Filed 10/22/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of JEFFREY and ANDREA
BARTH.
JEFFREY BARTH,
G045142
Appellant,
(Super. Ct. No. 04D007613)
v.
OPINION
ANDREA BARTH,
Respondent;
ORANGE COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,
Intervener and Respondent.
Appeal from a judgment of the Superior Court of Orange County, James L.
Waltz, Judge. Affirmed.
Law Offices of William J. Kopeny and William J. Kopeny for Appellant.
Law Offices of Michel & Rhyne, Michael L. Michel and Karen Rhyne for
Respondent.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Linda M. Gonzalez and Mary Dahlberg, Deputy Attorney General, for
Intervener and Respondent.
*
*
*
If ever there was a case where the adage âbe careful what you wish forâ1
applied, this is surely it. Appellant Jeffrey Barth spent years resisting Andrea Barthâs2
attempt to litigate their divorce and child custody issues in Ohio, going as far as
appealing to the Ohio Supreme Court. That court agreed with Jeffrey and concluded the
Ohio courts lacked jurisdiction because Andrea had not lived in Ohio for six months
immediately prior to filing her divorce action. (Barth v. Barth (Ohio 2007) 862 N.E.2d
496, 498.) Jeffrey finally achieved what he wanted â the case was back in California.
Ultimately, the trial court, pursuant to Family Code section 4009,3 granted Andreaâs
request for child support retroactive to the date Jeffrey had originally filed his California
divorce action, with credit given for the amounts Jeffrey paid under the now void Ohio
order. The support Jeffrey was ordered to pay was significantly higher than the amount
the Ohio trial court had ordered.
1
See, e.g., Aesop (Sixth century B.C.) Fables, retold by Joseph Jacobs. Vol. XVII, Part
1. The Harvard Classics. <http://bartleby.com/br/01701.html.> (as of Aug. 29, 2012).
The fable âThe Old Man and Deathâ concludes with the line: âWe would often be sorry
if our wishes were gratified.â
2
We subsequently refer to the parties by their first names for the ease of the reader. No
disrespect is intended. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn.
1.)
3
Subsequent statutory references are to the Family Code unless otherwise indicated.
2
Jeffrey offers a number of arguments to support his claim that the trial court
abused its discretion by awarding retroactive child support. He claims the court
erroneously applied section 4009 retroactively, asserting, among other things, that doing
so constituted an equal protection violation. Jeffrey also argues the court erred by
imputing income to him after it concluded that he had done everything possible to hide
and minimize his income in order to shrink his child support obligations. As we shall
discuss below, Jeffreyâs equal protection argument lacks merit, and he has failed to
establish an abuse of discretion on any other point. We therefore affirm.
I
FACTS
Jeffrey and Andrea married in 1989 and had two children, born in October
1994 and October 1996.4 Prior to 2004, the family lived in Westlake, Ohio, where
Andrea was employed by a pharmaceutical company while Jeffrey worked as a certified
public account (CPA). In February 2004, Jeffrey accepted a job working as director of
internal audit for a manufacturing company in California. He moved to Orange County
and rented a house while Andrea and the children remained behind for several months.
In July, Andrea and the children arrived in California and joined Jeffrey. Approximately
six weeks later, in August, Jeffrey admitted to extramarital affairs. Within two days,
Andrea and the children returned to Ohio. On August 24, Andrea filed for dissolution in
Ohio, while Jeffrey filed in Orange County on August 25.
Jeffrey also filed an order to show cause (OSC) seeking return of the
children to California. Andrea appeared and opposed the motion. At or prior to the
hearing on Jeffreyâs OSC, the hearing officers conducted a discussion pursuant to the
Jeffreyâs counsel is reminded that citations to the record must cite âto the volume and
page number of the record where the matter appears.â (Cal. Rules of Court, rule 8.204
(a)(1)(C), italics added.) Citing to a tab in the appendix that includes an entire document,
which may include 40 pages or more, is insufficient.
4
3
Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq.). The
California case was stayed pending the Ohio proceedings.
