Opinion
D072880
08-20-2018
In re the Marriage of BRYAN and JACQUELYNE BOYLE. BRYAN BOYLE, Respondent, v. JACQUELYNE BOYLE, Appellant.
Anthony J. Boucek for Appellant. Bryan Boyle, in pro. per., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. D563242) APPEAL from orders of the Superior Court of San Diego County, Daniel F. Link, Judge. Reversed. Anthony J. Boucek for Appellant. Bryan Boyle, in pro. per., for Respondent.
Appellant Jacquelyne Boyle (Mother) appeals an order modifying temporary child support payable to her from respondent Bryan Boyle (Father), for their two children. (Fam. Code, § 3554 [temporary orders awarding or denying child support are appealable].) Following the parties' separation after an 11-year marriage, temporary support orders were issued in November 2016 and March 2017, and the orders that are the subject of this appeal were issued in August 2017. The court recalculated both child and spousal support amounts, in large part by imputing a full-time minimum wage income to Mother, who had not worked outside the home for the past few years, after being terminated from her job as a technology specialist.
All further statutory references are to this code unless noted.
On appeal, Mother asserts the trial court abused its discretion by imputing such full-time minimum wages to her, and argues that Father as the moving party failed to present evidence, including the vocational evaluation to which she submitted, that sufficiently showed she had available opportunities to work. (§ 4058, subd. (b) ["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."].) Mother provided evidence that she had engaged in a job search that was unsuccessful and she was seeking additional training to update what employers might view as her "antiquated" technical knowledge, based on her three-year gap in employment. She further contends the court failed to make an express finding that the modification was in the best interests of their two children, one of whom had special needs. (See In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 13 (Ficke) [imputed income determination proper only if it is in children's best interests]; § 4053, subds. (d) [each parent should support children according to ability]; (e) [child support guidelines "place the interests of children as the state's top priority"].)
On this record, the current orders lack adequate evidentiary support on the application of the best interests requirements of section 4058, subdivision (b), in view of the equivocal showing Father made on any benefits to be gained by the children, from assumptions that Mother has available opportunities to work full time at minimum wage. We reverse for appropriate further proceedings to enable child support amounts to be set in compliance with statutory standards. (§§ 4053, subds. ( d), (e), 4058, subd. (b).)
I
BACKGROUND
Father and Mother separated in 2016 after a marriage of 11 years nine months. They have two children, a now 12-year-old son who has special needs (diagnosis of ADHD and Asperger's spectrum), and a five-year-old daughter. Father is self-employed in the technology field. Mother has a bachelor's degree and a master's degree in business administration, with an emphasis on information systems management. During the majority of the years of the marriage, Mother was employed in the technology profession with engineering job titles in the fields of quality, software, or applications. In 2014, she was terminated from her employment for cause, and has not worked in her profession outside the home since then.
After Father filed his petition for dissolution in September 2016, the family court issued temporary orders for custody and support in November 2016, with other issues deferred for a long cause hearing about six months later. The parents have consistently maintained a time share of 58 percent to Mother and 42 percent to Father. Based on Father's then monthly income of $14,133, guideline child support was set at $3,022 per month, and the spousal support order was $2,200 per month. This support total was $5,222.
Between December 2016 and February 2017, Father was unemployed, and he sought modification of the temporary support orders. Father then went back to work on a contract basis. The parties stipulated that a vocational evaluator, Mark Remas, M.A., would be retained to prepare a report about Mother, at Father's expense. Mother cooperated and a formal vocational evaluation report and an addendum with corrections were issued in January and February 2017 ("the report").
In the report, the evaluator recommended that Mother expand her job search and take action to update her skills in the technology industry, such as obtaining at least six months of additional specialized training, while seeking employment at the entry level. The report indicated that her three-year gap in employment was likely viewed by employers "as an indicator that the individual may have antiquated technical knowledge." It specified different types of additional training that would be needed and stated that in the interim, Mother would most likely have to return to entry level, contract work, or part-time work, and/or obtain such training. Projected income ranges for the types of work potentially available to her, in the fields of help desk or software development, were specified on a yearly basis, as adjusted in the addendum to the report. At an entry level, she could expect to earn between $36,000-45,000 per year, and could likely obtain new employment within 90 to 120 days of searching. With around six months of additional appropriate training in the technology field, she would be able to compete for work as a test engineer, business analyst or project manager, at a yearly salary level beginning at around $57,000 to $80,000 per year.
Father's initial request for an order modifying support was heard in March 2017, and the vocational evaluator testified. On appeal, Father designated for the reporter's transcript only the portion reflecting the trial court's findings and conclusions, and Mother did not add an additional such designation.
