Opinion
B162779.
11-6-2003
ROBERT M. SCHMIDT, Appellant, v. SOPHIE LAMPROS, Respondent.
Carol J. Adkins-Hunnewell for Appellant. Bleier & Cox, Donna A. Laurent, and Staley G. Patnoi for Respondent.
The parties, appellant Robert Schmidt and respondent Sophie Lampros, are the parents of a son, Loren Schmidt, born in 1963. Loren suffers from autism and other problems, and at the relevant times was living in a group home in Santa Barbara called "Devereux." Schmidt and Lampros were divorced in 1970.
In September of 2001, Lampros filed an Application for Order to Show Cause re child support, seeking an order that Schmidt pay guideline support for Loren. On September 12, 2002, the trial court made its order, finding that Family Code section 3910 applied to Loren in that he was incapacitated from earning a living and without sufficient means, that guideline support was appropriate, and that Lampros should be credited with 100 percent of custodial timeshare because she was the responsible parent. The court imputed minimum wage income to Lampros in the amount of $1,170 per month, determined that guideline support was $2,374 per month and that Lorens social security income of $888 should be deducted from that amount, and ordered Schmidt to pay $1,486 per month in child support. We affirm.
In pertinent part, that statute provides that "The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means." (Fam. Code, § 3910, subd. (a).)
FACTS
The trial court had before it evidence in the form of declarations of the parties, including income and expense declarations, exhibits to those declarations, and a lengthy report from a lawyer appointed to represent Loren.
The relevant evidence was that Devereux received Regional Center funding for Loren, and also charged $771 per month, which was paid by Lorens SSI income of $881 per month. Devereuxs fees included housing, food, day programs, therapy, and some art classes. Loren wanted to take additional art classes and wanted art supplies for painting and making rugs. His lawyer reported that those activities were very important to Loren.
Lampros was Lorens conservator, Regional Center Parent Case Manager, and SSI Representative Payee.
Lampros declared that Lorens medical expense were not entirely covered by Medi-Cal and that he also needed money for such things as clothes, toiletries, extra food, art and hobby supplies, phone cards (he called Lampros every day), and small presents for meeting his behavioral goals, and that she paid those expenses with her own money, through a special needs trust she set up for Loren. Lorens lawyer reported that these extras were meaningful to Loren.
Schmidt declared that he had voluntarily spent about $12,700 per year on Loren between 1990 and 1996. The sum included an allowance of about $100 a month, a trainer to take him on hikes, and a yearly vacation at a dude ranch. Schmidt also made charitable contributions to Devereux, giving $2,000 in 2000, and had provided for Loren in his will. Schmidt disputed Lampross evidence on medical expenses, declaring that anything not covered by Medi-Cal would be covered by his own insurance.
Lampros also declared that the cost of Lorens care at Devereux was $42,000. She cited in support a fund-raising letter from Devereuxs development director, which states that there is an annual difference of $42,000 between Regional Center funding for Loren and Devereuxs costs, but not does not state that that sum is charged to Loren or his parents.
Lampros declared that she took Loren to doctors appointments, visited him at least twice a month, and took care of him in her home for five weeks a year. She presented evidence that she arranged doctors appointments for Loren and declared that she was his "on call" mother.
Schmidt presented evidence that until about 14 months before the OSC was filed he had visited Loren 16 or 17 times a year, and that Loren had visited him. The visits stopped at Lorens request, after Loren developed a dislike for Schmidt and his family. Schmidt hoped that visits would some day resume.
In Schmidts opinion, Devereux took care of Loren, so that he did not need an "on call" mother. Schmidt planned to retire in the spring, and declared that after that he could take Loren to his medical appointments.
Lampros also declared that Loren was permitted to remain at Devereux only because she spent a tremendous amount of time and energy in advocacy and fund raising efforts. The documents she attached in support show that she did engage in lobbying and fundraising activities on behalf of the group home, but not that Lorens residency depended on her volunteer efforts. In fact, Devereux employees informed Lorens attorney that Lorens tenure at Devereux was not dependent on Lampross volunteer work. However, Lorens attorney opined that Lampross involvement "very likely" increased Lorens chances of "getting the most out of" Devereux.
DISCUSSION
We begin with the basic rule: A trial courts determination to grant or deny a modification of a support order will be upheld on appeal unless an abuse of discretion is demonstrated. Reversal will be ordered only if, after an examination of the record, prejudicial error is found. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150-1151.)
Here, Schmidt argues that the trial court abused its discretion by applying the statutory support guidelines, arguing that the guidelines are not appropriate for an institutionalized adult child and also arguing that Lampros should not have been considered the custodial parent because she does not pay for Lorens basic needs. In support of these arguments, he seeks to distinguish this case from In re Marriage of Drake, supra, 53 Cal.App.4th 1139, cited by the trial court, In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, and In re Marriage of Whealon (1997) 53 Cal.App.4th 132. We agree that this case and those cases have factual differences, but do not agree that those differences mean that the trial court abused its discretion.
