Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. FL 031690
Haerle, J.
I. INTRODUCTION
This appeal arises out of marital dissolution proceedings between Larry Wax and Elizabeth Wax. Larry appeals from the trial court’s ruling on Elizabeth’s motion for child support. He contends the order must be reversed because the timeshare factor used to calculate guideline child support was not based on the actual respective amounts of time that each party exercised primary physical responsibility for the children. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
After the parties separated, Larry continued to reside with the parties’ three children in the family home at 15 Vincent Lane in Novato. Elizabeth resided at a condominium owned by the parties at 302 Mariner Lane, also in Novato.
When the motion was filed, the oldest child was 13 years old and the younger twins were 12 years old.
On June 1, 2006, the court ordered that Elizabeth would have the children on alternate weeks from Thursdays after school until Sundays at 8:00 p.m., on the other weeks from Thursdays after school until Fridays at 8:00 p.m., and every Tuesday from after school until 8:00 p.m. This schedule represented a timeshare of 31 percent for Elizabeth and 69 percent for Larry.
On July 18, 2006, Elizabeth filed a motion seeking child and spousal support, attorney’s fees and costs, and affirmative relief (the refinancing of real property). On July 24, 2006, Larry filed a response. During July and August 2006, the parties filed various other documents pertaining to these issues.
On August 31, 2006, the trial court held an evidentiary hearing. In his opening remarks, Elizabeth’s counsel acknowledged that since the June 1, 2006, parenting order, the three teenaged children had refused to participate in therapy to address their refusal to spend the scheduled time with their mother.
Child support is the only issue raised on appeal and thus we will set forth only the evidence pertinent to that issue.
In her declaration, Elizabeth stated that during the marriage, she was primarily a homemaker and stay-at-home mother. Since separation, pursuant to the parties’ agreement, Larry had been paying her $2,500 per month in addition to the costs of the 302 Mariner Lane residence. Beginning in July 2006, Larry refused to give Elizabeth any money except $1,000 which he told her was not for support. Elizabeth claimed she earned about $28,800 per year working for Kaiser and that Larry usually earned about $350,000 per year as a private investigator.
With respect to the timeshare, Elizabeth testified that she had not been able to fully exercise the parenting schedule established by the court. She declared that Larry had “purposely, intentionally, and maliciously sought to alienate” their children from her. She contended that Larry distorted a letter she sent to their three children in that he failed to also state that she had immediately sent the children a second letter confirming that she loved them and wanted to see them, but that “things have to change and we need help.” Elizabeth urged the court to use the 31 percent timeshare for support purposes because Larry should not benefit from his conduct in alienating the children from her.
In his declaration, Larry stated that since separation, the children have lived with him in the family home. Elizabeth had chosen not to fully exercise her rights of visitation. Larry declared that, since June 1, 2006, the date of the court’s parenting order, he had kept track of the amount of time Elizabeth spent with the children. In seven weeks, she had spent less than sixty-six hours, or less than five percent, of the time with one, two, or all of her children. The children had only stayed overnight with Elizabeth on two occasions. At the hearing, Larry testified that in the time since his declaration, Elizabeth had spent no time with their daughter and four percent of the time with their sons.
Larry declared that the children had become increasingly resistant to spending time with Elizabeth because they were embarrassed by her new appearance, style of dress, and her male companion. On July 20, 2006, Elizabeth sent the children a letter attempting to explain her position. She told them she loved them, and clarified that she had left their father, not them. She blamed Larry for being “abusive,” and told the children that she was removing herself from their lives until they treated her with respect. Larry stated that he was “providing them [the children] again with the opportunity” to see a therapist. Since Elizabeth had announced her intention to “ ‘remove herself from the children’s lives,’ ” the timeshare factor for support purposes should be zero.
Larry stated that his income was $18,534 per month based on his Income and Expense Declaration (IED). He contended that Elizabeth’s income was $3,033, based upon her IED. Based upon a zero timeshare for Elizabeth, Larry contended that she owed him $785 per month in child support.
In his summation, Larry’s counsel took issue with his client’s being “cast in the role of an alienator,” and argued that it simply was not true. Counsel identified the problem as the relationship between Elizabeth and the children, and opined that she and the children needed to work with a therapist. Elizabeth’s counsel agreed, and the parties agreed on a specific therapist.
At the conclusion of the hearing, the court took the matters under submission. In addition, the court ordered that, at least twice per month, Elizabeth and the children meet together or individually with the therapist, that Larry be responsible for transporting the children to the sessions, and that the parties equally share responsibility for the uninsured portion of her fees.
