In re the Marriage of AISHA and HOWARD E. HINMAN.
AISHA OTHMAN, Appellant,
v.
HOWARD E. HINMAN, Respondent.
Court of Appeals of California, First District, Division Two.
*991 COUNSEL
Aisha Othman, in pro. per., and Robert L. Walker for Appellant.
Howard E. Hinman, in pro. per., for Respondent.
OPINION
RUVOLO, J.
INTRODUCTION
Aisha Othman[1] appeals from an order requiring her to pay $1,248 in monthly child support to her ex-husband Howard E. Hinman, the custodial parent of their five children.[2] Aisha contends: (1) the court improperly imputed income to her based on earning capacity; and (2) the court incorrectly computed the amount of Aisha's child support obligations. On this record, we find no abuse of discretion and affirm the judgment of the trial court.
In so holding, we decline to adopt a per se rule that the trial court may only consider parental earning capacity upon a showing of bad faith. Instead, we adhere to the plain language of the Family Code which grants the trial *992 court broad discretion to consider parental earning capacity consistent with the best interests of the supported child. (Fam. Code, § 4058, subd. (b).)
BACKGROUND
With this appeal, we find Howard and Aisha Hinman before this court in their eighth case requesting our review of trial court orders arising from the 1990 dissolution of their marriage.[3] Based on the parties' stipulation, a judgment issued on April 24, 1990, awarded Aisha and Howard joint physical and legal custody of their five children, Fairiz, Farah, Julianna, Joshua, and Justin, who were to continue residing in the family home with Howard. Due to ongoing litigation between the parties, this order has been modified on various occasions. The most recent order setting forth Aisha and Howard's rights with respect to the children was entered on February 7, 1994. In this order, the court granted sole legal and physical custody of the children to Howard and allowed Howard to relocate with the children to Bloomington, Indiana. Aisha was awarded supervised eight-hour visits with the children in Indiana once every two months.
On August 9, 1995, Howard filed an order to show cause requesting child support based on Aisha's earning capacity for the four minor children, Farah, Julianna, Joshua, and Justin.[4] The hearing was set for September 13, 1995. In the order to show cause, Howard alleged he had been forced to file for bankruptcy as a result of the costs associated with the dissolution, he anticipated a $25,000 reduction in his gross income, he was suffering *993 hardship from the court's requirement that he pay the costs of Aisha's supervised visits, and he was suffering hardship from his responsibility for Fairiz's college expenses which were only partially satisfied through a scholarship.
Howard requested the court to impute income to Aisha of $43,000 annually based upon her earning capacity. In his declaration, he stated Aisha was earning $44,000 annually while employed at Kemper Insurance before the institution of dissolution proceedings, and $38,400 at her most recent employment with California Casualty Insurance. Howard claimed Aisha purposefully accepted the lower paying job with California Casualty, because of pending spousal and child support proceedings and that her salary at Kemper was a more accurate barometer of her earning capacity.
In further support of the order to show cause, Howard attached the following documents: (1) previous income and expense declarations submitted by Aisha to the trial court; (2) Aisha's resume showing that she held a bachelor's degree in computer science and a diploma in computer science from the MARA Institute of Technology in Malaysia, as well as significant employment experience in the computer field; (3) a letter from an employment agency stating Aisha had an earning potential of between $35,000 and $45,000 annually; (4) a letter from a second employment agency stating Aisha had an earning potential of between $35,000 and $50,000 annually; (5) a computer printout illustrating the effect of imputing income to Aisha on calculating the parties' child support obligations; (6) various letters and memos from Aisha's previous employers showing their satisfaction with her work; and (7) correspondence with Aisha's attorney requesting that Aisha contribute to the children's support.
In response, Aisha submitted her own declaration on September 5, 1995, stating "[It] is hereby point[ed] out that petitioner has not worked for over four years, has three children all under the age of three years old for whom she cares exclusively and that, despite respondent's assertions, that [sic] she would be unable at this time to work at any of the jobs she has held in the past, nor would she be able to reconcile same with her need to care for her children." She disputed Howard's contentions concerning his worsening financial condition and claimed his request to impute $43,000 of annual income to her was "in error by $43,000[]." She did not, however, dispute Howard's description of her employment qualifications, previous salary levels, or her ability to locate work. Aisha submitted a declaration of income and expenses describing both her income and her expenses as zero.
