Opinion
B313966
02-14-2023
In re the Marriage of MEADOW LAY and KIRK CHAMBERLIN. v. KIRK CHAMBERLIN, Appellant. MEADOW LAY CHAMBERLIN, Respondent,
Chamberlin & Keaster and Kirk C. Chamberlin, for Appellant. Law Offices of Steven B. Simon and Steven B. Simon, for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD584193, Alexander C. D. Giza, Judge. Affirmed.
Chamberlin & Keaster and Kirk C. Chamberlin, for Appellant.
Law Offices of Steven B. Simon and Steven B. Simon, for Respondent.
SCADUTO, J. [*]
INTRODUCTION
Appellant Kirk Chamberlin appeals from an order increasing his monthly child support obligation from a stipulated $1,397 per month to $1,918 per month. Respondent Meadow Lay Chamberlin (Lay) had requested the modification based on changed circumstances since the time of the stipulated order, namely an increase in her custodial timeshare and a decrease in her self-employment income. Chamberlin contends that the order should be reversed because: (1) the trial court ordered guideline support despite Lay's allegedly higher standard of living; (2) the court declined when calculating guideline support to impute income to Lay to reflect free housing and other financial support she received from others; and (3) the court denied Chamberlin's motion for reconsideration on the ground that he had produced no new evidence. Findi ng no error, we affirm.
PROCEEDINGS BELOW
A. Lay's Request to Modify Child Support
Chamberlin and Lay have a son, Blake, who was born in 2011. They married in 2013. In July 2014, the trial court entered a judgment of dissolution requiring Chamberlin to pay $2,798 per month to Lay for the support of Blake. In addition to these monthly payments, Chamberlin was ordered to make Ostler-Smith payments equaling a percentage of the annual bonuses he received from the law firm in which he was a founding partner. The court reduced Chamberlin's monthly support obligation to $2,501 in May 2016.
"[T]he family court may award as spousal or child support 'a percentage of uncertain earnings' in order to avoid 'an indefinite number of future hearings at which the details . . . must be reevaluated.'" (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 352, fn. 3 (Usher).) These awards are referred to as "Ostler-Smith" payments after In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 42.
In April 2018, the court again reduced Chamberlin's monthly child support obligation, this time to $1,397 pursuant to a stipulation of the parties. The stipulated order, which appears in the appellate record in a partially executed form, stated that Lay and Blake lived "rent-free" in a Calabasas home with Lay's adult son from a prior marriage, who is the beneficiary of a family trust that owns and pays to maintain the home. The parties further stipulated that support would be $1,655 under the statewide uniform child support guideline codified at Family Code section 4055 but that "the parties agree that a below guideline support order is in Blake's best interests." Chamberlin and Lay cited section 4057, subdivision (b)(5)(B), and agreed that they "'have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent.'"
Undesignated statutory references are to the Family Code.
In February 2020, Lay filed a request for an order modifying child support to conform to the guideline. Lay stated that the request for modification was prompted by a decrease in her monthly income as a self-employed esthetician from $2,000 to $863 and a decrease in Chamberlin's timeshare from 45 to 7 percent. Lay also requested an award of $20,000 in need-based attorney fees and costs.
Chamberlin opposed Lay's request. In two income and expense declarations, Chamberlin declared that his monthly income was $20,000, which was unchanged since the time of the stipulated order. He further declared, however, that from 2017 to 2020 his annual income had decreased by approximately 50 percent, while his debts had increased, bringing him to "the verge of bankruptcy." He attached to each declaration a table of his alleged debts, including $136,000 owed to the IRS for 2018 federal taxes. He did not submit any tax documents or other supporting documentation. Nor did he specifically address his standard of living.
