Opinion
G044305 Super. Ct. No. 99D004569
02-17-2012
In re Marriage of DAWN E. and PAUL E. MOSLEY. DAWN E. MOSLEY, Appellant, v. PAUL E. MOSLEY, Respondent.
Hickman & Carrillo, Gale P. Hickman and Olivia Carrillo Hickman for Appellant. Snell & Wilmer and Richard A. Derevan for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from orders of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed in part, reversed in part, and remanded.
Hickman & Carrillo, Gale P. Hickman and Olivia Carrillo Hickman for Appellant.
Snell & Wilmer and Richard A. Derevan for Respondent.
In a prior appeal, In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, we held substantial evidence did not support the trial court's finding that there was no change in circumstances and no ground for a modification of Paul Mosley's support obligations. We further held the court abused its discretion in basing support obligations on the anticipated receipt of a huge bonus by Paul. We reversed the July 14, 2006 findings and order after hearing and remanded the matter for a redetermination of support obligations. (Id. at p. 1380.)
"'Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]' [Citation.]" (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1379, fn. 1.)
On remand, the trial court did what we asked. It redetermined support obligations taking the factors we specified into account. Now, it is Paul's former wife, Dawn, who feels she got the short end of the stick. She attacks the court's April 1, 2010 findings and order after hearing with respect to the amounts of spousal and child support.
Dawn has failed to meet her burden to show error with respect to the various spousal support issues she raises. However, she has succeeded in demonstrating error with respect to several child support issues. The court erred in failing to provide child support for Scott Mosley. In addition, the court abused its discretion in awarding the same fraction of Paul's bonus income with respect to two children as with respect to only one, and erred in failing to state its reasons for choosing that fraction. Finally, in modifying child support retroactively, the court erred in imputing income to Dawn without any evidence of what her earning capacity was for the years in question. We reverse and remand with respect to these findings and orders pertaining to child support, but otherwise affirm.
I
FACTS
Dawn and Paul, both lawyers, were married in 1982. (In re Marriage of Mosley, supra, 165 Cal.App.4th at pp. 1379-1380.) "Their children were born in 1984, 1986, 1988, 1990, and 1993, respectively. Dawn filed a petition for dissolution of marriage in 1999 and a judgment as to status was entered that year." (Id. at p. 1380.)
A judgment on reserved issues was entered in 2002. The court found Paul's gross income to be $447,150 per year for 2001. The court ordered Paul to pay child support of $6,810 per month, plus certain additional amounts including 21 percent of all income exceeding $447,150 per year. The judgment also provided for the reduction in child support as the respective children reached the age of maturity. As concerns spousal support, the court ordered Paul to pay Dawn $4,100 per month, plus 15 percent of his income above $447,150 per year. (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1380.)
In 2003, a stipulation and order for modification of judgment was filed. It noted, inter alia, "that the oldest child was graduating from high school that month. Paul was ordered to pay Dawn $6,839 per month in child support, with a specified stepdown as the children reached maturity. The order retained Paul's obligation to pay additional spousal support and child support if his income exceeded $447,150 per year, albeit with a different method of calculation than set out in the 2002 judgment. In addition to the foregoing, the court ordered Paul to pay one-half of the undergraduate education expenses for each child and one-half of the expenses necessary for each child to embark upon a mission for The Church of Jesus Christ of Latter-Day Saints." (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1381.)
"At the time of dissolution, Paul was a real estate partner at a large law firm and had a hefty income, and Dawn was the stay-at-home mother of their five children. Several years later, with the downturn in the real estate market, the law firm decided to pare down its real estate practice and Paul was terminated. He then took an in-house position with a homebuilder that paid a fraction of his former income as a base salary, together with the possibility of a substantial year-end bonus. Because a significant portion of Paul's income was paid, if at all, as a discretionary year-end bonus, Paul sought a modification of the existing spousal and child support orders on the basis of a change in circumstances." (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1379.) He filed an order to show cause regarding modification of child and spousal support in January 2006. (Id. at p. 1381.) The court denied the request and Paul appealed. (Id. at p. 1382.)
