*1 Dist., G038644. Fourth Div. Three. July 2008.] [No. D. BARDZIK. re the of YVETTE E. and JEFFREY BARDZIK,
YVETTE E. v. Respondent, BARDZIK,
JEFFREY D. Appellant.
Counsel Doeringer W. Jeffrey Appellant. Law Offices of W. Jeffrey Doeringer William F. Kerwin for Respondent. Kerwin & Associates and Opinion
SILLS, P. J.—
I. Summary child modify support of a law out arising proceeding This family appeal First, her was able to retire from the mother offers two unusual facts: highly as a sheriff after 20 deputy years service at the while still age to have two young enough teenage boys. Indeed,
That doesn’t often. happen we know of no other case involving retirement in a “early” child context.1
Second, the order that existing was the object modification proceed- is, the ing—that status quo going into modification proceeding—involved no existing obligation of either part child It pay was support. a zero-zero order.
The zero-zero order is unusual too. reason was when the made, last operative both were working as sheriffs, deputy both made about the same amount of and both money, agreed to share of the two custody boys 50-50.
The case also us to confront an requires anomalous result at the trial court level: modification resulted in a proceeding of change of one of custody child,” the an boys, needs adopted “special to the father, 50-50 custody is, the remaining for other That boy. the father now has more time in clearly mother, terms of the total than custody and has of the primary custody needs couple’s special And the teenager. yet child ensuing order now support the father to the requires mother! The reason for pay this is the anomaly wider disparity incomes in the wake of the (The mother’s retirement. father’s $388 to the mother payment month.) a To the result another put this is a case way, where the “custodial” and the parent are the “payor parent” same person. result,
And the yet, unusual facts and the despite anomalous the resolution of this appeal ultimately turns on a common very If one point: seeks to parent an order modify existing so as to have income to the other imputed parent, is, context, parent seeking in that imputation—that to parent seeking overturn the status the burden quo—bears of of that the other proof showing has the parent to earn ability that income. imputed (Compare In re Marriage (1989) 214 Regnery 1367 Cal.App.3d Cal.Rptr. [263 243] of to show ability (2004) with In re opportunity] Marriage grove [need Witt 1317 Cal.Rptr.3d at order to show [16 489] [no cause where hearing order parent seeking income based on imputing earning failed to evidence present any other had competent income].) to earn imputed law, In re “early (1988) The two retirement” Sinks cases in the case 379], Stephenson Cal.App.3d Cal.Rptr. [251 both proceedings modify spousal arose out of to 8] orders. (OSC) cause case, proceeding an order to show the father brought
In this from 50-50 teenager needs custody special ratify change a turn to him the mother over an order that him. He also sought primary on assistance $1,000 as adoption month that the state paying certain not, however, an OSC to bring He did needs teenager. behalf special zero-zero. order of existing change OSC, retired, mother, her own brought having recently For her part, (and ambiguously) and merely the same change custody, also seeking light make a guideline support that the court requesting OSC, the the mother’s In his change. responsive pleading anticipated her to the mother based on the trial court father requested impute Code, retirement. Fam. sheriff to her final salary deputy prior cause ... (a) on an order to show hearing responding subd. § [“In moving relief alternative to that requested seek affirmative may party .”].) . . . the moving on the same issues raised by party party, devoted came the father hearing, When the combined proceedings be allowed to all to his that the mother not almost his case evidentiary request monies, $1,000 direct it to go and that the court assistance adoption keep not before us in this to him. He on that which is otherwise prevailed request, appeal.
However, the mother had been than evidence of what other presenting *5 retirement, no evidence of her at the time of her the father making presented have to earn additional vocational abilities or of she opportunities didn’t, that the mother even could go income. The father for show example, sheriff, her to there were for back to work as a or that opportunities deputy didn’t, in He for show that she had work related fields. example, or might to earn as a money security company, opportunity supervisor her old The father was have worked in some for auxiliary capacity employer. the fact her and the fact of what she content retirement merely point Indeed, trial just at the time of her retirement. court had earned little, so and rested his case after little father proving surprised burden of the father had not carried his correctly recognized simply declined to to earn income and and showing ability imputed income to her. make an order imputing had that the mother showing are to affirm the order. Simply
We required was not made before her retirement retired before the of 65 and what she age to earn. to show and enough II. The Procedural History D. Bardzik Jeffrey (father) and (mother) Yvette E. Bardzik were married and were both Orange County sheriffs when were deputy they divorced in One, Brian, 1994. had two They 2006; sons. was about 16 old years by other, Kevin, was about 15. Kevin is the needs child referred special above. He had been toward the adopted end of the His couple’s marriage. addict, mother had been biological and to drug this he day suffers from attention deficit disorder.
While there were a number of between proceedings couple during 1990’s, for of this purposes we appeal may begin the status itas quo stood as of an order made in November 2000. Custody of the two boys was 50-50, and, to be split given similar relatively incomes that each had party sheriff, as a deputy was set at zero-zero.
