father including his future stock options as income. The father attempted to appeal but the court stated that the future stock options are included in his employment plan and should be included as part of his income. Furthermore, the court looked at the previous marital standard of living when looking to calculate support.
  • Key Findings: The court can look at income from stock options when calculating child support. Upper middle/lower can be a sufficient description when determining marital standard of living.
• Knowles: IN RE MARRIAGE Of Knowles:
  • In this case, the ex-husband got remarried to a new spouse. The new couple had community assets together that generated income. When the court went to calculate income for child support, they looked at the total income of the new couple. They included the new spouse’s half of the community assets as income when calculating support. The court reversed the initial ruling, stating that they had violated Family Code 4075.5. When the court calculates income for child support, they are supposed to ignore the income of the subsequent spouse.
  • Key Findings: When calculating child support, the ½ of income of the shares of the new spouse should not be included. If assets, should only be ½ of the obligor’s shares.
• Lambe & Meehan: IN RE MARRIAGE Of Denise Lambe and Clement Meehan:
  • In this case, the ex-wife filed an order to show cause for modification of a support order. There was an adult child that was disabled and the wife wanted more support. However, the ex-husband filed a motion to dismiss the order. This was due to the fact that the couple had a previous stipulation that terminated the support on a definitive date and waived future family law court jurisdiction over support. However, the court denied this stating that “parents cannot agree to divest the family law court of jurisdiction over a support order for an adult indigent child”.
  • Key Findings: Cannot make a stipulation that divests the court’s jurisdiction to award child support.
• Loh: IN RE MARRIAGE Of Pamela and Victor Loh:
  • In this case, the ex-wife wanted to modify child support. She wanted to increase the amount of money she got from child support. The ex-husband had just lost his real estate license and had opened an unrelated business. The ex-wife had pictures of the ex-husband with his girlfriend by a series of cars. Instead of using the ex-husband’s previous tax returns, the ex-wife used these photos as “evidence” for his lavish lifestyle. The judge initially changed the ex-husband’s gross income to around $9k even though his previous tax returns showed a gross income of $68,000 per year. The court reversed this decision and stated that evidence of lifestyle, “particularly a lifestyle subsidized by a new nonmarital partner”, is not a sufficient evidence to substitute for proper discovery of income reported on tax returns.
  • Key Findings: The tax returns that were presumed accurate remain accurate unless there is evidence that shows otherwise.
• M.S. v. O. S.
  • In this case, O.S. appeal an order requiring him to pay for child support for his twins. M.S. had a paternity test done and it was confirmed that O.S. was the father of the twins. O.S. is a member of the Sycuan Band of the Kumeyaay Nation. He claimed that he was unemployed and received $23,000 in monthly income from the tribe which included $7,000 in bonuses. However, on the following year’s tax return, O.S. claimed that he had no income but had bonuses from the tribe. The court included the bonuses from the tribe as income to O.S.
  • Key Findings: Reoccurring bonuses from the tribe can be included as income in calculating child support.
• McHugh: IN RE MARRIAGE Of Charles and Connie McHugh:
  • In this case, Charles wanted to reduce his child support due to having lost his job and making less at his new job. However, Connie wanted an increase in child support due to Charles’s earning capacity at his prior job. Charles lost his job being a salesman due to the fact that he was deferring business to his father’s business. Charles’s previous employer offered him his job back as long as he owned up to the misconduct and paid his employer restitutions. Since the court has discretion to set child support based on a parent’s earning capacity, the court increased child support and based it off Charles’s income from his previous job.
  • Key Findings: Since the husband was capable of the income, and deferred his income to his father’s business to lower his income, the court can impute income to the husband based on previous income.
• McLain: IN RE MARRIAGE Of Colleen and Bruce McLain:
  • In this case, Bruce was a retired firefight who was making about $10,000 a month. Colleen had her real estate licenses; however, she never used it. Colleen was making about $750 a month from her social security. They got divorced and the court awarded Colleen $4,000 a month in spousal support. Bruce attempted to appeal this stating that the court erred in saying that Colleen had a right to retire. Brue thought that since Colleen was the supported-wife, she needed to go out and become self-supporting. However, the court stated that everyone has a right to retire. Colleen and Bruce were both over the standard retirement age of 65. Furthermore, the court took into the couple’s marital standard of living to determine that Colleen needed spousal support in order to maintain a similar lifestyle. Also, the court stated that Colleen was over 65, and that they did not find it right to impute an income to her since there was no evidence of availability of jobs to her.
  • Key Findings: Everyone has a right to retire and it is not proper to impute an earning capacity to an unemployed/retired person over age 65.
• McQuoid: IN RE MARRIAGE Of McQuoid:
  • In this case, the husband and wife had not paid taxes in multiple years. Upon getting divorced, the court awarded the wife child support and spousal support. The husband was ordered to pay $500 for each of the two minor children and $500 for spousal support. The husband appealed this stating that the court had no way of imputing his income. The husband claimed to be making less than $3,500 a month; however, the last tax return that the husband did file had him making $4,500 a month. Since the husband had no other evidence and no way to prove that he was making less, the court imputed his income at $4,500 a month.
  • Key Findings: If a party has a history of nonpayment of taxes, the court can use them in determining net income for calculation of child support.
• Mejia v. Reed
• Morrison: IN RE MARRIAGE Of Morrison
  • In this case, the husband and wife were married for 28 years. The wife had not worked during most of the marriage due to the husband insisting that she stay at home and take care of the two children. After the divorce, the court ordered the husband to pay spousal support. However, the court only ordered spousal support for 8 years, held jurisdiction for another 3 years, then stated that the support would be terminated. The wife had a low blood sugar issue and was only able to work part-time. The wife appealed stating that the court abused its discretion in terminating jurisdiction of spousal support after a lengthy marriage. The trial court agreed and found that without evidence that the wife would be able to provide for herself after the 11 years, that the court should have retained jurisdiction. The trial court reversed the initial ruling.
  • Key Findings: The court abused its discretion when terminating jurisdiction over spousal support after a lengthy marriage.
• Mosley: IN RE MARRIAGE Of Mosley:
  • In this case, the husband was ordered to pay spousal support and child support. Initially, the support was an amount of $10,000 combined; however, the husband became unemployed and had to get another job. The first job that the husband had was at a law firm. He was making upwards of $450,000 a year. However, when the real estate market slowed down the law firm decided to downsize. The husband’s new job only had him making $205,000 a year. This meant that his take home base salary was $10,000-$11,000. The husband attempted to modify the support orders stating that there was a material change; however, the court denied it due to the fact that the husband received a bonus that put his income at $405,000. The trial court reversed this decision stating that the court cannot use a bonus that is based on performance and profitability for determining income. The court ordered that the income be taken from the husband’s base income and that if he received a bonus that he could pay a percentage of it as support.
  • Key Findings: Bonuses that depend on performance & profitability should not be depended on for support.
• Murray: IN RE MARRIAGE Of Murray:
  • In this case, the husband was ordered to pay spousal support. However, the husband was extremely evasive regarding his income. The husband had attempted multiple types of fraud that the court had caught. The husband ended up being ordered to pay a retroactive spousal support and owed the wife a substantial amount of money.