On September 15, 2006, the court issued a detailed Statement of Reasons and Intended Order, which was entered as an order on September 25, 2006. With respect to child support, the court ruled as follows: “On June 12, 2006 (findings and order after hearing of 06/01/06) [Elizabeth] was awarded a timeshare of 31% by the Court’s adoption of the Family Court Services recommendation of Kristan Diefenbach dated 05/22/06. It appears from the evidence presented that, for various reasons, [Elizabeth] has been unable to exercise her visitation consistent with this time share order. The recent order for therapy hopefully will resolve the conflicts that may have arisen between [Elizabeth] and her three children as affecting visitation. Regardless, the Court does not intend to adjust [Elizabeth’s] time share percentage during this early transitional period. Until such time as [Elizabeth’s] 31% timeshare is modified, the Court finds that [Elizabeth’s] child support needs and [Larry’s] child support obligations shall be based upon a 31% timeshare. . . . Spousal and child support shall be payable retroactive to the date of filing of the motion (07/18/06). . . .”
On November 6, 2006, Larry filed his notice of appeal.
We are advised by counsel for the parties that this case has been resolved by settlement, but that a decision on the issue pending in this appeal, the correct calculation of child support, is still necessary. Based on the terms of the settlement agreement, we agree that the appeal is not mooted by the settlement.
III. DISCUSSION
“California has a strong public policy in favor of adequate child support.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) Accordingly, the California Legislature adopted a guideline formula to calculate the presumptively correct amount of child support. (Fam. Code, § 4050 et seq.) The presumption that the guideline amount is correct may be rebutted by admissible evidence showing that application of the formula would be “unjust or inappropriate” in the particular case. (See § 4057, subd. (b); In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144, citing § 4056 [trial court may depart from guideline only as provided by statute and only as consistent with the best interests of the child].)
All further unspecified statutory references are to the Family Code.
The guideline child support amount is based on conditions existing at the time the order is made. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 298.) The calculation is based on each parent’s income and a time-sharing 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 parent’s share is based on the approximate amount of time in which the parent has actual, physical responsibility for the children. (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 976, 981.)
The trial court expressed the timeshare not in terms of the “high earner’s” percentage, but rather in terms of Elizabeth’s percentage as the non-custodial parent. This does not affect our analysis. d
We review the trial court’s child support order for an abuse of discretion. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 282-283; 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”].) Under that standard, we are limited to determining whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion within the limits of the child support statutes. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670 [evidence to support valuation of community assets]; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044 [trial court’s exercise of discretion upheld to the extent permitted by child support statutes].) “We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order.” (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.) We uphold “the exercise of discretion as broadly as possible under the statute.” (In re Marriage of Fini, supra, 26 Cal.App.4th at p. 1043.)
Larry challenges the trial court’s use of the previously-ordered 31 percent as Elizabeth’s share of time with the children for purposes of calculating child support. He contends that the timeshare factor should be revised because the actual amount of time in which Elizabeth exercised actual, physical responsibility for the children was substantially less, something on the order of zero to four percent.
We find no abuse of discretion. The trial court ordered child support based on a timesharing factor that was consistent with the parenting schedule it had ordered on June 1, 2006. It is true that the trial court did not make a specific finding as to the percentage of time that Elizabeth had exercised primary physical responsibility for the children since June 1, 2006. However, there was evidence that, at times, the children would refuse to spend time with her. It was undisputed that Elizabeth’s relationship with the children was troubled, and both parties agreed to therapy for Elizabeth and the children to try to improve the relationship. It appears that the trial court’s timeshare calculation was based on its expectation, pursuant to the parenting schedule, that Elizabeth would have primary physical responsibility for the children 31 percent of the time, once her relationship with them was on better footing. (See § 4055, subd. (b)(1)(D), italics added [defining the timeshare factor in terms of the percentage of time that a parent “has or will have primary physical responsibility for the children”].) Under the circumstances, we find this to be an acceptable exercise of discretion.
Larry also contends that his obligation to pay child support based on a 31 percent timeshare to a “co-parent who essentially exercises no meaningful primary physical responsibility for the children whatsoever” will continue indefinitely. He argues that the trial court’s recognition that Elizabeth had not exercised her allotted percentage of time precludes Larry from raising this fact as a “changed circumstance” that would justify a modification to the order. He avers that “[h]is only recourse would be to default on the ordered payments and hope that a later court would provide him some equitable relief as a defense to the enforcement action . . . .”
This argument lacks merit, for two reasons. First, the child support order at issue herein would not preclude Larry from returning to court at a future time seeking modification of the order if therapy proved unsuccessful or for any other reason Elizabeth was not fully exercising her allotted time with the children. The trial court expressly left the door open to future modification of the order, but stated that it would make no change to the timeshare factor “during this early transitional period.” Second, the argument is moot under the terms of the settlement agreement entered into by the parties.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Kline, P.J., Richman, J.