Litigation proceeded in Ohio for the next 31 months. Jeffrey continued to
object that the Ohio court lacked jurisdiction. In Jeffreyâs motion to dismiss before the
Ohio magistrate, he claimed Andreaâs removal of the children from California back to
Ohio was âmisconduct.â The magistrate found these allegations to be âbrazen and not
founded in the facts of the case.â The magistrate also concluded that had Andrea known
of Jeffreyâs extramarital affairs, âshe would not have surrendered her job, sold the marital
home and moved her children to California . . . .â The magistrate denied Jeffreyâs motion
and concluded the Ohio courts had jurisdiction.
Early in 2005, Jeffrey moved to the Newport Coast area and rented a
townhouse. He was promoted to vice-president of finance for a subsidiary of the
employer for which he had moved to California. Jeffrey also began a regular pattern of
travel between California and Ohio to spend time with the children. In February 2007,
Jeffrey was terminated, receiving 20 weeks of additional salary and a pending bonus. He
also received $187,500 as a partial settlement from a stock option program.
Afterward, Jeffrey commenced self-employment, setting up businesses in
California and Ohio and maintaining residences in both states. In July 2007 he formed a
California professional partnership known as Channels & Barth, LLP. In January 2008,
Jeffrey formed JA Barth, LLC, a California company providing tax and accounting
services. In Ohio, Jeffrey started two businesses: Audit Pro, LLC, providing audit and
related services, and Ohio Tax Debt Solutions. Jeffrey traveled back and forth between
California and Ohio for a number of reasons, including the ongoing Ohio family law
case, his Ohio business interests, and spending time with the children. At some point,
Jeffreyâs mother purchased a house just a few doors away from Andrea, which was
partially funded by Jeffrey. Jeffrey lived in that house when he was in Ohio.
4
In due course, the Ohio court made findings and entered child support
orders. Child support was set at $1295 per month, retroactive to November 2004, later
increased to $1600 per month. The Ohio support orders were never registered in
California.
Jeffrey appealed and lost, but the case found its way to the Ohio Supreme
Court, with Jeffrey again arguing the Ohio courts lacked jurisdiction. In March 2007,
Jeffrey prevailed, as the court concluded the relevant Ohio statute created a strict test of
residency. Jeffreyâs purported fraud in inducing Andrea to California was therefore
irrelevant because Andreaâs 40-day stay in California terminated her previous residency,
which began anew when she returned to Ohio. (Barth v. Barth, supra, 862 N.E.2d at pp.
499-500.) The judgment was reversed, and accordingly, the Ohio trial court dismissed
Andreaâs complaint and vacated any and all previous judgments and orders.
In April 2007, Jeffrey filed an OSC in Orange County, seeking to lift the
stay and obtain child support orders. Commissioner Thomas Schulte did so, and made a
number of inquiries. On June 8, Jeffrey sought Andreaâs default, which was entered and
from which she was later relieved. In August, Jeffrey applied for a fee waiver on the
basis of a sworn affidavit claiming in forma pauperis, which the court granted.
That same month, Andrea filed an OSC to establish child support, and the
court set a hearing for September. Andrea also issued subpoenas to obtain records from
Jeffreyâs former employer and his bank. Jeffrey, who was self-represented by this point,
filed a motion to quash the subpoenas and sought a protective order. He also asked the
court to reconsider its ruling setting aside Andreaâs default. At a September hearing,
Commissioner Schulte denied Jeffreyâs motion, established a parenting plan and directed
an evaluation under Evidence Code section 730. Jeffrey then filed a challenge against
Commissioner Schulte under Code of Civil Procedure section 170.1, which was denied
by the supervising judge.
5
In Jeffreyâs response to Andreaâs OSC, he cited to the Ohio proceedings,
pointing out that Ohio never had subject matter jurisdiction, and all Ohio orders issued
along the way were void from the beginning. Around this time, the Orange County local
child support agency intervened, and for that reason, Commissioner Schulte transferred
Andreaâs OSC to Child Support Commissioner Craig Arthur.
Commissioner Arthur continued the child support hearing to May 2008 and
several more continuances followed before the hearing began in January 2009. Jeffrey
objected to the commissioner sitting as a temporary judge pursuant to section 4251,
subdivision (c), but the hearing went forward with Commissioner Arthur sitting as a
referee empowered to recommend findings and orders. Andrea and the local child
support agency presented their case, while Jeffrey presented no evidence and rested.
