Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Marjorie S. Steinberg, Judge. Los Angeles County Super. Ct. No. BD376427
Cuneo & Hoover, J. Nicholas Cuneo and John Adam Lazor for Appellant.
Jaffe and Clemens, William S. Ryden and Nancy Braden-Parker for Respondent.
MALLANO, Acting P. J.
In this family law case involving a father with an extraordinarily high income, the parties originally stipulated to the amount of child support. Subsequently, in response to the mother’s order to show cause (OSC), the trial court increased the amount of support, finding that the father’s income had almost quadrupled, and the mother’s child-related expenses had risen substantially.
On appeal, the father contends that an increase was not permitted because there was no change of circumstances, the trial court failed to comply with certain procedural and substantive provisions of the Family Code, the increase was not supported by substantial evidence, and the trial court abused its discretion in fixing the amount of support. We reject the father’s contentions and affirm.
I
BACKGROUND
Mark and Dianne Burnett married on July 29, 1992, and separated on December 31, 2001. Two sons were born during the marriage, one in August 1993, the other in April 1997.
By way of a “Legal Separation Settlement Agreement,” dated November 20, 2003 (Settlement Agreement), Mark and Dianne resolved all financial issues, including a division of community property, a waiver of spousal support, and a payment of $12,500 a month to Dianne for child support. Dianne received the marital home on Deerhead Road in Malibu. The parties agreed to joint physical and legal custody of the children. Judgment was entered on December 16, 2003.
At the time of the Settlement Agreement, Mark’s income was approximately $1.16 million a month. Dianne was living in the Deerhead home, making a monthly mortgage payment of $5,000. Mark was leasing a small house on the beach in Malibu for $10,000 a month.
In 2004, Dianne sold the Deerhead residence for $2.2 million. She bought another house in Malibu, on Ocean Breeze Drive, for approximately $3.7 million, and had a $1 million mortgage. After the purchase, Dianne discovered that the house had mold, water damage, and other defects which rendered it uninhabitable. The house had to be taken “down to the studs.” The cost of repairs ranged from $900,000 to $1.2 million. Dianne filed a construction defect action against the builder and the seller of the house, incurring over $250,000 in attorney fees and litigation expenses. The litigation was ongoing as of the hearing on the OSC.
Dianne learned that she would have to pay between $25,000 and $35,000 a month to rent a place while the repairs were being completed. She did not want to spend that much on rent, so she bought a second house in Malibu, on Cavalleri Road, for around $4 million. To finance the purchase, she took out a $2.4 million interest-only loan.
Meanwhile, Mark purchased a house on a bluff in Malibu, paying $25 million in cash. Mark lives in the house, but bought it primarily for investment purposes.
On May 26, 2006, Dianne filed an OSC seeking an increase in child support in an amount “according to proof.” In an “Income and Expense Declaration,” Dianne stated that, despite her efforts, she had not earned a salary or any wages, but she had investment income of around $15,000 a month. At the time, Dianne was living in the Ocean Breeze house, and her household expenses were based on that residence alone, excluding expenditures on repairs and the litigation. She listed average monthly household expenses totaling $26,188, of which $12,692 consisted of the mortgage payment, homeowners insurance, and property taxes.
Dianne separately estimated “direct children expenses” at $29,472 to $35,341 a month. That amount included monthly vacation expenses (travel and lodging) ranging from $19,341 to $25,210 for (1) extended trips with the children to Aspen, Colorado, Maui, Hawaii, and Naples, Italy, and (2) six weekend trips to unspecified locations. The $19,341 figure was based on first-class airfare for the extended trips; the $25,210 figure was based on the use of a private charter jet.
Last, Dianne listed transportation expenses — such as car insurance, car and lease payments, and gasoline — of $4,067 a month.