That status was reiterated in the quo outcome of a modification OSC held (The 2006. February February OSC is not the one we are concerned with in this There appeal.)2 were a few only substantive changes resulting from the February 2006 proceeding, that both namely attend conjoint counseling, that mother have the sole right determine type dosage that, of medication for Kevin. Other than the basics of the status quo—50-50 and zero-zero child custody support—remained as the entered the parties of 2006. spring
Then, in there was even a mid-April—before formal document embodying findings orders of the OSC held two months before—mother brought another noted, OSC to modify order. As existing we have this case has facts, some unusual and mother’s OSC was itself unusual: In her moving mother asked papers that the trial court the 50-50 change custody arrange- ment so that would have primary custody Kevin. Essentially, father mother’s was a ratification request of a de facto about change already brought some behavior Kevin had problems (he been had having been from the ninth expelled Mother grade). asked (modestly) *6 generous visitation for herself. She also asked for a (ambiguously) “guideline” support order, whether, without it clear in making of the she be light change, would every family Just as unhappy unhappy way, every own its divorce has its own backstory. appeal In this parties spare have endeavored to backstory, us that so the clerk’s transcript appears sparse a bit more than it have been. Other than the fact that this 1990’s, a lot since their divorce in the couple fighting has been say there’s not much more to Indeed, February about regarding 2006 OSC. all we have in our record that OSC is the order, (or minute and that minute order precisely moving party is silent as to who the were, both). if that the And she asked previous her. would be paying father or father
paying be lifted.3 counseling conjoint order requiring fait was the declaration to be found in mother’s unusual fact Another (We year. office the previous from the sheriff’s of her retirement accompli than other something had been that may presume if have been zero-zero, litigated would of mother’s retirement the impact retired in event, that she testify mother would earlier.) at the any hearing sons from a two more (including with her children order to more time spend in the maximum duties as a jailer the stress of her new marriage) given situation,” in a “dangerous working midnights, being security jail, including income expense sick.” Mother’s accompanying and being “constantly $2,577, which was her retirement income of declaration showed a monthly pay. hearing, A week before the set for June 2006.
Mother’s OSC was mother, he wanted however, Like own OSC for modification. father filed his her, to him. Unlike his of Kevin custody an order formally changing physical Rather, it was to the degree did raise the issue of OSC not support. issues, an order “100% on financial father wanted requiring focused him; after received” on Kevin’s behalf to go assistance monies adoption all, The was that the he of Kevin. result custody now had primary physical 22. two OSC’s were combined for hearing August did own OSC to have income imputed Father not file his attempting retirement. His responsive mother in the wake of her recent and early in an amount “the Court set pleadings simply requested into consideration the par- accordance with the California guideline, taking shares with the children.” incomes and time share each gross ties’ brief, and, was, however, trial addressed in of retirement issue father’s Father asserted to the was ««ambiguous. in contrast mother’s request, to earn” at her mother “should be income imputed pre-retirement her other reason for had not “health reason given any because mother In that mom.” ‘stay-at-home’ than the desire to be retirement other early on mother’s based figures father forth DissoMaster confidently put regard, that, being with Kevin ($7,325 month) suggesting preretirement him, $742 a month. mother would owe him about mostly remind by attorneys, but we would typically prepared are We realize that declarations under oath. the statements of the declarant supposed are to reflect counsel that declarations oath.) read declaration we (Nor legal argument under In mother’s are declarations a form of line, going help people, these “Counseling is not if written a frustrated outsider: this being separated from each other.” going help what’s them is *7 At the hearing, evidence though, father on the presented imputa- herself, tion issue was from mother and she merely testified that she had sheriff, old, served 20 years as a she was 43 deputy years that if she went back to work in the office she would have to go “new deputy,” that she retired because her family was from the suffering extreme stress of her working the maximum security of the part Orange Jail. County
There was also some brief (no more than testimony three about questions) retirement, mother having signed to to be up, prior called an something was, however, “extra-help deputy.” subject after mother quickly dropped testified that retirement, she had not been an after extra-help deputy so there was no evidence or, so, before the court that it was even a if paying position how much of mother’s time or how much income to her it would entail.4 case-in-chief,
In his father testified almost about entirely the adoption assistance issue.
And that was it. At the end of very father’s testimony, mother’s attorney told the court that mother was to willing to stipulate having vocational evaluation. At that the court noted point that father hadn’t made the “case yet of income” and if there were other inquired any witnesses. There were none. Then followed oral argument, the court it clear making that it was “not going without further evidence impute that she has earn what she earned before.” The court made a which, shares, given relative incomes and time resulted in father owing $388 mother a month. The order also “to expressly refused income” impute to mother “without further evidence.” From that order father timely appealed, that the trial as a matter law primarily asserting court was obligated income to mother impute based on her retirement.5 early 4 Appellate counsel’s efforts petition rehearing by citing to cure this lacuna in a us to a understanding memorandum of county (as between the and a deputy sheriffs’ association what someone be able “extra-help deputy” to earn as an if he or she worked the rate) maximum unavailing. hours at the maximum That memorandum part is not of the record We put before us. review the record judge, judge before the trial and the trial did not have the being benefit of evidence as to “extra-help deputy” whether an a paying even or, so, if working how much mother could make at it. import very heading argument This is the fair of the opening first in the section brief, which “Earning capacity strong asserts: is founded in public policy, being sound and children, subject in the best quantity, interest and of a measurable have should been omitted.) imputed.” (Capitalization *8 Issue
HI. Imputation
A. Background to income to impute asserted the power courts have long California income, as distinct to earn based on and spouses supporting reported idea in the California mention of the actual income. The first from administration. of the Grant at the very beginning decisions appeared 364, 366.)6 (1869) 37 Cal. Eidenmuller Eidenmuller v. on restraints
However,
courts also
self-imposed
California
historically,
put
exist. For most
actually
where it does not
their power
impute
to situations
exclusively
courts confined
history,
power
California legal
actual incomes out
had reduced their
or
where supporting parents
spouses
A memorable example
reduce their
a bad motivation to
support payments.