On May 5, 2009, Commissioner Arthur issued recommended findings and
rulings, which we need not review in much detail here. Suffice it to say that
Commissioner Arthur found retroactive child support appropriate, and set guideline
support ranging from $2,253 per month to $7,239 per month from October 2004 to
December 2007. The court also made findings as to Jeffrey and Andreaâs incomes and
child custody timeshare during that period, with Jeffreyâs timeshare ranging from 10
percent in 2004 to 30 percent in 2007.
With regard to future support, Commissioner Arthur noted that Jeffrey had
lost his job in February 2007 because of his visitation schedule, as he was spending 11
days per month with the children in Ohio. The commissioner noted that Jeffrey had
started his own accounting businesses, with clients in California, Ohio, and elsewhere.
He accepted Jeffreyâs representation that his income was less than $36,000 in 2007, with
$32,000 to $42,000 estimated in 2008 and $45,000 to $60,000 projected for 2009. Based
primarily on Jeffreyâs representations regarding his income and his conclusion that
Jeffreyâs extended time in Ohio was in the best interests of the children, Commissioner
6
Arthur declined to impute income to Jeffrey and set zero child support effective January
2008.
Jeffrey filed an objection to the recommendations pursuant to section 4251
and demanded a de novo hearing before a judge. The case was then transferred to Judge
Waltz, who issued the order that is the subject of the instant appeal. The court conducted
a hearing on the child support issues, and in February 2011, issued a detailed written
order with findings of fact and conclusions of law. As it relates to this appeal, the court
found that setting child support retroactively to the date of Jeffreyâs initial complaint was
appropriate, and the court imputed income to Jeffrey for the years 2008 and 2009 at
$10,000 per month.
There is simply no way to sugarcoat the extent to which the court
concluded that Jeffrey lacked all credibility when it came to reporting financial matters.
âThe court carefully watched and listened to Petitionerâs trial testimony on direct
examination, cross-examination and when responding to the courtâs questions. Over time
the court lost confidence in Petitionerâs ability or willingness to tell the truth.â The court
believed Jeffrey was âbeing purposefully vague and evasive.â
With respect to his in forma pauperis declarations in 2007, filed under
penalty of perjury, the court concluded Jeffrey âegregiously misrepresented material facts
and information.â As the court pointed out, while Jeffrey âclaimed a de minimus amount
of money in the bank (compare: 2006 earnings were over $773,000) and no recurring
income compared to monthly living expenses between $7,165 and $9,200 per month.
Compare: between 2004 and through 2007 Petitioner earned wages and salaries of
$1,599,164. In 2006 alone Petitioner earned $773,463.â Further, Jeffrey had failed to
disclose both his âsubstantial severance packageâ with his former employer or ârecurring
rental income from his Newport Coast townhouse.â In 2007, the same year he filed the in
7
forma pauperis declarations under penalty of perjury, he âearned taxable income of
$316,271.â
The court also concluded that Jeffreyâs 2008 and 2009 income and expense
declarations included âfalse statements and material omissions,â including his living
expenses, which Jeffrey purposely understated âto match his professed modest monthly
self-employment income of $1,250 per month.â These amounts were not trivial, Jeffrey
claimed his living expenses were $2,675 per month (in 2008) and $2,400 per month (in
2009), while the court estimated them between $7,000 and $9,000.
Jeffreyâs misstatements included representing the rental expense of his
Newport Coast townhome as $1,100 per month, when in fact it was $3,100 per month.
Jeffrey also âfalsely declared that no one was contributing to the payment of his monthly
living expenses when in fact Petitioner engaged in a regular practice of sub-renting the
townhouse and not reporting that income, estimated to be $1,500 per month.â In 2009,
he also failed to disclose $31,500 in income he received from his former employer. The
court concluded that Jeffreyâs tax returns also failed to reflect this income.