On December 16, 2005, after Dianne had moved out of the Ocean Breeze house and into the Cavalleri house, she filed an updated “Income and Expense Declaration.” The average monthly household expenses for the Cavalleri residence were $47,117, of which $19,021 consisted of the mortgage payment, homeowners insurance, and property taxes. On the declaration, Dianne also listed monthly expenses of $1,624 for a timeshare in Park City, Utah, where the children liked to ski. Her income and other expenses were substantially the same as in the prior declaration.
In support of the OSC, Dianne submitted a “comparative schedule,” or summary spreadsheet, based on her updated income and expense declaration. She did not seek any household expenses related to the Ocean Breeze house, which was still under repair. The schedule stated that Dianne’s average monthly child-related expenses were “$45,887” (actually $45,888) consisting of household expenses, the timeshare, vacations, parties, transportation costs, and direct childhood expenditures such as clothing and childcare.
On January 3, 2006, Mark filed an “Income and Expense Declaration,” stating that (1) his monthly salary was $2,875,000, (2) in February 2005, he received “distributions” of $38,850,000, and (3) he had monthly investment income of $32,978. Mark listed $73,432 in average monthly expenses, plus $2,810 a month for the children’s educational and other needs, namely, “[t]utor, music lessons, soccer, [and] acting.”
In a separate declaration, Mark stated: (1) in connection with his employment, he had taken the children to Panama, Vanuatu, Palau, and Guatemala; (2) they had traveled in business class on most of those trips; (3) on three other trips — to Las Vegas, New York, and Florida — they had flown on a chartered aircraft; (4) they had made one trip to Maui that was not work related; and (5) they had typically stayed in three-star (not luxury) hotels and, on certain occasions, at the residence of a friend. Mark also declared that his $25 million home had an ocean view comparable to that of Dianne’s two homes and that the children’s bedrooms in all three homes were of similar size.
The OSC came on for hearing on January 17, 2006. The trial court, with Mark’s consent, set his monthly income at $4,312,083. Dianne’s monthly income was found to be $15,912. Dianne stipulated that Mark was an extraordinarily high earner and that child support payments as determined under the statewide uniform guideline formula would exceed the reasonable needs of the children. (See Fam. Code, §§ 4053–4055; section references are to the Family Code.) The trial court relied on Dianne’s child-related expenses of $45,888 a month, as stated in her comparative schedule. The court commented that the children were entitled to support payments reflecting the lifestyle of both parents, and a significant part of the “lifestyle equation” in this case involved housing and travel. The court expressed reluctance to “micromanage” the parents’ expenditures on the children and declined to identify particular categories that should be “cut back.” It set child support at $40,000 a month — slightly less than 1 percent of Mark’s monthly income — stating that roughly half of the award was for household expenses. As a legal matter, the court concluded that Dianne did not have to show a change of circumstances because the original amount of child support was set by stipulation of the parties.
In its written order, the trial court recited that (1) Mark was an exceptionally high earner, (2) guideline child support was $356,092 a month, (3) the guideline amount would exceed the needs of the children, (4) deviation from the guideline amount was in the best interests of the children, and (5) the increase in child support was warranted by the parties’ standard of living and lifestyle, including “expensive housing in Malibu and travel.” Mark appeals.
II
DISCUSSION
“An award of child support rests in the [trial] court’s sound discretion and cannot be overturned absent a showing of a clear abuse of discretion. ‘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.’” (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 184.)
“California has a strong public policy in favor of adequate child support. . . . That policy is expressed in statutes embodying the statewide uniform child support guideline. . . . ‘The guideline seeks to place the interests of children as the state’s top priority.’ . . .
“[C]ourts are required to calculate child support in accordance with the mathematical formula set forth in the statute. . . . [A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes. . . . Those special circumstances include a parent’s extraordinarily high income.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283–284, citations and fn. omitted.)
