Opinion
E042466
7-9-2008
In re the Marriage of JUANITA M. and CARL G. THYMES. JUANITA M. EVANS, Respondent, v. CARL G. THYMES, Appellant; SAN BERNARDINO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent. SAN BERNARDINO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES et al., Plaintiffs and Respondents v. CARL G. THYMES, Defendant and Appellant.
Carl G. Thymes, in pro. per., for Appellant and for Defendant and Appellant. No appearance for Respondent Juanita Evans. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Paul Reynaga, Supervising Deputy Attorney General, and Linda M. Gonzalez, Deputy Attorney General, for Respondent San Bernardino County Department of Child Support Services and for Plaintiffs and Respondents.
Not to be Published
Carl Thymes (Father) appeals an order setting his child support payment at $470 per month. Father essentially contends the trial court abused its discretion by not including a 20-percent timeshare for his daughter, Carlysha, in the child support calculation. We affirm the three orders associated with this appeal.
On April 11, 2007, this court filed an order directing Fathers appeal to proceed as to the December 21, 2006, and January 12, 2007, orders for child support and the January 19, 2007, order regarding child custody and visitation only. Defendants argument relates to the order dated December 21, 2006. Father does not challenge the other orders.
FACTS
On September 6, 2006, Father and Juanita Evans (Mother) participated in mediation to resolve issues of custody and visitation, and reached an agreement. On September 18, 2006, the court held a hearing to review the order of custody and visitation in Fathers case. Father and mother asked the court to adopt the agreement reached in mediation, and the court adopted the agreement. The court asked if one of the parties could prepare a formal order concerning the terms of the agreement. Father offered to draft the order.
The custody and visitation order concerns Father and Mothers three children: Carlysha, who was 14 years old at the time of the order, and two twin boys who were 11 years old at the time of the order. The order provided:
"1. Father shall have alternate weekends with the children . . . from Friday at 8 PM until Sunday at 7 PM.
"2. Father shall have other weekends with the children as mutually agreed upon by both parents.
"3. Carlyshas wishes shall be taken into considerations [sic] for visitation with Father.
"4. Father shall be responsible for picking up and dropping off the children.
"5. All previous orders not in conflict with the above shall remain in full force and effect."
On November 17, 2006, the trial court held a hearing to determine the amount of child support Father would be required to pay. The Department of Child Support Services (the Department) recommended Father pay $470 per month in child support for the three children. The recommendation was based upon (1) Mothers and Fathers income and expense declarations; (2) a 20-percent timeshare for the twin boys, because the custody order indicated that Father spent alternating weekends with the twin boys; and (3) a zero-percent timeshare for Carlysha, because Mother and Father indicated that Carlysha did not visit Father.
Father objected to the Departments recommended amount of support. Father argued that term No. 3 of the custody and visitation order—that Carlyshas wishes would be taken into consideration regarding visits with Father—meant Carlysha did not have to visit Father if she had a previously scheduled cheerleading or school event, but it did not mean Carlysha could choose never to visit Father. Father essentially argued that, when making the custody and visitation agreement he had contemplated that Carlysha would be visiting him alternating weekends, and he would not have stipulated to the agreement becoming a formal order if it meant he would not be able to visit Carlysha and receive a 20-percent timeshare for her child support.
Father also raised objections as to Mothers stated income, because he believed her wages were more than she reported. Father also claimed that his income was less than the amount applied in the Departments calculation.
As to Fathers objection regarding the timeshare percentage for Carlysha, the court concluded that the order of custody and visitation simply stated that Carlyshas wishes are to be taken into consideration. The court informed father that interpreting term No. 3 to mean that Carlyshas wishes would be taken into consideration only if she had a cheerleading or school event would require the court to "read minds."
Mother agreed with the court, and said that the agreement was plainly stated—Carlyshas wishes regarding visiting Father were to be taken into consideration in general, not just if Carlysha had a cheerleading or school event. Nonetheless, Mother offered to give Father the 20-percent timeshare for Carlysha in order to settle the matter. The Department stated that the 20-percent timeshare "would make a difference" in the amount of support Father would be required to pay. The court stated that it was "not convinced [Father was] visiting with Carlysha 20 percent of the time," but that the Department would recalculate the amount of support with the 20-percent timeshare. The court imposed an interim order of support for $470, so that the children would be supported until the next hearing, where Mother and Father were required to bring in paycheck stubs and the Department would recalculate the amount of support.
On January 12, 2007, the court held a hearing on the permanent order of support. After receiving verifiable income information, the recommended guideline amount of support was raised to $545 per month, with a zero-percent timeshare for Carlysha. Father requested the court take into account his financial hardships. Father claimed he had bills for rent, vehicle payments, groceries, and transporting the children. The court asked the parties if they had considered leaving in place the order of support for $470 per month. Mother responded, "It doesnt matter. Its fine." Father objected. Father argued he should receive a 30-percent credit for the amount of time he was spending with the twin boys on weekends. Father also argued that $470 per month would be a financial hardship. Father again raised the issue of receiving a higher timeshare percentage for visits with Carlysha.
The court informed Father that it could not change the custody and visitation order to reflect that Carlyshas wishes concerning visitation would only be taken into account if she had a cheerleading or school event. The court explained that it was bound by the custody and visitation order and that its authority was limited to determining the amount of child support Father would owe.
The Department adjusted the calculation to give father a 20-percent timeshare for the twin boys and a 10-percent timeshare for Carlysha. The total amount of support owed with the adjusted credits was $461 per month. The court said it was considering ordering more support than the originally recommended $545 per month, but asked Mother if she was still willing to settle for $470 per month. Mother agreed to settle. The court then ordered that the amount of child support due each month would be $470.