  • Key Findings: Income is one of the most important factors when determining temporary spousal support.
• Naughton: IN RE MARRIAGE Of McNaughton:
  • In this case, the husband and wife were married for 32 years before getting divorced. Initially, the court ordered the husband pay $2,000 a month in spousal support. This order was a pendente lite order. However, the court ended up ordering a permanent spousal support order of $3,500 a month. The husband appealed stating that the court abused its discretion and that there was no change of circumstances to warrant an increase in support. However, the court denied this appeal stating that the statutes that govern the temporary orders and permanent orders are different. The statute that governs the permanent spousal support order only takes into consideration the evidence presented at trial and is de novo. The court deemed that the pendente lite order was irrelevant to a determination of support. Furthermore, the court properly used its discretion in determining spousal support even though the wife had an estate worth $3 million. The husband is not entitled to a disproportionate style of living and the wife must have the similar living in which she was accustom to during the time of the marriage. The court has wide discretion as long as it follows the rules from statutes.
  • Key Findings: The court had discretion in awarding the spousal support even though the wife had an estate worth $3 million.
• Nelson: IN RE MARRIAGE Of Nelson:
  • In this case, the couple had been married and got divorced. However, the couple was separated for a few years before they filed the dissolution of marriage. The ex-wife had already established a new standard of living and was employed. She appealed a spousal support order of $2,000 stating that the court did not consider the marital standard of living. However, the court said that the marital standard of living is a guideline and is not necessarily a “floor or a ceiling”. The court had properly weighed all the factors when determining spousal support. Also, the court said that the marital standard of living is based on the living at the date of separation.
  • Key Findings: Marital standard of living is typically measured back to the date of separation.
• Padilla: IN RE MARRIAGE Of Padilla:
  • In this case, Ronald and Lori were divorced but had a kid together. Ronald was ordered to pay child support of around $600. Initially Ronald had an income of over $5000; however, he had resigned from his employment and opened his own business. Ronald had told the court that eventually his income would surpass that of his previous employment and asked that the court suspend his child support payments until he had an income. The court took into consideration Ronald’s situation but still ordered the child support to be paid. Even though Ronald claimed to not have any ill intentions, he is still capable of a certain income and willingly resigned from his job. The court imputed his previous income to him for child support.
  • Key Findings: The court can impute past earnings to a party if they willfully changed careers for “self-fulfillment”.
• Pearlstein: IN RE MARRIAGE Of Irwin and Julie Pearlstein:
  • In this case, Irwin and Julie were divorced with a child together. Irwin was working for a company and had stocks invested in the company he worked for. Irwin was ordered to pay child support to Julie. Irwin’s company had changed hands multiple times and he was given stocks in the new owner’s company; however, there were restrictions on being able to sell those stocks. Furthermore, Irwin then retired and sold some of his stocks. The court considered the money that he received from stocks as an income when determining child support. Since the money was liquid assets and was not reinvested in stocks, the court was able to use it to calculate child support.
  • Key Findings: When a party sales portions of the business and it is not reinvested into other assets, the court can consider it as income when determining child support.
• Prietsch & Calhoun: IN RE MARRIAGE Of Prietsch & Calhoun:
  • In this case, the couple was married for over 24 years. This is considered a long-term marriage in which support orders typically last longer. The court initially made a ruling to terminate support after 9 years. However, the court ruled in error since it did not take into consideration that the needs of the supported spouse outweighed her ability to support herself. Furthermore, the court didn’t consider if the supported spouse would be able to meet her financial needs in the future since it had already ordered termination of spousal support.
  • Key Findings: The court erred when not retaining jurisdiction over spousal support after a lengthy marriage without any evidence presented that would show that the supported spouse had become self-supporting.
• Regnery: IN RE MARRIAGE Of Regnery:
  • In this case, the ex-husband claimed that the court abused its discretion in multiple scenarios regarding setting child support. He claimed that they had no right to impute income at a time that he was unemployed. Also, he claimed that they abused their discretion by not reducing the support payments when he showed them that circumstances had changed for both him and his ex-wife. Furthermore, he claimed that the judge had no discretion to personally retain jurisdiction over the future modification of support. Most of these claims were based on the fact that the ex-husband was unemployed; however, the court does have discretion to impute an earning capacity based off previous earning capacity/potential. Overall, there are multiple statutes that cover each of the claims that the ex-husband had made. All of the statutes show that the court does have discretion over multiple factors regarding child support. The court affirmed their initial ruling and stated that the court did have discretion/jurisdiction.
  • Key Findings: Statutes show a wide use of the earning capacity doctrine when attempting to set child support.
• Richmond: IN RE MARRIAGE Of Gudrun and Henry Richmond:
  • In this case, Henry and Gudrun had been married for 16 years before getting a divorce. The couple did not have a child together during their marriage. Henry was ordered to pay spousal support to Gudrun until a later date set by the court in which they would reevaluate need before potentially terminating support. Gudrun was unemployed during most of the marriage; however, she had earned a master’s degree during the marriage. At the time of the support order, Henry had been unemployed for 2 months. The court found that it had properly taken into consideration the financial needs, evidence, and other requirements necessary when calculating support. Furthermore, the court didn’t abuse its discretion by setting a later date in which it would reevaluate the situation to deem whether it was a proper time to terminate support. Also, the court reasonably took into consideration the evidence given when granting Henry’s appeal to lower spousal support.
  • Key Findings: An order reducing support must be supported by a record. This record must justify the timing of any change in the duration or time of support.
• Romero: IN RE MARRIAGE Of Linda and Paul Romero:
  • In this case, Paul appealed an order from the court modifying spousal support. Paul wanted to modify spousal support because he had gotten diagnosed with Parkinson’s disease and was now on retirement. His gross monthly income had lower from what spousal support was previously calculated from. The court denied his motion due to the fact that his new spouse had a higher gross monthly income and was paying some of Paul’s expenses. However, the court claimed that they had made an error in considering the new spouse’s income. The court stated that on the new hearing they must only consider the husband’s reduced monthly net income and the relevant factors.
  • Key Findings: If a party has a new mate, the new mate’s income must not be considered whether it be directly or indirectly when determining spousal support.
• Rosenfeld & Gross: IN RE MARRIAGE Of Rosenfeld and Gross:
  • In this case, Rosenfeld and Gross were married with 3 children. In the marital settlement agreement, they agreed to equally help pay for the minor children’s college when the time came. When it came time to help pay for college, Gross requested to modify the order stating that she has become disabled and her income was drastically increased. The court initially denied her request stating that since the order did not list helping the children with college as “child support”, that they didn’t have the jurisdiction. However, the court reversed the initial ruling stating that while the parent’s do have the ability to contract to restrict the court’s jurisdiction to modify an adult child support order, that in this situation they did not.
  • Key Findings: The language used in the judgment needs to be specific and can leave it open to be modified if not so. This was in regards to adult child support which is a limited area.