"The evidence showed that the year after he left the law firm, Paul still had a large total income, given his base salary, year-end bonus and a one-time signing bonus, and also that he paid very substantial spousal and child support to Dawn that year. However, where he once made $447,150 per year with the possibility of a bonus, he now made $205,000 per year with the possibility of a bonus—a discretionary bonus to be paid if at all by a homebuilder grappling with a depressed real estate market. The evidence also showed that almost all of Paul's net monthly take-home pay from his base salary was required to pay the existing support obligations, and that he had to borrow his monthly living expenses for most of the year, in the hopes of receiving a year-end bonus that would permit him to repay the debt, before embarking on the same desperate cycle again the subsequent calendar year." (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1379.)
In the prior appeal, we held: "The court's finding that there was no change in circumstances, and thus no basis for a modification of support obligations, was not supported by substantial evidence. Under the particular circumstances of this case, it was an abuse of discretion for the court to base the support obligations on the predicted receipt of a huge bonus that might never materialize." (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1379.)
"We reverse[d] the findings and order after hearing and remand[ed] the matter for a redetermination of support obligations consistent with the views expressed [in our opinion], taking into consideration Paul's current base salary as well as the possible imputation of income to Dawn, who is a licensed attorney and whose children are nearly grown." (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1380.) We stated: "While the total amount of spousal and child support that Paul pays ultimately may be the same as it was previously, he should not be left to borrow 11 months of the year." (Ibid.)
On remand, the court, in its April 1, 2010 findings and order after hearing, found that Dawn was then earning $3,000 per month working part time, but had the ability to earn $95,000 per year working full time. It also found that the marital standard of living was $32,174 (impliedly per month) for a family of seven, or approximately $5,000 per person. It ordered Paul to pay Dawn spousal support in the amount of $3,000 per month from January 1, 2006 until July 31, 2010, and $2,000 per month thereafter. The court ordered, in addition, that Paul pay Dawn 7 percent of any bonus income and 7 percent of any increase in his base salary. However, it capped total spousal support at an amount equal to Dawn's marital standard of living.
As for child support, the court ordered that Paul pay $2,777 per month for sons Jason and Grant from January 1, 2006 until June 1, 2008. Paul was to pay only $1,754 per month, on behalf of Grant, beginning June 1, 2008 and ending when Grant ceased to be a high school student living with Dawn or turned 19, whichever occurred first. In addition, Paul was ordered to pay 10 percent of his bonus income and 10 percent of any increase in base salary as additional child support during such period as child support was payable.
Finally, the court ordered that the total amount of spousal and child support so ordered be compared to the total amount of spousal and child support Paul actually paid for the period in question and that Dawn reimburse Paul to the extent he overpaid and Paul make additional payment to Dawn to the extent he underpaid. The court set a schedule for any reimbursements owing by Dawn. Dawn appeals.
II
DISCUSSION
A. Spousal Support:
(1) Introduction
"Spousal support is governed by statute. (See [Family Code,] §§ 4300-4600.) In ordering spousal support, the trial court must consider and weigh all of the circumstances enumerated in the statute, to the extent they are relevant to the case before it. [Citations.] The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed. [Citations.] The other statutory factors include: contributions to the supporting spouse's education, training, or career; the supporting spouse's ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the children's interest; the age and health of the parties; tax consequences; the balance of hardships to the parties; the goal that the supported party be self-supporting within a reasonable period of time; and any other factors deemed just and equitable by the court. [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304, original fns. omitted, fn. added.)
All subsequent statutory references are to the Family Code except as otherwise expressly stated herein.
"'In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.' [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the 'court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.' [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error. [Citations.]" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.)
(2) Failure to consider Family Code section 4320 factors
As her first argument, Dawn claims the court erred in failing to consider many of the factors listed in section 4320. However, Dawn has failed to satisfy her burden to show that the court failed in this regard.
In support of her position, Dawn cites the court's April 1, 2010 findings and order after hearing, prepared by Paul's counsel at the court's direction. That order provides numerous reasons in support of the court's determination of spousal support. The findings reflect the court's consideration of many of the section 4320 factors, including: (1) the current income of each party and Dawn's ability to increase her earnings; (2) each party's educational background and marketable skills; (3) the goal for Dawn to become self-supporting, in light of the Gavron warning given to her in 2002;(4) Dawn's ability to engage in gainful employment without unduly interfering with the needs of their child remaining at home, then 17 years old; (5) the marital standard of living, Dawn's needs based on that marital standard of living, and the inability of the parties to maintain the marital standard of living postdissolution; (6) the 16-year marriage of long duration; and (7) the age and health of Dawn as the supported party. However, the order does not recite every single one of the section 4320 factors and explain how the court evaluated each one. This does not mean, however, that the court did not in fact consider every one of those factors. It may simply be that the court did not take the time to articulate its thought process as to each one.
