Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. D497476, Edward B. Huntington, Judge.
BENKE, Acting P. J.
We reverse the family court's awards of temporary child and spousal support. In making these awards the family court considered retirement contributions the supporting spouse's employer made on his behalf to a retirement system. Although for purposes of calculating child support such contributions are part of a spouse's gross annual income under Family Code section 4058, in determining a spouse's net disposable income under section 4059, subdivision (c), such involuntary contributions by an employer must be deducted. Thus the trial court could not use the employer's contributions in calculating the amount of child support.
All further statutory references are to the Family Code unless otherwise specified.
The family court also erred in making an award of temporary spousal support which was also based in part on the supporting spouse's employer's retirement contributions. In making spousal support orders, the family court had more discretion than in making the child support award. Nonetheless an award of temporary spousal support must be based on the parties' marital standard of living. As we explain more fully below, an employer's contribution to a retirement system, over which the supporting spouse has no control and which will result in a retirement benefit only at some point in the future, is not sufficiently connected to the marital standard of living to be considered in determining temporary spousal support.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2006, respondent Diana Deutsch filed a petition for dissolution of her 14-year marriage to appellant David Deutsch. Diana and David have a 14-year-old son. In conjunction with her dissolution petition, Diana moved for an award of temporary child and spousal support.
Diana was not employed during the marriage. According to his income and expense statement, David earned $180,000 a year in gross salary and had $1 million in disposable assets. At a contested temporary support hearing, the family court determined that in addition to David's gross salary David receives as income $6,107 in retirement contributions David's employer, the San Diego County Employees' Retirement Association, makes on his behalf. Although, according to David's counsel, David had no control over how much the retirement association contributes on his behalf, the family court determined: "It's part of a total compensation package." The court offered to disregard the retirement contributions as income for purposes of calculating support if David was willing to waive the date of separation as the date upon which Diana's community property interest in his retirement benefits terminated. The family court stated: "[A]ll that money that is going into the two retirement plans paid by the county is going to be his separate property. If you want to waive the date of the separation on those two retirement plans and let her continue to participate, then that's another way to handle it. But in the meantime, I think I have to consider that as income to him." David did not accept the family court's offer.
On the basis of its calculation of David's income and Diana's needs, the family court ordered that David pay Diana $2,638 in monthly child support and $7,000 in monthly spousal support. David filed a timely notice of appeal from the family court's support order.
I
Standard of Review
We review both the child support and spousal support awards for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.) However, with respect to child support we must "'recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]' [Citation.]" (Id. at p. 283.) Thus a trial court's discretion does not permit it to "ignore or contravene the purposes of the law regarding . . . child support. [Citations.]" (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1425.)
In awarding temporary spousal support, as opposed to permanent spousal support, the court is given fairly wide discretion. " 'Awards of temporary spousal support do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support.' [Citation.] 'Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.' [Citation] On the other hand, '[t]he purpose of permanent spousal support is not to preserve the preseparation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.' [Citations.] [¶] Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in 'any amount' (§ 3600) subject only to the moving party's needs and the other party's ability to pay. [Citation.] Permanent support, by contrast, is constrained by numerous statutory factors set out in section 4320. [Citations.]" (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594-595, fns. omitted.)
II
In determining the amount of child support a parent owes, the family court is required to calculate a presumptive amount under the formula set forth in section 4055, subdivision (a). Although the court may vary from the presumptive amount, it may do so only if it finds that one or more of the circumstances set forth in section 4057, subdivision (b), are applicable. These limitations on a court's discretion apply with respect to both temporary and permanent child support orders. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326.)
The formula set forth in section 4055 depends in substantial measure on determination of each parent's "net monthly disposable income." (§ 4055, subd. (b)(1)(C).) Net monthly disposable income is determined by first calculating a parent's "annual gross income" under the broad provisions of section 4058, then deducting the items set forth in section 4059 (§ 4059), and then dividing the difference by 12. (§ 4060; see County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, 1395-1396.)
Arguably all pension contributions, whether mandatory or voluntary, are included in gross annual income under section 4058, subdivision (a)(1). However, mandatory pension contributions are deducted from gross income under section 4059, subdivision (c), if they are made as a condition of employment. In excluding mandatory contributions from net disposable income, the Legislature has clearly recognized that mandatory contributions are not available to a parent for purposes of supporting his or her family, whereas voluntary pension contributions are available for family support.
Here, there is nothing in the record which suggests the $6,100 monthly pension contribution David's employer makes on his behalf is in any sense voluntary. Thus in calculating David's child support obligation, the family court erred in failing to give David the benefit of the deduction for mandatory pension contributions provided for by section 4059, subdivision (c).
III
While in calculating child support the focus is on a parent's disposable income, as we have indicated, in determining temporary spousal support, a court's concern is in preserving the status quo of the parties. (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) In In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932-1933, the trial court's temporary spousal support order allowed the supported spouse to continue the parties' practice of using a substantial amount of their income for investment purposes. In affirming the trial court's award, the Court of Appeal stated: "We note that Husband does not contend that he cannot afford to pay the support ordered, and we fail to see why Wife should be deprived of her accustomed life-style just because it involved the purchase of stocks and bonds rather than fur coats." (Ibid.)
Arguably, in light of his substantial disposable assets and salary, David could afford to pay the temporary spousal support awarded by the trial court. However, in calculating the amount of spousal support, the family court erred in considering the amounts David's employer contributes to the pension system which will eventually pay David's pension benefits. Admittedly, as the family court noted, until the parties separated, Diana shared equally in the value the employer's contributions added to David's pension system. However, unlike the situation considered in In re Marriage of Winter, there is nothing in the record which suggests either party had any control over the amount of contributions David's employer made or any access to those contributions as a means of meeting their current needs. Indeed it would appear any benefit derived from those contributions would not be realized until long after the parties separated. In light of those circumstances in which the contributions were in no direct or immediate sense a part of the parties' marital standard of living, they should not have been considered in determining temporary spousal support.
DISPOSITION
The family court's temporary child and spousal support order is reversed and the case is remanded for determination of temporary child and spousal support without regard to the amount David's employer makes in pension contributions.
Appellant to recover his costs of appeal.
WE CONCUR: NARES, J., IRION, J.