Aisha did not attend the hearing on the order to show cause, however, she made arrangements to be represented by counsel. At the hearing, the court *994 granted Howard's request for child support reasoning: "[W]e have five children being raised by Mr. Hinman in Indiana, four of whom are under the age of [eighteen], and she has started a new family with three new babies. She has brought ... eight kids into the world, and wishes to be responsible for the support of only three. [¶] And of course, you know as well as I do, that that is not the way the laws of the [S]tate of California work. She has to contribute some support to these children. She can't just quit work and create a new family and then use that as an excuse to escape her responsibilities to these other children. [¶] She is a very bright woman. I have seen her testify numerous times, and she is very educated. She speaks English well. She is eminently employable.... [¶] So I am going to impute some income to her because these children do need her support." On September 14, 1995, the court entered an order imputing $3,200 per month of income to Aisha and awarding Howard $1,248 of monthly child support. This appeal followed.
DISCUSSION
I. The Court Did Not Err in Awarding Child Support Based on Earning Capacity
(1a) Aisha contends the court erred in awarding child support based on her earning capacity, rather than her actual earnings. She argues a court may not impute income to a parent, unless the parent is deliberately avoiding his or her financial family responsibilities. (See, e.g., Philbin v. Philbin (1971)
(1b) Historically, some courts have stated the availability of child support awards based on earning capacity is limited to situations where the parent deliberately shirks financial family responsibilities by refusing to accept or seek gainful employment. (See In re Marriage of Williams (1984)
(3a) In In re Marriage of Regnery (1989)
In Ilas, supra, 12 Cal. App.4th at pages 1638-1639, Division Two of the Fourth District declared: "While deliberate avoidance of family responsibilities is a significant factor in the decision to consider earning capacity [citation], the statute explicitly authorizes consideration of earning capacity in all cases. ([Former Civ. Code,] § 4801, subd. (a)(1).) Accordingly, the trial court's consideration of earning capacity is not limited to cases in which a deliberate attempt to avoid support responsibilities is found."
*996 Division Three of the Fourth District had previously held findings of good faith prevented use of the earning capacity standard. (In re Marriage of Meegan (1992)
In abandoning Philbin, the Padilla court adopted the Regnery test for determining whether a court may consider a payor's earning capacity. The court employed the following rationale in doing so: "Public policy supports our conclusion. Because children's interests are a top priority (Fam. Code, § 4053, subd. (a)) and payment of appropriate support is a parent's primary obligation (Fam. Code, § 4053, subds. (a) & (d)), a child support obligation `"must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor.... [C]hild ... support [is] an overhead which must be paid first before any other expenses.... [A payor does] not have the right to divest himself [or herself] of his [or her] earning ability at the expense of ... minor children."' [Citations.]" (Padilla, supra,
In In re Marriage of Catalano (1988)
In In re Marriage of Everett (1990)
Finally, in County of Yolo v. Garcia (1993)
Despite the existence of intra- and inter-district conflict concerning the meaning and continuing vitality of the Philbin rule, our Supreme Court has not yet resolved the issue. In In re Marriage of Simpson (1992)
Family Code section 4058, subdivision (b) succinctly provides: "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." Despite other courts' efforts to harmonize this statute with Philbin, this language is simply not consistent with language in Philbin limiting consideration of earning capacity to cases in which the payor is deliberately attempting to avoid financial family responsibilities. (See Philbin, supra,
(1c) The plain language of Family Code section 4058, subdivision (b) and the policies underlying the statute permit consideration of a payor's earning capacity, when consistent with the child's best interests, in order to ensure children's needs are met with appropriate levels of support. (See Padilla, supra,
(1d) We hold that subjective motivation for reducing available income is irrelevant to the court's ability to consider a payor's earning capacity. *999 (Padilla, supra, 38 Cal. App.4th at pp. 1217-1218.) We also decline to define the court's authority to consider earning capacity in terms of whether the payor unreasonably failed to seek or accept employment opportunities. (See, e.g., County of Yolo, supra,
Instead, we follow the precise text of the statute. As long as ability and opportunity to earn exist, as defined by the test set forth in Regnery and approved in Simpson, supra,
