Parents' payments for son's attorney's fees aren't recurrent monetary benefits. . .
In partial reversal, Fourth District holds that trial court erred by attributing extra unsubstantiated timeshare to father to compensate for mother's alleged interference with and prevention of his visitation with their child; actual timeshare must be used in calculating child support, which is not affected by one parent's deprivation of other parent's visitation rights.
County of San Diego v. P.B.
(October 8, 2020; ordered published October 16, 2020)
California Court of Appeal 4 Civil D075690 (Div. 1) 55 Cal.App.5th 1058, 269 Cal.Rptr.3d 914, 2020 FA 1959, per Guerrero, J (Benke, Acting PJ and O'Rourke, J, concurring). San Diego County: McLaughlin, Commissioner, reversed in part and remanded with instructions. For appellant: John Sylvester, CFLS, (619) 234-7848. For respondent: no appearance. CFLP §§E.188.8.131.52, E.76.
L.C. and P.B. were married in 1998; L.C. gave birth to their child in September 2001. She filed for divorce in 2006. Child custody, child support, and visitation became issues of ongoing contention and dispute in the disso proceeding. The parents had joint legal custody of the child, but he lived with L.C.; P.B. had a 50% timeshare.
In 2011, "an incident at a restaurant" caused P.B.'s timeshare to change from 50% to supervised visitation only. From October 2014 through July 2015, P.B.'s parenting time amounted to an average 29% timeshare. Meanwhile, in September 2014, L.C. filed a motion for increased child support and determination of arrearages in the Family Support Division; that motion was "repeatedly continued." In October 2015, a Family Court Services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused the child to be seriously afraid of P.B. and to not want anything to do with him. The counselor reported P.B.'s claim that L.C. made false accusations against him that detrimentally affected his relationship with his son. The son told the counselor that his mother had told him about examples of his father's bad parenting in his childhood, but that he had no independent memories of the incidents. The counselor concluded that the son was "'emotionally stunted'" and could not "'psychologically see himself as a separate person from his mother.'" The boy's memories of the restaurant incident served to validate his mother's views re his father and made the boy oppose any efforts to reunify with him. The counselor recommended that the parents have joint legal custody of their son, with sole physical custody to L.C. and no parenting time for P.B.
In September 2016, L.C. and P.B. stipulated to a final custody order that provided that P.B. and his son would begin reunification therapy, and that after 60 days, P.B. could have increased parenting time up to 50% unless the son's attorney or the reunification therapist opposed the increase on the basis of the boy's best interests. However, reunification therapy did not go well (the boy threatened suicide and was taken for hospital evaluation). P.B. then filed a motion to modify custody, based on L.C.'s having "'brainwashed'" their son and her determination to keep father and son apart. As to child support, P.B.'s attorney argued that the trial court should attribute a 50% timeshare to P.B., per the parties' stipulation, because of L.C.'s efforts to thwart visitation. The trial court, however, made no finding of visitation interference by L.C., applied a zero timeshare, and ordered P.B. to pay $819 per month for child support, retroactive to October 1, 2014. The lower court remarked that it might use another timeshare if it found that L.C. had interfered with P.B.'s visitation. In March 2017, P.B. submitted a declaration contending that L.C. had interfered with his visitation time and failed to support his reunification therapy with their son.
At a hearing on child support in the Family Support Division in May 2017, the trial court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. The trial court reasoned that it would be inequitable to permit L.C. to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. L.C. objected on the basis of Fam C §3556, which provides that enforcement of child support orders is not affected by a custodial parent's refusal to permit visitation. At the next hearing, in September 2017, L.C. told the trial court that P.B. and their son were undergoing conjoint therapy, but the son still refused any visitation with his father. The trial court then updated its interim orders, set child support at $286 a month from October 2014 through July 2015, using a 29% timeshare. For the period from August 2015 through December 2016, the court used a 2% timeshare and ordered child support of $817 a month. From January 2017 forward, the lower court set timeshare at 2% and child support at $892 a month, plus arrearages of $200 a month.
