Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1002660 Denise deBellefeuille, Judge
Will Tomlinson, For Appellant.
Jill L. Friedman, for Respondent.
YEGAN, J.
Keith D. Friedman (Husband) appeals from an order requiring Jill L. Friedman (Wife) to pay monthly child support of $900 for the couple's two minor children. The children reside with Husband in Austin, Texas. They stay with Mother about 20 percent of the time. Husband contends the trial court erred because it awarded child support in an amount that differs from the statutory guideline without making the findings required by Family Code section 4056. Wife contends the trial court properly exercised its discretion to deviate from the guideline support amount. We affirm.
All statutory references are to the Family Code unless otherwise stated.
Facts
This is the parties' third appeal in this marital dissolution action. In Marriage of Friedman (2002) 100 Cal.App.4th 65, we affirmed an order enforcing a post-nuptial agreement. In an unpublished opinion, Marriage of Friedman (Feb. 26, 2007, No. B192426), we affirmed an order terminating the appointment of a special master. Here, we consider whether the trial court properly calculated the child support Wife owes Husband for their two minor children.
Husband and Wife have three children: a daughter who turned 18 in June 2010 and two teen-age boys. Initially, all three children lived primarily with Wife who received child support from Husband. In 2008, the boys began to split their time relatively evenly between the parents. As a result, the trial court terminated child support payments for them. Husband eventually moved to Austin, Texas, taking the boys with him. They now reside with Husband in Texas about 80 percent of the time.
In March 2010, Husband filed a motion for modification of child support which requested that Wife pay support of $1992 per month. His accompanying income and expense declaration represented that Wife earns a monthly income of $12,500, based not on her actual income, but on "average salaries of attorneys in Santa Barbara County[.]" Husband, by contrast, stated that he is self-employed as a consultant on automobile safety. The corporation he wholly owns pays him a monthly salary of $5,666. Husband also claimed monthly expenses of $5,780. He explained to the trial court that his current wife owns the house as her separate property and that he does not pay rent or contribute to the mortgage. As a result, his monthly expenses of $5,780 do not include any payment of rent, mortgage, homeowner's insurance, or property taxes. Instead, Husband included a monthly "household contribution[, ]" of $2,210 and additional expenses for groceries and household supplies ($350), utilities ($250), and telephone, cell phone and e-mail ($120).
Wife opposed the motion, noting that Husband failed to comply with local rules because his financial disclosures were incomplete. Husband had redacted his personal tax returns so that they were impossible to understand, and he had provided no information at all concerning his corporation and other businesses in which Wife believed Husband owned an interest. The trial court denied Husband's motion without prejudice.
Husband renewed his motion for child support in June 2010. His declaration stated that, while he had not provided tax returns relating to his corporation, he had provided all of the personal financial information required by the local rules. Husband added that he would permit Wife to view his corporate books, if she traveled to Texas to do so. Husband's accompanying income and expense declaration contained the same financial information as the one filed in March. Wife contended the motion should again be denied because Husband failed to comply with the local rule by providing all of the required financial information for his corporation.
At the first hearing on Husband's renewed motion, the trial court continued the hearing date to July 29, 2010. It ordered Husband to provide Wife with "gross annual income [information]" and Wife to file an income and expense declaration. Wife then filed a declaration showing an average monthly income of $8,556 and monthly expenses of $6,370.
The trial court began the July 29 hearing by noting that it had reviewed the financial documents Husband provided concerning his corporation's profits and losses. Accepting his stated monthly income of $5,666 and Wife's stated income of $8,556, the trial court stated it calculated guideline child support at $1,256 per month, paid by Wife to Husband. Wife argued that many questions remained concerning whether the income of the corporation was available to Husband personally. The trial court agreed that these corporate expenses were relevant to determining Husband's actual income because, "When you are the master of the income, my philosophy as a family court Judge is, income is income. And it's gross income that the Court can look at in terms of determining support. [¶] You are in charge of the income. To some extent you can manipulate the income and you can have some flexibility in the categories to which you apply it." The court entered a temporary child support order of $600 per month and continued the hearing to September 2, 2010.
Each party filed additional written argument before the September 2 hearing. Wife contended the trial court could not accurately calculate guideline child support because the information Husband had disclosed concerning his income and expenses remained suspect. She contended that it would be unfair to award guideline support because Husband avoided housing expenses by having his current wife own the house as her separate property and because he controlled his income by owning the corporation that paid his salary. Husband contended that he had offered Wife access to all of the corporation's books and records, which she had declined. He requested an award of $2199 per month.
