Opinion
A151292
05-17-2018
ELIZABETH KASKE, Plaintiff and Respondent, v. ROY M. RUBIN, Defendant and Appellant, SAN MATEO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0131480)
Roy Rubin appeals from an order denying his request for child support from Elizabeth Kaske. The Department of Child Support Services (DCSS) concedes the family law court erred and that the case should be remanded for the court to "make appropriate factual findings and discretionary determinations in the first instance concerning whether child support is appropriate based on Rubin's earning capacity, the nature of monies that Rubin receives from his father, and visitation expenses." We agree and remand.
Kaske has not appealed from the family court's child support rulings. Nor has she filed a respondent's brief.
This appeal may appropriately be resolved by Memorandum Opinion. (Cal. Stds. Jud. Admin., § 8.1.)
Rubin and Kaske have a child together. Before the child was a year old, their relationship ended. Kaske filed a request for child support based on Rubin's imputed income and also sought reimbursement for birthing expenses. Kaske asserted that while Rubin had once earned "almost $1 million annually," he now claimed to earn only $3,200 per month. She posited Rubin's imputed income as $600,000, which did not include expenses Rubin's father paid which, according to Kaske, were amounts "advanced to" Rubin as " 'loans.' " Kaske based her claims as to Rubin's financial wherewithal on documents filed in Rubin's prior divorce proceedings. Kaske reported her own salary as approximately $286,000 (a "base annual" salary of $200,000 and $86,000 in distributions).
At the time Kaske made her request for support, Rubin had been ordered to pay his ex-wife $12,000 per month in support; however, in February 2017, his support payments were reduced to $500 per month.
Two weeks before the scheduled hearing, Rubin filed an opposing declaration in which he claimed he had "no money with which to pay child support," that he was "barely subsisting on loans" and that he was "required to repay the loans." Rubin asserted he was "earning as much money" as he could from his current orthopedic practice and his earning potential was limited by his 50 percent custody arrangement with his other minor children, the instant litigation, and his visitation schedule with his and Kaske's child. He also opposed Kaske's request for reimbursement, citing a prior agreement between the two whereby she would pay for "her own non-covered medical expenses associated with the pregnancy and the birth" and he would pay for transportation to and from Kaske's doctor appointments, their child's health insurance and pediatric treatment, and Kaske's living expenses while pregnant.
Rubin has three children from his previous marriage.
Rubin also filed an income and expense declaration, which stated his average monthly income was $3,172. He disputed Kaske's imputation of $600,000 in income, claiming she had "not demonstrated either a legal or factual basis for such imputation." Rubin further asserted that, according to the child support guideline, Kaske actually owed him $364 a month in child support.
Rubin subsequently filed a request for an order of child support from Kaske. He sought $820 in support, plus $1,200 in visitation costs, for a total of $2,020 in monthly support.
At the hearing, the DCSS took the position Rubin was "underemployed." Additionally, it noted Kaske was agreeable to dropping her request for child support if the court were to deny Rubin's request for support. DCSS adopted this as its recommendation, as there was not "sufficient evidence for the Court to grant a request at this point, ordering the mother to pay the father, without actually knowing how much the father can actually—has the capacity to earn."
Rubin claimed he needed "temporary support" and it was Kaske's burden to show that any income should be imputed to him. Additionally, he maintained his psychiatrist recommended that he not "work more than 20 hours a week" and that he not do "more than two surgeries per month."
Stating it did not feel it had enough information before it to make an imputed income determination, the family court denied Rubin's request for support.
"Both parents are mutually responsible for the support of their children," and "[e]ach parent should pay for the support of the children according to his or her ability." (Fam. Code, § 4053, subds. (b) & (d).) "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (Id., § 4058, subd. (b).)
The court acknowledged the import of these statutory provisions. However, it declined to make any findings as to the parents' respective claims, stating it was "struggling" because while "imputing a million dollars [to Rubin] may not be appropriate," it did not think "minimum wage [wa]s appropriate either." Instead of holding an evidentiary hearing, the court simply denied Rubin's request.
DCSS now concedes the trial court erred. Rubin was entitled to a hearing on his earning capacity; on whether to impute an amount greater than his actual income after considering the child's best interest; on whether funds received from his father are loans or recurring gifts that should be considered in determining support; and what his visitation expenses are and the effect of those expenses on his request for support.
Given our conclusion that reversal and a further hearing are required, we need not, and do not, decide whether the family court erred by deviating from guideline child support. --------
DISPOSITION
The challenged order denying Rubin's request for child support is reversed and the matter is remanded for further proceedings. Appellant to recover costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.