• Schlafly: IN RE MARRIAGE Of Julie and Roger Schlafly:
  • In this case, Julie and Roger were married with children. At the time of divorce, Roger was ordered to pay child support to Julie. Robert and Julie shard the kids 50% of the time. However, Roger was living in a home that was mortgage free. The court ended up using this to deter from the normal guideline in calculating child support. The court imputed a greater income to Roger due to the fact that he was not paying expenses on the mortgage of the home he was living in.
  • Key Findings: The court has discretion to consider discretionary child support add-ons. The court can consider mortgage-free housing when deviating from the child support guideline.
• Schmir: IN RE MARRIAGE Of Judy and Maurice Schmir:
  • In this case, Judy was receiving $5,800 a month in spousal support from Maurice. Judy was 61 years old and had previously been unemployed for 14 years. Judy was appealing an order from the court that terminated her spousal support and imputed an income to her. Judy claimed that the court did not have enough evidence nor did they give her a reasonable amount of time to secure employment. Moreover, the court denied her appeal stating that they did have substantial evidence to terminate her support; however, they said that they did err in terminating the support so abruptly. The court abused its discretion in not allotting Judy a reasonable notice and an opportunity to find a job.
  • Key Findings: The court needs to give expectations for a reasonable time for the party to become self-supporting.
• Schopfer: IN RE MARRIAGE Of Barbara and William Schopfer:
• Schu: IN RE MARRIAGE Of Schu:
  • In this case, the husband and wife were married for 23 years. However, they got divorced after the wife had been convicted for multiple counts of unlawful sexual intercourse with a minor. The wife then filed for spousal support before she was released from prision. The hearing was supposed to take place after she got out of prison; however, the husband was out of the country so it had to be rescheduled. There was a second hearing but once again something came up and it had to be rescheduled. The court then denied the spousal support claiming that they no longer had jurisdiction. In the marital settlement agreement, the order said that the court held jurisdiction “until” the wife was released from prison. The court remanded the initial ruling stating that they too narrowly viewed the word “until”.
  • Key Findings: The terminology/language used in the judgement can determine how modifiable a spousal support is.
• Schulze: IN RE MARRIAGE Of Schulze:
  • In this case, ex-husband was ordered to pay a family support order. However, he appealed the order because it took more than 83% of his monthly income after taxes. The court used a temporary support calculator to calculate the permanent support ordered. They stated that they made a mistake because the temporary support calculator normally calculates a higher number than the permanent support due to the fact that it is intended to maintain the status quo prior to the divorce. Furthermore, the court took the ex-husband’s perquisites that he had from his employer and considered them non-taxable which increased his overall income. The court also stated that they made and error and that his overall disposable income was overstated.
  • Key Findings: The court can consider perquisites as income that is used when calculating support if taxable.
• Shimkus: IN RE MARRIAGE Of Shimkus:
  • In this case, the ex-husband was a fireman that was ordered to pay around $4,000 in spousal support. The first $3,000 was in spousal support, and the last $1,000 was in a non-modifiable support order. The husband was going to retire and requested a termination of spousal support. The court stated that since he was retiring at age 61 instead of 65, that it could still calculating earning capacity of him even though his income would be reduced because he was not working. However, the ex-wife had begun pulling out money from her pension plan which increased her income by $3,000 a month. According to a previous family law case “Sink”, the court decreased spousal support dollar for dollar which resulted in the termination of spousal support.
  • Key Findings: The retirement of a party at the normal age of retirement is grounds for considering modification of spousal support.
• Smith & Maescher: IN RE MARRIAGE Of Smith & Maescher:
  • In this case, the ex-husband, Maescher, offered to help the two children pay for their college tuition. Smith and Maescher had a marital settlement agreement in which Maescher would pay for the tuition of the children. This created a third party beneficiary contract. However, one of their sons, Peter, was not doing that well in college so Maescher told him he would not pay for his tuition unless he maintained a “B” average. Peter was forced to come up with his own money for his tuition in which Smith loaned him the money. At the end, Maescher gifted Peter money in which he said he should pay back Smith; however, Smith refused to take the money. Smith then wanted the court to order Maescher to pay smith the money. However, the contract was for Peter to get the benefits and it was Smith’s decision to refuse the repayment of money.
  • Key Findings: The court has jurisdiction to enforce the terms of a trust.
• Smith, County of Orange v.: Country of Orange v. Smith:
  • In this case, the father had a cabinet installation business. He rented a home that would house his business of operation. After the separation, he lived in the rental home and took in a roommate. The roommate would give him $600 a month for rent. The court took the $600 that the husband received in rent from the roommate into consideration when calculating child support. The court stated that this money could be construed as either sublease income or a special circumstance when calculating cash flow available for child support.
  • Key Findings: Subletting a space in the home to a tenant can be considered as income when calculating child support.
• Smith: IN RE MARRIAGE Of Smith:
  • In this case, the ex-husband was ordered to pay child support. However, he was incarcerated for child pornography for 21 months. The court terminated his child support stating that he had no earning capacity. However, he did have money in his 401k plan that the court used to pay for child support until it was extinguished.
  • Key Findings: Incarceration is not a defense to earning capacity. While the court cannot impute and earning capacity to an incarcerated parent if they have no opportunity to work, it does not mean that they cannot consider the incarcerated parent’s other assets to use as income.
• Sorge: IN RE MARRIAGE Of Joseph and Maryanne Sorge:
  • In this case, Joseph was ordered to pay child support to Maryanne. However, Joseph appealed stating that the court didn’t take into consideration his bona fide business expenses when calculating his monthly income. The court stated that they did not err when calculating his income for child support. Furthermore, the court did state that they made an error when sanctioning Joseph to disclose his material changes in his financial status until the court no longer had jurisdiction. Joseph only has to disclose material changes until the final judgement is made.
  • Key Findings: The parties have a fiduciary duty to disclose income changes until the final judgement is made. Furthermore, the court can still impute income even though a party made failed business losses.
• Stallworth: IN RE MARRIAGE Of Carol and William Stallworth:
  • In this case, William was ordered to pay Carol spousal support until she remarried, died, or until the court ordered otherwise. William and Carol were married for over 14 years. William was a plumber making over $50,000 annually while Carol had been unemployed most of the time. The court ordered Carol the family home to help with her finances while she pursued her bachelor’s degree. Also, their child had some psychiatric problems in which Carol was tending to. William claimed that the court erred in not setting a timetable for the termination of spousal support. However, the court stated that they can hold jurisdiction to extend support of a lengthy marriage unless there is clear evidence that the supported spouse will be able to adequately meet their financial needs. Furthermore, based on a previous case, the court also found that “orders providing for absolute termination of spousal support on a specified date are disfavored.”
  • Key Findings: The court disfavors a specific date for absolute termination of spousal support after a long term marriage.
• Stewart v. Gomez: RobertStewart v. Maria Gomez:
  • In this case, Robert claimed that the court erred in considering his earning capacity and his disability benefits as his gross income. Furthermore, the court considered his rent-free housing on an Indian reservation in his gross income as well. Robert was ordered to pay child support for his 3 children that he had with Maria. The court has broad discretion on considering multiple factors when calculating child support. The court did look at Robert’s free housing, his disability benefits, and his earning capacity of at least minimum wage when calculating his gross income for child support. According to the Agnos Child Support Standards Act, “the reasonable value of nonmonetary benefits received by a parent was chargeable as part of the parent’s gross income.”