Chamberlin asserted that Lay received at least $10,000 per month in financial benefits in the form of free housing underwritten by her adult son's trust and her boyfriend's contribution to her living expenses. He argued that, if the court were to order guideline support, the court should impute this amount as income to her. He pointed to Lay's testimony at a December 21, 2020, deposition where she testified that: (1) she paid nothing to live in the Calabasas home owned and maintained by her adult son's trust; (2) she had borrowed $5,000 from the trust to pay attorney fees; and (3) her boyfriend paid for her car and her car insurance. Chamberlin also submitted a declaration from a local real estate agent which stated that she found a rental property comparable to the Calabasas home with a price of $12,000 per month.
In reply, Lay acknowledged that she had no housing costs and that her boyfriend paid $750 of her $3,673 in average monthly expenses. She argued that her request for guideline support should nevertheless be granted because Chamberlin had failed to show that below-guideline support would be consistent with Blake's best interests. In a new income and expense declaration, she reported that, because her business had closed in March 2020, she was collecting $1,986 in monthly unemployment income.
B. The Trial Court's Hearing and Ruling
On February 9, 2021, the trial court held a hearing on Lay's request to modify child support. At the conclusion of the hearing, the court found that Chamberlin's timeshare was 35 percent, that his monthly income was $20,000 as he had declared, and that Lay's monthly income was $1,986 as she had declared. Using these figures, the court prepared a DissoMaster report calculating guideline support of $1,918 and ordered Chamberlin to pay the guideline amount. The court also ordered Chamberlin to pay $11,000 of Lay's attorney fees, finding that Chamberlin had greater access to funds than Lay.
"'The DissoMaster is a privately developed computer program used to calculate guideline child support under the algebraic formula required by section 4055.'" (Usher, supra, 6 Cal.App.5th at 352, fn. 5.)
C. Chamberlin's Motion for Reconsideration
In April 2021, Chamberlin filed a motion for reconsideration. In support of the motion, Chamberlin submitted for the first time several pages from the transcript of Lay's deposition, information about the Calabasas home printed from redfin.com and proposed DissoMaster reports including imputed income for Lay. Chamberlin also submitted for the first time his Schedule K-1 tax documents for the years 2018, 2019, and 2020, which he argued showed a decrease in his annual income, though his monthly draw from the law firm remained $20,000. Chamberlin and his counsel both submitted supporting declarations. Neither declaration offered any explanation for Chamberlin's failure to submit the evidence in opposition to Lay's request for a modification of child support.
On June 8, 2021, the trial court held a hearing on Chamberlin's motion. After hearing from both sides, the court denied the motion, concluding that" [t]here is no new evidence for the court to consider, so it's not appropriate to reconsider this under CCP 1008." Chamberlin timely appealed from the order granting Lay's request to modify child support.
DISCUSSION
Governing Law
In implementing the statewide uniform child support guideline, courts must "adhere to the following principles: [¶] (a) A parent's first and principal obligation is to support the parent's minor children according to the parent's circumstances and station in life. [¶] . . . [¶] (d) Each parent should pay for the support of the children according to the parent's ability." (§ 4053, subds. (a), (d).) "The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula." (§ 4053, subd. (k).) The presumption is rebuttable by admissible evidence showing by a preponderance that guideline support would be "unjust or inappropriate due to special circumstances in the particular case." (§ 4057, subd. (b)(5).) Such special circumstances may include financial benefits reducing the obligor parent's living expenses. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2022) Ch. 6-A ¶ 6:210.1.) "The party seeking the adjustment bears the burden of proof on this issue." (Id. at ¶ 6:255, italics omitted.)
The statewide uniform guideline calculates the amount of child support based on each parent's income and level of responsibility for the children. (§ 4053, subd. (c); § 4055, subds. (a)-(b).) "The annual gross income of each parent means income from whatever source derived, except [child support and need-based public assistance] as specified in subdivision (c) and includes, but is not limited to, the following: [¶] (1) Income such as . . . wages, bonuses, . . . and spousal support actually received from a person not a party to the proceeding . . . . [¶] (2) Income from the proprietorship of a business . . . . [¶] (3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts." (§ 4058, subd. (a).)