We previously denied Father's motion for augmentation of the record, to add a partial reporter's transcript of testimony from the vocational expert, given at the March 2017 hearing. (Cal. Rules of Ct., rules 8.130 [reporter's transcript rule], 8.124(b)(3)(B) [appendix rule].) The report and addendum are already in the record.
In the existing record, the court indicated that it was originally not planning to impute any income to Mother as of March 2017. Father had reported income of $18,400 per month. Upon learning that Mother just started working part time at the older child's school as a lunch monitor and was earning an hourly minimum wage of about $11, the court decided to impute income to her at $500 per month. At the hearing, she was given an "official warning that she has to find work commensurate with her ability," and the court made a finding "that she should be able to do so."
The March 21, 2017 order provides that effective in April, Father would pay guideline child support to Mother in the amount of $2,508 each month, based on factors that included the 42 percent timeshare to Father. As stated, Mother's monthly income was imputed to her at $500, and Father was to pay Mother $2,500 per month for spousal support. The adjusted support total was reduced to $5,008.
In May 2017, Father sought another order to modify his support obligations, since the family home had been sold and he was losing the mortgage deduction as a tax consequence. Father reported income of $17,400 per month. He relied on the report stating that Mother should have been able to find work within 90 to 120 days in the technology field, as of the date of the report (January 2017). Father requested that based on Mother's work history, income should be imputed to her in the amount of $50,000 per year.
Mother filed opposition, arguing that Father's financial circumstances and ability to pay had improved, while Mother had been unable to obtain employment "despite significant efforts to become gainfully employed," such as putting out 120 job applications, in a 10-month period, being rejected, attending a hiring event, and signing up for further computer training. She had not been able to get another school district job, and could not work as a lunch monitor during summer break. She claimed that both as to spousal and child support, it would be inappropriate to impute income to her until she was able to "set herself up to be able to support herself and her children, which means giving herself the best possible education and skills in order to actually advance in a career, not simply work at any job making minimal income in order to alleviate [Father's] support obligation." (§ 4320 [factors for setting spousal support]; § 4058, subd. (b).) She had just been admitted to a master's program in information security and anticipated it would take three or four years on a part-time basis, or two years full time. She had also enrolled in other classes to get programming certificates, which would take about six months.
Mother also represented that the educational needs of both children took up some of her time, such as volunteering in her son's school because of his ADHD and Asperger's diagnoses that affect his behavior and ability to concentrate in school. She went to Chinese lessons with him. Mother had been paid $252 for her lunch monitor work the previous spring, and sought to work part time and go to school part time. Both parties argued that they were active in their children's lives, based on their timeshare of 58 percent and 42 percent, but differed on whether Mother had been engaged in a diligent or sincere job search.
The parties each sought sanctions or other accommodation in the support calculations, claiming the other was withholding information or being uncooperative during the litigation. Father had to purchase computer equipment for his new business and was anticipating some tax write-offs. At argument on August 28, 2017, the court noted that Mother had relatively marketable skills, compared to other litigants who had appeared before the court, and she had apparently worked at her career during most of the marriage. The court understood that she had made only nominal income since the last hearing. Over Father's objections, the court acknowledged that Mother had made good faith efforts in trying to find employment, but that it was not panning out, which was "unfortunate probably for everyone."
In terms of promoting the children's best interests, the court said that was always a consideration, but it continued to question whether Mother could show she actually needed more schooling to become employable, because it would take too long "as compared to what the numbers should be. It's just not adding up." Mother's attorney responded that they were still at the temporary support stage, and Mother needed more time to situate herself before the permanent support orders were made at trial. The court clarified that through the imputation of minimum wage income to Mother, she was meant to look for jobs with the education that she has, and the court explained it was not impressed with her decision to go back to school, because that was not going to be beneficial for her, moving forward.
The order attaches support calculations from the DissoMaster program, and concluded that for June to August 2017, Mother's imputed income would remain at $500, but beginning in September 2017, her imputed income would rise to a minimum wage salary of $1,993 per month. Throughout, Father's monthly self-employment income was $17,400. For June through August 2017, child support from Father payable to Mother was set at $2,283 a month, with spousal support at $2,444 for that same period.
Thus, using Mother's new imputed monthly income figure, beginning in September 2017, Father was ordered to pay to Mother $1,922 a month in child support, and $2,352 a month in spousal support. The adjusted support total was reduced to $4,274.
The court rejected the parties' competing sanctions requests, finding there was no basis to conclude either that Mother had failed to make good faith job search efforts, or that Father had falsified any of his travel expenses or other documents. Mother timely appealed the August 2017 orders.