At the September 2, 2010 hearing, the trial court ordered Wife to pay child support of $900 per month to Husband. It explained, "The problem I have with any calculations in this case, it's a moving target. I don't know what the real numbers are. I think I've said my [piece] about you're the owner of the company, you have the ability to set your salary, and you are in charge of the money. Whether you're in a tough time and business is down and you're operating at a deficit, the fact that remains that you're the guy. You're Friedman Research. You have an income flow that is substantial. And so accepting at face value your figures requires a leap of faith. [¶] I don't think that the guidelines really offer the most reliable way to set support for your boys. They deserve support. They need support. It's now mom's turn to come to the table and give that support. She's earning a decent living as an attorney as she has for all these years. She's a good lawyer and she's making a good living as a lawyer, as you have since the beginning of your career. "
The court noted that questions remained about Husband's housing situation, because he appeared to have purchased the Austin, Texas home with his current wife and then quitclaimed his interest in it to her. According to the court, this transaction might have been done to "provide some protection from creditors." It concluded, "I think that all things considered, a reasonable amount of support for the two boys would be $900 a month.... [¶] $900 will amply provide for food, clothing and shelter for these two boys in their minority. Unless I have more information to persuade me that this isn't equitable, that's what I'm going with." When Husband asked the court to explain the basis on which it picked $900, the court responded, "The basis is that I feel that with your income of a million dollars a year, being in control of that income, and setting your salary at the $6,000 a month, you're in control of much more money than what appears on your Income and Expense Declaration. And fairness dictates that this is a fair amount of money."
Discussion
Husband contends the order awarding child support was an abuse of discretion because the trial court did not make the factual findings required by section 4056 before departing from the statutory guideline formula and awarding child support in a different amount. We are not persuaded.
Section 4055 establishes a complex mathematical formula for determining the amount of child support. Section 4056, subdivision (a) requires the trial court to state, "in writing or on the record, the following information whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula amount...: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children...." Subdivision (a) of section 4057 provides that the amount of support yielded by the guideline formula is presumptively correct. (§ 4057, subd. (a).) That presumption may be rebutted by evidence "showing that application of the formula would be unjust or inappropriate in the particular case... because one or more of the following factors is found to be applicable by a preponderance of the evidence...: [¶] [¶] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case." (§ 4057, subd. (b).)
We review child support orders for an abuse of discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) "We determine 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order." (Id., quoting In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.) Although the trial court has discretion in determining child support, it is required to make the statutory findings outlined above. (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183.) Failure to make those findings "precludes effective appellate review and may constitute reversible error if the missing information is not otherwise discernible from the record." (Id.)
Here, the trial court stated at the beginning of the July 29 hearing its finding that guideline support would be $1,256 per month, based on the income and expense information provided by each party. By the end of that hearing, it was unwilling to accept Husband's stated income because he controls the income of his corporation and, thus, his own salary. In addition, the trial court noted that, unlike Wife, Husband does not pay rent or a mortgage. He does, however, pay a monthly "household contribution" of over $2000 in addition to other common living expenses such as groceries, telephones and utilities. It continued the hearing date to permit the parties to address these concerns.
At the next hearing in September, Husband relied on precisely the same information concerning his income and expenses as he had filed for the July 29 hearing. The trial court found this information not credible and then found special circumstances that, in the exercise of its discretion, justified a departure from the previously calculated guideline support amount. Specifically, the court found Husband's corporation had income of "a million dollars a year, " but Husband paid himself only about $6,000 per month. He had also quitclaimed to his current wife his interest in the home he occupied, paid no rent or mortgage, and had no explanation for why he had adopted that arrangement. The trial court concluded that, based on these considerations, " a reasonable amount of support for the two boys would be $900 a month.... [¶] $900 will amply provide for food, clothing and shelter for these two boys in their minority."
Husband does not contend the trial court's finding that support of $900 per would amply provide for the children was based on insufficient evidence. He contends instead that the trial court abused its discretion because it did not make the findings required by section 4056 before departing from the guideline support formula. This contention ignores the trial court's statements at the July 29 hearing. While we agree that the trial court should have repeated its findings concerning guideline support at the September 2 hearing, its failure to do so does not erase those findings.
When all of the trial court's findings are considered, it is clear that the trial court did not abuse its discretion. At the July 29 hearing, it made the finding required by section 4056, subdivision (a)(1), by noting that the amount of support it would have ordered under the guidelines was $1256 per month. It made the remaining mandatory statutory findings at the September 2 hearing, when it found special circumstances that it believed, in the exercise of its discretion, justified a departure from the guidelines. (§ 4056, subd. (a)(2), (a)(3).) Those circumstances included Husband's control over his monthly income and his lack of housing expenses. The trial court also found that the lower child support award was consistent with the children's best interests because the amount would amply provide for their food, clothing and shelter. These findings were not arbitrary or capricious, nor do they, as far as we can determine, result in a miscarriage of justice. To the contrary, they were based on the information Husband himself provided concerning his corporation's income and his own salary.
Conclusion
The judgment (order awarding child support) is affirmed. Costs to Wife.
We concur: GILBERT, P.J. COFFEE, J.