See In re Marriage of Gavron (1988) 203 Cal.App.3d 705.
As Dawn herself acknowledges, she had an opportunity to request a statement of decision. (Fam. Code, § 3654; In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109.) Then, she could have requested that the court address any factors she thought may have been overlooked. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134, 1136; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.) However, she did not do so. Consequently, we apply the standard rule: "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]" (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140; In re Marriage of Ditto, supra, 206 Cal.App.3d at p. 649.) Put another way, we presume "'"that the court performed its duties in a regular and correct manner absent a clear showing to the contrary." [Citation.]'" (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494.) So, in presuming the findings and order after hearing to be correct, we presume the court did in fact consider each factor and simply did not articulate its thoughts on each one.
(3) Misapplication of Family Code section 4320 factors
Next, Dawn says the court either misapplied or misinterpreted several of the statutory factors. She first draws our attention to the court's findings on the marital standard of living.
(a) marital standard of living
The findings and order after hearing states: "The Court finds that the marital standard of living was $32,174 [per month] for a family of seven people, two adults and five sons at the time of the Judgment. The Court finds that for purposes of comparison, the marital standard of living for [Dawn] was approximately $5,000 [per month]. She now earns $3,000 per month, which the Court finds is below her ability to be fully employed. With the serious reduction in [Paul's] income, there is no way the parties will be able to maintain the marital standard of living at this time. [Dawn] cannot expect that she will be able to depend on [Paul] to carry the full load and heavy burden of the marital standard of living without contributing anything on her part."
Dawn says the court, in reducing the marital standard of living to a mathematical expression, acted contrary to the intent of the Legislature. She cites In re Marriage of Smith, supra, 225 Cal.App.3d 469 in support of her position.
The court in In re Marriage of Smith, supra, 225 Cal.App.3d 469 addressed at length the Legislature's failure to articulate exactly what type of findings the trial court is supposed to make with respect to the marital standard of living. (Id. at pp. 488-493.) It stated: "California's family law bench and bar have . . . been unable to determine what the Legislature intended to be contained in 'specific factual findings' on the marital standard of living, that is, what is to be the mode of measuring or describing that standard. The Legislature has provided no guidance." (Id. at p. 489, fn. omitted.)
The Smith court further stated: "We believe that the Legislature intended the marital standard of living to be what case law has described it to be, that is, reasonable needs commensurate with the parties' general station in life. [Citation.] It is a general description, not intended to specifically spell out or narrowly define a mathematical standard. If the Legislature had intended something more specific, it could have prescribed a more specific measurement, such as the marital standard of living as measured by the gross annual family income. The Legislature has wisely chosen not to do so." (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 491, italics added.)
According to Dawn, this language shows that the trial court erred in arriving at the marital standard of living by applying a mathematical formula. We disagree. As the court in In re Marriage of Smith, supra, 225 Cal.App.3d 469 made clear, the Legislature did not prescribe that the marital standard of living must be determined by the implementation of a mathematical formula. The court did not, however, say that the Legislature prohibited the use of a mathematical formula or that the use of one would be error per se. But it did say that the statute "does not make the actual marital standard of living an absolute measure of reasonable need, but merely a 'basis' or reference point for determining need and support." (Id. at p. 484.) It also said "'the marital standard of living should be used as a point of reference in the court's weighing process.' [Citation.]" (Ibid.)
While the trial court must consider the section 4320 factors, "'the ultimate decision rests within the court's "broad discretion." A trial court's exercise of discretion will not be disturbed on appeal unless, as a matter of law, an abuse of discretion is shown—i.e.,—where, considering all the relevant circumstances, the court has "exceeded the bounds of reason" or it can "fairly be said" that no judge would reasonably make the same order under the same circumstances. [Citations.]' [Citations.]" (In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 479-480.) "Reversal requires a clear showing of abuse of discretion. [Citations.]" (Id. at p. 480.)
Here, we cannot say that the court exceeded the bounds of reason in applying the mathematical formula it did to arrive at the marital standard of living and then using that standard of living as one factor it considered in setting spousal support. We cannot say there was a clear showing of abuse of discretion.
