Opinion
E031587.
7-1-2003
In re the Marriage of BARBARA and JAMES ARONSON. BARBARA ARONSON, Appellant, v. JAMES ARONSON, Respondent.
Donald M. Magdziasz and Jeffrey S. Mintz for Appellant. David A. Angeloff and Paul A. LeVine for Respondent.
Appellant Barbara Aronson (wife) appeals from the trial courts order directing her to pay child support for her daughter. Specifically, wife contends that the court erred in its computation of child support by imputing $ 3,000 per month, which she regularly received from her mother, to her income. Wife also appeals from the courts order directing her to pay attorney fees in the amount of $ 2,000 to respondent James Aronson (husband). We affirm.
FACTS AND PROCEDURAL BACKGROUND
The marriage of wife and husband was dissolved in 1989. Husband and wife have one child, Jolene. Wife was initially awarded primary physical custody of Jolene, and husband was ordered to pay $ 375 per month in child support. (Husband declared that his monthly income was $ 2,306.) On November 9, 2000, husband filed an ex parte order to show cause (OSC) for modification of the custody and support orders because wife had physically struck Jolene. The OSC requested the court to give husband primary physical custody of Jolene temporarily, to suspend husbands child support order, and to award attorney fees and costs. Mother had agreed to the temporary orders giving husband primary physical custody until the end of the school year in June 2001 and suspending husbands child support obligation during Jolenes stay with him. At the hearing, the court ordered the change in custody but apparently did not address the child support issue.
Due to numerous discovery disputes and delays, the child support matter did not come before the court until January 25, 2002. Husband sought child support from wife from November 6, 2000 through June 15, 2001, the period during which Jolene lived with him, and he also wanted his support obligation to be calculated from June 15, 2001 forward. The issues the court had to determine were the amount of support owed by wife for the period Jolene lived with husband and the amount of child support husband should pay now that Jolene had returned to wifes custody. The amount of support in both situations centered upon wifes income, which husband claimed was understated. The court heard and considered testimony from the parties and from wifes mother, Sharon Mitchell (mother), and considered the parties declarations and exhibits.
The court found that there was conflicting testimony and evidence regarding wifes income. Wife was self-employed with her own dog grooming business. In wifes income and expense declarations filed on November 30, 2000 and January 16, 2001, she claimed that her expenses were $ 3,660 per month. On her November 30, 2000 declaration, she claimed that her monthly gross income was "unknown." On her January 16, 2001 declaration, she claimed that her monthly gross income was $ 412. On January 24, 2002, wife filed another income and expense declaration and claimed that her monthly expenses were $ 3,160 and her monthly gross income was $ 852. Wife testified that her mother gave her $ 4,000 per month to meet her expenses, and that she had been doing so for three years. Wife also testified that she worked for her mother, part-time, during tax season. (Her mother is a tax preparer.) Wife testified that her mother did not actually pay her for her work, but rather that she was "working off her bill" for the money her mother gave her each month. Aside from the monthly money her mother gave her, wife testified that her mother had paid other expenses directly. For example, her mother paid for new carpet in wifes house ($ 4,500), a pond to be put in wifes front yard ($ 3,000), and an Alaskan cruise for her and Jolene (approximately $ 1,800). Wife stated that she borrowed the money from her mother for these items. However, wife testified that she "[had] no idea" how much money she owed her mother.
Mother also testified that she had been giving money to her daughter for the past three years. Mother testified that she had no idea how much money wife owed her and kept no record of such. Mother further testified that wife could never pay her back the money, and that she was not asking or expecting her to pay it back. Mother testified that she and her husband provided help for their children whenever they needed it, "no matter what it [took]."
The court imputed $ 3,000 per month as income to wife, in addition to the $ 852 per month which she admitted earning from her dog-grooming business. The court stated that, although wife and her mother attempted to categorize the money given to wife as "gifts" or "loans," there was no credible evidence to support either categorization. The court determined that the money "arrived in [wifes] household with such regularity that . . . it must be considered income." The court specifically found that the money wife received from her mother was "regular, steady, expected and used by [wife] as regular income." The court ordered wife to pay husband a total of $ 4,584 ($ 573 per month for the period Jolene stayed with husband). The court found husbands gross monthly income to be $ 3,251, and ordered him to pay $ 459 per month in child support, as of July 1, 2001.
Wife now appeals the courts decision to impute the money her mother gave her each month as income. She also appeals the trial courts order for her to pay $ 2,000 in attorney fees to husband.
ANALYSIS
I. Standard of Review
"A trial courts decision to impute income to a parent for child support purposes based on the parents earning capacity is reviewed under the abuse of discretion standard. [Citations.] Under this standard, "the appellate court should not substitute its own judgment for that of the trial court; it should determine only if any judge reasonably could have made such an order. [Citation.]" [Citation.] [Citation.]"
In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.
II. The Trial Court Did Not Abuse its Discretion in Imputing $ 3,000 to Wifes Monthly Income
At the hearing, wife attempted to categorize the money her mother gave her every month as "gifts" or "loans." However, the court found that there was no credible evidence to support either categorization of the money as gifts or loans. Wife now argues that the court abused its discretion because it erroneously imputed $ 3,000 per month to wifes income. We conclude that there was no abuse of discretion.
A. The Court Properly
Imputed $ 3,000 Per Month to Wifes Income
Family Code section 4058, subdivision (a) defines "annual gross income," for the purpose of establishing a child support order, as "income from whatever source derived . . . and includes, but is not limited to . . . [P] (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding . . . ." (Italics added.) "Income is broadly defined for purposes of child support. [Citations.] . . . Gross income means income from whatever source derived . . . . [Citation.] Although it specifically lists more than a dozen possible income sources, by the statutes express terms, that list is not exhaustive. [Citations.] Rather, the codified income items are by way of illustration only. Income from other sources . . . should properly be factored into the "annual gross income" computation. [Citations.] [Citation.]"