P.2d
(1955)
While (there dicta technically was no showing possibility Regis Philbin earning any more money motives), of his regardless of the perception Philbin case soon hardened into the “Philbin rule.” As this court would later it in In re Padilla put 1212, (1995) 38 1217 [45 555], Philbin rule permitted “consideration of a parent’s the Cal.Rptr.2d earning child capacity determining when support actions payor’s are motivated a deliberate by to avoid financial attempt family responsibili- ties.” italics.) (Original the best
Perhaps latter-day of the example hardened “rule” newly was in In re Marriage Williams (1984) 155 10], Cal.App.3d Cal.Rptr. [202 where the and his new had spouse their to move to quit jobs costs, Nevada to avoid high California living and the custodial parent sought modification upward based on a increase supposed in income to the payor Philbin, from his new spouse. Williams court Citing this applied blanket rule: “The standard [imputation] is not unless there is some imposed conduct by supporting deliberate spouse indicating behavior designed avoid his financial (Williams, to his supra, responsibilities children.” 62.) Cal.App.3d
Federal welfare reform in the beginning 1980’s states toward pushed uniform (See standards for child Clark v. awards. Superior support generally Court 576, (1998) 53].) 578-580 With the [73 1984, enactment of the Child Agnos Standards Act of Support Legislature observed, 4720, in Civil Code former section (a), subdivision enacted in 1984, that “California has no single standard to promote equitable, adequate child (b) 4720, awards.” In support subdivision of Civil Code former section the Legislature also found—“lamented” would be accurate a word— that “The current method of child setting awards has led to a support substantial variation in these awards families with among similar circum- also (See stances and resources.” Kepley 946, Act, Cal.App.3d Cal.Rptr. adopting Agnos 691] [“In made Legislature the lack express findings of a standard to single fair and promote child adequate awards led to substantial variation in awards families.”].) situated among similarly
The of uniform goal standards to families with similar circum- applying date, stances and resources remains to this embodied in Code currently Family 4050, section enacted in 1993. Section 4050 reads: “In the statewide adopting article, uniform in this it guideline is the intention of the provided Legislature with federal regulations remains in compliance that this state to ensure is best exemplified of that strength policy guidelines.” child support the “statewide used to calculate formula algebraic of a complex adoption 4055, Code, (Fam. orders.” § for determining uniform guideline (a).) subd. Act the addition Standards Child Agnos Support
Also part 4721, section subdivi in Civil Code former first language, appearing award, “minimum (a), mandatory” that in what was then a setting sion consider, the best interests of the extent consistent with also “court shall children, either or both parents.” earning the child or 4, 5664, contained language Because this Stats. ch. pp. § *10 financial behavior” aimed at avoiding limitations “deliberate concerning no abrogating later courts as effectively it would be construed by responsibilities, 966, Marriage the Philbin rule. In re (1987) Cal.App.3d 191 (E.g., of Nolte Hinman In re Marriage (1997) 55 706]; Cal.Rptr. 972-973 [236 988, 383].)7 994-995 Cal.App.4th Cal.Rptr.2d [64 the a natural to accompaniment The consideration of earning capacity Code Family formula now embodied adoption complex Code—the last time Just before the of the Family section 4055. adoption Code—it was in the same was seen in the Civil language “earning capacity” statute, 4720.2, set forth the algebraic Civil Code former section which the court (in (a)). giving formula subd. The statute contained language discretion (the that in the 1984 version dropped word “shall” first appeared in lieu of that of a parent out to “consider along way) earning capacity Code, income, (in the child” Civ. with the best interests of consistent enacted, 4720.2, Code was Family subd. When the (g)(l)(C)(2)). former § as Civil Code former section 4720.2 subdivision (g)(l)(C)(2) appeared 4058, (b). subdivision section in its own as Code section right, Family However, to it is that the readily authority impute apparent with the of uniform goal exists in some tension earning based capacity and resources. Without circumstances standards for families with similar evidence of ability to impute to earn the money, power to establish arbitrarily into a trial judge’s power income would devolve easily midair, level, as as it is long from any given plucked actual, taxable the level otherwise payor parent’s over required be might that with what danger income. courts have countered Appellate 7 pants “liar liar on fire” variation on the Philbin rule be described as the day A latter (2005) 28 in In re & Badakhsh 132 corollary, [33 as shown of Calcaterra There, application, a loan and lied—egregiously—on Cal.Rptr.3d 246]. income, despite there to earn that thought enough prove capacity that was to appellate court by tax returns. income was as measured being payor parent’s as to what the question no “Regnery Regnery, supra, rule,” after In re termed the 1367, 1372-1373. Cal.App.3d “Regnery rule” is essentially judicial gloss words “earning 4058,
capacity” they (b).8 Code section subdivision appear Family case, from a of words and and Citing digest a workers’ phrases compensation the Regnery court announced a test before the earn “three-prong work,” standard be The three may applied.” tests are: “ability “willingness work,” to work which “opportunity means an who employer willing (Regnery, supra, 1372, to hire.” 14 Words and Cal.App.3d citing West v. Industrial Acc. (1952) Com. Phrases 27-28 and Earning Capacity, pp. (1947) 972].) P.2d Cal.App.2d [180 courts, element, work,
Later the second recognizing willingness should be taken for granted, Regnery's recast test as a three-prong simple Marriage of Destein test: two-prong ability opportunity. (E.g., as a has long 487] [“So is, income, an earning to earn capacity, State v. Oregon income.”]; trial court Vargas attribute may (1999) 70 *11 1123, 1126 Cal.App.4th mle has been Cal.Rptr.2d modified [83 229] [“This thus, to include the first and third the prongs; definition of earning when is satisfied both the has and payer ability work.”].)9 8 rule,” rule,” Ironically, “Regnery like the earlier “Philbin out arose of dicta from the opinion; Regnery source essentially corollary indeed the case itself is a of Philbin. The court framed the “issue” of the payor parent] deliberately case as “whether remained unem [the 1375.) ployed.” (Regnery, supra, Cal.App.3d p. point 214 at The of case is that a trial court background” can look to the “entire determining of a case in whether a is (Id. deliberately trying 1376.) paying support. p. to avoid specifically, Regnery More a highly skilled senior pay support job, quit cost accountant didn’t child when he a had his Later,