The court noted that Jeffrey had submitted voluminous trial exhibits,
including financial reports, all prepared by him in contemplation of trial. â[T]he courtâs
confidence in the documents waned and steadily declined and finally, the court concluded
that in general, the financial statements presented by Petitioner were intended to mislead,
and not inform.â The court noted Jeffreyâs self-prepared accounting of business expenses
for his California and Ohio accounting practices, which included literally dozens of
expense items (including for establishments such as Pizza Hut, Sprinkles Cupcakes,
Starbucks, and 7-Eleven). The court concluded Jeffrey âincluded dozens of personal
expenses as business expenses,â and âincluded wages he allegedly paid to his girlfriend
without any satisfying evidence to justify the expense.â Not surprisingly, âThe court
concluded many of the professed business expenses were phony or personal.â
8
Moreover, the court found that Jeffreyâs prior behavior before the Ohio
courts had been just as problematic, concluding Jeffrey âgrossly under-reported his actual
income to the Ohio courts. [¶] . . . For instance, while Petitioner in fact earned
$287,288 in 2004 and $222,000 in 2005, doubtless based on Petitionerâs misrepresented
income, the Ohio judge ordered Petitioner to pay a modest $1,296.00 in child support.â
The court concluded that Jeffrey âis a highly educated and intelligent man,
with years of financial experience and a licensed CPA in both Ohio and California. [¶]
. . . However, using his professional skills, Petitioner has undertaken a course of action
to understate his actual income for the purpose of skewing the courtâs calculation of
guideline child support. [¶] . . . Based on Petitionerâs multiple instances of presenting
false or misleading sworn testimony, this judge has little confidence in the
trustworthiness of his financial reports and oral testimony regarding his actual income,
except where his testimony was independently corroborated. [¶] . . . While Petitionerâs
tax returns would otherwise be presumed correct, that presumption is soundly rebutted in
this case. (IRMO Loh (2001) 93 Cal.App.4th 325, 337-338.) Petitionerâs 2008 and 2009
tax returns substantially understate his actual gross income. [¶] . . . [¶] Petitioner has
purposefully understated his living expenses to match his professed de minimis selfemployment income, for the purpose of skirting his obligation to pay guideline child
support. [¶] . . . To the extent Petitionerâs self-employment income is accurately
reported, a conclusion this Court rejects, then Petitioner is woefully and purposefully
under employed, based on his age, education, work experience, and earning history and a
lifestyle that includes homes and businesses in Ohio and California. [¶] . . . Petitioner has
misrepresented his housing circumstances in Ohio, and in fact he is living rent-free in a
home owned by his mother. [¶] . . . Petitioner has not told the truth for the specific
purpose of reducing his child support obligations.â
9
The court then considered the vocational report prepared by Andreaâs
expert, Michael Bonneau. âMr. Bonneau evaluated Petitioner and stated he has both an
ability to earn and the opportunity to earn based on his age, education and work
experience. Mr. Bonneau testified that there is substantial evidence of a reasonable
likelihood that Petitioner could, with reasonable effort, apply his education, skills and
training to produce income. Mr. Bonneauâs opinions were not challenged. In addition,
Mr. Bonneau quantified Petitionerâs earning capacity in the range of $120,000 to
$150,000 annually plus bonus. Mr. Bonneauâs opinions were not rebutted.â
Because the court concluded that support was retroactive under section
4009, support guidelines were calculated for each year. As relevant here, the court
calculated Jeffreyâs income for 2008 and 2009 as â[i]ncome by imputation of income at
$10,000 per month (low side of income range) plus $31,500 (other nontaxable income)
from Kerr Corporation never reported on his tax return plus $18,000 rental income (other
nontaxable income) never reported on his tax return.â
For the entire period retroactive to Jeffreyâs complaint, the court calculated
Jeffreyâs child support as $3,125 per month for September to December 2004, $2,762 per
month for the first half of 2005, $2,742.00 per month for the second half of 2005, $7,645
per month for 2006, $3,343 per month for 2007, $1,748 per month for 2008, $1,921 per
month for 2009, and $1,058 per month for 2010. With credit given for the $58,384 Jeffrey
had paid to that point, his arrears were calculated at $171,358, and he was ordered to and
deemed capable of paying $1,000 per month to satisfy that amount. Jeffrey now appeals.
II
DISCUSSION
A. Statutory Framework and Standard of Review
âCalifornia has a strong public policy in favor of adequate child support.
