Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04FL01857
HULL, Acting P. J.Melissa A. Shurr (wife) filed a motion to increase the temporary child and spousal support she receives from Brett C. Shurr (husband). (See generally Fam. Code, § 3600; unspecified section references that follow are to the Family Code.) The trial court ordered an increase, but at a level less than what wife sought. In this appeal, wife challenges the court’s calculations relating to (1) husband’s investment income, (2) a deduction for COBRA insurance payments, and (3) the income of husband’s new wife. She also asserts the trial court erred in making its order retroactively modifiable and in deferring a ruling on attorney fees. We reverse in part and remand for further proceedings.
Facts and Proceedings
Husband and wife married in 1994, had a child in 1996, and separated in 2004. The court entered a judgment of dissolution of marriage the same year, bifurcating the marital status issue from others to be determined. The court ordered husband to pay temporary child support of $1,288 per month and temporary spousal support of $1,904 per month.
In 2007, wife filed a motion to increase these temporary support payments to $1,548 per month in child support and $3,522 in spousal support. She also sought attorney fees of $2,500. As explained in detail later in this opinion, the court ordered child support of $1,045 per month and spousal support of $2,429, and made this order subject to retroactive modification. The court deferred ruling on wife’s request for attorney fees.
Wife appeals.
Discussion
Wife raises several challenges to the trial court’s orders modifying temporary spousal and child support. We briefly respond to husband’s assertion that because wife received increased support without demonstrating a change in circumstances, she was not prejudiced by the court’s ruling and is therefore precluded from raising these claims. Husband misses the point. Wife sought an increase in spousal support from $1,904 to $3,522 per month; the court awarded $2,429. She asked for an increase in child support from $1,288 to $1,548 per month; the court awarded $1,045. While the aggregate amount of support was increased, wife did not receive what she asked for and child support was in fact decreased. Wife is an aggrieved party, entitled to appeal. Husband did not file a cross-appeal and we therefore have no occasion to consider his suggestion that the evidence did not demonstrate changed circumstances warranting modification to the support orders.
Husband also asserts that wife has forfeited some or all of the issues presented in her appeal because she did not make these claims to the trial court. We disagree. Each of these matters was raised and argued. There was no forfeiture.
We therefore turn to wife’s claims. This appeal centers on whether the court properly calculated husband’s income for purposes of temporary child and spousal support. Support amounts depend in large part on a party’s “net disposable monthly income.” (See §§ 4058-4060; see also Super. Ct. Sacramento County, Local Rules, rule 14.00(C) & (D).) “This figure is computed by totaling ‘annual gross income’ less allowable deductions, and dividing by 12.” (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1336.) “Annual gross income” is not synonymous with “cash flow.” It is far more inclusive and covers “income from whatever source derived,” except as specified by statute (§ 4058, subd. (a)). This provision is identical to the definition of “income” found in the Internal Revenue Code. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1080.)
Temporary child support is a matter left to the discretion of the trial court, but that discretion is circumscribed by the requirement that courts adhere to the statewide uniform guidelines. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326; see generally §§ 4052-4055.) In reviewing a child support order, “[w]e cannot substitute our judgment for that of the trial court, but only determine if any judge reasonably could have made such an order. [Citation.] Our review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial court’s conclusions.” (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128.)
Temporary spousal support is intended to maintain the parties’ standard of living pending a final division of assets and obligations. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) These awards “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.” (Ibid.) “Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for... temporary spousal support....” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159.) A court’s order will be overturned only for clear abuse of discretion. (Id. at p. 165; In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
With these principles in mind, we examine each of wife’s claims.
I
Husband’s Investment Income
Wife contends that the trial court erred in ruling that husband had other taxable income of only $1,000 given that husband’s own income and expense declaration, signed under penalty of perjury, showed interest income of $2,722, consisting of $1,677 in dividends and interest and $1,045 in interest on money held in trust by husband’s attorney. We agree that the court erred.
Approximately six weeks before the hearing at issue, husband submitted an income and expense declaration that showed other taxable income of $2,722. At the hearing, his attorney stated that this declaration was current, but he then asserted that husband had only $1,000 in other income that was not from separate property sources or “locked up” in an attorney trust account. Wife vehemently disputed that assertion and pointed out that husband had not provided any evidence to support his attorney’s claim. Husband did not submit an amended Income and Expense Declaration or any other documentation. Nor did he testify about this other income.
The trial court used the $1,000 amount in making its support order. There was no evidence to support that determination.
Judicial decisions must be based on evidence, and the arguments of counsel do not constitute evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1166, fn. 1.) In family law cases, much of the evidence needed to calculate support is derived from the parties’ income and expense declarations.
In fact, a current income and expense declaration is essential to determine support. California family law is intended “to ensure fair and sufficient child and spousal support awards” (§ 2100, subd. (a)) and reduce “the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.” (§ 2100, subd. (b).)
To further these policy objectives, the Legislature declared that an accurate disclosure of all assets and liabilities, and all income and expenses, must be made at an early stage of the proceedings. (§ 2100, subd. (c).) A current income and expense declaration must be served and filed “by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant.” (Cal. Rules of Court, rule 5.128(a).) This form “must be sufficiently completed to allow determination of the issue.” (Ibid.)
“Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that... at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.” (§ 2100, subd. (c).) In other words, “appropriate amendments as required by the circumstances are mandatory.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008), ¶ 11:70, p. 11-17 (rev. #1, 2008).) A party’s income and expense declaration must be current, i.e., “completed within the past three months unless the pertinent facts have changed at the time of the hearing (in which case, a new declaration must be prepared).” (Id. at ¶ 5:330.5, p. 5-129 (rev. #1, 2008).)
Here, husband did not file any amendment to his income and expense declaration. Although he filed a declaration just before the hearing to explain certain items, the declaration was silent about this income. The only evidence before the court was husband’s statement in his income and expense declaration, filed under penalty of perjury, that his monthly interest income was $2,722. There was no evidence from which the court could conclude that this number was actually only $1,000. The court’s calculations were therefore erroneous.
II
COBRA Insurance Payments
Wife contends that the court erred in permitting husband to deduct from his gross income $400 per month for payments he made for wife’s COBRA insurance. We agree that this deduction was unauthorized.
Section 4059 provides in relevant part that the “annual net disposable income of each parent shall be computed by deducting from his or her annual gross income the actual amounts attributable to [specified] items.” Subdivision (d) of this statute authorizes a deduction for “health insurance or health plan premiums for the parent and for any children the parent has an obligation to support....”
As part of the parties’ stipulation to bifurcate marriage status from other issues, husband was to continue to pay wife’s COBRA premiums of approximately $465 per month. The trial court can impose such a condition and require it to remain in effect until the judgment on all remaining issues is entered and becomes final. (§ 2337, subd. (c)(2).)
Husband asserted he was also entitled to deduct this COBRA payment from his gross income for purposes of calculating temporary support payments. The statute does not authorize such a deduction. As noted, section 4059 sets out the formula for computing annual net disposable income “of each parent.” Subdivision (d) permits a deduction for “health insurance or health plan premiums for the parent” (italics added) and for any children “the parent” is obligated to support.
Husband errs in asserting he is authorized to deduct the premium paid for wife. The statute explains how to compute the net disposable income “of each parent”; in making that calculation, a deduction is permitted for the premiums paid for “the parent,” i.e., the one whose income is being computed. (§ 4059.) The statute does not authorize a deduction for a premium paid by one parent for the benefit of the other.
Under section 4059, husband was entitled to a deduction only for the premiums he paid for himself and his children. The court erred in deducting an additional $400 from husband’s annual gross income.
III
Income of Husband’s New Spouse
To calculate annual net disposable income, section 4059, subdivision (a) permits a deduction for “[t]he state and federal income tax liability resulting from the parties’ taxable income.... State and federal income taxes shall be those actually payable... after considering appropriate filing status.”
Husband had remarried and his tax status was “married filing jointly.” According to husband’s income and expense declaration, his new spouse had a gross monthly income of $3,528. He subsequently filed a declaration stating that his new spouse had been earning $5,800 per month, but that she was no longer working due to the recent birth of twins and that she did not plan to return to work for two years. Husband’s attorney asserted that husband’s spouse had earned approximately $30,000 in the first six months of 2007. The court divided this amount over a 12-month period and attributed $2,500 per month to the new spouse as income for tax liability purposes.
Wife contends the court should not have attributed any income to husband’s new spouse because she was no longer working. The court’s ruling was correct. Husband would have $30,000 in taxable income in 2007 attributable to his spouse’s income during the year. While the income of a subsequent spouse is not considered in determining support levels (§ 4057.5), it is relevant for purposes of section 4059. That is, “the income of a new spouse must be ‘considered’ to the extent it is necessary to determine the obligee spouse’s actual (and appropriate) tax rate.” (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 219, italics omitted.) While husband’s tax liability would be reduced in future years if his spouse did not work, the fact remains that his spouse’s income during 2007 affected his tax liability for that year. The court properly included this amount in its calculations.
IV
Retroactive Modification
Wife asserts that the trial court erred in making its order subject to retroactive modification. We agree.
Section 3600 authorizes temporary spousal and child support during the pendency of proceedings in “any amount that is necessary for the support of [the spouse or child].” Section 3603 provides: “An order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.”
This statutory language is clear and unambiguous: “The filing date... establishes the outermost limit of retroactivity.” (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 595.) A temporary support order is directly appealable, and cannot be retroactively modified. (See id. at pp. 594-598 and cases cited therein.) The court erred in ordering otherwise.
V
Attorney Fees
Wife sought $2,500 in attorney fees, asserting that such an award was appropriate given the parties’ respective incomes and assets. (See §§ 2030, subd. (a); 3652.) The trial court did not rule on this request but instead deferred its decision to an unspecified time. Wife contends that the court erred in deferring its ruling to an indefinite date. We agree.
Section 2031, subdivision (a)(2) requires a trial court to rule on an application for attorney fees made during the pendency of proceedings “within 15 days of the hearing on the motion or order to show cause.” The court erred in failing to consider wife’s application during this timeframe.
Disposition
The order is affirmed in so far as the court considered the income of husband’s new wife in calculating husband’s tax liability. In all other respects, the order is reversed and the matter is remanded to the trial court to recalculate temporary spousal and child support in accordance with this opinion, and to make any appropriate award of attorney fees. Wife is awarded her costs on appeal.
We concur: BUTZ , J., CANTIL-SAKAUYE , J.