On a related point, Dawn identifies what she views as a flaw in the trial court's reasoning. If one divides the monthly income of approximately $32,000 by seven persons to arrive at $5,000 per person, what happens when the five children are out of the picture and only the two adults remain? In other words, Dawn asks why she should now be relegated to a one-seventh share, while a six-sevenths share is allocated to Paul?
We see a flaw in Dawn's reasoning. The section 4320 factor in question is not how much money is eventually available to empty nesters. It is the standard of living during the marriage. With respect to that factor, the court properly looked at the standard of living when five children lived at home and Paul's monthly income was approximately $32,000 per month. There were then seven persons sharing that amount of monthly income. Although it may seem unlikely that exactly one-seventh of the income was spent on or by Dawn, it is equally unlikely that anyone can ever ascertain exactly what amount was spent on or by her during the marriage. Whether or not we would have allocated one-seventh to each member of the household, we cannot say that it exceeded the bounds of reason for the trial court to have done so. "The test is not what order we would have made if one of us had been the trial judge." (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 493.)
Dawn in essence asks this court to ignore the marital standard of living, that is the standard of living the parties enjoyed when all five children still lived at home, and to award her one-half of whatever Paul makes now. But that does not equate to her standard of living during the marriage.
(b) allocation of bonus income
As noted above, in the April 1, 2010 findings and order after hearing, the court found that Paul's base salary was then $220,000. The court awarded Dawn $3,000 per month in spousal support from January 1, 2006 until July 31, 2010, reduced to $2,000 per month beginning August 1, 2010. In addition, the court ordered Paul to pay to Dawn an additional 7 percent of any increase in his base salary and 7 percent of any bonus received. The order limited such additional spousal support as follows: "However, additional spousal support shall only be paid in a year until aggregate monthly and additional spousal support paid that year (when added to regular monthly spousal support to be paid during the remainder of the year) equals [Dawn's] marital standard of living."
Dawn says the court erred in allocating Paul's additional income in this manner. First, she says the court failed to comply with the procedures set forth in In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33. In that case, the court awarded the wife a fixed amount of monthly spousal support, plus 15 percent of the husband's annual cash bonus. (Id. at pp. 41-42.) The husband challenged the award of the additional 15 percent, arguing that spousal support should be "limited by the supported spouse's needs in order to continue living at the standard established during the marriage." (Id. at p. 46.) The court rejected the husband's argument. In so doing, it stated: "Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders. [Citation.] Here, the record reflects that the court weighed and considered each circumstance required under [the statute], and the record supports the trial court's exercise of discretion." (Id. at p. 50.)
Dawn contends the court in the matter before us erred in capping the extra 7 percent share at the marital standard of living. However, In re Marriage of Ostler & Smith, supra, 223 Cal.App.3d 33 did not state that a court is required to award to the supported spouse a fractional share of any income that exceeds what the court has determined to be the marital standard of living. Although Ostler & Smith would have given the court in this matter the discretion to award Dawn a greater share of the extra income had it chosen to do so, it did not. We observe that a distinguishing factor in Ostler & Smith was that the wife there had not completed her college education, much less a law school education. (Id. at p. 39.) Dawn, on the other hand, has a law degree and at least some work experience.
"Although patterns in marital breakups emerge, each couple has such a diverse mix of circumstances that trial courts must have broad discretion in weighing and balancing the various factors in each particular marriage before making a suitable support award. A trial court will not be reversed absent an abuse of that discretion. An abuse 'occurs when, after calm and careful reflection upon the entire matter, it can be fairly said that no judge would reasonably make the same order under the same circumstances.' [Citations.]" (In re Marriage of Ostler & Smith, supra, 223 Cal.App.3d at p. 50.) We cannot say that here.
On another point, Dawn argues: "Judge Pollard generated an Ostler & Smith percentage after failing to consider many of the circumstances set out in Family Code section 4320, and after misapplying some of the ones that were considered. Then she adopted a percentage (7%) that is less than half of the percentage set in the [2002] judgment (15%) — without revealing any of the thinking about how that number was reached. Deprived of the ability to conclude that Judge Pollard engaged in a process of balancing and weighing all of the section 4320 factors, the number at which she arrived qualifies, at best, as an afterthought. Crafting her order in this manner was an abuse of discretion."