When calculating guideline support, it is well-settled that a court has discretion to impute income to a parent to reflect the value of financial benefits received from employment, including free housing. (See § 4058, subd. (a)(3).) But because "[s]ection 4058(a)(3) limits benefits that result in a 'corresponding reduction in living expenses' to employee or self-employment benefits . . ., most courts treat a parent's rent-free housing outside the employee benefit context as a gift that is not 'income' for child support purposes [citation]." (Hogoboom & King, Cal. Practice Guide: Family Law, supra, at ¶ 6:203.3; see also In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 758; In re Marriage of Loh (2001) 93 Cal.App.4th 325, 333-336.) There is, however, a line of authority that "upholds court discretion to treat as income in the formula calculation otherwise nonincludible benefits, such as free housing and other onetime or noncash gifts, to the extent they reduce the recipient parent's living expenses." (Hogoboom & King, supra, at ¶ 6:210, citing In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 109, County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1451, and Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1754-1755.)
Where parties have stipulated to a below-guideline child support order, no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above. (See § 4065, subd. (d).) "Section 4053 gives a court great latitude in applying its principles to individual cases." (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1366 (Marriage of de Guigne).) "Child support awards and a trial court's determination of a request for modification of child support are reviewed for abuse of discretion." (Usher, supra, 6 Cal.App.5th at 357.)
Analysis
Chamberlin contends that the trial court's order modifying child support should be reversed because: (1) the court violated the principles set forth in section 4053 by awarding guideline support despite Lay's allegedly higher standard of living; (2) the court failed in calculating guideline support to impute income to Lay to reflect the financial benefits she receives from her adult son's trust and her boyfriend; and (3) the court declined to consider the evidence Chamberlin submitted for the first time with his motion for reconsideration, including evidence of an alleged decrease in his annual income. For reasons discussed below, we disagree.
A The Trial Court Acted Within Its Discretion in Ordering Guideline Support
Chamberlin contends that Blake enjoys a "markedly higher standard of living . . . with [Lay]." He points to section 4053 and argues that, by ordering him to pay guideline support despite Lay's allegedly more affluent lifestyle, the trial court "failed to adhere to the fundamental principle that in assessing child support, the child is to enjoy the same standard of living in both houses." We conclude that the court acted within its discretion in ordering guideline support here.
Chamberlin argues this issue is subject to de novo review. It is not. The cases cited by Chamberlin did not address section 4053 specifically or child support more generally. (Marler v. E.M. Johansing, LLC (2011) 199 Cal.App.4th 1450; Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734.)
Chamberlin failed to prove his standard of living was materially different from Lay's. As a founding partner of his law firm, Chamberlin conceded he receives income of $20,000 in the form of a monthly draw plus annual bonuses, far exceeding Lay's monthly income of around $2,000. And while it is undisputed that Lay and Blake reside in a big Calabasas home, the record is devoid of admissible evidence addressing Chamberlin's standard of living. It was he who bore the burden of proof on this point. (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1424.) Chamberlin also does not challenge the finding the trial court made in connection with Lay s request for need-based attorney fees that Chamberlin had greater access to funds.
Even if the evidence before the court had shown Blake's standard of living was materially different in Chamberlin's care, that disparity alone would not require a departure from the guideline. The guideline is presumptively correct, and a parent's "first and principal" obligation is to support a minor child according to the parent's circumstances, station in life, and ability to pay. (§ 4053, subds. (a), (d), (k).) Chamberlin cites no authority supporting the proposition that Lay's adult son's good fortune and generosity to his mother and younger brother necessarily make it "unjust or inappropriate" for Chamberlin, a well-compensated professional, to pay full fare. (§ 4057, subd. (b) (5).) And there was nothing before the trial court to support a conclusion that a below-guideline order would be in Blake's best interests. (See Marriage of de Guigne, supra, 97 Cal.App.4th at 1359-1360 ["court's paramount concern in adhering to or departing from the guideline amount must be the best interests of the children"].) For these reasons, the trial court acted within its discretion in ordering guideline support.