All further statutory references will be to the Family Code, unless otherwise noted.
In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 285, italics omitted.
Wife testified that her mother gave her $ 4,000 each month to cover her expenses. "Gifts are not mentioned in section 4058, and, judging from the use of language lifted straight from the Internal Revenue Code, should logically be outside the purview of the child support statute." However, it appears that case law only holds that "one-time gifts . . . are not income." The money that mother gave wife did not appear to be a gift. A gift implies that there is no need for repayment. In direct contrast to wifes characterization of the money as a gift, wife and her mother both testified that wife worked for her mother during tax season, in order to "work off" her bill. Wife testified that she worked for her mother "morning, noon, and night," during tax season. She also testified that she had worked for her mother for three years, which is the same amount of time mother had been giving her money.
In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 529.
County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1453, emphasis added.
On the other hand, the money mother gave wife was also not a loan. A loan requires repayment. Wife testified that she owed her mother money, but she did not know how much she owed her. She also testified that she would never get the debt paid off. Mother similarly testified that she had no idea how much money wife owed her and kept no record of such. Mother further testified that wife would never be able to pay her back the money. Significantly, mother testified that she was not asking or expecting wife to pay her back.
The trial court stated that no one could truly determine the amount or purpose of the payments to wife "other than she and her mother." However, the court found that the evidence that wife and mother presented was "contradictory, evasive, and lacking in credibility." The court concluded that the money "arrived with such regularity" that it had to be considered income. "It is . . . well settled that it is the function of the trier of fact to determine the credibility of witnesses, weigh the evidence and resolve all factual conflicts [citation], and this court may not reweigh the evidence and reject the finding of the trier on credibility of the witnesses. [Citation.]" We defer to the trial courts judgment that there was no credible evidence to support the categorization of the money as gifts or loans and its conclusion that the money was income.
People v. McKissack (1968) 259 Cal. App. 2d 283, 287, 66 Cal. Rptr. 199.
Wife argues that since she only worked for her mother part-time, and only for approximately 10 weeks during tax season, then she "would likely be the most overpaid file clerk around," if the money really was income. However, mother owned her own tax business and could compensate wife as much as she wanted. Regardless of the amount of money she was paid, the evidence still showed that wife worked for her mother and received money in consideration for her work.
"The amount of child support rests in the discretion of the trial court and cannot be overturned unless a clear abuse is shown. An appellate court does not substitute its own judgment; rather, it interferes only if no judge could reasonably have made the order under the circumstances. [Citations.]" Moreover, "the facts and circumstances of the parties in each family law case are different, which is why these cases are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity." Because of the consistency of the amount given to wife and the regularity of the contributions, in addition to the evidence that wife did work for mothers business "to work off her bill," the courts finding that the money was "regular, steady, expected and used by [wife] as regular income" was reasonable. Moreover, wife testified that her mother gave her $ 4,000 every month, but the court only imputed $ 3,000 to wifes monthly income. There was no clear abuse of discretion, as the trial courts order was reasonable under the circumstances.
In re Marriage of Catalano (1988) 204 Cal. App. 3d 543, 553, 251 Cal. Rptr. 370.
In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 470.
B. The Court Did Not Consider Wifes "Earning Capacity," Pursuant to Section 4058, Subdivision (b)
Wife also contends that the judgment should be reversed because the court erroneously included as income both the $ 3,000 per month it imputed and the $ 852 it found that wife actually earned from her dog grooming business. She argues that section 4058, subdivision (b), "expressly states that imputed income may only be resorted to in lieu of earned income." (Italics added.)
Section 4058, subdivision (b) provides that "the court may, in its discretion, considerthe earning capacity of a parentin lieu of the parents income, consistent with the best interests of the children." (Italics added.) Here, the court did not consider or use wifes earning capacity, pursuant to section 4058, subdivision (b), in determining her actual monthly gross income. Courts usually consider a parents earning capacity when the parent is unemployed or "underemployed" (i.e., perhaps in a situation where the parent is deliberately attempting to avoid family financial responsibilities.) The court made absolutely no mention of wifes earning capacity in its decision. Rather, the court simply imputed the $ 3,000 that wife received per month from her mother and added that to the $ 852 wife admitted earning from her business. We find no error.
In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 998; see State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1126.
II. The Courts Ruling Did Not Implicate "Grandchild Support"
Wife argues that "because any increase in [wifes] support obligation is derived from [her mothers] funds, [wifes] support obligation has effectively been partially shifted to [her mother]." Wife contends that the courts ruling somehow implicates section 3930, which provides that "[a] parent does not have the duty to support a child of the parents child." We reject wifes argument as unsupported and speculative.
Contrary to wifes contention, there is no evidence or implication that the court has shifted the support obligation for Jolene to mother. It is wifes obligation to support her own daughter. Simply because most of the money that wife uses to cover her monthly expenses comes from her mother, does not mean that her mother has any "duty" to support her grandchild. Regularly received money, from "from whatever source derived," was properly characterized as part of wifes income. Section 3930 was not implicated.
III. Wife Must Pay $ 2,000 in Attorney Fees to Husband
The trial court ordered wife to pay husband $ 2,000 in attorney fees for bringing the OSC, in addition to $ 600 in attorney fees previously ordered by the court on April 18, 2001. In her opening brief, wife simply concludes that the order assessing $ 2,000 in attorney fees should be reversed. "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]" Moreover, in light of our foregoing conclusions, we find no basis upon which to reverse the order.
Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.
DISPOSITION
The trial courts orders are affirmed.
We concur Hollenhorst Acting P.J., and Gaut J.