Like this case, Drake, supra, 53 Cal.App.4th 1139, concerned support for an adult disabled child, a son. The father argued, inter alia, that the Family Code support guidelines do not apply to adult disabled children. The Court of Appeal first determined that under standard principles of statutory construction, the statutory guidelines do apply. The Court then considered the fathers other arguments, that the guidelines are inapplicable because they incorporate time-sharing, although many adult children are not in the custody of either parent, and because they do not take into account the fact that adult children often have sources of support other than their parents.
The Court recognized that the situations of disabled adult children and their parents may differ from those typical of minor children and their parents, and that the guidelines do not include the childs own estate as a factor, but found no fatal inflexibility which would render the guidelines inapplicable. The Court reasoned that the Family Code gives the trial court discretion to adjust support when custody factors mean that the guideline formula would produce an unjust or inappropriate result (Drake, supra, 53 Cal.App.4th at p. 1157) and that when a disabled adult child has independent income or assets, the trial court has the discretion to reduce the amount of child support. (Id. at p. 1160.)
In the portion of the opinion cited by Schmidt, the Court of Appeal found no error in the trial court ruling giving the mother (who died after the case was initiated) and her successors in interest full time-share credit. The Court found that the guidelines time-sharing adjustment "is based on the parents respective periods of primary physical `responsibility for the children rather than physical `custody," (Drake, supra, 53 Cal.App.4th at p. 1160), and cited the evidence that the mother and her successors in interest had full responsibility for the adult childs physical situation and care and personally supervised his care, and that the father had no physical responsibility for his son and had visited only three times in the last seven years. (Id. at p. 1160.)
Under Family Code section 4055, subdivision (b)(1)(D), one component of the guideline calculation is "the approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent."
In Katzberg, supra, 88 Cal.App.4th 974, a school-age child in the fathers custody was sent to boarding school. The trial court imputed the time the child spent in school to the father because he was the primary custodial parent and because he was paying tuition. The Court of Appeal found no abuse of discretion, agreeing with Drake that physical responsibility, not physical custody, is the critical factor, and citing the evidence that the father had arranged for the childs schooling and signed the school contract, and would be responsible in any emergency.
In re Marriage of Whealon, supra, 53 Cal.App.4th 132, held, inter alia, that a custodial spouse can be credited with the time a child spends in day care, given "the practical reality of day-to-day care for a child." (Id. at p. 145.)
We see no abuse of discretion here. Schmidt argues that unlike the parents in Drake, Katzberg, and Whealon, Lampros does not pay for Lorens basic care. That may be true, but the standard of "physical responsibility" is not limited to financial responsibility. The trial court had evidence that Lampros was the parent who spoke to Loren daily, visited him often, rewarded him for his achievements, took him to medical appointments, and assisted him with his daily life. Inferentially, she was the parent who would be called on in any emergency. There was no abuse of discretion in the trial court ruling that she had physical responsibility for Loren.
Schmidt next contends that Lorens benefits from Devereux should have been considered in calculating guideline support. He cites the Devereux fund-raising letter to argue that Loren received, free of charge, services worth $5,322 per month, and seems to argue that the order in this case is unfair, in that payment is to Lampros, who does not pay Lorens expenses. Schmidt similarly argues that because Lorens basic needs are met by Devereux, the child support order amounts to a spousal support order in Lampross favor.
The essential problem with these arguments are that they ignore the basic principle that child support is not based on a determination of the childs basic or minimal needs, but that "Children should share in the standard of living of both parents." (Fam. Code, § 4053, subd. (f).) A "childs need is measured by the parents current station in life. [Citations.] `Clearly where the child has a wealthy parent, that child is entitled to, and therefore `needs something more than the bare necessities of life. [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 293.) This principle also disposes of Schmidts contention that private art lessons for an adult son are not an appropriate basis for child support.
Further, despite his contention that the child support payments will be used for Lampros, not Loren, Schmidt points to no evidence that Lampros will use the money inappropriately, or that the money could not be used for Lorens legitimate needs. To the contrary, the trial court had before it evidence that Lampros was expending sums on Lorens behalf, and that Schmidt himself has spent $12,700 per year on Loren.
Finally, we note that the trial court acknowledged that Loren has income, and reduced guideline support by the amount of his SSI payments. It is not clear how the trial court could have additionally adjusted the award to reflect amounts the state pays Devereux to support Lorens care.
Schmidts remaining argument is that "it is not appropriate that Lorens future speculative needs be a basis for guideline child support." Whether or not that is true, Schmidt points to nothing in the record which would indicate that the trial court ruling was based on any speculation about Lorens future needs.
In his reply brief, Schmidt also argues that Family Code section 3910 does not apply. We do not consider the argument, both because it was not raised until the reply brief and because it was not raised in the trial court, where Schmidt agreed that the statute placed responsibilities on him. (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320 [points raised for the first time in a reply brief will not be considered]; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [litigant may not assert a new theory on appeal].)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P.J. and MOSK, J.