We note that Father did not agree to settle for $470 per month.
DISCUSSION
Father contends the trial court abused its discretion in determining the amount of child support he must pay. Father essentially argues that the trial court should have set his timeshare for Carlysha at 20 percent. We disagree.
"`In California there is a "statewide uniform guideline for determining child support orders." (Fam. Code, § 4055, subd. (a).) This guideline is an algebraic formula. (Ibid.)" (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 979.) The guideline formula is based on each parents income and a timesharing adjustment for shared physical responsibility for the children. (§ 4055, subds. (a) & (b).) Timeshare is statutorily defined as the "approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent." (§ 4055, subd. (b)(1)(D).) In other words, for calculating child support, a parents share is based on the approximate amount of time in which the parent has actual, physical responsibility for the child. (In re Marriage of Katzberg, supra, at p. 981.)
Unless designated otherwise, all statutory references are to the Family Code.
The Guideline formula is as follows:
We review the trial courts determination of Fathers timeshare percentage for an abuse of discretion. (In re Marriage of Katzberg, supra, 88 Cal.App.4th at p. 977 [the timeshare calculation is one "area in which a trial court retains some discretion"].)
At the outset, we observe that it is unclear what timeshare percentage the court assigned for Carlysha. At the hearing on the permanent order of support, the recommended guideline amounts of support were (1) $545, with no credit given for Carlysha; and (2) $461, with a 10-percent credit for Carlysha. Despite these guideline amounts, the court ordered Father pay $470 per month in child support. The court did not state which recommended guideline amount it was deviating from, and therefore, it is unclear what timeshare percentage was given for Carlysha. Despite this ambiguity, it is clear Father was not given a 20-percent credit for Carlysha, and therefore we will reach the merits of Fathers contention.
The following evidence supports the trial courts decision to set the timeshare percentage for Carlysha at less than 20 percent. First, at the hearing on the temporary order of support, it was indicated by both Mother and Father that Carlysha did not visit Father. Second, at the hearing on the permanent order of support, Father stated Carlysha did not visit him. Third, the custody and visitation order plainly states that Carlyshas wishes will be taken into consideration concerning visiting Father, and the record reflects that Carlysha does not wish to visit Father.
Based upon the foregoing evidence, the trial court did not abuse its discretion in setting the timeshare percentage at less than 20 percent, because a parents timeshare is based on the approximate amount of time in which the parent has actual, physical responsibility for the child, and the record reflects that Father has no actual physical responsibility for Carlysha.
We now address Fathers remaining arguments. First, to the extent Father argues that the trial court erred by not interpreting the custody and visitation order as requiring Carlysha to visit him alternating weekends, unless she is attending a cheerleading event, we disagree with such an argument. The plain language of the custody and visitation order requires that Carlyshas wishes be taken into consideration concerning visiting Father. The order was drafted by Father, and he did not include any mention of limiting consideration of Carlyshas wishes to times when she had cheerleading events. Father contends that if the trial court had questioned Mother, it would have discovered that both parties contemplated Carlysha visiting father alternating weekends when Carlysha did not have cheerleading events. We disagree, because mother plainly stated that the agreement was for Carlyshas wishes to be taken into consideration regarding all visits with Father, and not limited to when she had cheerleading events. Accordingly, there was no basis for the trial court to conclude that both parties had contemplated Carlysha visiting Father alternating weekends unless she had a cheerleading event.
Second, to the extent Father argues the court erred by disregarding Mothers offer to settle for a 20-percent timeshare for Carlysha, at the hearing on the order for temporary support, we disagree with such an argument. Stipulations regarding child support are subject to court approval. (§ 4065, subd. (a).) The court stated that it did not believe Father was actually visiting Carlysha 20 percent of the time, despite Mothers offer to stipulate to the 20-percent timeshare. We infer the court ultimately did not approve of the stipulated timeshare percentage, due to the court not applying the stipulated figure in the support calculations. As concluded ante, the evidence supports a finding that Father has no actual physical responsibility for Carlysha. Consequently, we find no error in the trial court not approving of the stipulated 20-percent timeshare, because it would be unreasonable to give Father a 20-percent timeshare when he has no actual physical responsibility for Carlysha.
Third, Father argues that on June 11, 2007, the trial court vacated the order of custody and visitation that was formalized on September 18, 2006, after Mother and Father attended mediation. Father supports this assertion with a citation to "exhibit one." We are unable to locate in the record an order vacating the formal custody and visitation order. Furthermore, the order of support that Father is appealing was entered on January 12, 2007. Accordingly, even if "exhibit one" were included in the record, we could not consider it, because it was not part of the record at the time the order of support was entered. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Consequently, we do not address this portion of Fathers argument.
Fourth, we do not address Fathers argument that as to the twin boys he should have been given a 24-percent timeshare, because Father provides no reasoning for this assertion. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120 [contention unsupported by "pertinent or cognizable legal argument" deemed abandoned].)
Fifth, as to Fathers request that we take judicial notice that Mother was earning $4,185 per month, we deny the request because Father has provided no citation or reference for us to determine whether he is correct that Mother was earning $4,185 per month. (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744 ["burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice"].)
DISPOSITION
The December 21, 2006, and January 12, 2007, orders for child support are affirmed. The January 19, 2007, order regarding child custody and visitation is affirmed.
We concur:
Hollenhorst, Acting P.J.
Richli, J.
CS = K [HN - (H%)(TN)] CS = the amount of child support. K = the amount of parents combined income to be allocated for child support; this is computed by a formula. HN = the high earners net monthly disposable income. H% = the percentage of time the high earner has primary custody. TN = the total net monthly disposable income of both parents. (§ 4055, subds. (a) & (b).)