job just (Id. contempt hearing pay before a on his failure that support. p. he one, get claimed he story couldn’t a that didn’t appellate wash with either the trial or court given “history.” 1374-1375.) pp. his id. at 9 We have no occasion in this opinion to deal with how fit within that cases,” where, Wooster-like, eddy “high of law that be called asset Bertie really any question actually get job, there never seems to be that the payor would and the go issue involved how far the court could into return on imputing from (2002) (E.g., Marriage Guigne assets. In re de Cal.App.4th Cal.Rptr.2d 97 1353 [119 430] of imputed liquidate family court based on idea that wastrel would continue [trial Destein, assets]; Marriage supra, In re Cal.App.4th 1385 could use assets that [court (2007) historically producing]; Marriage were nonincome re Williams Cal.Rptr.3d [involving parties wealthy a dot-com millionaire: “Both are [58 877] unemployed.”].)
B. The Burden of Proof A definition in an proceeding by change presumes modification law, already-determined status As is almost the case quo. throughout in a moving modification bears the burden of party proceeding proof showing changed (We circumstances a new court order. do not justify and need not in this case address the of the burden of on an impact proof income issue in the context of an imputed dissolution.) initial judgment So it is with court family OSC’s to orders. modify As such there can proceedings, be no doubt that it who moving bears party burden of showing sufficient facts to establish the of circumstances change that justifies what a modifying (In court order has previous re already wrought. Leonard 482]; & Hogoboom Cal. Practice King, (The Guide: Law Family Rutter Group 17:26, 2007) accord, (rev. 17-11 # 2007); ][ Stephenson, supra, 71.10) 39 Cal.App.4th law, We say case throughout almost all the because there is one instance, also in the context of a established court previously child support order, where the moving party bears no burden at all effectively to show a Or, change circumstances. better it perhaps is an instance where put, moving burden party’s is so more light—literally than nothing filing modification in the proceeding first it cannot place—that really be described as a “burden.” instance particular to which we refer is where a previous
order does not conform to the already formula guideline Code Family section (which would normally—unless something has gone wrong—be *12 10 Stephenson perfectly demonstrates how the burden of proof for the modification of a There, decided, support order is on the moving party. the payor spouse August, in to take what essentially golden was handshake by deal offered him employer. his The deal allowed him to eight retire and receive salary and one-half months as severance pay. accept, If he didn’t he probably would anyway, have been laid off and would have lost the severance pay. The trial court support payment reduced the changed based on circumstances—and did so then and court, however, that, appellate there. The given noted pay—which the severance it considered equivalent to a immediately payor spouse’s regular continuation of the salary—the effect of reducing support payment impermissibly was to payor showing shift the burden of that the spouse actually receiving payee was a lower “By income to the spouse: prematurely reducing spousal support prospectively, the trial court shifted the proof ultimate burden of from Leslie to change Norlene to establish a warranting of circumstances modification monthly spousal of the (Stephenson, supra, support order.” Cal.App.4th p. 39 at payor spouse Since the was the moving party, the burden appropriately was on him to show a reduction in income from his (Id. retirement. p. moving party 77 establishing [“The bears the burden change of a material of circumstances since the last order made in order to obtain spousal modification of the order.”].) support 4055). Family Section 4069 of of section the adoption an order predating enough by itself is guideline existence very Code provides it into bring an existing, support itself to modify preguideline section 4055. out in Code Family set guidelines compliance 17:26, Law, supra, Practice Guide: Family & Cal. King, also Hogoboom f . . . . of circumstances is required & change 17-11 [“Ordinarily, factual However, statute, the Fam.C. child orders predating §4050 support and of the current formula when et ... are se per application seq. modifiable .”].) . . . amount of support would a different yield standards unius, canon, expressio matter of the linguistic Then as a again, the more basic out in Code section 4069 Family proves set exception of change the burden of showing who has moving rule that it is party (Cf. supra, In re Marriage Kepley, modification. warranting circumstances 946.)11 193 Cal.App.3d to earn imputed as to ability The burden of proof on the status thereof) quo out (or differently depending lack plays income ordinary in the very For example, into the modification proceeding. going in and seeks a reduction loses his or her job situation where the parent payor income, of lack of circumstances changed based court-ordered support of showing who bears the burden as moving party, it will be the parent, payor re Marriage income. In (E.g., to earn a lack of ability income, Leonard, carried as to current 119 Cal.App,4th supra, [burden because of denied discretionarily date of loss of job but retroactivity (2005) 131 Eggers In re Marriage to bridge gap]; substantial assets change denial [reversing requested Cal.Rptr.3d 292] [32 (1998) loss]; Reynolds in light involuntary job in support carried spousal 636] [burden age was fired from job was a doctor who where spouse case supporting futile].) were to find work or open practice efforts subsequent in the pub- common one—relatively with another Contrast that situation the one seeking imputation payor lished cases—where parent the custodial a recent decision of based upon to the custodial parent, effect, an order seeks in such cases the payor parent work. quit made only hypothetically of a contribution light lowering proceeding. swamp can a modification Kepley shows how Family Code section 4069 There, sought an increase in a cohabitant’s house parent who lived the custodial *13 minimum, because denied the increase but the trial court statutory of the bring upit to the level of his recent victimization and because ability to work overtime payor parent’s the loss that income should argued appeal, payor parent the investment scheme. On by a fraudulent moot, nothing because there was point the parent, caretaker but imputed to the have been minimum, go had to back for statutory so the case to the denial of the increase justify proceedings. further to the custodial based and