As we have already discussed, if Dawn had wanted an opportunity to review Judge Pollard's thought process, she should have requested a statement of decision. We presume Judge Pollard considered the applicable factors. Indeed, she took the time to articulate many of them in her findings and order after hearing. Furthermore, the fact that, in 2010, the court reduced Dawn's share of the bonus income should be no surprise to Dawn, inasmuch as the court gave her a Gavron warning in 2002.
(4) Stepdown order
Dawn also maintains that it was an abuse of discretion for the court to order a stepdown in the amount of monthly spousal support, from $3,000 to $2,000, without clearly stating why. She relies on In re Marriage of Rising (1999) 76 Cal.App.4th 472.
There, in 1989, five years after separation, the wife was a bookkeeper with a high school education and the husband was an endodontist. She was then earning $577 per month and he was then earning $13,882 per month. The court at that time awarded the wife $3,750 per month in spousal support. However, by 1997, the husband had suffered medical problems impairing his ability to work. The wife, on the other hand, had completed college and was earning about $2,000 per month. Husband filed a motion to decrease spousal support. By 1998 his gross income was approximately $7,667 per month. (In re Marriage of Rising, supra, 76 Cal.App.4th at pp. 474-475.)
The court found that there had been a material change in circumstances for each party. (In re Marriage of Rising, supra, 76 Cal.App.4th at p. 475.) It ordered that the husband pay the wife $3,000 per month in spousal support through June 30, 1999, with a reduction to $2,000 per month as of July 1, 1999, and another reduction to $1,500 per month beginning January 1, 2001. The wife challenged the automatic stepdown order on the basis there was no evidence in the record to support it. (Id. at p. 476.)
The appellate court reversed the stepdown order. (In re Marriage of Rising, supra, 76 Cal.App.4th at p. 479.) It noted that the court had issued a lengthy statement of decision, but that the statement of decision did not explain the basis for the stepdown. The wife objected to the statement of decision on that ground. (Id. at pp. 476-477, fn. 7.) In ruling on the matter, the appellate court stated: "In sum, we conclude that where the court finds a change of circumstances justifying a decrease in support payments, the court may allow the decrease to be phased in over time, provided, at the time it issues its order, the court had discretion to reduce the support payment to the final stepdown amount. However, the record must clearly indicate that this is what the trial court is doing, so that the reviewing court is not left to guess at the basis for the court's order." (Id. at p. 479.)
In re Marriage of Rising, supra, 76 Cal.App.4th 472 is distinguishable from the case before us in several respects. First, in that case there was a statement of decision to which the wife objected. Here, however, there is no statement of decision, so we presume the stepdown order to be correct. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.) Second, there was no Gavron warning in Rising, as there was in the case before us. In the findings and order after hearing, the court in the matter before us stated that even though a Gavron warning had been given in 2002, Dawn had "failed to show or make any good faith efforts to become self supporting, in spite of the fact that she is a licensed attorney who was a law review editor in law school." The court further found that while Dawn was making $3,000 per month working part time, she had the capacity to earn $7,917 per month or more when fully employed. It also stated that she had an obligation to support the 17-year-old son remaining at home, and that she could work full time without interfering with the interests of that son, who had a driver's license. Dawn has not shown that the court abused its discretion in making the stepdown order.
(5) Repayment of spousal support
As noted above, Paul filed his order to show cause re modification of spousal and child support on January 3, 2006. The court denied Paul's request on July 14, 2006. On August 14, 2008, we filed our opinion in the first appeal. (In re Marriage of Mosley, supra, 165 Cal.App.4th 1375.) On remand, the court set Paul's spousal support obligation at $3,000 per month beginning January 1, 2006. It also made an order concerning overpayments or underpayments made during the period between January 1, 2006 and the date of the April 1, 2010 findings and order after hearing.
Retroactive modifications to support orders are permitted by section 3653. Subdivision (a) of that statute provides: "An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date . . . ."
Subdivision (d) of section 3653 provides: "If an order decreasing or terminating a support order is entered retroactively pursuant to this section, the support obligor may be entitled to, and the support obligee may be ordered to repay, . . . any amounts previously paid by the support obligor pursuant to the prior order that are in excess of the amounts due pursuant to the retroactive order. . . . In determining whether to order a repayment, and in establishing the terms of repayment, the court shall consider all of the following factors: [¶] (1) The amount to be repaid. [¶] (2) The duration of the support order prior to modification or termination. [¶] (3) The financial impact on the support obligee of any particular method of repayment . . . . [¶] (4) Any other facts or circumstances that the court deems relevant."