We are not unmindful that imputation of income to an unemployed spouse may place a significant burden on that spouse or those with whom the spouse creates a new family unit. In the case before us we are reminded Aisha has a new family which includes very young children. We also note again that Aisha had five children in her marriage with Howard, all of whom are in Howard's custody and most of whom are minors. The Legislature has declared in Family Code section 4058 that any balancing of these competing interests is vested in the sound discretion of the trial court consistent with the best interests of the supported children. Therefore, we decline the request to adopt a per se rule prohibiting the imputation of income to parents who refrain from employment in order to care for preschool-age children in all cases.[7] Instead, we hold that the question whether earnings should be imputed to an underemployed or unemployed parent is addressed to the sound discretion of the trial court. All circumstances relevant to this determination may be considered by the trial court upon presentation by the parties. However, we are in agreement that a child support obligation "`"must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor.... [C]hild ... support [is] an overhead which must be paid first before any other expenses.... [A payor does] not have the right to divest himself [or herself] of his [or her] earning ability at the expense of ... minor children."' [Citations.]" (Padilla, supra,
After review of the record in this case, we have determined the trial court's order was not an abuse of discretion. The trial court was presented *1000 with evidence of Aisha's ability and opportunity to work. The evidence showed Aisha had highly marketable employment skills. She possessed two degrees in computer science, significant work experience in the computer field, and at least two employment agencies believed they could find a job placement for her utilizing her knowledge of computers. The evidence also demonstrated that such an award would be consistent with the children's best interests. Howard's income was declining, while his expenses were increasing due to costs associated with the divorce and the cost of college for Fairiz. Aisha's opposition did not dispute her ability or opportunity to work. Nor, did she contend that an award of child support based on her earning capacity would not be in the best interests of Farah, Julianna, Joshua, and Justin. Instead, her opposition rested solely on the fact that she was caring for three young children from a subsequent relationship and felt she would not be able to reconcile working with her need to care for her children. Aisha did not claim she was temporarily disabled from employment due to the birth of her most recent child.
(4) Aisha argues her position is supported by the decision in County of Yolo, supra,
Thus, County of Yolo must be limited to its own unique facts. Our case factually is quite different. As noted, this is not an appeal from an order of AFDC reimbursement. Here, the court properly must take into account the best interests of the child in whose favor the support order is sought. We are not encumbered with a statutory conflict between the reimbursement law and any governmental work incentive program. In County of Yolo, Ms. Garcia was a single parent subsisting solely on AFDC benefits. The court had no evidence whatsoever about Ms. Garcia's opportunities to obtain a minimum wage job. (20 Cal. App.4th at pp. 1786-1787 (conc. opn. of Nicholson, J.).) Thus, the existence of employment opportunity under the Regnery test was not satisfied. (Ibid.)
(1e) None of the factors which the County of Yolo court found so compelling are present here. For example, regardless of whether Aisha's *1001 new "marriage" had been registered with the state, she was not a single parent. Although unemployed, her income and expense declaration listed her expenses as zero. Thus, Aisha was not responsible for her own living expenses or the living expenses of her children. Unlike Garcia, Aisha possessed two degrees in computer science and significant experience in the computer field. Most importantly, evidence was presented to the trial court showing Aisha had the ability and opportunity for employment. The court below found that a support award was in the best interests of Aisha and Howard's five children being raised solely by Howard. Accordingly, Aisha's citation to County of Yolo is unpersuasive.
Finally, Aisha contends the trial court erred because consideration of her earning capacity was not consistent with the best interests of her three resident children from her new marriage. This contention has no merit. In support of this proposition, Aisha cites Nolte, supra,
Based on the evidence of Aisha's employment ability and opportunity presented below and the consistency of the child support award with the best interests of Farah, Julianna, Joshua, and Justin, we conclude the trial court's decision to consider Aisha's earning capacity in computing child support was not an abuse of discretion.
II. The Court Did Not Err in Calculating the Child Support Award
(5) On appeal, Aisha claims the trial court improperly calculated the amount of child support. She contends: (1) the trial court erroneously attributed five federal withholding exemptions to Howard, instead of six;[9] the court should have given Aisha at least a 2 percent time share based on her visitation with the children,[10] the court did not take into account Howard's entitlement to tax deductions for his mortgage interest payments *1002 of $708.49 per month and real property taxes of $113.60 per month; and the court should have given Aisha hardship deductions for the three children residing with Aisha. Thus Aisha concludes, her child support obligations should be $835 per month, rather than the $1,248 per month awarded by the trial court.
