Opinion
A102122.
11-7-2003
In re the Marriage of CANDICE and GEOFFREY OJO. CANDICE OJO, Respondent, v. GEOFFREY OJO, Appellant.
In this child support/custody and visitation proceeding, both parties appear in pro. per. Appellant Geoffrey Ojo appeals from an order denying his motion to reduce child support and denying his orders to show cause for modification of custody and visitation. With respect to the child support issue, we hold that the trial court erred in disregarding provisions of Family Code[] section 4057.5, subdivision (a)(1), which expressly preclude consideration of new mate income except in an extraordinary case where excluding such income would lead to extreme and severe hardship to any child subject to the child support award. We further find that the order, as to the custody and visitation issues, is not appealable. We, therefore, dismiss the appeal as to issues of custody and visitation.
I. FACTS AND PROCEDURAL BACKGROUND
The marriage of Geoffrey and Candice Ojo was dissolved on November 5, 2001. The parties were awarded joint legal custody. Physical custody of the two minor children was awarded to the wife, subject to the husbands reasonable visitation, specifically one month in the summer and extended periods of time when the children were out of school. Appellant was ordered to pay child support in the amount of $1,200 per month. Neither party was required to demonstrate any change of circumstances in order to obtain a modification of the support award. The judgment of dissolution further provided that respondent and the children could move to Boston, Massachusetts.
On May 23, 2002, appellant filed a motion to modify support based on his unemployment. The matter was heard on September 11, 2002. At the hearing, a Department of Child Support Services attorney entered a DissoMaster report, which imputed expenses paid by appellants girlfriend as income to appellant. The November 6, 2002, order after hearing increased child support to $1,834 per month as a temporary order, including one-half the cost of day care expenses, reserving retroactivity to modify the support back to May 23, 2002; the order also set the matter for trial on January 17, 2003. At the time the trial court made the order, appellant was unemployed. His license to practice law had been suspended and he was working sporadic jobs on an irregular basis.
On October 21, 2002, appellant filed two orders to show cause requesting a modification of visitation based on his allegations that respondent was not allowing him to contact the children, had moved to New York instead of Boston as indicated in the judgment of dissolution and was attempting to get him to sign away his parental rights. The first order to show cause was heard on December 18, 2003. The transcript from the December 18, 2003 hearing was not included in the record on appeal. In addition, the record on appeal does not reference whether an order after the December 18, 2003 hearing was entered. The second order to show cause was heard in conjunction with appellants motion to modify child support.
On January 17, 2003, appellants motions for modification of child support and visitation came on for trial. Both parties appeared personally and in pro. per. On January 29, 2003, the trial court entered an order regarding child visitation and support, which is the subject of this appeal. The January 29, 2003 order denied appellants request to modify the child support. The court made permanent the November 6, 2002 order, which imputed one-half the expenses paid by appellants nonmarital partner as income to appellant and caused an increase in child support from the stipulated $1,200 per month to $1,834. The January 29, 2003 order also temporarily modified visitation, pending a full-scale investigation and resolution of jurisdictional issues.
Appellant contends: (1) section 4057.5, subdivision (a)(1) precludes the consideration of new mate income when setting child support, except in extraordinary cases which result in extreme hardship to the child subject to the award; (2) the trial court failed to consider the hardship of appellants nonmarital partners child in violation of section 4057.5, subdivision (a)(1); (3) the trial court failed to provide a hardship deduction pursuant to section 4057.5, subdivision (d); (4) the trial court failed to consider various DissoMaster adjustments, which caused his child support obligation to increase; and (5) the trial court abused its discretion by ordering supervised visitation based on respondents testimony without any documentary evidence.
II. DISCUSSION
A. Child Support
1. Standard of Review
Child support orders are reviewed for an abuse of discretion. (In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1066.) However, the trial courts discretion is not so broad that it may ignore the law. (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1425.) The only discretion provided a trial court with respect to child support awards is that set forth by statute or rule. (Ibid.)
2. The Trial Court Abused Its Discretion by Considering New Mate Income
The primary issue on appeal is whether the trial court erred in considering new mate income in light of section 4057.5. Section 4057.5, subdivision (a)(1) provides: "The income of the obligor parents subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligors subsequent spouse or nonmarital partner." (Italics added.)
