Opinion
An issue of first impression in California is raised in this dissolution action: Does the federal preemption doctrine prohibit the inclusion of military allowances for housing and food in a party’s gross income for purposes of calculating child and spousal support, since under federal law such allowances are not taxable or subject to wage garnishment? We conclude the doctrine is inapplicable, as under United States Supreme Court authority family law support matters are within the province of state law unless “ ‘Congress has “positively required by direct enactment” that state law be preempted.’ ” (Rose v. Rose (1987)
BACKGROUND
The parties married in August 1993, and they have a teenage son. The parties separated in 2005 and in March 2007 Soloman filed for dissolution of the marriage. The dissolution was granted, effective March 2008.
After a hearing on September 2, 2009, the court awarded Carol $1,415 per month in temporary child support. After a hearing on September 8, the court awarded Carol $1,600 in temporary spousal support.
Soloman is a member of the United States Navy. In calculating temporary support, the court included in his gross income nontaxable military allowances, a basic allowance for housing (BAH) and a basic allowance for subsistence (BAS).
On October 29, 2009, Soloman filed an OSC for a reduction in child support, and on November 4, he filed a petition for a modification of spousal support. His August 2009 pay stub showed his monthly base pay had increased to $4,474.80, and his BAH had increased to $2,199. His BAS and special duty pay remained $323.87 and $300, respectively. Carol’s updated income and expense declaration stated gross monthly income of $2,097 as a graduate research assistant.
In his memoranda of points and authorities, the only argument Soloman raised was that the court erred by including his BAH and BAS in his gross income. He argued the court violated the federal preemption doctrine since
After a hearing on December 3, 2009, the court denied Solomаn’s OSC regarding child support. The court explained, “[I]f it looks like income, it is income no matter how it’s paid to you. And this court has always considered BAH and BAS to be income.” After a hearing on December 23, the court denied Soloman’s motion for modification of temporary spousal support. The court again set temporary spousal support at $1,600 per month.
DISCUSSION
I
Federal Preemption Is Proper Issue on Appeal
Preliminarily, we address the Department’s comment at oral argument that we need not reach the federal preemption issue because it is a legal issue, and we may affirm the December 2009 orders on the sole ground Soloman presented no changed factual circumstance justifying a modification of support. Since the September 2009 support orders are based in part on his BAH and BAS, the federal preemption issue arose then, and he did not challenge the orders on appeal and they are final.
Under state law, a “variety of interim, ‘temporary’ orders (also referred to as ‘pendente lite’ relief) may issue in domestic relations proceedings pending trial and ultimate judgment.” (Hogoboom & King, Cal. Practice Guide; Family Law (The Rutter Group 2010) ch. 5, Scope Note, p. 5-1 (rev. # 1, 2010).) Pending final resolution of the case, the court may order one spouse to support the other and either or both parents to pay “any amount necessary” to support the children. (§ 3600.) “As a general rule, courts will not revise a child support order unless there has been a ‘material change of circumstances.’ This rule applies to any form of child support ordеr—i.e., whether pendente lite or ‘permanent.’ ” (Hogoboom & King, supra, f 17:25, p. 17-10.) The majority view is that the same general rule applies to temporary spousal support. (Id., 1 17:139, pp. 17-35 to 17-36.)
Without a changed circumstances rule, “ ‘dissolution cases would have no finality and unhappy former spouses could bring repeated actions for
There are, however, “some recognized exceptions to the general rule that collateral attack will not be allowed where there is fundamental jurisdiction [as here]. . . . Fоr example, a judgment may be collaterally attacked where unusual circumstances were present that prevented an earlier and more appropriate attack.” (Pacific Mut. Life Ins. Co. v. McConnell (1955)
Soloman asserts that because of the procedure the court adopted after setting aside the MSA on September 1, 2009—scheduling a child support hearing the following day and then awarding spousal support on September 8 at what he thought would be a review hearing—he was unprepared to address the federal preemption doctrine. He submits the matter was nоt argued on the merits until December 3 and 23, 2009, at the hearings on his OSC and motion for modification. The record does show that when the court set aside the MSA on September 1, 2009, it moved quickly to establish new support orders to avoid any gap in support.