  • Key Findings: The court can consider including free housing benefits as income when calculating child support.
• Stupp & Schilders: IN RE MARRIAGE Of Steven Stupp and Annemarie Schilders:
  • In this case, Steven was given sole legal custody of the single child from his marriage with Annemarie. Furthermore, Annemarie was ordered to undergo a vocational evaluation. Annemarie appealed the vocational evaluation that Steven had ordered because there was no legal or factual basis for ordering it. The court affirmed her appeal stating that there was no support motion pending that required a vocational evaluation.
  • Key Findings: Using Family Code 4331, a vocational evaluation can only be ordered if support is at issue pending the proceeding.
• Sullivan: IN RE MARRIAGE Of Sullivan:
  • In this case, Janet and Mark Sullivan were married for 9 years. During this marriage, Mark was pursuing his medical degree and Janet was helping with the costs along the way. After Mark had finished his medical degree, he filed for a dissolution of marriage. Janet appealed the courts claim to not considering Mark’s medical degree when calculating spousal support. Janet claimed that the marital standard of living during the marriage was not representative due to the fact that she was making sacrifices to help Mark get through medical school in which there would be a new marital standard of living. Due to new legislation in the Family Law code, there was a new statute which stated that community contributions to education or training that substantially enhances the earning capacity of the party needs to be reimbursed. It also claims that the court should take into consideration the extent of which the supported spouse contributed to the attainment of an education, training, or license by the other spouse. Overall, the court awarded Janet reimbursement for the education which would increase the amount of spousal support she received to be higher than the marital standard of living.
  • Key Findings: The court can consider contributions to earning capacity when attempting to fix future spousal support that will be above the marital standard of living.
• Terry: IN RE MARRIAGE Of Terry:
  • In this case, Thomas was ordered to pay spousal support to Mary. However, Mary had separate property that had put her at a net worth greater than Thomas. That being said, the court imputed an income to her based off the reasonable 5% rate of return from her assets. However, Mary did still not have enough income to meet her expenses and needs. The court ordered Thomas to pay spousal support based off of his income, the marital standard of living, and his ability to pay.
  • Key Findings: The court can impute income on assets when calculating spousal support.
• Tydlaska: IN RE MARRIAGE Of Lee and Darlene Tydlaska:
  • In this case, Lee had filed and income and expense declaration for the year of 2001. However, when the court heard the case in August of 2002, there was no current income and expense declaration on file. The court then denied Lee’s request to modify spousal support because there was no income and expense declaration on file.
  • Key Findings: The party needs to have a current income and expense declaration.
• Usher: IN RE MARRIAGE Of Kinka and Frederique Usher:
  • In this case, Frederique requested to reduce his child support due to the fact that his employment income had been reduced. However, Kinka appealed stating that the court did not consider her ex-husband’s overall wealth and that they did not state a reasonable rate of returns on his assets that would constitute a change of circumstance resulting in a reduction of support. The court found this to be the case and stated that due to the fact of not considering a reasonable rate of return on Frederique’s assets, that his change in employment income did not affect him enough to be considered a material change of circumstances warranting the child support reduction.
  • Key Findings: The court needs to impute a reasonable rate of return on a party’s assets when determining whether there has been a change of circumstances or not.
• Vomacka: IN RE MARRIAGE Of Joyce and William Vomacka:
  • In this case, William appeals the court stating that they extended spousal support for Joyce after the termination date of support in their interlocutory judgement of the dissolution of the parties’ marriage. The court referred to the decision in the case of Moore and found that they did have the jurisdiction to extend spousal support beyond the specified date.
  • Key Findings: “Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences.” This was a finding in Moore and refers to the waiving the rights of spousal support.
• Walker v. Grow: Elinor Walker v. Ronald Grow:
  • In this case, Elinor and Ronald were never married but had two children together. Ronald was ordered to pay child support to Elinor. However, Elinor claimed that the court erred in calculating child support based off of Ronald’s income. Ronald’s federal tax income stated that his adjusted gross income was $272,835; however, his financial statement to the court claimed that his income was $149,988 a year. The court investigated the earnings and ended up calculating Ronald’s income at around his financial statement.
  • Key Findings: If the court finds that a party is manipulating income to avoid paying support, the court can consider corporate income.
• Watt: IN RE MARRIAGE Of Elaine and David Watt:
  • In this case, Elaine and David were married for a little over 9 years. Throughout their marriage, David was pursuing his education beginning in undergraduate and completing through medical school. The couple got separated a little after David had received his medical degree. During the marriage, Elaine was working full-time using all of her income for all of the family expenses. The court initially did not order David to pay spousal support to Elaine due to the fact that she was self-supporting and was already at the marital standard of living that occurred during the marriage. However, on an appeal by Elaine, the court realized that they made an error due to the fact that the marital standard of living was only that way due to the fact that David was a student and all of Elaine’s money was going to family expenses.
  • Key Findings: If a party is living below their means that does not warrant a ceiling on the marital standard of living when determining future spousal support.
• Weinstein: IN RE MARRIAGE Of Stephen and Jill Weinstein:
  • In this case, Stephen was ordered to pay spousal support to Jill. Stephen had a financial advisor that went through and calculated the family income and expense during the period of the marriage. The court then took this average income as the income for Stephen when determining spousal support. Jill did not work and requested more support than the court ordered. Jill felt that the court erred when regarding the averaged income. However, the court claimed that at times the party was living outside of their means, due to the monthly expenses exceeding the monthly income at times.
  • Key Findings: The court can average income when determining spousal support.
• Wilson v. Shea: Robin Wilson v. Michael Shea:
  • In this case, Robin and Michael had a child together. Robin applied for child support and also moved out of Southern California to live with her mother in South Carolina. Furthermore, Robin had damaged the relationship between the daughter and Michael. The court found that it is in the child’s best interest to rekindle the relationship with Michael. In doing so, the court ordered that the amount of child support Michael has to pay be reduced a little with that money going into a fund in order to pay for Michael to travel to visit his daughter in South Carolina.
  • Key Findings: The court can establish a child support trust for travel expenses if found that it is in the best interest of the child to maintain the relationship with a parent.
• Winter: IN RE MARRIAGE Of Sandra and Thomas Winter:
  • In this case, Sandra and Thomas were married for 22 years. Sandra was a nurse/teacher while Thomas was a physician/lawyer. They had enjoyed a modest lifestyle and had invested money into other assets such as stocks/bonds. Sandra had requested temporary spousal support and the court had ordered it. When considering income and marital standard of living for determining spousal support, they had included the assets such as the stocks and bonds. The court felt that just because the couple had not lived as lavish as a lifestyle as possible due to investing money into stocks/bonds, that it did not result in Sandra having to live a lesser lifestyle than she had become accustom too.
  • Key Findings: The court properly considered the savings and investments that the couple had when determining temporary spousal support.
