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«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»

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201–47 Child Support and Spousal Support §201.59 G. [§201.59] Temporary Support During the pendency of a proceeding for dissolution or legal separation, or any other proceeding in which support of a child is at issue, the court may order either or both parents to pay any amount necessary for the support of the child. Fam C §3600; County of Santa Clara v Perry (1998) 18 C4th 435, 445, 75 CR2d 738. The Statewide Uniform Guideline applies to orders for temporary, as well as permanent, support. See Marriage of Wittgrove (2004) 120 CA4th 1317, 1326, 16 CR3d 489.

Although temporary and permanent awards of spousal support are computed using different criteria, awards of child support are computed using the same criteria no matter when the award is made. The amount of the permanent award may vary from the amount of the temporary award, however, based on changes in the parties’ circumstances during the pendency of the proceedings, e.g., changes in the parties’ incomes or “time-sharing” arrangements.

The order for temporary support may be made retroactive to the date the petition or other initial pleading was filed. Fam C §4009. If the parent ordered to pay support was not served with the petition or other initial pleading within 90 days after filing and the court finds the parent was not intentionally evading service, then the earliest date on which the order can be effective is the date of service. Fam C §4009.

 JUDICIAL TIP: The court should credit the parent ordered to pay support with any payments that the parent has made since the effective date of the support order.

A temporary support order remains in effect until a permanent support order is made, or the order is otherwise terminated by the court or by operation of law. See Fam C §3601(a); Marriage of Hammer (2000) 81 CA4th 712, 717, 97 CR2d 195 (superseded by statute on other issue). See Marriage of Fellows (2006) 39 C4th 179, 203, 138 P3d 200 (temporary child support order is superseded by permanent support order in dissolution judgment). The court may modify or terminate a temporary support order at any time, except as to amounts that have accrued before the date the notice of motion or order to show cause to modify or terminate was filed. Fam C §3603. Temporary support orders are made without prejudice to the rights of the parties or the child with respect to any subsequent support orders that may be made. Fam C §3604.

A temporary support order is not enforceable during any period in which the parties have reconciled and are living together, unless the order specifies otherwise. Fam C §3602.

§201.60 California Judges Benchguide 201–48 H. [§201.60] Expedited Support In any child support action that has been filed and served, the court may issue an ex parte, expedited support order requiring either or both parents to pay support for their minor children during the pendency of the action. Fam C §3621. The amount of support ordered must be the guideline amount as required by Fam C §4055, unless the income of the obligated parent is unknown to the applicant; in such a case, the amount of support ordered must be the minimum amount provided in Welf & I C §11452. The procedures by which an expedited support order may be obtained are set forth in Fam C §§3620–3634.

An expedited support order is not effective until 30 days after the obligated parent is served with the proposed order and accompanying papers. Fam C §3624. The order becomes effective without further action by the court at the end of the 30-day period, unless the obligated parent files a response to the application and an income and expense declaration before the end of this period. Fam C §§3624(c), 3625(a), (c). The response must state the obligated parent’s objections to the proposed expedited support order. Fam C §3625(b). The response and income and expense declaration must be served on the applicant by any method by which a response to a notice of motion may be served. Fam C §3625(a). The obligated parent must have the clerk set the matter for hearing not less than 20 nor more than 30 days after the response is filed (Fam C §3626), and must give notice of the hearing to the other parties or their attorneys by first-class mail at least 15 days before the hearing (Fam C §3627). If this notice is not given, the expedited support order becomes effective at the end of the 30-day period, subject to the relief available to the responding party under CCP §473 or any other available relief in law or equity. Fam C §3628.

An application for an expedited support order confers jurisdiction on the court to hear only the issue of child support. Fam C §3623(a). Either parent may, however, bring before the court at the hearing other separately noticed issues that are otherwise relevant and proper to the action. Fam C §3623(b). At the hearing, the parents must produce copies of their most recently filed federal and state income tax returns, and each parent may be examined as to the contents of these returns. Fam C §3629(a), (b). A parent who fails to submit his or her tax returns (or any other required documents) may not be granted the relief he or she has requested; the court may, however, grant the requested relief if the parent submits a declaration under penalty of perjury that the document does not exist or the tax return cannot be produced but a copy has been requested from the Internal Revenue Service or the Franchise Tax Board. Fam C §3629(c), (d).

201–49 Child Support and Spousal Support §201.62 At the conclusion of the hearing, the court must order an amount of support in accordance with Fam C §§4050 et seq, i.e., the guideline amount as adjusted by other factors that the court may consider in ordering support. See Fam C §3630(b). Thus, the amount of support ordered after hearing will not necessarily be the minimum guideline amount set forth in the application. The order after hearing must become effective not more than 30 days after the response was filed and may be made retroactive to the date the application was filed. Fam C §3632. This order may be modified or terminated at any time on the same basis as any other child support order. Fam C §3633.

I. [§201.61] Family Support When the court orders both child and spousal support, it may designate as “family support” an unallocated total amount for the support of a spouse and children, without specifically labeling all or any portion of that amount as “child support,” as long as the amount is adjusted to reflect the effect of additional deductibility. Fam C §4066. Family support is deductible in full by the payor and taxable to the recipient. The court must adjust the amount of the order to maximize the tax benefits for both parents. Fam C §4066. The Statewide Uniform Guideline applies to awards designated as “family support.” Fam C §4074. A family support order is enforceable in the same manner and to the same extent as a child support order. Fam C §4501.