At the hearing on Soloman’s OSC for modification of child support, the court did not prohibit him from collaterally attacking the September 2009 support orders. Rather, it allowed him to thoroughly argue the merits of the federal preemption issue.
II
Federal Preemption Doctrine Is Inapplicable to California Support Law
A
Parents “have an equal responsibility to support their child in the manner suitable to the child’s circumstances” (§ 3900), and “[e]ach parent should pay for the support of the children according to his or her ability” (§ 4053, subd. (d)). The amount of child support must bе in accordance with a statewide uniform guideline. (§ 4055.) The calculation begins with a determination of the parents’ “annual gross income,” which “means income from whatever source derived.” (§ 4058, subd. (a).) The court may consider “employee benefits,” “taking into consideration the benefit to the employee, [and] any corresponding reduction in living expenses . . . .” (§ 4058, subd. (a)(3).) The statute expressly excludes income derived from certain sources, but it does not mention military allowances. (§ 4058, subd. (c).)
A temporary award of spousal support is intended “to maintain the living conditions and standards of the parties as closely as possible to the status quo, pending trial and the division of the assets and obligations of the parties.” (In re Marriage of McNaughton (1983)
B
1
“The supremaсy clause of the United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preempt state law.” (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007)
It is Soloman’s burden to show thе applicability of the federal preemption doctrine. (Viva!, supra,
2
Soloman has not met his burden. He cites no direct enactment showing Congress intended to disallow a state court’s inclusion of military allowances such as BAH and BAS in a party’s gross income for purposes of family support. He merely string cites an assortment of federal statutes and cursorily concludes the court exceeded its authority.
Soloman citеs federal statutory definitions of military “pay” as including “basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but ... not .. . allowances.” (10 U.S.C. § 101(a)(15); 37 U.S.C. § 101(21).) He also cites a provision of the Internal Revenue Code that states, “Gross income shall not include any qualified military benefit.” (26 U.S.C. § 134(a).) The term “qualified military benefit” means “any allowance or in-kind benefit” that a military member receives. (26 U.S.C. § 134(b)(1)(A).) He also cites a federal statute that excludes military allowances “payable pursuant to chapter 7 of title 37, United States Code [(37 U.S.C.S. § 401 et seq.)], as prescribed by the Secretaries concerned ... as necessary for the efficient performance of duty,” from income subject to withholding in a garnishment proceeding against the United States government to satisfy support obligations. (42 U.S.C. § 659(h)(l)(B)(ii); see 5 C.F.R. 581.104(h)(2)(ii), (iii) (2010).)
The nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support.
Soloman claims Alter is inapplicable as it does not pertain to BAH and BAS. The opinion’s basic premise, however, is sound regardless of the nontaxable asset at issue. Further, courts in other jurisdictions have persuasively rejected the notion the nontaxable character of military allowances precludes them from being included in gross income. In In re Marriage of Stokes (2010)
In Massey v. Evans (N.Y.App.Div. 2009)
In State, DSS ex rel. D.F. v. L.T. (La. 2006)
Additionally, the protection of certain military allowances from wage garnishment for support arrearages does not indicate Congress intended to preempt state family support law. In Rose, supra,
Similarly, in Massey, supra,
Similarly, Kelly v. Kelly (Conn.Super.Ct., Dec. 18, 2003, No. FA920111299) 2003 Conn.Super. Lexis 3573, is unhelpful to Soloman. In Kelly, a state statute provided that for purposes of determining child support “gross income is defined to include ‘employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter or transportation provided on a recurrent basis in lieu or in addition to salary or wages)’; and ‘military personnel fringe benefit payments.’ ” (Id. at p. *5.) The court held the wife did not meet her burden of showing BAS payments qualified as a “perk” or a “military fringe benefit.” (Id. at pp. *8-*9.) The court explained, “A common theme consistent with determinations that include the value of an employer reimbursement as income, is that the payment of the ‘perk’ is for a non-business related expense.” (Id. at p. *7.) Without contrary evidencе, the court concluded the BAS was “a direct expense associated with [the husband’s] responsibilities and duties necessary to the performance of his employment.” (Id. at p. *8.) The court also explained that a “ ‘fringe benefit’ implies the receipt of a ‘free benefit, such as health insurance or a pension received by an employee.’ ” (Id. at p. *9.) Kelly does not pertain to federal preemption, or to statutes similar to California’s law on support.
