Opinion
D069165
01-24-2017
In re the Marriage of KARYN THIELEN and ALAN GERACI. KARYN THIELEN, Respondent, v. ALAN GERACI, Appellant.
Alan Geraci, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN152201) APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Reversed with directions. Alan Geraci, in pro. per., for Appellant. No appearance for Respondent.
Appellant, Alan Geraci, acting in propria persona, appeals from an order denying his motion to modify an earlier child support order. The underlying support order requires he pay his former wife, respondent Karyn Thielen, $188 a month for the support of their now 10-year-old son, over whom Geraci and Thielen share joint physical custody on an equal basis.
The trial court determined that Geraci's new wife's income was relevant to determining Geraci's income, that there was no evidence of her income in the record and that Geraci would be entitled to modification only upon presenting evidence of his new wife's income.
In finding the new wife's income was relevant and necessary, the trial court erred. Family Code section 4057.5 permits consideration of subsequent spouse's income where there is a showing that failure to consider it will "lead to extreme and severe hardship" to the supported child. (See In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1067 (Wood).) There is no such showing on this record.
All further statutory references are to the Family Code.
Accordingly, we must reverse the trial court's order and remand with directions that it consider Geraci's request for modification without reference to his new spouse's income. However, the record reflects that prior to the initial support order Geraci was able to pay his new wife $150,000. The record also shows that Geraci closed down his law practice and, although on disability, was able to coach his son's baseball and soccer teams. As we explain, arguably those circumstances might support a finding imputing income to Geraci and, on that basis, making an order denying any modification or only partially granting Geraci's request for modification. Thus, our remand is without prejudice to the court's power to impute income to Geraci.
FACTUAL AND PROCEDURAL BACKGROUND
Geraci and Thielen share custody of their son on an equal basis. On September 26, 2014, Geraci was ordered to pay Thielen the guideline amount of $188 in child support. A little over a month later, on October 31, 2014, Geraci filed a request for modification of that support order. In support of his request for modification, Geraci filed income and expense declarations on October 31, 2014, and again on May 14, 2015. Those declarations, as well as additional documents, showed that Geraci was living with his second wife, that he received disability insurance payments of $4,400 a month and that although he had monthly expenses of $4087, $1,400 of those expenses were paid by others.
Thielen opposed Geraci's motion. She argued Geraci had transferred substantial funds to his new wife, that they were working in concert to reduce Geraci's child support obligation, and that his disability was not bona fide because he was able to coach various sports teams. Thielen pointed out that in a recent bankruptcy filing, Geraci had disclosed that although he had inherited a substantial amount of money from his father, in 2013 he had transferred $150,000 to his new wife.
For his part, Geraci asserted that the money he paid his new wife was for wages she earned while working for him in the tax preparation business he owned and operated prior to his separation from Thielen.
The trial court denied Geraci's motion. The court noted Geraci had provided no information with respect to his new wife's income; relying on Family Code section 4057.5 subdivision (b), the trial court further found that Geraci's conduct permitted it to consider his new wife's income. The court stated: "The Court finds that Respondent has taken steps to limit the amount of his income that would be available to be used for support. The Court finds that Respondent voluntarily sought treatment for his depression in order to seek disability which would reduce his court ordered support obligation. The Court also finds that Respondent is relying on his new spouse's income to assist with his personal expenses."
The court made its order denying the modification without prejudice; importantly, the court's order stated that any new request for modification would require that Geraci provide information about his new spouse's income from October 2014.
DISCUSSION
As Geraci points out, Family Code section 4057.5 subdivision (a)(1) states in pertinent part: "The income of the obligor parent's subsequent spouse . . . shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award." (Italics added.) As the trial court noted, section 4057.5, subdivision (b) provides that "an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income." However, the extraordinary circumstances described in section 4057.5, subdivision (b) permit consideration of a subsequent spouse's income only if failure to do so would lead to the extreme and severe hardship required by section 4057.6, subdivision (a). (In re Marriage of Wood, supra, 37 Cal.App.4th at p. 1067.) "Subdivisions (a) and (b) of section 4057.5 taken together mean that if a child would suffer extreme and severe hardship if the court does not look to new mate income, then the court must look to it. If the child may suffer because one of his parents quits working deliberately, then this is an extraordinary case in which the court may look to the income of the new mate of the spouse who has quit working, but the court can only consider this in order to prevent a hardship to the supported child." (Ibid.)
There is nothing in the record which shows that reducing the initial $188 support award would create an extreme and severe hardship for Geraci and Thielen's son, over whom his parents share equal physical custody. Nonetheless, the trial court's order expressly relies on the absence of information about the new spouse's income as the basis for denying Geraci's request for a modification and requires that any future request for modification include such information. In doing so, the trial court erred; accordingly, we must reverse the trial court's order. (See Wood, supra, 37 Cal.App.4th at p. 1067.)
However, for the benefit of the trial court and the parties on remand, we note the trial court does have the power to impute income where, as here, the record suggests a parent has intentionally remained unemployed or underemployed and determination of such income is in the best of interests of the supported child. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 308; In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 754; § 4058, subd. (b).)
DISPOSITION
The order denying Geraci's request for modification is reversed and remanded with instructions the trial court consider the request without reference to Geraci's new wife's income, but without prejudice to the court's power to impute income to Geraci.
Geraci to bear his own costs of appeal.
Thielen did not make any appearance on this appeal. --------
BENKE, Acting P. J. WE CONCUR: NARES, J. AARON, J.