(imputed) custodial parent parent’s ability In re & LaBass Munsee (1997) to earn. opportunity (E.g., carried]; Cal.App.4th 393] [burden Hinman, supra, carried].) [burden Before to what (or won’t) sort of evidence will a burden and turning carry context, in what one more rule must be noted. This rule is in the grounded commonsense that can lead someone to a ad proposition you want but you is, can’t make them for the That when a have the apply job. does parent burden of that the other showing has and parent ability opportunity level, does not include earn at a that burden given actually showing would have to whom income would be parent a imputed gotten given job said, he or she had As we the rule is applied. just only common sense: if Readers need use a little to think of all the imagination that a ways with both to do a parent ability and the job it could opportunity get subtly sabotage job application interview.12 Munsee,
In re Marriage LaBass & supra, nicely illustrates the distinction (1) between a burden payor parent’s having that the custodial proof parent has to earn a given income, not payor a burden of parent’s having the other proof would LaBass & parent have necessarily gotten if for. In job applied Munsee, was the moving party who was left behind payor parent, when, final, Sacramento before the divorce became the custodial parent moved with the children to a rent-free quarters her (provided by parents), the children taking with her. the custodial During marriage had parent worked as a full-time school high teacher and then later at Home Depot. (Her master’s degree literature.) was in English to Southern Upon moving California, she took though, only part-time community college teaching jobs (Id. so as to a second time pursue master’s degree, this in fine arts. 1335.) (The court her to allowing move that she would do so contemplated and obtain full-time Ph.D.) work or a full pursue custodial also credential, had a substitute teaching which would have allowed her to teach in the Los anywhere Unified School Angeles District. While the court did not it say it that the explicitly, appears established at the time of the divorce itself had been on the predicated custodial full-time parent’s employ (That’s id. ment. the natural implication narrative.) court’s 1334-1335.) pp. motion,
At the hearing modification did a model showing ability to earn on the of the custodial part He The fact parent. presented: she had a credential teaching her to allowing Ethel, Consider strip Willy the comic ’n the humor of which is often a variation of all the ways Willy actually can think of to slip finding gainful employment. out of *14 1306 testimony school district large (ability); opinion a teacher in a
be substitute full-time foundation) could secure that the custodial (with parent proper ads soliciting numerous want in that district13 (opportunity); employment (opportu from with custodial parent’s qualifications applications persons what a showing from the school district large and a scale obtained nity) pay make as a starting would with the custodial parent’s qualifications person be the income (thus and correlating ability salary Munsee, re & supra, at (See Cal.App.4th imputed). of LaBass that starting salary on a to earn at 1335.) An order based p. (Id. course, 1337-1339.) the custodial didn’t (Of parent affirmed. easily pp. would not take full-time case flat out she any by testifying her help (Id. at p. available.) after-school childcare was in Los even if Angeles no “bore court stated that In the the appellate process, “would have secured the court” that the custodial parent burden to convince (Id. 1339, italics.)14 original had she at p. full-time [teaching] job applied.” Meet, Meets, Doesn’t the Burden C. What and What A similar example its burden of showing of a moving bearing party is to be found range earn at a exact reasonably salary Hinman, 988, supra, In re Marriage of authoring which the treated as “Hinman VIII.” We will follow suit because essentially court years. for three payor parent had worked there himself (1996) Cal.Rptr.2d 314] 1378 [54 Paulin The case of (also known as category LaBass & Munsee Hinman fits into the same superficially VIII,” anon), to a custodial similarly it involved as we discuss since “Hinman However, the court in Paulin brought by payor parent. proceedings in modification parent what, do and whether that of who had a burden to question had no occasion to address the twice in (The opinion except in the appear word “burden” does not burden had been carried. footnote, support.” existential “burden of child speaking the context of the same both in 1384, 5.)) the evidence: The words (See argument sufficiency as to fn. There was no id. “evidence,” “sufficient,” to be found in its text. The “proof’ are nowhere “insufficient” evidence; only the trial court’s moving it noted party’s nature of the court never discussed the Thus, questions of whether evidence. insofar as rejection responding party’s concerned, existed, way. People v. authority either are Paulin is not or was met burden 1, 1076], People Ault quoting v. (2006) Cal.Rptr.3d 133 P.3d 38 Cal.4th 566 [43 Avila 1250, 1268, is axiomatic that P.3d ‘It [“ fn. 10 523] 33 Cal.4th ”].) glean Paulin What one can from not considered.’ authority propositions are cases not for, spouse’s a payor deductions for (besides namely hardship it is most cited that which burden of a child may available to alleviate the (not-of-the-marriage) children be new enough quit him or her to affluent to allow order) remarriage spouse to a is that a caretaker’s regard must remember in that one proceeding; a modification working may be considered in predicated was one going proceeding into the modification quo apparent that the status nurse. time as a part the caretaker worked fact that
“VIII” the contentious nature of the in the emphasizes couple’s relationship divorce, examined six after their which was a factor in the order years itself in the opinion.15 in Hinman VIII was that the custodial