Dawn complains that the court, in making its retroactive order, failed to consider the proper statutory factors, this time the factors articulated in section 3653, subdivision (d). Once again we state that, having failed to request a statement of decision, Dawn cannot now complain about any purported failure on the part of the court to consider each factor enumerated in the statute.
Yet where section 3653, subdivision (d) findings are concerned, Dawn asserts that she was not entitled to a statement of decision, so the doctrine of implied findings does not apply. She says that Code of Civil Procedure section 632 is inapplicable and there is no other statute that would have afforded her the opportunity to obtain a statement of decision. As to the latter point, she is in error.
As this court has previously observed, "Code of Civil Procedure section 632 provides that a statement of decision may be requested after trial; generally, there is no duty to render a statement of decision as to rulings on orders to show cause. [Citation.] However, the benefit of a statement of decision in connection with modification orders was acknowledged by the Legislature when it enacted Family Code section 3654." (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.)
Section 3654 provides: "At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision." For some reason, Dawn seems to recognize that section 3654 applies to the court's orders made under section 4320, but does not concede that it also applies to the court's orders made under section 3653. It does.
Section 3653, by its terms, applies to orders modifying support. (§ 3653, subd. (a).) Subdivision (d), upon which Dawn focuses her attention, requires the consideration of four factors when an order decreasing support is entered retroactively and requires repayment. An order decreasing support is an order modifying support and is an order to which section 3654 applies. Since the order in the matter before us was one that decreased and/or modified support, section 3654 afforded Dawn the opportunity to request a statement of decision with respect to that order.
All that being said, we pause to reflect on Dawn's argument that the court cannot have considered the first statutory factor, the amount to be repaid (§ 3653, subd. (d)(1)), inasmuch as the court itself failed to calculate the amount to be repaid. As Paul points out, before the court issued its order, it had before it Paul's W-2's for 2005, 2006, 2007 and 2008, as well as certain pay stubs. When the W-2's were admitted into evidence, the court specifically remarked, "Let me make sure I have the numbers so when it's time for me to do the calculations, I'll have all of them." After Paul's W-2's were admitted into evidence, his forensic accountant, Bret Bauer testified. Bauer prepared a series of calculations showing the amount of overpayment Paul would have made depending on the monthly figure the court would choose for Dawn's spousal support. One of his calculations was based on the court's selection of $3,000 as the base monthly spousal support plus 7 percent as the Ostler & Smith fraction. That calculation showed Paul overpaid support by $27,193 for the period January 1, 2006 through January 31, 2010. His calculations were admitted into evidence.
Given the state of the record, we are unable to conclude that the court could not have considered the total amount of spousal support Dawn would owe Paul under the April 1, 2010 findings and order after hearing. Dawn has not met her burden to show error with respect to the court's compliance with section 3653.
B. Child Support:
(1) Support for Scott
Dawn says the court erred in failing to make a child support order with respect to Scott, who turned 18 in January 2006, but did not graduate from high school until June 15, 2006. As Paul points out, since Dawn failed to support her argument with legal authority, we may treat it as waived. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 648-649.) At the same time, Paul concedes the court erred on this point.
Section 3900 establishes the responsibility of parents to support their child. Section 3901, subdivision (a) provides that the responsibility "continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first."
The court here erred in failing to order support for Scott until he completed the 12th grade. The parties offer different suggestions for addressing this error.
In his respondent's brief, "Paul suggests that to avoid the expense and time of a hearing on remand, this court fix the amount of support for Scott . . . at $1,189 per month plus a 3.5% Ostler & Smith percentage, which are the allocable amounts for a third child, rather than two, under the judgment as modified by the 2003 stipulation." Dawn, on the other hand, simply suggests a remand, with the trial court being directed to compute guideline child support for Scott from January 1, 2006 to June 15, 2006 and to determine the Ostler & Smith percentage for three boys for that period of time. We adopt the latter approach.