[Citations.] That policy is expressed in statutes embodying the statewide uniform child
10
support guideline. [Citation.] âThe guideline seeks to place the interests of children as
the stateâs top priority.â [Citation.] In setting guideline support, the courts are required to
adhere to certain principles, including these: âA parentâs first and principal obligation is
to support his or her minor children according to the parentâs circumstances and station in
life.â [Citation.] âEach parent should pay for the support of the children according to his
or her ability.â [Citation.] âChildren should share in the standard of living of both
parents. Child support may therefore appropriately improve the standard of living of the
custodial household to improve the lives of the children.â [Citation.]â (In re Marriage of
Cheriton (2001) 92 Cal.App.4th 269, 283, fn. omitted.)
When the trial courtâs findings regarding the amount of support are
challenged, âan appellate court cannot interfere with the trial court order unless, as a
matter of law, an abuse of discretion is shown. [Citations.] The power of the appellate
court therefore begins and ends with the determination as to whether the trial court had
any substantial evidence (whether or not contradicted) to support its conclusions.
[Citation.] The appellate court should not substitute its own judgment for that of the trial
court; it should determine only if any judge reasonably could have made such an order.
[Citation.]â (In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 876; see In re
Marriage of Kerr (1999) 77 Cal.App.4th 87, 97.)
B. Section 4009
In 1998, former section 4009 stated: âAn order for child support may be
made retroactive to the date of filing the notice of motion or order to show cause, or to
any subsequent date, except as provided by federal law (42 U.S.C. Sec. 666(a) (9)).â
(Former § 4009 (1998).) In County of Santa Clara v. Perry (1998) 18 Cal.4th 435
(Perry), the California Supreme Court interpreted section 4009 to mean that âsupport
11
orders can be made retroactive only to the filing date of the notice of motion or order to
show cause for support.â (Id. at p. 438.)
In 1999, the legislature amended section 4009. It currently states:5 âAn
original order for child support may be made retroactive to the date of filing the petition,
complaint, or other initial pleading. If the parent ordered to pay support was not served
with the petition, complaint, or other initial pleading within 90 days after filing and the
court finds that the parent was not intentionally evading service, the child support order
shall be effective no earlier than the date of service.â (§ 4009, as amended by Stats. 1999
ch. 653 § 8.)
Jeffrey cites Perry, supra, 18 Cal.4th 435. He also cites In re Marriage of
Cryer (2001) 198 Cal.App.4th 1039, a case involving the retroactivity of a modified,
rather than original, child support order. He then acknowledges the amendment to
section 4009, arguing: âAppellant believes that this statute did not intend to confer
jurisdiction on the California Court to award support back to 2004 where, as here,
Respondent: (1) never submitted to the jurisdiction of the California Court any time
before July of 2007; (2) took her children to Ohio and established an Ohio child support
order based on Ohio law and Ohio standards of living (where the children were living the
entire time); (3) actively avoided California jurisdiction for three years; and then, when
the Ohio Supreme Court ruled she had not established residency to maintain her Ohio
case, ran back to the California Court and filed an OSC re Child Support, seeking
California Support based on California Guidelines, not just from that date forward, but
retroactively back to August of 2004.â
There are a number of factual inaccuracies in this statement, but we set
those aside for the moment. Jeffrey offers no legal authority whatsoever to support his
claim that section 4009 should not apply here. Perhaps more importantly, he seems to
5
Two subsequent minor amendments were made in 2000 and 2004.
12
entirely miss the point about child support â it is intended to support the children, not to
punish parents for their litigation tactics (a stone Jeffrey might want to avoid throwing,
lest he hit his own glass house).
The plain language of section 4009 gives the trial court the legal authority
to make an original order for child support âretroactive to the date of filing the petition,
complaint, or other initial pleading.â While Jeffrey is entitled to his own opinion about
what the statute intended, we need not ponder the Legislatureâs intent when its language
is clear. âOur role in construing a statute is to ascertain the Legislatureâs intent so as to
effectuate the purpose of the law. [Citation.] In determining intent, we look first to the
words of the statute, giving the language its usual, ordinary meaning. If there is no
ambiguity in the language, we presume the Legislature meant what it said, and the plain
meaning of the statute governs. [Citation.]â (Hunt v. Superior Court (1999) 21 Cal.4th
984, 1000.) Because this case fits within the statutory framework, it was not, as Jeffrey
claims, âerroneous on the facts of this caseâ to apply section 4009, or âan abuse of
discretion for the trial court to exercise its Section 4009 power in a way to reward
Respondentâs three year efforts to evade California jurisdiction of this case . . . .â
There is also not, as Jeffrey claims, any âdenial of equal protectionâ in
applying section 4009 here. Jeffreyâs argument on this point insists that he is âsimilarly
situated to a person with respect to whom a temporary support order [i.e., the Ohio
support order] was made in California . . . .â Jeffrey is wrong. âââThe concept of the
equal protection of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.ââ
[Citation.] âThe first prerequisite to a meritorious claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.â [Citations.]â (Cooley v. Superior Court (2002)
29 Cal.4th 228, 253.) âThis initial inquiry is not whether persons are similarly situated
13
for all purposes, but âwhether they are similarly situated for purposes of the law
challenged.â [Citation.]â (Ibid.)