• Wittgrove: IN RE MARRIAGE Of Alan and Perri Wittgrove:
  • In this case, Alan and Perri had two children together during their marriage. Alan filed for a dissolution of marriage and Perri filed for child support/spousal support. Alan was a general surgeon with an income of around $2 million a year. Perri had a medical practice of her own but only earned around $100k - $200k a year. Perri had requested spousal support to maintain the standard of living during the marriage which included putting money into savings monthly. Alan attempted to appeal asking the court to do it as a needs basis and imputing a higher income to Perri due to the fact that she was capable of more income than what she was currently earning. The court slightly adjusted from the normal guidelines when determining spousal support.
  • Key Findings: The court can follow guideline formula when determining temporary spousal support.
• Y.R. v. A.F.: Y.R. V. A.F.:
  • In this case, Y.R. is going to be the appellant and A.F. is going to be the respondent. The respondent was ordered to pay child support to appellant; however, the court deviated from the guideline support. The court awarded child support to appellant that was lower than what the guideline found. Appellant appealed the order stating that the court did not state a reason as to why the court deviated from the guideline. Furthermore, the appellant stated that the court considered the appellant’s lifestyle opposed to considering the respondent’s lifestyle and high earning capacity when determining child support. The court realized that they had made an error and failed to comply with Family Code section 4056. They reversed the initial ruling and remanded for consideration under the correct criteria.
  • Key Findings: The court must state what caused them to deviate below the child support guideline if it is in the child’s best interest.
• Zywiciel: IN RE MARRIAGE Of Susan and Philip Zywiciel:
  • In this case, Susan requested spousal support from Philip. The couple had been married for 19 years and had 2 children together. Susan had primary physical custody of the children and they shared legal custody. Philip had been ordered to pay child support for the children. When one of the children turned 18, Susan asked for spousal support claiming that there was an increase in her expenses and that the now adult child was still living with her yet she was not receiving child support for the adult child anymore. Philip stated that this was short-lived and that the adult child had moved out. Susan was requesting permanent spousal support and the judge did not look at any of the other factors when determining spousal support. Instead the judge used the Dissomaster and awarded temporary support. The court reversed this decision stating that the judge must consider all the factors when awarding permanent spousal support and that a discrepancy in income is not enough alone to award permanent spousal support.
  • Key Findings: The court cannot rely on the income of the parties alone when determining the awardance of permanent spousal support.

Opposing a Request for Support

• Alter: IN RE MARRIAGE Of Jack and Cindie Alter:
  • In this case, Cindie was appealing a judgment that reduced spousal support and child support. Jack claimed that his income was insufficient as to meet the needs of the support orders. Jack had inherited a business from his father and some income from his mother. However, the income was not at the extent that he had thought when entering the marital agreement. Furthermore, Jack did receive $6,000 a month from his mother in which he used to pay the rent and other expenses. The court included this money as his gross income because it had be reoccurring for many years. The court has discretion on things that it can include as gross income; however, there are limitations. Gross income is considered “income from whatever source derived”.
  • Key Findings: The court has a broad discretion as to what they can include as a party’s gross income; however, there is a subdivision of the statute that has a list of exclusions.
• Andreen: IN RE MARRIAGE Of Kenneth and Jean Andreen:
  • In this case, wife appealed the spousal support order of $500 a month that was to be paid by the husband. The couple had been married for 27 years before separation. The husband was a superior court judge and the wife had been a teacher. However, she had tought for about 10 years but had not been teaching for the last 4 years of the marriage. The husband’s annual income was about three times as much as the wife’s annual income. Furthermore, at the time of the trial, the wife was getting secretarial training; however, she had reoccurring arthritis which may affect her employment expectations. The court realized that they made an error when calculating the $500 spousal support because the husband’s marital standard of living would be drastically greater than the wife’s. This is not right especially after a lengthy marriage of 27 years.
  • Key Findings: The court has to consider the marital standard of living needs of both of the spouses.
• Antoni, County of Lake v.: County of Lake v. Antoni:
  • In this case, the County was trying to appeal a child support order that was lower than the guideline support. Antoni was paying child support for his son Neil who lives with his mother full-time. Furthermore, Antoni lives with his new wife, his eight year old son, and his step daughter. Antoni has a monthly income of $1,978; however, he has extensive personal debts for revolving credit accounts etc. which require a monthly payment of $1,378. Some of the personal debts is for living expenses for his children and wife. The court decided that this warranted a deviation from the guideline child support and ordered Antoni to pay less than guideline support. They cited that Antoni’s providing for the two children that live with him would entitle him to a hardship deduction; furthermore, that the debt was “seemingly incurred for living needs.”
  • Key Findings: A party paying off extraordinarily hard consumer debt obligations justified deviation from using the guideline amount of child support.
• Bardzik: IN RE MARRIAGE Of Yvette and Jeffrey Bardzik:
  • In this case, Yvette and Jeffrey were both deputy sheriffs. They had two children together one of which was an adopted special needs child. Jeffrey ended up getting custody of the special needs teenager while they shared custody of the other child. Yvette was 42 years old and retired from the sheriff’s department. Jeffrey wanted the court to impute and income to Yvette that was close to the amount of income that she was receiving before she retired. However, Jeffrey did not show any evidence of Yvette’s vocational abilities or opportunities to warrant the imputation of income.
  • Key Findings: The burden of proof is on the party that is seeking to modify support or seeking to establish an earning capacity.
• Beck: IN RE MARRIAGE Of Dorothy and Jack Beck:
  • In this case, Dorothy and Jack were married for 14 years. Jack paid spousal support to Dorothy for 7 years until it ended. During this period, Dorothy did not make a requests to modify spousal support. However, 16 years after the initial ruling for spousal support and long after the spousal support ended, Dorothy motioned to get spousal support and the court granted it. Jack appealed it stating that the court did not have jurisdiction to reinstate spousal support after the termination date. The court found this to be correct and reversed the order.
  • Key Findings: After the spousal support termination date has passed, the court no longer has jurisdiction to award spousal support.
• Blazer: IN RE MARRIAGE Of Scott and Karen Blazer:
  • In this case, the wife was appealing the court’s decision to exclude some of his income when calculating spousal support. Scott owned a business in which Karen was already given a portion of after the divorce. The business has capital in it which is income that is excluded from the spouse’s income when calculating support. The business needs to keep capital in it. The court stated, “The need to maintain higher capitalization in the company and the need to diversify the company's work are reasonable expenses that should not be charged against [husband's] income but rather should be taken out of the company before assessing what his reasonable income is for purposes of support.”
  • Key Findings: The court has the discretion to consider the need for enterprise capitalization of earnings when calculating income that is available to determine spousal support.
• Bodo: IN RE MARRIAGE Of Martin and Alli Bodo:
• Brand:
• Bukaty: IN RE MARRIAGE Of Katherine and Daniel Bukaty:
  • In this case, Katherine and Daniel were married for 12 years before they divorced. However, soon after the divorce, they began living together again. They lived together for a period of time before deciding to get remarried long after the initial divorce. However, this second marriage did not last more than 2 years and they were divorced again. Katherine wanted the court to include the time that they lived together, cohabitation, when determining the length of the marriage for spousal support. However, the court does not see cohabitation tacked on to the length of the marriage due to the family law statutes.