(2) Ostler & Smith order
As Dawn observes, in In re Marriage of Mosley, supra, 165 Cal.App.4th 1375, we directed the trial court, on remand, to use Paul's base salary to determine the monthly support obligations and to establish a method for requiring Paul to pay increased support in the event he received a bonus. (Id. at p. 1387.) Citing In re Marriage of Ostler & Smith, supra, 223 Cal.App.3d 33, we suggested as one possibility, the award of a fraction or percentage of any bonus Paul actually received. (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1387.)
Dawn says that, on remand, the court erred in making an Ostler & Smith award of 10 percent as applied, on the one hand, to Grant alone and, on the other hand, to Grant and Jason jointly. She says that if 10 percent was fair as to Grant alone, then more than 10 percent should have been awarded with respect to the two children together. Indeed, she points out that in the 2002 judgment, the court had awarded 21 percent for five boys, 19.5 percent for four boys, 17 percent for three boys, 13.5 percent for two boys, and 8.5 percent for one boy.
She has a point. The award requires an assumption that it costs no more to raise two boys than to raise one. To make such an assumption would be an abuse of discretion. On remand, the court shall reconsider the amount of the Ostler & Smith percentage as to three boys—Scott, Jason and Grant. Each child has a right to participate in his father's wealth. (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1387.)
(3) Compliance with Family Code sections 4056 and 4057
Next, Dawn claims the court abused its discretion in failing to comply with sections 4057 and 4056. Section 4057, subdivision (a), states that the amount of child support determined by the section 4055 formula is presumed to be the correct amount of child support. The presumption may be rebutted by evidence showing that application of the formula would be inappropriate or unjust in the case at issue. (§ 4057, subd. (b).)
Section 4056, subdivision (a) requires that whenever the court deviates from the guideline formula amount, it shall state, in writing or on the record: (1) the amount of child support provided by the guideline formula, (2) the reasons why the amount of child support ordered differs from the amount set by the guideline formula, and (3) the reasons why the amount of child support ordered "is consistent with the best interests of the children."
Dawn insists that the use of the Ostler & Smith component was a deviation from the section 4055 formula support, so that compliance with section 4056 was required. Surprisingly, she also claims that the court failed to make any of the three required findings. Not so.
We held in In re Marriage of Mosley, supra, 165 Cal.App.4th 1375 that calculation of support based on speculative bonuses that had not yet been received was improper. Consequently, on remand, the trial court used the guideline formula amounts as the monthly support obligations and made clear that it was calculating support obligations "based upon Paul's base salary, exclusive of a speculative bonus," in implementation of our instructions in In re Marriage of Mosley, supra, 165 Cal.App.4th 1375. Copies of the Xspouse computer printouts showing the guideline formula amounts were attached to the findings and order after hearing. The court made reference to those printouts in the body of the findings and order after hearing and used the figures designated in those printouts to set the base child support obligations. Then, the court added an Ostler & Smith component over and above the guideline formula support reflected on the Xspouse printouts, again in implementation of our direction. Clearly, the court stated its reasons in writing with respect to the first two factors identified in section 4056, subdivision (a).
But Dawn still says the court failed to satisfy section 4056, subdivision (a), because it failed to explain why it chose the 10 percent amount for the Ostler & Smith component and why that amount was consistent with the best interests of the children. True, the court did not articulate the reason why it selected 10 percent, just as it did not explain why it chose to apply that same percentage for one child and for two, and did not state why the particular percentage was in the best interests of the children. The court was required to state its reasons. (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 318; Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1451.) On remand, the court shall state its reasons for selecting a particular percentage as the Ostler & Smith component and shall explain why that percentage is in the best interests of the children.
(4) Timeshare
Dawn also contends the court erred in determining child support because it erroneously applied a 32 percent timeshare to Paul. She emphasizes that the parties had stipulated to a 20 percent timeshare in 2003. Dawn says there is no evidence to support a 32 percent figure. She maintains that the court erred in utilizing that figure in its Xspouse calculations and in applying that figure retroactively to 2006.
Paul retorts that the record amply supports the 32 percent timeshare finding. In its May 26, 2006 statement of decision, the court observed that Dawn had filed a March 10, 2006 income and expense declaration in which she estimated Paul's timeshare at 35 percent and that she had testified on May 24, 2006 that his timeshare was 31 percent. The court found Paul's timeshare was 32 percent. Then, on July 28, 2009, Paul testified that his timeshare was somewhere between 33 and 40 percent. Substantial evidence supports the court's finding that Paul's timeshare was 32 percent.