This is not a difficult question. Jeffrey is not similarly situated to someone
who was subject to a temporary support order in California for the simple reason that
such an order bears no legal or factual relationship to a permanent support order in Ohio.
Further, because the Ohio orders were entered without jurisdiction, as determined by the
Ohio Supreme Court, they were void. (See County of San Diego v. Gorham (2010) 186
Cal.App.4th 1215, 1225.) From a legal standpoint, the Ohio orders never existed.
Thus, while Jeffrey claims it is a denial of equal protection to treat him
differently than a person subject to sections 3603 and 3651, subdivision (c),6 those
sections relate to modification, not original orders.7 The Legislature enacted different
schemes relating to original orders and modification to serve different purposes, and there
is simply no precedent or logical reason for treating a parent with a void, out-of-state
permanent order the same as someone subject to a valid, temporary order in California.
We find Jeffreyâs equal protection argument devoid of merit.
Finally, in a one-paragraph argument lacking any legal authority, Jeffrey
simply claims it was an abuse of discretion for the trial court to apply section 4009 in this
case. He also claims the court ordered a âretroactive increase,â of child support, again
ignoring the void nature of all Ohio orders. An abuse of discretion is only demonstrated
We presume Jeffrey intended to refer to section 3651 â his citation is to section 3561,
which does not exist.
6
Section 3603 states: âAn order made pursuant to this chapter 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.â Section 3651,
subdivision (c)(1) provides: âExcept as provided in paragraph (2) and subdivision (b), a
support order may not be modified or terminated 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.â
7
14
when no reasonable judge could have made the challenged order. (See In re Marriage of
Aylesworth, supra, 106 Cal.App.3d 869 at p. 876.)
We find no abuse of discretion here. Indeed, the courtâs order was in line
with exactly what Jeffrey had sought since the inception of this case â jurisdiction in
California, the application of California law, and the treatment of the Ohio orders as
utterly void. The trial court determined that Jeffrey âfailed to present satisfying and
convincing evidence that there exist[s] a significant cost of living difference between
Ohio and California that render[s] a California guideline child support unjust or
inappropriate.â Further, the court concluded that even if such a difference did exist, it
was acceptable for child support to âover-satisf[y]â a childâs minimum needs. We agree,
and find Jeffrey has not demonstrated an abuse of discretion.
C. Jeffreyâs Income
Jeffreyâs next argument is that the trial court erred by imputing income to
him for the years of 2008, 2009 and âon into the future.â The courtâs order stated that
Jeffreyâs income was imputed at â$10,000 per month (low side of income range) plus
$31,500 (other nontaxable income) from Kerr Corporation never reported on his tax
return plus $18,000 rental income (other nontaxable income) never reported on his tax
return.â
This issue is also reviewed for abuse of discretion. (In re Marriage of
Destein (2001) 91 Cal.App.4th 1385, 1393.) Section 4058, in addition to setting forth
how the annual gross income is calculated, also states: âThe court may, in its discretion,
consider the earning capacity of a parent in lieu of the parentâs income, consistent with
the best interests of the children.â (§ 4058, subd. (3)(b).)
Jeffreyâs argument is almost entirely based on the principle that the party
asking a court to impute income must demonstrate through admissible evidence that the
15
other party has both the ability and opportunity to earn an income. (See In re Marriage
of Bardzik (2008) 165 Cal.App.4th 1291, 1301 (Bardzik).) The Bardzik court held that a
motherâs retirement prior to age 65 and evidence of her earnings before retirement was
insufficient to make such a showing. (Id. at p. 1295.) The court also noted: âWe have
every confidence that trial judges can sniff out shirking and efforts to skirt legitimate
obligations well enough that a per se âlast and highest income ruleâ is not only contrary to
statute, but unwise and unnecessary as well.â (Id. at p. 1313.)