Section 4057.5, subdivision (b) provides a nonexhaustive list of what constitutes an "extraordinary case." "[A]n extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouses income." (Ibid.) Section 4057.5 does not, however, define what constitutes "extreme and severe hardship."
(a) Extraordinary Case
The January 29, 2003 order makes no findings with respect to whether the instant matter qualified as an "extraordinary case." Evidence was presented which suggested that appellant, though unemployed, had been actively pursuing employment. Appellants girlfriend testified that appellant had been seeking out employment on a daily basis. She further testified that, to her knowledge, appellant had not turned down any employment offers. Appellant also presented various letters and emails, which documented his job search efforts.
Respondent presented opposing evidence, which suggested that appellant may have been able to hide his true financial situation. Specifically, respondent presented evidence which indicated that appellant had been using two different social security numbers. There was also some testimony that appellant had, at one time, used two different drivers licenses. Respondent presented additional evidence which suggested that appellant attempted to obtain credit under his minor sons name.
While the circumstances surrounding appellants financial situation may have been suspect, the trial court failed to make the requisite finding that this matter was an "extraordinary case," before it considered new mate income. We note that an uncodified statement of the legislative intent provides that section 4057.5 does not lock a trial court into a standardized approach for determining whether a particular case is "extraordinary" so as to justify consideration of new mate income. Rather, the trial court is to proceed on a case-by-case basis. (See Stats. 1994, ch. 1140, § 3, p. 6751 ["It is the intent of the Legislature that the restrictions specified in Section [4057.5] . . . is [sic] not subject to court standardization, but is subject to judgment on a case-by-case basis"].) Here, however, it appears that the trial court failed to engage in any analysis of whether the instant case qualified as an "extraordinary case."
(b) Severe and Extreme Hardship
The second part of the analysis requires the trial court to consider whether excluding the new mate income would lead to extreme and severe hardship to any child subject to the child support award and also whether including the new mate income would result in a similar hardship to any child supported by the obligor or the obligors subsequent nonmarital partner. (§ 4057.5, subd. (a)(1).) At trial respondent testified that appellant was $22,000 in arrears on his child support obligation. Appellant did not deny that he was in arrears in the thousands. Respondent further testified about her financial situation, although it appears no corresponding documentary evidence was presented. Specifically, respondent testified that she was required to go on public assistance and was forced to cash out all her retirement plans in order to provide for the children. She testified that at one point her son had a toothache, but she did not have enough money to take him to the dentist. However, any hardship to the children may have been countered by respondents responsible conduct. Specifically, respondent testified that because of her solitary efforts she and the children were never evicted and never hungry, she was never late on her car payments and the power was never turned off.
The trial court failed to make the requisite finding that the children would suffer "extreme and severe" hardship if the new mate income were not considered. Similarly, the record fails to establish that the trial court considered whether the inclusion of the new mate income would result in an extreme and severe hardship to appellants girlfriends child. The statute requires the trial court to balance the hardship of other children: "[T]he [trial] court shall also consider whether including [the new mate] income would lead to extreme and severe hardship to any child supported by the . . . obligors . . . nonmarital partner." (§ 4057.5 subd. (a)(1), italics added.) Appellants girlfriend testified that she had an almost 18-year-old daughter and provided a signed statement that she spent $1,500 per month to provide minimum living expenses. The trial courts decision does not reflect that it considered the effect on appellants girlfriends daughter.
(c) Hardship Deduction
Appellant argues that the trial court erred in failing to grant a hardship deduction pursuant to section 4057.5, subdivision (d), which provides: "If any portion of the income of either parents subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, the court shall allow a hardship deduction based on the minimum living expenses for one or more stepchildren of the party subject to the order." (Italics added.) The plain language of the statute states that it only applies to "stepchildren." At the time of trial and subsequent order, appellant and his girlfriend were not married. Yet, appellant argues that he was entitled to a hardship deduction for his "stepchild." Appellant provides no authority, nor can any be found by this court, which expands the traditional definition of stepchildren to include children outside of the marital context. As such, we find the trial court did not err in failing to give appellant a hardship deduction pursuant to section 4057.5, subdivision (d).