(5) Dawn's Income
In the April 1, 2010 findings and order after hearing, the court found that Dawn was then making $3,000 per month working part time and that she had the capacity to earn about $95,000 per year working full time. The court used the $3,000 per month figure in the Xspouse computation of child support obligations.
Dawn has no problem with the use of the $3,000 figure in the computation of prospective child support for the youngest son. However, she says the court erred in using that figure to compute child support obligations retroactively to January 1, 2006. As Dawn's tax returns show, she had no earned income in 2006 or 2007 and only $8,591 in earned income in 2008. Furthermore, she says, the trial court did not make a finding that income should be imputed to her.
However, as Paul asserts, by using the $3,000 figure to calculate child support obligations retroactive to 2006, the court impliedly found that it was appropriate to impute income of this amount to Dawn. Inasmuch as there is no statement of decision, we imply all findings to support the order. (In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; In re Marriage of Ditto, supra, 206 Cal.App.3d at p. 649.)
Even so, Dawn argues there is no evidence to show that she could have earned $3,000 per month from 2006 forward. We agree.
At a July 27, 2009 hearing, Paul called Michael Bonneau as a witness. Bonneau had done vocational examinations of Dawn in 2000 and 2009 and had prepared reports in each of those years. However, neither of those reports was admitted into evidence. During his testimony, Bonneau stated that he had found Dawn to be employable, both in 2000 and in 2009. He also said that Dawn had worked on a part-time contract basis since September 2008 and, with that experience, would then be employable full time. He further testified that as of 2009, he felt she would have an earning capacity of $72,800 to $85,500 as a full-time employee.
With respect to Dawn's prior prospects, Bonneau stated: "Essentially I indicated that even back in 2000, because of her limited experience as an attorney and the time out of the work force, that she would not be the type of candidate recruiters would typically gravitate toward or be desirous of. . . . And I also indicated that she would likely start part time to enter the work force on a contract basis or employment basis in order to gain experience in the marketplace again." He did not offer any opinion at all as to what amount of money Dawn could have made in 2000, let alone in 2006.
Paul's citations to the record do not show that there was any evidence admitted to indicate what amount of money Dawn might have been able to make beginning January 1, 2006. There is no substantial evidence to support the implied finding that Dawn was able to earn $3,000 per month from that date forward. Consequently, the court abused its discretion in imputing income in that amount to her. (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393 [abuse of discretion standard applied in reviewing order imputing income for child support purposes].) We reverse the child support order and direct the trial court to recalculate that order without imputing income to Dawn in 2006, 2007 or 2008. When recalculating child support, the court shall reflect that Dawn had no earned income for the years 2006 and 2007, and had earned income in the amount of $8,591 for the year 2008.
(6) Failure to consider Family Code section 3653 factors
As her final contention with respect to child support, Dawn reiterates her argument that the court abused its discretion in failing to consider the factors required in section 3653. We reiterate that she has waived this argument by failing to request a statement of decision under section 3654.
As she argued with respect to spousal support, Dawn argues with respect to child support that the court could not have complied with the statute and considered all applicable factors because the court itself did not compute the amount of repayment, if any, she would owe with respect to child support. Dawn has provided no legal authority in support of the argument that the court itself is required to make the computation and that if it fails to do so it has failed to comply with section 3653. Consequently, the argument is deemed waived. (Roden v. AmerisourceBergen Corp., supra, 186 Cal.App.4th at pp. 648-649.)
C. Attorney Fees:
Without discussion or citation to authority, Dawn requests an award of attorney fees on appeal. We observe that section 2030 permits the award of attorney fees in marital dissolution proceedings, including the award of attorney fees incurred on appeal. However, a request for attorney fees must be addressed to the trial court in the first instance. (In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140-141.)
III
DISPOSITION
The child support orders are reversed to the extent they imput $3,000 per month in income to Dawn retroactively, fail to provide support for Scott Mosely, award the same Ostler & Smith percentage with respect to two children as with respect to one, and are unsupported by an explanation as to why the particular percentage chosen was in the best interests of the children. Those orders are remanded for further proceedings consistent with the views expressed herein. The findings and order after hearing is otherwise affirmed. Dawn shall recover her costs on appeal. She may put her request for attorney fees to the trial court for its consideration.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.