J. [§201.62] Duration of Obligation To Pay Child Support A parent’s duty to pay child support normally terminates when the child reaches age 18. However, as to any unmarried 18-year-old child who is a full-time high school student and not self-supporting, the parent’s obligation to pay support continues until the time the child completes the 12th grade or reaches 19 years of age, whichever occurs first. Fam C §3901(a). See Marriage of Everett (1990) 220 CA3d 846, 852, 269 CR 917 (court should not have terminated support for child after she turned 18 in February, but rather should have terminated child support at end of her senior year because she continued to live with custodial parent and to attend high school until graduation in June). See also Marriage of Schopfer (2010) 186 CA4th 524, 535, 112 CR3d 512 (daughter’s attainment of age 18 and attendance at boarding school were not changed circumstances to support termination of father’s child support obligation to stepfather). Thus, child support ends, at the latest, when the child

reaches age 19, unless:

• A parent agrees to provide support beyond this time (Fam C §§3587, 3901(b)), or §201.63 California Judges Benchguide 201–50

• The child (of whatever age) is incapacitated from earning a living and is without sufficient means (Fam C §3910(a); Marriage of Serna (2000) 85 CA4th 482, 483–484, 102 CR2d 188; Marriage of Drake (1997) 53 CA4th 1139, 1154, 62 CR2d 466 (question of “sufficient means” should be resolved in terms of likelihood that child will become a public charge)).

The court may use the Statewide Uniform Guideline to compute support for an adult child who is incapacitated and without sufficient means. It may adapt or depart from the guideline formula as warranted by the circumstances, e.g., if a disabled adult child has independent income or assets, the court may reduce the presumed amount of support. 53 CA4th at 1157–1158. However, the guideline formula is inapplicable to a competent adult child who has moved away to college when neither parent retains “primary physical responsibility” for the adult child for any percentage of time. Edwards v Edwards (2008) 162 CA4th 136, 75 CR3d 458.

K. [§201.63] Modification of Child Support Order A court may modify or terminate a child support order as the court determines to be necessary. Fam C §3651(a); Marriage of Brinkman (2003) 111 CA4th 1281, 1288, 4 CR2d 722. The court has the power to modify a child support order, upward or downward, regardless of the parents’ agreement to the contrary. Marriage of Alter (2009) 171 CA4th 718, 726, 89 CR3d 849.

As a general rule, a material change of circumstances must be shown before a child support order may be modified either upward or downward.

111 CA4th at 1288; Marriage of Laudeman (2001) 92 CA4th 1009, 1015, 112 CR2d 378. Examples of changed circumstances include a significant change in one of the parent’s net income, a significant change in the parenting schedule, or the birth of a child. See JC Form FL-192 (Information Sheet on Changing a Child Support Order). The court must apply the Statewide Uniform Guideline when determining a motion to modify a child support order. 92 CA4th at 1013. If the amount of support differs from the guideline amount, the court must include the information specified in Fam C §4056(a) in the order. 111 CA4th at 1292–1293. See §201.53.

If the parties to a stipulated agreement stipulate to a child support order below the guideline amount, no change of circumstances need be shown to obtain a modification of the order to the guideline amount or to an amount above the guideline. Fam C §4065(d). When the parties have stipulated to a child support order above the guideline amount, however, a change in circumstances must be shown to obtain a downward modification of that order to the applicable guideline amount or to an 201–51 Child Support and Spousal Support §201.63 amount below the guideline. Marriage of Laudeman, supra, 92 CA4th at 1015–1016.

Retroactive modification. The court may make an order modifying or terminating a child support order retroactive to the date on which the notice of motion or order to show cause was filed, or to any subsequent date. Fam C §3653(a); Marriage of Cheriton (2001) 92 CA4th 269, 300, 111 C2d 755 (date notice of motion or order to show cause was filed is earliest date for retroactive modification). In exercising its discretion concerning retroactivity, the court must consider the child’s current needs, as measured by the parents’ ability to provide support. Marriage of Cheriton, supra.

If the order is made due to either party’s unemployment, the court must make the order retroactive to the date on which the notice of motion or order to show cause was served or the date of unemployment, whichever is later, unless the court finds good cause not to make the order retroactive and states its reasons on the record. Fam C §3653(b). “Good cause” for denying retroactivity requires the court to make a good faith finding that nonretroactivity is justified by real circumstances, substantial reasons, and objective conditions. Marriage of Leonard (2004) 119 CA4th 546, 559, 14 CR3d 482. The court must balance the children’s current needs against the interests of the supporting parent not to be faced with an unjust and unreasonable financial burden resulting from a nonretroactive order. 119 CA4th at 560. Because the children’s needs are of paramount concern, when retroactivity would result in demonstrable hardship to them, good cause may exist to deny a retroactive support reduction or termination if the supporting parent has the ability to bear the financial burden, e.g., by using other assets or severance pay. 119 CA4th at 561– 562.

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