II
APPLICABLE STANDARDS
The orders on appeal were the second of two modifications of the original temporary support orders. The general rule on child support is that such an order, even a temporary one, will not be revised unless there has been a "material change of circumstances." (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1068.) However, the changed circumstances rule is a flexible one. (Id. at p. 1069; Montenegro v. Diaz (2001) 26 Cal.4th 249, 259.) In exercising its discretion to modify, the family court must follow established legal principles and base its findings on substantial evidence. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234 [child support order]; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 [spousal support order].)
"It has long been the rule in this state that a parent's earning capacity may be considered in determining . . . child support." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 642; In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927-928.) " ' " 'Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [Citation.]' " ' [Citation.] Use of the earning capacity standard is inappropriate where a party lacks either the ability or the opportunity to work." (Ibid.; italics omitted.)
The decision on whether earnings should be imputed to a parent when making a support order is addressed to the trial court's sound discretion. (§ 4058, subd. (b); In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1389-1390 (Mosley); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301 (Cheriton) [court may consider earning capacity in determining both child and spousal support].) "[I]n exercising its broad discretion, the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living." (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove).) We review its order for an abuse of that discretion, determining whether its factual determinations are supported by substantial evidence and whether it acted reasonably in exercising its discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753; In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730.)
The moving party seeking to have income imputed to the other parent bears the burden of demonstrating his or her ability and opportunity to earn that income. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1294 (Bardzik); Wittgrove, supra, 120 Cal.App.4th 1317, 1329 [parent seeking order imputing income based on earning capacity did not supply any competent evidence other parent had ability or opportunity to earn imputed income].)
III
ANALYSIS
A. Degree of Evidentiary Support For Order
On appeal, each party has discussed both types of temporary support orders, spousal and child. (Ficke, supra, 217 Cal.App.4th at p. 23 [in view of interrelationship between the two types of support orders, a spousal support award cannot "undercut" child support statutes]; Mosley, 165 Cal.App.4th at p. 1390 ["even in setting spousal support, the court cannot disregard the impact on the children if the supported parent returns to the workforce"].) Here, spousal support has remained at about the same level, and Mother's claims of abuse of discretion mainly address the child support order, with respect to the imputation of minimum wage income to her. Because of that imputation, the temporary order of child support has gone down from $3,022, to $2,508, to $1,922, and the net amount of support has dropped as well.
The spousal support orders have remained fairly consistent, going from November 2016 ($2,200), March 2017 ($2,500), to August 2017 ($2,352).
Mother contends the evidence does not support the temporary support orders in terms of imputation of income, in view of the result which has reduced the net support she receives by almost $1,000, even though her circumstances have not changed and Father's income has increased. Mother claims she demonstrated she had no real opportunity to work, as shown by her 120 unsuccessful job submissions over a 10-month period, as of the time of the hearing, which the court acknowledged showed good faith efforts. Since she was still unable to find work commensurate with her education and experience, she claims there was no substantial evidentiary support to impute any amount of income to her.
Where, as here, a payor parent seeks imputation of income to the other parent who is no longer working for some reason, the moving party effectively is seeking "an order lowering child support in light of a contribution only hypothetically made (imputed) to the custodial parent based on the custodial parent's ability and opportunity to earn." (Bardzik, supra, 165 Cal.App.4th at pp. 1304-1305; italics omitted.) This requires an evidentiary showing to be made about the recipient's vocational abilities and opportunities to earn the attributed income. (Wittgrove, supra, 120 Cal.App.4th at p. 1329.) In Cheriton, supra, 92 Cal.App.4th at pages 301 to 302, the court likewise noted that the imputation of earning capacity to a custodial parent effectively reduces overall monetary support for the children. (Ibid.) But the court went on to state that "we need not speculate on that question here, since the determination is properly left to the trial court on remand." (Ibid.)
A parent does not have the right to divest herself of her earning ability in an existing career at the expense of the children. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1339; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 999.) It is not disputed that Mother is generally employable in terms of age and health. Earning capacity estimates should be based upon "an objectively reasonable work regimen as it would exist at the time the determination of support is made." (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234-235; In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 777.)
According to the report, Mother would likely be able to explain her 2014 termination for cause from her last employment to potential future employers, by saying it was for personal or family reasons, and the court declined to consider that as a factor. The report suggested further training for her, some of which Mother had pursued. However, the trial court viewed her proposed new master's degree program as clearly exceeding those recommendations, in terms of the investment of time. Such training would be in Mother's same professional development field, and did not closely resemble the type of "dilettantism" that a supported spouse should not engage in, in view of existing parental responsibilities. (Ficke, supra, 217 Cal.App.4th at p. 20; In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th at pp. 1335, 1337-1338.)