The status into the quo going hearing had been allowed to move out of state. The parent protracted postjudgment of the litigation six had forced him into And the previous years bankruptcy. enrollment eldest child in had a severe strain on his college put However, time, finances. this had her work quit previous in the insurance and was three industry, busy children raising very young modification, from her subsequent marriage. seeking custodial parent these presented facts: What the made in payor two parent jobs working $38,400 ($44,000 insurance at one and most at companies company recently another a resume a science company) (ability); showing degree computer and significant in the field two employment experience (ability); computer letters from one that she had an employment agencies, stating earning $35,000 $45,000 of between and potential and the other her giving earning $34,500 $50,000 at between potential correlated annually (opportunity, with the income to be and letters from imputed); showing previous employers i.e., their (at satisfaction with her work an least inference of opportunity, VIII, (Hinman supra, would be they to have her work for them happy again). 55 993.)16 at Cal.App.4th p. evidence,
Against (her to the fact that she had payor parent pointed own) three children all under three young for whom she was the age not, however, exclusive She did caregiver. of the basic facts dispute VIII, (Hinman supra, her involving ability to earn income. 55 993.) at Cal.App.4th the trial made a p. Accordingly, judge (id. $38,000 based earning about at year 994 p. [imputing $3,200 month]), which the per court affirmed.17 appellate readily 15 VIII, supra, See Hinman 55 Cal.App.4th page (noting at footnote 3 one published decisions). prior and six unpublished 16The Hinman VIII court also noted that moving parent presented correspon custodial attorney dence with the payor parent’s requesting that she “contribute children’s would, course, support,” but a mere demand letter show no nor to earn a VIII, (Hinman given supra, amount of imputed income. at Cal.App.4th VIII, Munsee, law, Hinman & LaBass problematic imputation touch on more area of Hinman (in which is the impact VIII was children from on a caretaker it marriage, issue). LaBass & Munsee it was the children from the new while in marriage at One VIII, supra, Hinman judicial concerning can detect in the (Compare tensions rhetoric the issue. head, Cal.App.4th [basically saying: at p. problems your Your are on own and if the your obligation need to care for new children pay support “supported” interferes with for the Paulin, children, supra, with tough] well pp. 1382-1383 an Wittgrove, supra, In re Marriage of presents VIII, & Munsee Hinman and with LaBass (discussed contrast with important doctors, (an but the mother ob-gyn) were Wittgrove, above). In both time an initial OSC She brought was not working separation. her, to have income sought imputed The father seeking support. a doctor evidence the fact that she was indeed than into but—other putting other evidence. no with a in obstetrics gynecology—presented specialty *16 that die trial court was required the father’s contention The court dismissed “Moreover, the child Alan’s assertions that income to the mother: impute the court failed to amount is . . . because wrong properly guideline support because he did not any additional income to Perri fails present impute to earn had both an and an ability opportunity evidence that Perri competent (In re Marriage income he to her.” sought the attributed impute Wittgrove, supra, Cal.App.4th It Out Here Plays
D. The Burden As (correct) trial court’s decision in the cannot stress too much that the We the unusual facts into going the result of necessarily highly case present a minimalist trial litigation modification with together combined proceedings, at trial being may get on father’s Put another way, pennywise strategy part. (euros dollars) or no spent into difficulties that amount you pounds will be able to cure. appeal Now, noted, it was the order in was zero-zero. going
As we have support the order was because both were when working zero-zero precisely made, made, when the order was made close to the same income both parents and the “time share” was equal. the mother effectively gave be The zero-zero
Let us plain: an OSC to modify risk of running gauntlet chance to retire without that, We note of that of circumstances. light change specifically order, retired and initiated a zero-zero and mother had there not been have been different: would dynamics reduction of her share of support, situation of a payor parent been in the more conventional Mother would have re was the case in In (as and a reduction in income who experiences Leonard, Eggers, supra, In re Marriage supra, Cal.App.4th Reynolds, In re Marriage supra, and her burden to establish a lack of and ability 1373) it would have been her to think twice have might to earn. That dynamic prompted opportunity that is not what happened: In event any though, about so retiring early. quite from new way problem to handle of children appropriate deduction is [suggesting hardship marriage].) actually the issue if father had might have had to deal with before us we case given salary, since mother ability and to earn evidence of presented substantial below, did not do so. Therefore marriage. As we show father from a new here has two children point. at this the substance of issue there is no need to enter on (almost Because of the unusual circumstances of this case a lab highly in the of burden of relate to experiment dynamics they imputation), proof the burden fell to father to show the presence opportunity. here,
Which the father have done he didn’t. Conspicuously absent are the sorts of things helped parents seeking carry imputation VIII, Munsee, their burden in Hinman and with LaBass & e.g., imputee’s resume, want ads for with credentials of the persons potential imputee, (e.g., counselor) from that a opinion testimony professional job person credentials could imputee’s (or secure a with a readily given employer set of scales with the employers), pay correlating ability income to be Nor was there vocational What there imputed. examination. sufficient, was—merely fact of retirement and income—was not previous thus trial court’s order denying clearly correct.18 *17 18Apparently because of the lack of a vocational willingness examination and the mother’s one, undergo to expressly the trial court prejudice. made its order without express We no opinion issue that subsequent proceedings arise in aspect in the wake of that the order. regard, though, that we very should note that a recent panel decision from another of this court, Marriage Mosley (2008) brings the minimal evidence presented to the trial court in this sharp evidentiary case into relief. Where the facts in the case indeed, were, before up us make a thin Mosley they consommé as in Hinman VIII and Munsee, LaBass & Mosley thick as lentil