  • Key Findings: The court will not include cohabitation time when determining the length of the marriage.
• Burlini: IN RE MARRIAGE Of Dorothy and Narciso Burlini:
  • In this case, Dorothy and Narciso had been married for over 24 years. During the length of the marriage, Narciso opened a community coin laundry business in which he made the repairs and Dorothy was the bookkeeper. Narciso was ordered to pay $850 temporary spousal support and then $700 permanent spousal support after the temporary support wore off. Dorothy claimed that the court abused its discretion in having a lower amount than the Santa Clara Superior Court would have. The judge stated that he was not sure whether their figure was regarding temporary or permanent spousal support, and that the two drastically differ in intentions. There is no one guideline that is to be used for both temporary and permanent spousal support. The court affirmed the order that they did not abuse discretion.
  • Key Findings: The guidelines used for temporary spousal support are not used to fix permanent spousal support. There are different factors taken into consideration when determining the different types of spousal support.
• Butler & Gill: IN RE MARRIAGE Of Michael Butler and Martha Gill:
  • In this case, Michael and Martha were married for a short period of time. They had three children together that primarily lived with Martha. Michael was ordered to child support to Martha. However, the court reduced his gross income because he was helping support his elderly mother. Michael was ordered to pay $700 in child support; however, without the hardship, Michael would have been ordered to pay $1000 in child support due to his gross salary. Martha appealed the order stating that the court abused its discretion in finding that Michael had an extraordinary/unusual hardship. They found that the need to support his mother was not unusual or extraordinary as to diminish Michael’s obligation to his children.
  • Key Findings: The court found that paying for an elderly parent’s mortgage is not considered a financial hardship when trying to reduce the child support calculation.
• Carlsen: IN RE MARRIAGE Of Donald and Lynnette Carlsen:
  • In this case, Lynnette was requesting a modification of child support from Donald due to the fact that Donald had gotten a second job increasing his income. Donald appealed the court’s order which considered Lynnette’s new husband’s income when modifying support. The court was determining Lynnette’s income when trying to calculate the support and in order to do that they needed to deduct the amount of money that she would be paying for taxes. Since Lynnette was remarried, she would be filing “married filing jointly”. This meant that the court needed her new husband’s income since it would be determining the amount of taxes that they would be paying that would be deducted from gross income when calculating support.
  • Key Findings: The court should consider the new mates income when determining the tax burden in calculating the guideline child support.
• Castle, County of Kern v.: County of Kern v. Edward Castle:
  • In this case, the court initially didn’t take into consideration the inheritance that Edward had received from his mother when calculating child support. Edward had inherited a lump sum of money, properties, and a properties with rental income. Initially, the court didn’t consider many of the benefits that Edward received from this inheritance. On revision, they took into consideration that Edward was now living mortgage free, his income has increased from the rental properties, and other decreases in living expenses.
  • Key Findings: While inheritance is not considered income when calculating child support, the money that can be earned from the inheritance can be considered income in regards to child support.
• Cecilia & David W.: IN RE MARRIAGE Of Cecilia and David W:
  • In this case, Cecilia and David had a child together. After the divorce, Cecilia had primary physical custody of their son Robert. Cecilia wanted to get child support for Robert even though he was an adult due to the fact that he “could not work”. Robert had Tourette’s syndrome and had ADHD. However, Robert’s psychologist stated that he felt that Robert could work, but he would have a hard time working and maintaining his schooling. Overall, the decision was reversed because the court improperly applied the legal standards.
  • Key Findings: In order to receive adult child support, the court has to find the adult child incapable of being self-sufficient due to either physical or mental disabilities and incapable of working.
• Chandler: IN RE MARRIAGE Of Lana and Bruce Chandler:
• Cohen: IN RE MARRIAGE Of Lauralin and Richard Cohen:
• Cohn: IN RE MARRIAGE Of Howard and Patricia Cohn:
  • In this case, the Howard was ordered to pay support to Patricia. The court imputed an income to Howard for calculating child support. Howard had been previously employed but his employer had filed bankruptcy and let Howard go. In order to impute an income to a party, the court has to take into consideration the party’s education, willingness to work, and the opportunity to work. The court ended up defining “opportunity to work” as the likelihood that a party could apply their skills/education to produce income. The court found that Howard did have the opportunity to work and imputed an income to him.
  • Key Findings: When attempting to impute an earning capacity towards a party, there must be tangible evidence of the opportunity to work.
• DaSilva v. DaSilva: Jose DaSilva v. Sharon DaSilva:
  • In this case, Jose and Sharon had an ongoing dispute regarding child support. Initially, the court concluded that Jose’s timeshare was 42%. The court needs to find the timeshare of the parent’s and the timeshare of the “high earner” when determining the amount of child support. However, on an initially remand, the court reduced Jose’s timeshare to 29%. Jose disputed this stating that he felt that the court misinterpreted a newer case regarding changes in determining child support. On remand, the court found that Jose was correct and that the court did miscalculate his timeshare percentage. When determining timeshare, the court can impute time towards a parent for things that the parent does for the child such as: a parent paying for or doing the transportation, responsible for responding to medical emergencies, responsible for paying tuition, or who participates in school-related functions/activities.
  • Key Findings: The court can impute timeshare towards a parent based on if that parent is doing things for the child such as paying their tuition/other expenses or participating in school activities.
• De Guigne: IN RE MARRIAGE Of Christian and Vaughn de Guigne:
  • In this case, Christian and Vaughn had been married with children. Christian had extraordinary wealth from inheritance. He had inherited properties and assets worth a lot of money. In determining spousal support and child support, the court awarded Vaughn spousal/child support. Furthermore, the court awarded Vaughn additional payments that would include money for finding future housing/deposits and if there was excess that it would be divided into child/spousal support. However, Chrisitian appealed stating that this was an abuse of discretion in that the court could not award additional child support payments. The court awarded Vaughn “a lump-sum award of $30,000 (comprised of $10,000 in child support and $20,000 in spousal support) for payment of any required rental housing deposit, with the remaining balance to be used for purchasing furniture”. The court agreed with Christian in that this was an abuse of discretion. The court stated that they had “no discretion to fashion its own add-ons absence of statutory authorization.” There was no statutory authorization for the lump-sum of money that was proportioned as “child support”.
  • Key Findings: The court had no discretion in creating new forms of child support “add-ons”. Any add-ons must have statutory authorization.
• Drake: IN RE MARRIAGE Of Terri and Glenn Drake:
  • In this case, Terri and Glenn had a son together who was emancipated. Glenn was ordered to pay adult child support for his son. His son, Dallas, is a fully emancipated adult who has several psychiatric and learning disorders; furthermore, he does not possess the means to pay for his own living expenses. Dallas appealed the courts order for adult child support and that the adult child support had to be paid to Terri, which she was using for her own expenses. The court affirmed that they were correct in ordering adult child support due to the fact that the adult child was incapacitated from providing for their own means; however, the court reversed the decision having the support payments go to Terri. Dallas lived in a residential treatment center and Terri was not his conservator, guardian, or legal representative.