“‘“[A] child . . . is entitled to be supported in a style and condition consonant with the position in society of [his] parents.” . . . “The father’s duty of support for his children does not end with the furnishing of mere necessities if he is able to afford more.” . . .’ . . . ‘“Clearly where the child has a wealthy parent, that child is entitled to, and therefore “needs” something more than the bare necessities of life.”’ . . . [A] parent’s ‘ability’ to support a child may depend upon whether the supporting parent is merely rich or is very rich, and ‘this discrepancy can affect the [trial court’s determination as to the] child’s needs.’” (In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187, italics added.) “[C]hild support must be measured by the standard of living attainable by the parent’s income.” (Id. at p. 178, italics added.)
A trial court should not assume that a child’s historic expenses define his or her present needs. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 293.) “[T]hat assumption is erroneous in the case of wealthy parents, because it ignores the well-established principle that the ‘child’s need is measured by the parents’ current station in life.’” (Ibid.) A child is to share in both parents’ standards of living, which include the parents’ assets as well as income. (See id. at pp. 283, 290–292.) And a child’s “needs will necessarily include the continued security of [his or her] financial future.” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 97, fn. 8.)
“[T]he children’s right ‘to share in the lifestyle of the high earner . . . is not necessarily constrained by the fact that [the high earner] chooses to spend little on “lifestyle.”’ ‘[L]ifestyle should be evaluated based on the financial resources available to the payor parent, not whether he or she lives in a manner consistent with extravagance or with frugality.’” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 292, fn. 13, italics added.) The payor’s income alone, however, is not determinative. (See id. at p. 297.)
Nor does it matter that child support will incidentally benefit others in the household, such as a parent who is not entitled to spousal support. (See Johnson v. Superior Court (1998) 66 Cal.App.4th 68, 71; County of Alameda v. Johnson (1994) 28 Cal.App.4th 259, 264; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 6:405, p. 6-165.)
Further, “the rule . . . tying needs to the standard of living enjoyed during marriage has no place in child support as opposed to spousal support determinations. . . . Limiting increases in spousal support to the supported spouse’s living standards during marriage justifiably holds the supported spouse to those expectations. The child, on the other hand, is an innocent victim of the dissolution, with no choice in the breakup but with reason to expect that both parents will continue to provide for him or her in whatever manner they can in life.” (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 551, italics added.)
Here, Mark contends primarily that Dianne could not obtain an increase in child support without showing a change of circumstances and that she failed to produce substantial evidence of such a change. He also asserts that the trial court committed various violations of the Family Code and abused its discretion in fixing the amount of support. None of those contentions has merit.
A. Change of Circumstances
“An order of child support ‘may be modified or terminated at any time as the court deems to be necessary.’ . . . Statutory procedures for modification of child support ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ . . .
“‘[Generally], a factual change of circumstances is required [for an order modifying support] (e.g., increase or decrease in either party’s income available to pay child support).’ . . . ‘There are no rigid guidelines for judging whether circumstances have sufficiently changed to warrant a child support modification. So long as the statewide statutory formula support requirements are met . . ., the determination is made on a case-by-case basis and may properly rest on fluctuations in need or ability to pay.’” (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556, citations omitted, boldface added.)
Mark’s argument — that a change of circumstances must be shown — requires him to distinguish section 4065, subdivision (d) (section 4065(d)). That statute provides: “If the parties to a stipulated agreement stipulate to a child support order below the amount established by the statewide uniform guideline, no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.” (Italics added.) In the Settlement Agreement, Mark and Dianne stipulated to child support below the guideline amount. But Mark argues that section 4065(d) does not apply to extraordinary high earners like himself.
We have previously construed section 4065(d) where an “ordinary” earner sought to decrease child support after stipulating to an amount above the guideline level. We explained: “Since there is no concomitant provision for stipulated child support orders above the amount established by the statewide uniform guideline, the ineluctable inference is that a ‘change of circumstances’ must be demonstrated to obtain a downward modification of the child support order to the applicable guideline level or below. In short, the statute lets either party ‘“renege” on the stipulation at any time, and without “grounds,”’ if the stipulated award is below the guideline amount . . ., but otherwise adheres to pre-guideline law and requires proof of changed circumstances to reduce a higher award.” (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.)