While Bardzik, supra,165 Cal.App.4th 1291, provides a solid rule of law
for cases where it is applicable, this is not such a case. The court did not simply decide a
range of income based on Jeffreyâs last year of outside employment. While Jeffrey
continues to claim he had been â[un]employedâ for three years prior to the date of the
hearing, the evidence showed that he was self-employed and was either substantially
understating his income or was âwoefully and purposefully under employed.â Jeffrey
does not claim these findings were unsupported by substantial evidence, and we would
find any such claim without merit if he had.
Instead, Jeffrey focuses almost entirely on the testimony of Andreaâs
expert, Michael Bonneau, regarding outside employment opportunities for Jeffrey.
Jeffrey expends much effort to pick apart Bonneauâs uncontroverted testimony, claiming
that Bonneauâs conclusion that he should be able to earn $120,000 to $150,000 per year
was without foundation. He claims Bonneau did not, for example, know how many
applicants sought each open position, and points out that Bonneau did not opine
employment was immediately available, but might only be obtained after months of
attempting to find work. Jeffreyâs arguments are meritless. This is a far cry from the
16
factual situation in Bardzik,8 where the court simply imputed the motherâs preretirement
income as future income without further evidence. Here, Bonneau offered
uncontroverted evidence that Jeffrey had the ability and opportunity to work based on his
age, education, and work experience.
Jeffrey also claims that Bonneau did not consider Jeffreyâs custodial
situation, in which he spent 12 days a month in Ohio with the children. Bonneau was not
required to determine if Jeffrey could find a job that would not require him to reevaluate
the custody arrangement â custody arrangements sometimes have to adjust to meet a
parentâs work requirements. He was merely required to determine if the ability and
opportunity to work exists. He did so, and his factual findings were supported by
substantial evidence. As the trial court pointed out, Jeffreyâs âlifestyle choices are of his
own making.â He is, after all, the parent who decided to live in California, far from his
children, and has decided to continue living here despite his purported âunemploymentâ
and Californiaâs purportedly higher cost of living.
We also conclude the amounts imputed to Jeffrey were fair and within the
courtâs discretion. The court took the low amount suggested by Bonneau, of $10,000 a
month, as well as other miscellaneous income. The courtâs decision was in the context of
its determination that it had âlost confidence in [Jeffreyâs] ability or willingness to tell the
truth.â The court concluded Jeffrey had falsely underrepresented his living expenses for
2008 and 2009, failed to disclose rental and other income, falsely claimed no one was
contributing toward his living expenses, and underreported income on his tax returns.
8
It is also a far cry from the other case Jeffrey cites, In re Marriage of Mosley (2008) 165
Cal.App.4th 1375. In that case, we reversed the trial court when it failed to consider an
expertâs evidence that the stay-at-home mother had substantial earning capacity in the
context of a modification order. Contrary to Jeffreyâs apparent interpretation of this case,
we concluded in Mosley that the party seeking to impute income has no burden to
demonstrate that the other party would actually have been hired for an available job. (Id.
at p. 1391.) Such a burden would, of course, be nearly impossible to meet.
17
The court also determined that Jeffreyâs financial statements were âintended to mislead,
and not inform.â Additionally, the court found Jeffrey also included dozens of personal
expenses as business expenses, included wages allegedly paid to his girlfriend without
justification, and that many of the alleged business expenses were âphony or personal.â
Further, Jeffrey had âgrossly under-reported his actual income to the Ohio courts.â
Simply put, the court found that Jeffrey was not to be believed on any issue relating to his
finances, and this finding was supported by overwhelming, persuasive evidence. The
court had no choice but to impute income to Jeffrey for the purpose of establishing child
support, and it did so in a fair manner that was supported by the evidence. We find no
abuse of discretion.
III
DISPOSITION
The judgment is affirmed. Andrea is entitled to her costs on appeal, and
she may make any appropriate motion for attorney fees before the trial court.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
THOMPSON, J.
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