stew. was a case where a payor parent carried his showing burden change a (basically, of circumstances he big lost his at a law firm and got remuneration), another as though in-house counsel at much lower the trial court did not Mosley realize it the time. Hence the court reversed the denial the payor parent’s request also, to have spousal his child and support obligations payor parent lowered. The had unsuccessfully, sought imputation, of income parent, big to the custodial had been a who firm lawyer Recognizing herself. that the case would have to anyway, return to the trial court we “gave issues, guidance” (Mosley, 1389-1391), to the trial court at pp. including on a number of imputation of income parent. custodial In that payor parent context we noted that the provided had a both vocational evaluation parent testimony of the custodial and the aof expert (Neither vocational as parent to what the custodial could earn. provided which were judge here.) to the (1) trial in the case before us We also noted two other factors: The fact that receiving custodial spousal support obligation was and was an under to become self-supporting; and the benefits of the spend extra time the would have to required with his children if he weren’t “spend trying as much time at work to maximize his Here, (Id. bonus” and thus could “spend more time with the by children himself.” contrast, independent obligation mother had no part spousal as of a support order to become evidence, self-supporting and father did present any argument, not much less mother would a have beneficial effect on the spent boys. amount of his own time with his two of the Trial Judge:
IV. Miscellaneous Comment Jail” “Padilla comment the trial judge The father also asserts that a miscellaneous reversal. The is not argument somehow constitutes for automatic grounds persuasive. the end a comment made toward wholly
Specifically, passing asked, do out of the trial “when hearing, judge rhetorically, you get brief ”19 the comment evidenced a ‘Padilla The father here asserts that jail?’ not to that led to the court’s decision impute “mistaken prejudicial premise” income to the mother. No, The first is: the comment was
There are two answers to the assertion. The trial court wrong correctly not evidence of proceeding premises. on which to divined that the father had not evidence enough simply produced base imputation. was, context, more than nothing
The second is: The comment we think a correct rejection—of for the trial court’s rejection—and metaphor is, That the trial court did not understand an of Padilla. overly rigid reading for the Dickensian this court’s in Padilla as standing proposition opinion can never do that reduces income without anything a payor parent that income be “jail” figure speech requirement imputed; simply and incorrect reading. underscore that overly rigid *18 There can be no doubt that the A on Padilla are now in order. few words could under its facts: The particular payor parent Padilla decision was correct issue, not, his income was at “within weeks” of a court in which hearing quit a held “for the reneging job” many years”—in process “well-paying then, six months to at the new levels—and previous agreement pay support for, later, been as successful as his expect when the business had not hoped enough had been judge the father’s counsel that not evidence The trial had told before. The father’s counsel then ability the mother’s to earn what she had earned adduced on judge immediately segued: “I know the Padilla case. We all asked to be “heard on that.” The case, Padilla you get jail? You made a know the Padilla But at what time do out of [ft] going decided she was argument people. an—an between these She decision before there was work, the income for go impute back to early to take an retirement. I’ll order her think Padilla goes back to work. But I don’t ability has the to earn when she whatever she to be a income was intended that the child orders and the [of] meant asking”—and the trial interjected, “I’m not point which the father’s counsel punishment”—at decision, stated, struggled that over making a And we judge poor for penalty [ft] “—or Appeal the Court of where Padilla—maybe this will be the case for years. the I understand the back, for the somebody get job to retire and can’t the that—but when decides they will address impute life? Do we until she’s 65?” rest of their
income not to be calculated at Marriage levels. prebusiness startup Padilla, 1215, 1219.) supra, at of a quitting pp. so soon before a an well-paying job where is to be hearing obligation determined based on income the does not stand smell test. simply sure, in the Padilla
To be there is some be language opinion dicta, be, described as exuberant and that dicta can if read taken superficially, discretion the for a the rigidity transcends wrote Legislature into text Code section Family (b). subdivision At one for point, example, indicates that “A opinion motivation for available income is parent’s reducing irrelevant when the adequately reasonably (In Padilla, re for the child are provide supra, present.” 1218.) at there is some reasonable p. Perhaps room in wriggle sentence, the words . . . in that “adequately reasonably but provide” sentence be too taken may easily blanket that motivation proposition se per irrelevance, is however, irrelevant. An inflexible rule of se per is inconsistent with Code section Family (b)’s subdivision treatment of earning as a matter discretionary considering best interests of the times, however, children. There be may when the “best interests of the stressful, children” are promoted when leave albeit time-consuming, jobs, so as to be able high-paying more time with their spend children. The case of In re Marriage Everett Cal.App.3d Cal.Rptr. instructive in particularly that regard. 917] Everett, had worked at a payor parent as a supermarket bakery then manager, then lost his salesperson, job before due in “shortly separation Everett, (In re part drinking supra, problems.” Cal.App.3d 851.) He then started p. at a small working and married the bakery and tried proprietor, to make a go with his new things wife—which was difficult when the business lost a account and major tottered near bankruptcy. (Id. less, But at least stresses were which was of some importance given his condition aas alcoholic recovering to drink in (nothing (Ibid.) six previous years). When the moved to modify visitation, though, his ex-wife requested wage assignment, and he re with a sponded for modification of request At the support. hearing trial *19 court based its order on earned “solely income” and not on earning capacity (Id. 856, based on his work as a “skilled baker.” 858.) at pp.