B. The Trial Court Acted Within Its Discretion in Declining to Impute Income to Lay in Calculating Guideline Support
Chamberlin argues that the court should have imputed income to Lay in the guideline support calculation to account for the free housing she receives living with her adult son and contributions she receives from her boyfriend for other living expenses. Section 4058, subdivision (a)(3), gives the court discretion to include employee benefits such as housing stipends that result in a corresponding reduction in living expenses as income when calculating guideline support. And there is some case law recognizing a court's discretion to treat as income benefits of that same character that are not from employment. (Hogoboom & King, Cal. Practice Guide: Family Law, supra, at ¶ 6:210 [citing cases].) Assuming based on that case law that the trial court here had discretion to include the free housing and other support as income to Lay in the guideline calculation, we nevertheless conclude the court did not abuse its discretion in declining to do so.
The only evidence Chamberlin identified to establish the amount of Lay's alleged free housing income was a real estate agent's declaration opining that $12,000 was the monthly rental value of the home. Neither this declaration nor any other evidence addressed how the court might apportion the rental value between Lay and her adult son. Moreover, the record before the trial court supported the conclusion that Lay's financial circumstances were akin to being house rich and cash poor, except that she had no ownership interest in the Calabasas house. Despite having no housing expenses for her and Blake, there was evidence before the trial court that she still had less income than was necessary to meet their other costs of living without the intervention of her boyfriend, and even with that, money was scarce. Under these circumstances, we conclude that the court acted within its discretion in declining to impute income to Lay in calculating guideline support. (See In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 19 ["it is counterintuitive- often counterproductive-to impute income to a custodial parent, because the objective effect of such an imputation will be to reduce the money otherwise available for the support of any minor children"].)
C. The Trial Court Acted Within Its Discretion in Denying the Motion for Reconsideration
Code of Civil Procedure section 1008, subdivision (a), authorizes a motion for reconsideration "based upon new or different facts, circumstances, or law," and requires the movant to "state by affidavit . . . what new or different facts, circumstances, or law are claimed to be shown." The order denying Chamberlin's motion for reconsideration is not separately appealable, but we may review it on Chamberlin's appeal from the underlying order. (Code Civ. Proc, § 1008, subd. (g).) We review the order for abuse of discretion. (Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.)
Chamberlin contends that the trial court erred in declining to consider the evidence he submitted for the first time with his motion for reconsideration. "Courts have construed [Code of Civil Procedure] section 1008 to require a party filing an application for reconsideration . . . to show diligence with a satisfactory explanation for not having presented the new or different information earlier." (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Chamberlin failed to satisfy this requirement.
Any new information in Chamberlin's proposed DissoMaster reports was derived from sources that were available to him at the time of the prior hearing in February 2021, namely redfin.com and the transcript of Lay's December 2020 deposition. Chamberlin's K-1 documents for 2018 and 2019 were likewise available in February 2021. The declarations Chamberlin and his counsel both submitted in support of his motion for reconsideration offered no explanation for failing to present these documents or his 2020 K-1 earlier. (See Code Civ. Proc, § 1008, subd. (a) [movant must state claim of new or different facts "by affidavit"].) We conclude that the court acted within its discretion in denying the motion after concluding that Chamberlin had produced no new evidence within the meaning of Code of Civil Procedure section 1008. (See New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.)
In his reply brief, Chamberlin faults the trial court for failing to consider debts he had alleged in attachments to his income and expense declarations. Chamberlin has forfeited this issue by failing to raise it in his opening brief. (See, e.g., Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 189-190.)
DISPOSITION
The trial court's order modifying child support is affirmed. Lay is awarded her costs on appeal.
We concur: COLLINS, Acting P.J., CURREY, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.