Opinion
H035652 Santa Clara County Super. Ct. No. CS116323
08-11-2011
COUNTY OF SANTA CLARA, Plaintiff and Respondent, v. JOSE A. NUNEZ, Defendant and Appellant; EDITH C. PLASCENCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Jose Nunez appeals an order of the family court modifying his child support obligation. On appeal, Nunez asserts the court erred when it ordered an amount in excess of the child support guideline without stating reasons for the deviation on the record as required under Family Code section 4056.
All further statutory references are to the Family Code.
STATEMENT OF THE FACTS AND CASE
Nunez was ordered to pay child support to the child's mother in the amount of $597 per month, beginning August 1, 2006.
On March 1, 2010, Nunez filed a motion to modify his support obligation based on a change in circumstances.
The court considered the evidence of changed circumstances, and stated the following: "I'm getting guideline support of $217, but I don't think that's sufficient given his family situation. . . . [¶] . . . [¶] I'm getting guideline child support, including contribution to childcare, $217 a month. [¶] Court will make a finding this is an appropriate case to deviate from guideline, I'll set child support at $300." The modified child support order was filed on April 1, 2010.
Nunez filed a timely notice of appeal of the order.
DISCUSSION
On appeal, Nunez asserts the court erred in modifying the child support order deviating upward from the uniform guideline amount under section 4055 without stating its reasons for the deviation on the record.
No respondent's brief was filed in this case.
Section 4055 sets forth the statewide uniform guideline for determining the amount of child support in a particular case. A court may exercise its discretion and differ from the uniform guideline formula. Section 4057, subdivision (b) expressly permits the court to make an order where application of the guideline formula is " 'unjust or inappropriate in the particular case.' " (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 318.)
If the trial court does depart from guideline support, "it must comply with the requirement in section 4056 that any deviation from the formula amount be justified either in writing or on the record." (In re Marriage of Hall, supra, 81 Cal.App.4th at p. 318.) To satisfy the statutory requirement, the court must state "(1) the amount of support that would have been ordered under the guideline formula; (2) the reasons the ordered amount of support differs from the guideline formula amount; and (3) the reasons the ordered amount of support is consistent with the best interests of the children." (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1014, citing § 4056, subd. (a)(1)- (3).) The court has a sua sponte duty to make the required findings. (Ibid) This is true whenever there is a deviation from guideline support, "whether higher or lower, and whether based on a stipulation or on findings made after a contested hearing . . . ." (Ibid.) In the absence of sufficient findings, reversal is required. (In re Marriage of Hall, supra, 81 Cal.App.4th at p. 318.) On the other hand, "the failure to make a material finding on an issue supported by the pleadings and substantial evidence is harmless when the missing finding may reasonably be found to be implicit in other findings." (Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1450.) "The court's failure to make findings is also harmless when, under the facts of the case, the finding would necessarily have been adverse to the appellant." (Ibid.)
Here, Nunez asserts the court did not state its reasons on the record for its decision to deviate upward from the uniform guideline amount. The record shows the court stated twice that the uniform guideline amount for support was $217. In ordering child support in the amount of $300, the court only stated that it believed this was an "appropriate case to deviate from the guideline," and that it did not think $217 was "sufficient given [Nunez's] family situation." These statements do not set forth the reasons the ordered amount differs from the guideline formula amount, or the reasons the ordered amount of support is consistent with the best interests of the children. (See, e.g. In re Marriage of Laudeman, supra, 92 Cal.App.4th 1009, 1014, citing § 4056, subd. (a)(1)-(3).)
Moreover, the missing findings cannot be inferred from evidence in the record. (See, e.g, Rojas v. Mitchell, supra, 50 Cal.App.4th 1445, 1450.) Here, the order after hearing states that the total amount of child support ordered is $300, and that the "court deviates upwards given circumstances of the parties." Other than to state the deviation, the order does not contain any information regarding the reasons the court deviated upward, or that the deviation was in the best interests of the child. (See, e.g., In re Marriage of Laudeman, supra, 92 Cal.App.4th at p. 1014.)
Attached to the order is a computer printout from the Department of Child Support Services that states the support guideline amount is $303. This amount is inconsistent with the court's two statements on the record that the guideline amount was $217. When there is a discrepancy between the court's oral statements on the record, as reflected in the reporter's transcript and the minute order or the abstract of judgment contained in the clerk's transcript, the oral pronouncement controls; courts presume any inconsistency is the result of clerical error and rely upon the oral pronouncement contained in the reporter's transcript. (See, e.g., People v. Mesa (1975) 14 Cal.3d 466, 471.)
In the absence of the required findings, or evidence in the record to support implicit findings, the order modifying the child support amount must be reversed.
DISPOSITION
The order appealed from is reversed.
RUSHING, P.J.
WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.