In this case, although the stipulated amount was below the guideline level, Dianne did not seek an increase “to the applicable guideline level or above” (§ 4065(d)), that is, she did not request $356,092 or more. If taken literally, the statute might not apply, and Dianne might have to show a change of circumstances. Nevertheless, we need not decide this issue because there were several factors which, in combination, constitute a change of circumstances.
First, Dianne sold the family home for $2.2 million and bought the Cavalleri home for $4 million. The original, stipulated amount of child support included $5,500 for monthly household expenses. Dianne’s household expenses at the Cavalleri home, allocated at 50 percent to the children, were $23,559. Mark also bought a new home, for $25 million in cash, which he claims is comparable to Dianne’s new home. (See In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1358–1359, 1363–1364 & fn. 4; In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1228–1229, 1236; Nelms v. Nelms (La.Ct.App. 1982) 413 So.2d 1341, 1343.)
Second, Mark’s income nearly quadrupled — from $1.16 million a month to $4,312,083. “[A] factual change of circumstances [includes an] increase or decrease in either party’s income available to pay child support.” (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556, italics omitted; accord, In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, 527 [“As a factual matter, numerous changed circumstances existed in this case, including an increase in [the father’s] income [and] a decrease in [the mother’s] anticipated income . . . .”]; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶¶ 17:26, 17:40 to 17:42, pp. 17-11, 17-13 to 17-14 [increase in income and ability to pay child support constitute change of circumstances].)
Finally, the children were older at the time of the hearing on the OSC (ages 8 and 12), resulting in a change in the nature and scope of their vacation trips with Dianne. The boys’ interests and pursuits had naturally broadened over time. (See Pencovic v. Pencovic (1955) 45 Cal.2d 97, 100; Deyoe v. Deyoe (1932) 126 Cal.App. 558, 563; Klapal v. Brannon (Ala.Ct.App. 1992) 610 So.2d 1167, 1169–1170; Rousseau v. Rousseau (La.Ct.App. 1996) 685 So.2d 681, 682.) In sum, all of the foregoing circumstances, taken together, permitted the trial court to consider Dianne’s OSC to increase child support.
B. Adequacy of the Trial Court’s Decision
“[T]he [trial] court shall 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 under this article: [¶] (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.” (§ 4056, subd. (a)(1)–(3).)
Mark contends that the trial court did not comply with this statute. We disagree. The trial court’s order stated: (1) guideline support was $356,092 per month; (2) the guideline amount was not applicable because Mark was an exceptionally high earner; and (3) the amount of increased support was consistent with the parents’ standard of living and lifestyle, including expensive housing in Malibu and travel. Nothing more was required. Mark does not cite any authority to the contrary.
C. Parents’ Responsibility for Child Support
“[T]he father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” (§ 3900.) Mark complains that Dianne “does nothing to independently contribute to [the children’s needs].” That is incorrect.
Dianne’s comparative schedule listed $45,888 in monthly child-related expenses based on: (1) half of what she spent or would spend on the house, the timeshare, vacations, parties, and transportation (a total of $39,257); and (2) all of what she spent or would spend on certain direct children items, such as clothing and childcare (a total of $6,631). The trial court reduced the $45,888 figure by about $6,000. Thus, it is inaccurate to suggest that Mark is footing the entire bill. Further, section 3900 does not require that each parent contribute the same dollar amount of support. Rather, the parents have an equal duty to care for the child. (See Estevez v. Superior Court (1994) 22 Cal.App.4th 423, 428 [child is to be financially supported in accordance with parents’ respective earnings or earning capacities].)