Aisha failed, however, to raise any of the above described arguments below, thereby waiving her right to challenge the computation of the child support award on appeal.[11] (See Steven W. v. Matthew S. (1995)
*1003 III. Sanctions, Attorney Fees, and Costs
(6) Howard requests attorney fees and sanctions, claiming the instant appeal is frivolous. We disagree. California Rules of Court, rule 26(e) authorizes imposition of sanctions when it is found that the appeal "is frivolous or taken solely for purposes of delay, or for an unreasonable infraction of the rules governing appeals." As a rule, "... an appeal should be held to be frivolous only when it is prosecuted for an improper motive to harass the respondent or delay the effect of an adverse judgment or when it indisputably has no merit when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982)
In her opening brief, Aisha also requests that we impose attorney fees and sanctions against Howard. Given the outcome of this appeal, we deny Aisha's request.[12] Aisha's request that trial court judge Judith Whitmer Kozloski be disqualified from this case is also denied.
DISPOSITION
The judgment of the trial court is affirmed. Howard shall recover costs on appeal.
Haerle, Acting P.J., and Lambden, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 27, 1997.
NOTES
Notes
[1] We use the parties' first names only to avoid confusion and to assist the reader. Accordingly, no disrespect for the litigants should be inferred from such usage. (Cf. In re Marriage of Smith (1990)
[2] Although Howard is not the biological father of the two older children, Fairiz and Farah, this court upheld a judgment granting him joint custody of these children. (In re Marriage of Hinman (1992)
[3] In re Marriage of Hinman (nonpublished portion of partially published opinion affirming a number of postjudgment orders including those relating to child custody, visitation, attorney fees and appointment of counsel for the children with minor modifications) (Hinman I); for published portion see In re Marriage of Hinman, supra,
[4] Howard did not pursue child support for Fairiz, who would have been 18 years old at the time of the scheduled child support hearing.
[5] The mandatory "shall" was replaced with the discretionary "may" by a 1992 amendment codified in former Civil Code section 4721, subdivision (f)(2) (Stats. 1992, ch. 46, § 9), which was recodified without substantive change in former Civil Code, § 4720.2 (Stats. 1991, ch. 110, § 13, pp. 604-609), former Family Code section 4058 (Stats. 1992, ch. 162, § 10), and current Family Code section 4058, subdivision (b) (Stats. 1993, ch. 219, § 138) ("The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children.").
[6] Although Regnery sets forth a three-prong test consisting of ability, willingness, and opportunity, the court held earning capacity can be considered when only ability and opportunity are present. ("When the payor is unwilling to pay and the other two factors are present, the court may apply the earnings capacity standard to deter the shirking of one's family obligations." [
[7] At oral argument, Aisha raised the possibility that allowing income to be imputed to the primary caretaker of preschool-age children might unfairly burden parents whose religious beliefs prohibit the use of birth control. She did not, however, raise this issue below.
[8] Aisha also cites In re Marriage of Touchstone (Cal. App.), a case that was depublished by the Supreme Court on August 10, 1990.
[9] Aisha argues Howard could also take an exemption on behalf of 18-year-old Fairiz, because he was a full-time student.
[10] In the order to show cause, Howard declared Aisha had only visited the children for a total of 16 hours in the last 17 months.
[11] Aisha attempts to excuse her failure to raise issues in her opposition by arguing that, because of her absence at the hearing, she "did not have an opportunity to object personally to the manner in which the support was computed; and it is obvious from the transcript of the hearing that the attorney who appeared for her pro bono was not prepared to make these objections." (Original italics.) The record shows, however, that Aisha requested the court excuse her appearance due to the recent birth of her eighth child. In apparent contradiction to her request to be excused from the hearing, Aisha also requested a three-month continuance of the hearing "to after December 13, 1995, preferably a Tuesday afternoon." Aisha requested that such a continuance only be granted, however, if the trial court determined Howard's requests were proper. The hearing went forward as scheduled on September 13, 1995. Aisha was not present, but arranged for counsel to represent her at the hearing. Although Aisha's attorney remarked, "For the record [Aisha] did request to be allowed to appear," he proceeded to argue the merits of the order to show cause without moving for a continuance. On appeal, Aisha does not claim the court should have continued the hearing, as opposed to excusing her appearance. Thus, she has waived her right to contest this issue on appeal. (See Kim v. Sumitomo Bank (1993)
[12] Aisha also filed a motion for attorney fees on April 22, 1996. The motion was denied by this court on May 2, 1996.