In re Marriage of Patel

Full title: In re the Marriage of AMISHA M. AND MUKESHCHANDRA M. PATEL. AMISHA M…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Apr 17, 2009

No. E043836 (Cal. Ct. App. Apr. 17, 2009)

Opinion

In re the Marriage of AMISHA M. AND MUKESHCHANDRA M. PATEL. AMISHA M. PATEL, Respondent, v. MUKESHCHANDRA M. PATEL, Appellant WELLS FARGO BANK, N.A., Movant and Appellant. E043836 California Court of Appeal, Fourth District, Second Division April 17, 2009

NOT TO BE PUBLISHED

Super.Ct.No. VFLVS033516

OPINION

HOLLENHORST, Acting P. J.

THE COURT:

It is ordered that the opinion filed herein on April 1, 2009, be modified as follows:

The last paragraph on page 14 beginning with the words “Here, both Mukeshchandra’s expert witness, Marvin Reiter, . . .” and ending on page 15 with the words “the private investigator documented . . . that Mukeshchandra was continuing to work 12-hour days” is stricken, and the following paragraphs are inserted in lieu thereof:

Here, both Mukeshchandra’s expert witness, Marvin Reiter, and the court-appointed expert, McCallum, testified that a cardiologist with 20 years experience typically works substantially more than 40 hours per week. McCallum testified he did not know of any database that “would reliably tell you how many hours a 20-year cardiologist would work[.]”

Moreover, with respect to child support, the family law court must consider all “income from whatever source derived, . . .” (Fam. Code, § 4058, subd. (a).) In County of Placer v. Andrade (1997) 55 Cal.App.4th 1393, the court reversed a support order because the family law court had improperly excluded overtime actually being worked. (Id. at pp. 1396-1397.) The court stated that the trial court could disregard past actual earnings only if it determined the spouse was unlikely to receive them in the future, such as because of changed employment conditions, but that “such a change should be shown by admissible evidence.” (Id. at p. 1397.)

We note that in the event Mukeshchandra’s actual work hours decrease, he is not foreclosed from presenting the court with credible evidence to establish that fact and to request modification of support payments accordingly. (County of Placer v. Andrade, supra, 55 Cal.App.4th at p. 1397.) Here, however, Mukeshchandra was caught in his blatant lies to the court. Although he claimed, under penalty of perjury, to have been working only a few hours per week, the private investigator documented through video surveillance that Mukeshchandra was continuing to work 12-hour days.

Except for the above modification, the opinion remains unchanged. The modification does not affect a change in the judgment.

We concur: KING J., MILLER J.