Mark also states that the trial court should have imputed income to Dianne based on her earning capacity. (See § 4058, subd. (b); In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 998–1001.) But he does not suggest what this amount should have been or how it should have been determined. His argument is therefore incomplete. (See Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237–238.) Further, in her papers, Dianne indicated that she is a self-employed television producer and has invested time and money in several projects. She works about 20 hours a week but has no earnings to date. In these circumstances, we cannot say that the trial court abused its discretion by failing to impute additional income to Dianne.
D. Propriety of the Increase in Support
At the conclusion of his opening brief, Mark argues that there was insufficient evidence to support the award, and the trial court abused its discretion in setting the amount of child support. Not so, because the evidence was substantial and demonstrates that the trial court did not err.
In applying the substantial evidence test, “‘[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings. . . . ‘We must therefore view the evidence in the light most favorable to the prevailing party, giving [her] the benefit of every reasonable inference and resolving all conflicts in [her] favor . . . .’” (Estate of Leslie (1984) 37 Cal.3d 186, 201, citations omitted.) “[T]he focus is on the quality, not the quantity of the evidence.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) The testimony of a single witness, including a party, may be sufficient. (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513.)
The information and figures used by the trial court in determining the amount of support were taken from Dianne’s and Mark’s declarations and Dianne’s deposition testimony, and constitute substantial evidence supporting the trial court’s decision. As stated, Dianne’s average monthly expenses relating to the children came to $45,888: (1) $39,257, consisting of 50 percent of the expenses for the Cavalleri house ($23,559), the timeshare ($812), vacations ($11,138), parties ($1,750), and transportation ($1,998); and (2) $6,631, consisting of 100 percent of expenses for clothing/shoes ($1,250), childcare ($900), school supplies ($125), lessons ($750), tutors ($540), books/games ($400), pets ($500), gifts for others ($1,166), entertainment ($500), and incidentals ($500).
Although the trial court commented that it had “difficulty” with the “numbers in here for clothing and things like that,” it declined to “pick on any category and say cut that back.” Instead, the court reduced the $45,888 figure to $40,000.
Accordingly, we reject Mark’s assertion that the trial court allocated $20,000 solely to the children’s vacation trips. The comparative schedule listed $11,138 in trip expenses. The court stated that about half of the $40,000 in support was for household expenses; it did not say what comprised the other half.
Mark also contends that Dianne sought an increase in child support to “underwrite” (1) the mortgages on both her homes and (2) the construction and legal expenses on the Ocean Breeze home. He is wrong. Dianne’s household expenses were expressly limited to the Cavalleri residence, as were the expenses in the schedule. Indeed, if Dianne had included the expenses for both homes, she would have sought an additional $13,094 in routine monthly household expenses for the Ocean Breeze home, plus a monthly amount to cover the children’s portion of special expenses such as legal bills of $250,000 and construction costs of between $900,000 and $1.2 million. She chose not to do so.
Finally, we disagree with Mark’s assertion that the quadrupling of his income is unrelated to the children’s needs. A child is entitled to share in the standard of living of the payor parent. (See In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187; In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 290–292.) Standard of living, in turn, is based largely on the payor’s income. (See Hubner, at pp. 178, 184–187; Cheriton, at pp. 290–292.) This is so, in part, because privacy concerns protect the payor from having to disclose other, more detailed information about his or her lifestyle. (See In re Marriage of Hubner, supra, 94 Cal.App.4th at pp. 184–187.) Thus, “income clearly is the primary factor in a child support determination in the case of an extraordinarily high earner.” (Id. at p. 186.)
Consequently, in light of Mark’s income of more than $4.3 million a month, Dianne’s monthly income of $15,912, their lifestyles, standards of living, and abilities to support the children, and the children’s needs, the trial court did not abuse its discretion in fixing child support at $40,000 a month — .93 percent of Mark’s monthly income. We cannot say that the award is excessive. After all, Mark is not “merely rich” but a “very rich” parent. (See In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187.)
III
DISPOSITION
The order is affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.