We join other courts in holding federal preemption is inapplicable to military allowances such as BAH and BAS. The inclusion of such allowances does not do major damage to a clear and substantial federal interest. (Rose, supra,
Exclusion of Spousal Support from Carol’s Gross Income
Soloman’s OSC for a reduction of child support claimed as a changed circumstance the court’s September 2009 order awarding Carol $1,600 in spousal support. Thе Family Code, however, precludes the court from including the spousal support in Carol’s gross income. A parent’s annual gross income for child support purposes includes “spousal support actually received from a person not a party to the proceeding.” (§ 4058, subd. (a)(1), italics added.) “By necessary implication, the Legislature did not intend the inclusion of spousal support from a person who is a party to the proceeding. Otherwise, spousal support, without qualification, would have been included in the list of qualifying income.” (In re Marriage of Corman (1997)
Sоloman claims section 4058, subdivision (a)(1) violates his substantive due process rights. We decline to consider the matter, however, because he develops no particular due process argument and cites no supporting legal authority. When a party provides a brief without argument or citation of authority, we may “treat the points as waived, or meritless, and pass them without further consideration.” (Troensegaard v. Silvercrest Industries, Inc. (1985)
IV
Additional Issues
The list of issues in Soloman’s opening brief includes the issue of whether the court abused its discretion by not considering the disparity in the parties’ costs of living—his in San Diego, California, and hers in Portland, Oregon. He has waived appellate review of the issue, however, by not developing any particular argument or citing any supporting legal authority on the matter. Again, “parties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s . . . issue as waived.” (Interinsurance Exchange v. Collins (1994)
Further, for the first time in his reply brief, Soloman contends he submitted evidence showing changed circumstances justifying a reduction in child and spousal support, based on the parties’ updated income and expense declarations. He abandoned the issue by not raising it in his opening brief. (California Recreation Industries v. Kierstead (1988)
The orders are affirmed. Carol is entitled to costs on appeal.
McDonald, J., and O’Rourke, J., concurred.
A petition for a rehearing was denied December 2, 2010, and appellant’s petition for review by the Supreme Court was denied February 23, 2011, S189315.
Notes
As is customary in family law matters in wMch the parties share a surname, we refer to them by their first nаmes.
Soloman, who has represented himself at the family court and on appeal, has breached basic principles of appellate practice by not citing the appellate record in support of his factual statements, or to show he raised his arguments below. To avoid delay, however, we exercise our discretion not to require corrections in his briefing as we are informed he is subject to
Child and spousal support were considered by different judicial officers. Because the Department is providing enforcement services to Carol, a commissioner heard the child support matter as required by the Family Code. (Fam. Code, §§ 4251, subd. (a), 17400; all future undesignated statutory references are to the Family Code.) A family law judge heard the spоusal support matter. We refer to both the commissioner and the judge as the court.
The BHA is a monthly payment for active military members that is intended to defray the cost of civilian housing. (37 U.S.C. § 403(a)(1).) The BSA is an additional monthly sum to subsidize the cost of meals purchased on or off base. (37 U.S.C. § 402(a)(1).)
The record does not include a reporter’s transcript from the September 23, 2009 hearing in which the court denied Soloman’s motion to modify spousal support.
The following opinions also hold military allowances are includable in gross income for purposes of family law support: Norman v. Norman (Ala.Civ.App. 2010)