  • Key Findings: If ordered to pay adult child support, the support must go to the adult child, and cannot be a form of spousal support.
• Edwards v. Edwards: Sharon Edwards v. Oscar Edwards
  • In this case, Sharon and Oscar entered a marital settlement agreement after their divorce that stated Oscar would pay child support for the child until the age of 25 or until the child completed 4 years of college. Oscar was appealing a post judgment order denying his motion to terminate the adult child support due to a change of circumstances. However, the court did not terminate the adult child support but reduced it according to the statewide uniform guideline used in determining child support. The court reversed this decision stating that due to the fact that neither parent retains “primary physical custody” for the adult child for any percentage of time, due to the fact that it is an adult child, that the guideline formula is inapplicable to this scenario.
  • Key Findings: The uniform guideline for child support does not apply to an adult student.
• Eggers: IN RE MARRIAGE Of Thomas and Candace Eggers:
  • In this case, Thomas was let go from work for misconduct at work. The court imputed an income to him for purposes of support in order to have the best interest of the children taken care of. However, upon appeal, the court reversed the decision stating that the court cannot impute income automatically upon loss of employment. Thomas was let go from work for surfing internet porn while at work. The court stated that the initial court didn’t allow the father to show that he did not have the ability or opportunity to work. The court reversed the order and remanded the matter to trial court.
  • Key Findings: The court cannot impute income for support order when the husband did not voluntarily divest himself of the job.
• Gruen: IN RE MARRIAGE Of Deborah Goodman and Arthur Gruen:
  • In the case, the court made a child and spousal support retroactive in favor of the wife. However, the court took a temporary support order and made it retroactive. According to legislation, temporary orders are not meant to be made retroactive. Furthermore, the court did not have jurisdiction over the matter to be able to make the order retroactive. There was no current OSC at the time that the court made the support order retroactive. This meant that the court did not have jurisdiction to make the order retroactive.
  • Key Findings: The court has to have jurisdiction when making a support order retroactive; furthermore, the court loses jurisdiction if the OSC is off calendar.
• Hebbring v. Hebbring: IN RE MARRIAGE Of Cindy and Jess Hebbring:
  • In this case, Jess and Cindy had been married for a little over 2 years before they separated. The court ordered Jess to pay spousal support of $500 per month for a about a year after the dissolution of marriage; however, the court reserved jurisdiction over the spousal support after its termination in case they wanted to continue it. Jess claimed that this was an abuse of discretion due to the fact that it was a short term marriage. The court sided with Jess in that it was an abuse of discretion and reversed the retention of jurisdiction over spousal support.
  • Key Findings: The reservation of jurisdiction over spousal support in short term marriages can be considered an abuse of discretion.
• Heiner: IN RE MARRIAGE Of George and Cathy Heiner:
  • In this case, George and Cathy were married and had two daughters from the marriage. George was a dentist for about 10 years before he had an incident at Kmart. George was then put on disability and was awarded a lump sum of money from Kmart after a law suit. However, Kmart never differentiated if the money was for lost earnings, etc. The court concluded that the money from the personal injury claim was not considered income for purposes of child support.
  • Key Findings: The undifferentiated personal injury settlement that wasn’t specified as ‘lost earnings’ is not considered income for child support.
• Heistermann: IN RE MARRIAGE Of Marilyn and Forrest Heistermann:
  • In this case, Marilyn and Forrest were married for a little of 8 years. However, Marilyn had been unemployed for some time and had arthritis which limited her options on employment. Even though this was not necessarily a long term marriage, the court can still retain jurisdiction on increasing the length of spousal support.
  • Key Findings: In regards to short term marriage, the court has jurisdiction to balance factors when attempting to increase or terminate spousal support.
• Henry: IN RE MARRIAGE Of Daniel and Shelley Henry:
  • In this case, Daniel and Shelley had two teenage sons together. Shelley was ordered to pay Daniel child support for the two children; however, she had become pregnant and attempted to modify the child support order. Shelley had complications both during and after the pregnancy which had caused her to lose employment therefore reducing her income. However, when she attempted to modify support, the court had actually raised the child support that she paid for one of the children. Shelley challenged the court’s calculations for child support and the court ended up reversing the decision based on the fact that they should not include Shelley’s increased equity in her home as income.
  • Key Findings: The court should not consider unrealized equity in a party’s residence as income when using the guideline child support calculations.
• Hinman: IN RE MARRIAGE Of Aisha and Howard Hinman:
  • In this case, Aisha and Howard had five children together. After multiple cases brought before the court, the court had awarded Howard full custody of the children and allowing Aisha supervised visitation. Howard attempted to modify child support based on the fact that he had added expenses from being the full-time parent of the five children. However, Aisha had started a new family and was caring for pre-school age children. Howard had given the court numerous amounts of evidence stating that Aisha was capable of a certain income and asked that the court impute that income towards her in order to calculate the child support that Aisha would have to pay to Howard. The court did impute income to Aisha and stated that just because she had been taking care of young children does not mean that she “gets out” of the responsibility of helping support the other children that she had.
  • Key Findings: The court declined to adopt a per se rule prohibiting the imputation of income to parents who did not work in order to care for preschool-age children. This means the court can still impute income to a parent who declines to work to take care of young children if found necessary.
• Hoffmeister I: IN RE MARRIAGE Of Nancy and Thomas Hoffmeister:
  • In this case, Thomas and Nancy had been married for almost 23 year. Thomas was ordered to pay spousal support to Nancy. Nancy had found that Thomas had an increase in income and decrease in expenses so she sought modification of spousal support. The court initially granted the modification and increased the amount of spousal support. However, Thomas had received the new income and expenses declaration close to the date of trial and had not had adequate time to prepare for it. The court initially denied is continuance and used the newer evidence. However, upon appeal, the court did realize that they did not grant Thomas a fair trial and needed to either grant the continuance or strike out the new income and expense declaration due to the fact that it violated the timely manner in which it was supposed to be filed within.
  • Key Findings: The court needed to strike the late filed income and expense declaration or they should have granted the continuance. The parties need ample time to prepare for certain documents filled by opposing party.
• Ilas: IN RE MARRIAGE Of Betty and Michael Ilas:
  • In this case, Betty and Michael had been married with two kids. At the time of the dissolution of marriage, Betty was unemployed and Michael had been working as a pharmacist. The court had ordered Michael to pay child support and spousal support. However, Michael had quit his job to go to medical school and asked for a modification of support. The court denied his modification stating that just because he wanted to get a medical degree that it does not mean that he cannot take care of his responsibilities including the child and spousal support. The court imputed an income to him and retained some of the money from the parties’ sale of home in order to secure future support payments.
  • Key Findings: The court can impute income to parents who quit their jobs to go to school in order to maintain the level of support for the children or spouse.
• Johnson v. Superior Court: Johnson v. Superior Court (Tate):
  • In this case, Larry Johnson, who is a professional athlete with the New York Knicks basketball team, had sexual relations with Laura Tate. They ended up having a child together and Laura wanted child support from Larry. Usually the court will use a guideline child support formula in determining support; however, when a party has an extraordinarily high income, the party can request to not use the formula. In this scenario, Larry was making over $1 million a year in income and requested the court to determine a reasonable amount of child support.