At a custody hearing in December 2018, the trial court noted that P.B. had had no contact with his son, except for therapy sessions, since August 2015, and their estrangement was virtually total. The court was unable to clearly find that L.C. had caused the estrangement but recognized that the son was then 17 years old, which made a reconciliation highly unlikely. The court cautioned P.B. that estrangement was not a defense to paying child support. It concluded that the parents would have joint legal custody of their son, who would live primarily with L.C. and visit P.B. only by mutual agreement. At a final hearing on child support, the Family Support Division judge commented that the evidence seemed to show that L.C.'s actions were largely responsible for the estrangement between father and son and that the estrangement constituted a special circumstance. In the final child support order issued on January 18, 2018, the trial court made no change to the existing support order for the period of October 1, 2014, through July 31, 2015. For the period from August 1, 2015, through December 31, 2016, the trial court attributed a 29% timeshare to P.B. and ordered child support of $529 a month. For the period from January 1, 2017, through October 31, 2017, the lower court attributed the same timeshare, despite no visitation, and ordered P.B. to pay $649 a month. From November 1, 2017, forward, the trial court applied a zero timeshare and ordered P.B. to pay $970 a month. The court explained that its attributed timeshares reflected L.C.'s contributions to the estrangement between father and son.
L.C. appealed, and the Fourth District reversed in part and remanded.
Only the real thing will do. . .
L.C. contended that the trial court erred by attributing timeshare instead of using actual timeshare to calculate child support. The justices agreed. They noted that the uniform guideline for child support is based on the income of the parents and the time each spends with the child. Timeshare is the approximate percentage of time that the high earner has or will have primary physical responsibility for the child as compared to that spent with the other parent. In this case, the panel found, the trial court had attributed a 29% timeshare to P.B. at a time when he had no physical responsibility for his son because the boy refused to see him. This, the justices determined was an abuse of discretion because it failed to comply with statutory requirements under Fam C §4055. The panel pointed out that the lower court had stated no valid legal or factual basis for attributing extra timeshare to P.B. And they noted that the limited circumstances under which the trial court could have attributed a different timeshare, i.e. when the child is not in the physical presence of either parent, did not exist here. The justices reasoned that, per Fam C §3556, a trial court may not modify child support as a means of coercing a custodial parent to comply with custody orders. Moreover, the trial court's method of calculating child support was "tantamount to withholding child support" and was also inconsistent with applicable law. Accordingly, the panel reversed the lower court's order as to the part for the period from August 2015 through October 2017 and remanded for recalculation of child support based on P.B.'s actual timeshare during that period.
Payments came and went. . .
L.C. also argued that the lower court erred by failing to include payments that P.B.'s parents made toward his attorney's fees as income available for child support. The justices noted that P.B. testified that his parents had made payments directly to his attorney to the tune of $100K but had stopped because "they were unhappy with the results being achieved in the custody battle." The payments, P.B. said, would be deducted from his future inheritance. The trial court had reasoned that the payments, which had ceased by that time, were not the kind of recurring and regular monetary gifts that should be included as income for child support calculation purposes. The justices found that the lower court had not abused its discretion in coming to that conclusion. They affirmed all other aspects of the judgment.
What can a parent in P.B.'s shoes do when ordered to pay child support for a child who wants nothing to do with him? He or she can't get a child support reduction or a zero order; that much is clear from this opinion. The justices decline to discuss whether P.B. could have had some relief under the special circumstances exception of Fam C §4057(b)(5) because there was no evidence that the lower court had applied that exception. Besides, application of the exception looked a little iffy, as it would skate mighty close to being an impermissible penalty for thwarting visitation.
In a footnote, the justices emphasize that they do not condone parental interference with court-ordered visitation and they recognize the fact that the son here "has undoubtedly suffered as a result of the deterioration in his relationship with [P.B.]" In addition, the justices suggest that a parent's interference with visitation can be grounds for a contempt action, a custody modification, or other sanctions. Maybe so, but a custody mod would have been out of the question here, and the trial courts' reluctance to find that L.C.'s actions amounted to intentional interference make it unlikely that P.B. could prevail in a contempt action.
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶ 6:730
10 Witkin, Summary of Cal. Law (11th ed. 2020) Parent and Child, § 249