The Everett court the decision not to upheld income as the impute against ex-wife’s claim on that the court abused its appeal discretion in not so. doing The court noted that the (a) payor parent was “full time a working continuous basis since the marital and (b) dissolution” there was no evidence that “shirking” reasoned because the was employed (Everett, 861, in a supra, 220 setting” at Cal.App.3d p. original “different so, actually court italics) doing appellate was no basis for imputation. legitimacy desire to work parent’s seemed to acknowledge payor the Everett court in a a less sensitive remarkably passage: Said job. stressful delicate than that because deciding “The trial court’s task is more simply be earn more additional income should money, be able to might not work would restructuring to that imputed parentMaybe would deterio- financial situation and mental well-being out and parent’s interrelated; while the court must rate. All of these factors are ultimately with the best interests of the consider to the extent consistent earning capacity the economic as well as children, course is their best interest of affected (Id. 862, strength supporting parent.” added.) emotional at italics p. judges that, the first to recognize We add of all should be need only people, trade, decisions to as our Court it put faith validity good Supreme 411, Marriage Simpson 225, In re (1992) 4 Cal.4th 234-235 931], “an work for an reason- extraordinary regimen” “objectively 841 P.2d Simpson, (In court the trial court’s high able work regimen.” upheld decision not to based on a history working earning capacity impute all, (all?) make more if overtime.) money they Most after would judges, work does regime” returned to but the phrase “extraordinary private practice, 2,200 22,000 (or is it these days?) not even to describe the often begin typical the Padilla opinion indeed, be And billable hours a that year required. Padilla, supra, that itself intuited correctly point. fn. p. Padilla, in the though, exuberant dicta in In that the most regard, might easily in that Language paragraph opinion’s penultimate paragraph.20 never their may try change be taken for the proposition life,” or— circumstances as to “lead a “change professions,” so simpler the Padilla court an allusion to California’s was making reputation perhaps “self-fulfillment,” a New lotusland—seek “self-realization” being Age are child based on theoretical unless they prepared pay too broad: It level. That dicta was earnings simply based upon previous balance in one’s life and to attain some legitimate attempt confused time one’s children with self-indulgent even some maybe actually spend above, elements in and best interest discretionary As noted shirking. the inherent “Statutory dicta here: commands and quote For reader convenience we rule, applied the bad faith their children lead us to conclude responsibility parents owe instance, longer supported. Once conceived in the first can no be support, if not ill self-realization, self-fulfillment, personal satisfac parents, their desires for persons become tion, goals responsibilities be considered in context of their and other commendable must life, they simpler lead a they needs. If decide wish to provide for their children’s reasonable business, so, may they satisfy when their they do but change professions or start (In re of their children.” adequate for the and reasonable needs primary responsibility: providing Padilla, omitted.) supra, fn. *20 4058, Code section Family (b) subdivision such certainly propo- temper Indeed, Padilla can sition. to the that the dicta degree “self-realization” from (a be read as an inflexible income-ratchet rule can standing parent payor never change without calculated on last positions having think, reconsideration, level) income we that such a rule is in highest conflict with the test of announced our Court in earning Supreme In re 4 Cal.4th Simpson, supra, 234-23521 our as well as decisions, think, decision in Everett. Both First District we colleagues’ inherent correctly that the discretion in perceived Code section 4058 Family is not a street one-way workaholism from requiring squeeze-the-last-drop either (One should remember in parent. this that a number of the regard cases, LaBass & Munsee Paulin involved the including directed at the earning capacity caretaker stay-at-home We have parent.) confidence that every trial can sniff out judges and efforts to skirt shirking legitimate well obligations enough se “last and per highest statute, rule” is not only contrary but unwise and as well. unnecessary
V. Disposition However, The court’s order is affirmed. light unusual circum- case, stances of this where with the ended parent greater has custody up with the paying lesser we believe that the custody, interests of that each justice require side bear its own costs on appeal. J., Bedsworth, J.,
Rylaarsdam, concurred.
RYLAARSDAM, J., Concurring. I concur.
But because I awas member of the that decided Marriage of panel Padilla 555], I need to explain my willingness criticism of that case contained in our accept opinion.
There is some benefit to be derived from and one I have experience thing learned during my years court is the danger by categorical posed more, statements injudicial It is our opinions. decide cases. No no less. Padilla criticized in our The statements we made went opinion beyond mandate. precise language “We earning capacity generally is: conclude that should not be upon extraordinary
based an regimen, upon objectively work but an instead reasonable work (In regimen it re as would exist at the time the determination of is made.” Simpson, supra, 234-235.) pp. 4 Cal.4th at *21 that the their children is a duty I am still of the opinion parents’ there never are circumstances where But this does not mean duty. paramount into A most obvious other considerations also come may play. example a need to more where a must a reduced income weigh against spend time with his or her it is the trial court to family. Ultimately weigh children, needs, all the needs of the not their economic against to fill these needs. 22, 2008, denied and the August A for a rehearing opinion petition was modified to read as above. printed