The trial court acknowledged Mother had made search efforts within her current field and others, but unfortunately, they had not panned out so far. There was some evidence that she had applied for cashiers' jobs at department stores, with no success. At the time of the August 2017 hearing, the only evidence of her earnings remained the $252 she received from the school lunch monitor job, which the court had doubled for purposes of imputing income at the March 2017 hearing, saying there was hope she might be able to pick up more hours. However, she had not been able to obtain any more hours of work there. The next hearing was scheduled for December 2017, and that record is not now before us.
Even though Father appeared to carry his burden of demonstrating Mother has the ability to earn at some level, she made a significant rebuttal showing that she lacked opportunities to work, despite apparently sincere efforts. (Bardzik, supra, 165 Cal.App.4th 1291, 1294-1295.) The record does not suggest she divested herself of her earning capacity, but rather that she had been out of a rapidly evolving work force for three years, after being fired for cause, and her skills had most likely become inadequate to compete. At best, the record is equivocal on whether the court had an evidentiary basis for properly evaluating what Mother was reasonably capable of earning, in light of her "education, marketable skills, employment history, and the availability of employment opportunities." (In re Marriage of Simpson, supra, 4 Cal.4th 225, 234.)
In any case, the dispositive issue under section 4058, subdivision (b) is whether the court's order utilizing earning capacity "in lieu of" the supported parent's income was consistent with the best interests of the children, as next discussed. (Ibid.; § 4053, subd. (e).)
B. Best Interests of Children
The terms of section 4058, subdivision (b) do not expressly require the family court, in making a child support order that imputes income to the supported spouse, to include an express written or oral finding that the imputation is "consistent with the best interests of the children." (Ibid.) However, it is well settled that a court's discretionary decision to impute income to a supported party, based on earning capacity evidence "in lieu of" actual income, cannot disregard consideration of the children's best interests. (§ 4058, subd. (b); Cheriton, supra, 92 Cal.App.4th at pp. 301, 308; In re Marriage of Cohn, supra, 65 Cal.App.4th at p. 927; Ficke, supra, 217 Cal.App.4th at p. 19, fn. 8 [decrease in support must in effect promote the best interests of the children]; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051, fn. 3; Mosley, supra, 165 Cal.App.4th at p. 1389.) Accordingly, such an order will not be upheld unless there is at least an implied finding on the best interests factor that is supported by evidence in the record. (Cheriton, supra, at p. 301 [in setting child support, "no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children"]; Ficke, supra, at pp. 13, 18-19 [lack of any best interests finding undermined the orders, in light of evidence to the contrary].)
Among the relevant evidentiary factors the trial court in this case had to weigh were the parents' 58 and 42 percent timeshare, as well as particular "best interests" with relation to the special needs of the older child (ADHD and Asperger's spectrum), and the relatively young age of the younger child (around five years old). Our courts recognize that to the extent possible, "Time spent with children is to be valued. First, there is a body of law that says so. [Citations.] Second, the Legislature itself has plainly placed a high value on time with children. [Citation.] . . . [¶] . . . 'Indeed, sometimes "the 'best interests of the children' are promoted when parents [reduce their work hours] so as to be able to spend more time with their children." ' " (Ficke, supra, 217 Cal.App.4th at pp. 20-21; Mosley, supra, 165 Cal.App.4th at p. 1390 ["even in setting spousal support, the court cannot disregard the impact on the children if the supported parent returns to the workforce"].)
It is not clear on this record whether the imputation of minimum wage income to Mother would impair the children's interests or place an undue burden on them. In effect, she provided some evidentiary showing that it would help the children if she continued to place a high priority on working at the older child's school and attending private lessons, and being available to the children while also taking action to materially improve her employment prospects. (See Ficke, supra, 217 Cal.App.4th at p. 22, fn.10 [income imputation to a custodial parent requires some offsetting benefit to the children].) The trial court did not address whether the son's special needs situation had an effect on the best interests analysis. Instead, the court appeared to place the main focus on the respective levels of education of the parents, as it affected the family finances, thus imposing an immediate requirement for Mother to work at the level of her current education. The court disregarded the factors showing lack of realistic opportunities and the apparent availability of Father's greater financial resources.
We conclude that the temporary support orders are not supported by the current record on imputation of income to the supported spouse. We reverse for further proceedings that will more completely address the interaction of the statutory criteria of Mother's earning capacity in lieu of income, and the best interests of the children. (§ 4058, subd. (b); Cheriton, supra, 92 Cal.App.4th at p. 301 [discretionary determinations based on evidence are properly to be left to the trial court on remand].)
DISPOSITION
The temporary support orders are reversed. Costs to Appellant.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.