  • Key Findings: When determining child support, the parties can stipulate to gross annual income; however, the court must determine a child support even if that means that it needs to deviate from the guideline when determining support.
• Kelkar: IN RE MARRIAGE Of Anand and Mary Kelkar:
  • In this case, Anand and Mary had a long marriage with a history of abuse. Anand claims that Mary had abused him both physically and verbally. In 2000, they had an incident in which Mary brandished two kitchen knives and stabbed the water bed that Anand was laying on. Anand ended up being cut by the knives in attempt to get them from Mary. Mary pleaded no contest when being asked about the abuse. Originally Anand had been paying Mary spousal support; however, a new Family Code section 4325 was established which allows the court to terminate or not award spousal support to a spouse that has been convicted of a domestic violence act against the spouse. The court stated that this new Family Code section can be made retroactive and terminated Mary’s spousal support.
  • Key Findings: The court can make Family Code section 4325 retroactive if history of prior abuse and terminate spousal support.
• Kerr: IN RE MARRIAGE Of Richard and Deedee Kerr:
  • In this case, Richard and Deedee were married for 20 years with two children from the marriage. Richard was vice president of engineering at Qualcomm and had an annual income of over $150,000. Richard had annual stock options in the company which would increase his yearly income. The court included the stock options when calculating income for child support; however, they initially used a flat percentage when calculating how much of the stock options to use as support. The court reversed the decision stating that using the flat percentage when determining the amount of support based on the stock options was not correct and they would deviate from the guideline in order to fit the needs of the children.
  • Key Findings: The court can deviate from the child support guideline if they find justified. The court can include future stock options as income when determining child support.
• Khera v. Sameer: IN RE MARRIAGE Of Sameer Khera and Madhu Sameer:
  • In this case, Sameer was ordered to pay Madhu spousal support. They had an order in which spousal support would terminate in June of 2010 when Madhu had finished her master’s degree. This meant that Madhu would have the capability to be self-support. However, Madhu requested a modification of the support order and the court denied it. The court denied the request to modify the support order because there had been no material change and Madhu did not submit any evidence that the expectation of her being self-supporting at the end of the support order was unreasonable.
  • Key Findings: The court will only grant a motion for modification of support if there has been some sort of material chance of circumstances since the previous order.
• Kochan: IN RE MARRIAGE Of Janice and Roman Kochan:
  • In this case, Janice and Roman had been married for about 25 years. Roman was ordered to pay spousal support to Janice. Roman was dean at CSULB and took into consideration his income when determining the amount of spousal support. However, if Roman were to retire, he would be making more money through CalPERS and the CSULB retirement program than his income from his current position of dean. Roman was 65 years old and the court calculated the spousal support based off the imputation of income that he would be making had he been retired. The court reversed this decision finding that it is not fair to force someone to retire to impute a higher income that would benefit the supported spouse.
  • Key Findings: The court cannot force a spouse to retire in order to increase the amount of property division to benefit the supported spouse.
• LaBass & Munsee: IN RE MARRIAGE Of Barry LaBass and Catherine Munsee:
  • In this case, Barry and Catherine were married with two children. When they had gotten divorce, Barry continued to work full-time while Catherine decided to go for a postgraduate degree and work part-time. Barry was ordered to pay Catherine child support; however, he requested that the court impute income to Catherine since she willingly worked part-time opposed to full-time. Barry showed the court ads from the LA Times to show proof that there were full-time teaching positions that Catherine could easily attain with her credentials. Catherine attempted to appeal stating that the ads shouldn’t be used but the court said they are used for the purpose of showing that offers to bargain existed. The court ended up imputing an income towards Catherine and modified the child support order.
  • Key Findings: The court has discretion on whether classified ads can be used to show proof of opportunity to work.
• Laudeman: IN RE MARRIAGE Of Scott and Lisa Laudeman:
  • In this case, Scott agrees to pay Lisa child support that is above the amount from the guideline. However, a year later, Scott requested to modify support to the guideline amount. The court initial granted the modification but on review, the court determined that without a material change, the court could not modify the support and reversed the order. Furthermore, the court discussed that when ordering a child support amount different from the guideline, there is a list of requirements that the court must meet including discussing “the reasons the ordered amount of support is consistent with the best interest of the children.”
  • Key Findings: When ordering support that is higher or lower than the guideline amount, the court must include the reason that it deviated from the guideline amount.
• Lim & Carrasco: IN RE MARRIAGE Of Lily and Michael Carrasco:
  • In this case, Lily and Michael were married for 8 years with two children from the marriage. Michael was a full-time college professor with an income of around $9,000 a month and Lily was a lawyer for a big-time firm with an income of around $27,000 a month. Michael was typically the one taking care of the children the most because of Lily’s intense work schedule. As part of being a partner for a big law firm, Lily had to bill for 2,000 hours a year. In order to help take care of the kids, Lily agreed to work 80% of her capacity meaning that she would bill 1,600 hours annually. This still meant that she would have to work around 80 hour work weeks. Lily was ordered to pay spousal support and child support; however, Michael appealed claiming that the court should impute Lily’s full potential income towards her. The court denied finding that Lily would still be working more than full-time at 80% of her capacity and that it was in the best interest of the children to have Lily be in their life during this difficult time.
  • Key Findings: The court found that reduced earning capacity was justified because it was in the best interest of the children. The court had the discretion “whether to apply actual income or whether to apply some kind of imputed income.”
• Loh: IN RE MARRIAGE Of Pamela and Victor Loh:
  • In this case, Pamela was attempting to modify the amount of child support that she was receiving from Victor. Pamela was an insurance agent and Victor was a recently unemployed stock broker. Pamela took pictures of Victor with his new girlfriend in attempt to prove that he was living a lavish lifestyle that warranted an increase in the amount of child support. Initially the court found this evidence to warrant imputing an income upon Victor of $9,000 a month. Upon review, the court realized that this was not tangible evidence and that Victor’s previous tax return stated that he had a gross income of $68,000 over the last 12 months. The court found that there was no proper discovery of income and that there must be evidence to prove that the tax return was wrong. Simply taking pictures of the ex-spouse with his new girlfriend around fancy cars was not enough to impute that income towards Victor.
  • Key Findings: There needs to be substantial evidence in proving that the tax returns are not correct when modifying child support.
• McElwee: IN RE MARRIAGE Of Doris and Charles McElwee:
  • In this case, Doris was awarded spousal support from Charles. Furthermore, Doris was a licensed marriage & family therapist. The court awarded spousal support for a time being and then they extended it for a further amount of time without retaining jurisdiction. The court found that Doris should have been self-supporting by the time the spousal support had ended; however, Doris had made unwise financial decisions with her portion of the community assets. Doris had made high-risk investments and was not able to fully support herself. The court held that it was Doris’s responsibility to make good financial decisions with her portion of the assets.
  • Key Findings: The spousal support recipient is held accountable for making unwise financial decisions that related to a lower income. The support spouse is responsible for their use of assets.