In re Marriage of Barth: Family Code section 4009 properly applied to make retroactive child support order; no violation of Equal Protection.
By Garrett C. Dailey, Certified Family Law Specialist
FACTS: Parties married in 1989 and were living in OH. In 2004, H, a CPA, accepted a new job and moved to CA. W and two children (Cs) joined him 5 mos. later. Six wks. after W arrived,
H admitted to extramarital affairs and W immediately returned to OH with Cs and filed for dissolution. H filed for dissolution in CA and filed a motion seeking return of Cs. CA action stayed pending OH proceedings. H objected to OH jurisdiction. OH judges disagreed and ordered child support (c/s) of $1,295/mo., later increased to $1,600/mo. After 31 mos. of litigation, in 3/07, OH Supreme Ct. agreed with H and vacated all OH orders.
H was terminated from CA employment in 2/07 and received $187,500 partial settlement. H then started 4 businesses, 2 in CA and 2 in OH, and commuted between them. H’s earnings later found to be: 2004-2006: $1.6 million; 2006: $773,463; and 2007, $316,271. H then proceeded with his stayed CA motion to set c/s. He was granted a fee waiver to proceed in forma pauperis. In 8/07, W filed her own c/s motion. Commissioner A recommended retroactive c/s ranging from $2,253/mo. to $7,239/mo. from 10/04 through 12/07. Accepting H’s representations of low income and parental responsibilities to Cs, c/s set at zero commencing 1/08.
H objected and demanded trial de novo, which he received before Judge 2. Court found H had repeatedly misrepresented his income and that he had “egregiously misrepresented material facts and information.” Based on the opinion of a vocational expert, H found to have both the ability and opportunity to earn $10,000/mo., to which the court added other income H had not fully disclosed. Court ordered c/s retroactive to 9/04, which, after crediting his payments under void OH orders, resulted in arrearages of $171,358, payable at $1,000/mo., plus ongoing c/s based on his imputed income. H appealed and Court of Appeal affirmed with the admonition, “be careful what you wish for.”
HELD: Family Code section 4009 properly applied to make retroactive child support order; no violation of Equal Protection.
Section 4009 Properly Applied: H argued that 4009 did not apply where custodial parent: 1) did not submit to CA jurisdiction before 7/07; took Cs to OH and established a c/s order there based on her circumstances in OH; avoided CA jurisdiction for 3 years; and when OH Supreme Court voided the c/s orders, returned to CA seeking c/s based on CA guidelines. Court of Appeal disagreed, noting that Family Code section 4009 was intended for the support of children, not to punish parents for litigation tactics. (It also noted that H should avoid “throwing stones lest he hit his own glass house.”)
In re Marriage of Barth: No Denial of Equal Protection
‘The 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.’ [Citations.]” [Citation.] ‘This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” [Citation.]’ ” (In re Marriage of Barth, supra, 210 Cal.App.4th at p. 374.)
H was not similarly situated to a person subject to a temporary c/s order because such orders are different from permanent c/s orders in OH. Also, the OH orders were void. In addition, H could be treated differently than a parent subject to temporary c/s orders. “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.” (In re Marriage of Barth, supra, 210 Cal.App.4th at p. 374.)
Imputed Income: Trial ct. properly imputed income to H at $10,000/mo. earnings, plus $49,500/yr. from other sources. Relying on In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, H argued that W failed to show he had both the ability and opportunity to earn that amount. Court of Appeal disagreed, noting that trial ct. did not use H’s last year of outside employment, but made a finding that he was “woefully and purposefully underemployed.”
Effect of Custodial Arrangement on Ability to Earn: H argued that the vocational expert failed to consider his custodial arrangement when opining on his employability. H was spending 12 days/mo. in OH. Court of Appeal rejected the argument.
“[The expert] was not required to determine if [husband] could find a job that would not require him to reevaluate the custody arrangement—custody arrangements sometimes have to adjust to meet a parent’s work requirements.” (In re Marriage of Barth, supra, 210 Cal.App.4th at p. 376.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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