(d) Conclusion
We conclude that the trial court abused its discretion by considering new mate income, in the absence of finding that the instant matter was an extraordinary case, in which the supported children would suffer severe and extreme hardship. On remand, the trial court should determine whether the instant matter is an extraordinary case. As part of this analysis, the court should exclude new mate income from the DissoMaster calculations. If no supported child will suffer extreme hardship under the statutory formula, the court may not consider the new mate income. Similarly, the trial court should balance the hardship of the supported children against any hardship to the child of appellants nonmarital partner.
3. DissoMaster Adjustments
Appellant argues that the trial court abused its discretion by failing to consider various DissoMaster adjustments, which caused his child support obligation to increase. Specifically, appellant contends that the trial court erred when it failed to: (1) include respondents spouses income and expenses; (2) exclude respondents unverified child care expenses; (3) allow deductions for appellants travel and child care expenses; and (4) include appellants custody time in child support calculations.
(a) Respondents Spouses Income
We find that as to the issue of respondents spouses income and expenses, appellant has waived his right to appeal, in that he failed to raise this issue with trial court. (See, e.g., In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [issue not raised in trial court will not be considered on appeal].)
(b) Respondents Unverified Child Care Expenses
Appellant raised the issue of respondents unverified child care expenses in his trial brief, but made no such arguments at trial. In his trial brief, appellant merely requested itemization and verification of respondents child care expenses. Appellant did not seek to have such expenses excluded from the DissoMaster calculations. Moreover, appellant made no objections at trial to preclude the admission of this evidence. (See Evid. Code, § 353 [judgment not reversible for erroneous admission of evidence unless specific objection made at trial].) Accordingly, we find the trial court did not err by including respondents child care expenses in the DissoMaster calculations.
(c) Appellants Travel, Child Care and Custody Time Expenses
Appellant made perfunctory arguments as to his travel, child care and custody time expenses in his trial brief, but made no such arguments at trial. Child support orders will not be reversed unless the trial court has abused its discretion in fashioning such an order. (In re Marriage of Wood, supra, 37 Cal.App.4th at p. 1066.) The generally accepted test of abuse of discretion is "whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Here, after considering all of the evidence viewed most favorably in support of the order, it cannot be said that the trial court exceeded the bounds of reason. As such, we find the trial court did not abuse its discretion in failing to include appellants travel, child care and custody time expenses in the DissoMaster calculations.
B. Visitation
The January 29, 2003 order provides that the trial court was unwilling to make a final determination as to the visitation issues, in the absence of a full-scale investigation and/or final determination as to such issues. While the order does not state on its face that it is a temporary order, it can be inferred by language used by the trial court that it is only an interim order. Furthermore, appellant even acknowledges that, as to the visitation issues, the order is not final. Nonetheless, appellant argues that this court has jurisdiction to hear this issue by reason of: (1) respondents alleged acts of perjury, fraud and deceit directly on the court and (2) the delays in this cause, which will cause the children to suffer needlessly. Appellant offers no authority for this proposition nor can any be found by this court.
The order is interlocutory in nature, and no appeal may be taken from an interlocutory order unless expressly authorized by statute. Code of Civil Procedure section 904.1, subdivision (a)(1) provides in relevant part: "An appeal . . . may be taken from . . . [¶] . . . a judgment, except . . . an interlocutory judgment . . . ." Among the exceptions to this rule is that an appeal may be taken from an order made appealable by the provisions of the Family Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) However, none of those provisions provide for an appeal of a temporary child custody/visitation order or refusal to modify such an order. Such an order falls within the general rule that interlocutory appeals are not appealable. "A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial." (Lester v. Lennane (2000) 84 Cal.App.4th 536, 559.) Since it is not expressly made appealable, no appeal will lie from such an order. (Id. at pp. 559-560.)
Accordingly, we do not have jurisdiction to decide the visitation issue. "[E]xcept as provided by the Legislature, the appellate courts have no jurisdiction to entertain appeals. An appealable judgment or order is essential to appellate jurisdiction, and the court, on its own motion, must dismiss an appeal from a nonappealable order." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.) We, therefore, dismiss the appeal as to the visitation issue.
III. DISPOSITION
The trial courts order setting child support after taking into account appellants new mate income is reversed. The case is remanded for further proceedings consistent with this opinion. The purported appeal from the interlocutory custody/visitation order is dismissed. Each party to bear his or her own costs and fees on appeal.
We concur: Kay, P.J. and Sepulveda, J. --------------- Notes: All statutory references are to the Family Code unless otherwise specified.