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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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(12) Determine whether to depart from guideline formula amount of support based on one or more of the factors set forth in Fam C §4057(b).

See §§201.45–201.52. The guideline formula amount, computed under Fam C §4055, is presumed to be the correct amount of support in all cases.

This presumption may be rebutted only by admissible evidence showing that the application of the formula would be unjust or inappropriate. See Fam C §4057(b).

(13) If the amount of child support ordered differs from the guideline formula amount, make the mandatory findings specified in Fam C §4056(a). See §201.53.

(14) Order one or both parents to maintain health insurance coverage for the supported child. See §201.57.

(15) Order as additional child support child care, costs related to employment or education, and children’s reasonable uninsured health care costs. Fam C §4062(a). See §§201.54, 201.56.

(16) Determine whether to order as additional child support, costs related to the children’s educational or other special needs, or travel expenses for visitation. Fam C §4062(b). See §§201.55–201.56.

§201.4 California Judges Benchguide 201–8 (17) If parties have stipulated to child support amount, confirm that they have made the declarations required by Fam C §4065(a). See §201.58.

(18) Determine any request for the support of an adult child who is incapacitated and without sufficient means. See §201.62.

(19) Provide the parties with a document describing the procedures for modifying a child support order. Fam C §4010. See JC form FL-192.

(20) In proceeding for modification of support, determine whether there are changed circumstances warranting a different support order. A modified child support order must be calculated under the guideline formula. See §201.63.

B. [§201.4] Spousal Support (1) Determine whether to award temporary spousal support. The purpose of temporary spousal support is to maintain the living standards of the parties as close to the status quo as possible pending trial. Marriage of Burlini (1983) 143 CA3d 65, 68, 191 CR 541. The court may order temporary spousal support in any amount after considering the moving party’s needs and the other party’s ability to pay. Marriage of Murray (2002) 101 CA4th 581, 594, 124 CR2d 342. See §§201.65–201.68.

(2) Determine whether to award permanent spousal support after considering all of the applicable factors listed in Fam C §4320(a). See §§201.71–201.85. Do not use the amount of temporary support in determining the amount of permanent support because the considerations in awarding the two types of support are different. See §201.70.

(3) Make specific factual findings regarding the parties’ standard of living during marriage. Fam C §4332. See §201.87.

(4) Make other factual determinations with respect to other circumstances on party’s request. Fam C §4332. See §201.88.

(5) Advise supported spouse that he or she should make reasonable efforts to assist in providing for his or her support needs (Gavron warning). Fam C §4330(b). See §201.90.

(6) Make your support order. For a discussion of common types of orders, see §§201.93–201.97.

(7) Determine whether to retain jurisdiction over spousal support after considering length of marriage and supported spouse’s ability to provide for own support. See §201.92.

(8) Determine whether step-down order providing for automatic reductions in amount of support is appropriate. See §201.95.

(9) Determine whether issuance of “Richmond” termination order is appropriate. See §201.97.

(10) In proceeding for modification or termination of support, determine whether there are changed circumstances warranting a different support order. See §201.99. The court must consider the 201–9 Child Support and Spousal Support §201.6 circumstances listed in Fam C §4320(a) in determining whether modification or termination should be ordered. Marriage of Terry (2000) 80 CA4th 921, 928, 95 CR2d 760. The court may be precluded from modifying or terminating spousal support when the parties have executed a written agreement or entered in open court an oral agreement that specifically provides that the spousal support is not subject to modification or termination. Fam C §§3591(c), 3651(d).

(11) If supported spouse is cohabiting with a person of the opposite sex (or supported domestic partner cohabitating with a person of the same sex), consider whether this constitutes a change of circumstances warranting modification or termination of support. See §201.101. The court may not consider the income of the supporting spouse’s subsequent spouse or nonmarital partner when determining or modifying spousal support. See §201.103.

(12) Consider whether supporting party’s retirement constitutes a change in circumstances warranting a reduction in or termination of support. See §201.102.

(13) Determine whether party seeking support has waived right to support under a premarital agreement. See §201.108.

IV. DETERMINING INCOME AVAILABLE FOR CHILD

SUPPORT

A. [§201.5] Net Disposable Income Annual net disposable income is annual gross income minus allowable deductions. Fam C §4059. Net disposable income is the key financial factor in calculating child support. Marriage of Destein (2001) 91 CA4th 1385, 1391, 111 CR2d 487. The Statewide Uniform Guideline for determining child support is based on an algebraic formula (see Fam C §4055(a)), the central element of which is each parent’s net monthly disposable income. Johnson v Superior Court (1998) 66 CA4th 68, 75, 77 CR2d 624. See Fam C §§4058–4060.





B. [§201.6] Gross Income Family Code §4058(a) broadly defines “gross income” as “income from whatever source derived, except for income that is legally exempt from the child support calculation.” Annual gross income includes both mandatory items (see §§201.7–201.13) and discretionary items (see §201.14).

 JUDICIAL TIP: The parties should submit Income and Expense Declarations, or I&Es (form FL-150) that document each parent’s income and provide the information you need to determine gross income. The court should demand these forms if not submitted;

§201.7 California Judges Benchguide 201–10 the court should not rely on oral statements. Once submitted, the court should verify income with independent records, such as a pay stub.

1. [§201.7] Mandatory Income Income that the court must consider includes, but is not limited to, the

following (Fam C §4058(a)(1), (2)):

• Salaries and wages.

• Bonuses and commissions. See §201.9.

• Business income. See §201.8.

• Royalties.

• Rents. See County of Orange v Smith (2005) 132 CA4th 1434, 1446–1448, 34 CR3d 383 (sublease rental payments constitute income to sublessor)

• Dividends and interest.

• Pensions and annuities.

• Workers’ compensation benefits.

• Unemployment insurance benefits.

• Disability insurance benefits. See Stewart v Gomez (1996) 47 CA4th 1748, 1752–1754, 55 CR2d 531 (parent’s earning capacity may be added to his or her disability benefits in computing parent’s gross income).

• Social security benefits. Supplemental Security Income (SSI) benefits are not included. See §201.26.

• Military allowances, including housing and food allowances. See Marriage of Stanton (2011) 190 CA4th 547, 551, 118 CR3d 249 (the federal preemption doctrine does not prohibit the inclusion of military allowances for housing and food in a party’s gross income for purposes of support).

• Spousal support received from a person who is not a party to the child support proceeding. See Marriage of Corman (1997) 59 CA4th 1492, 1499–1500, 69 CR2d 880 (spousal support received from party to child support proceeding is not gross income for purposes of determining child support).

• Trust income.

 JUDICIAL TIP: Restrictions Concerning Indian Parties and/or Property 201–11 Child Support and Spousal Support §201.8 Federal statutes and federal and state case law place significant restrictions on the state court’s jurisdiction when dealing with Indian parties or Indian property located in Indian country in California. For example, 28 USC §1360(b) of Pub L 280 prohibits the alienation, encumbrance, or taxation of any real or personal property belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States. In the context of support, difficult situations arise regarding whether a state court may order a support obligation if the spouse’s sole income is from a trust asset (see Marriage of Purnel (1997) 52 CA 4th 527, 60 CR2d 667).

The best practice concerning support orders in this situation is for any order of support or maintenance, or similar order, to avoid requiring that the financial obligation imposed be specifically paid out of, or derived from, Indian trust assets. Although the state court may impose a support obligation, it may lack jurisdiction to order use of trust assets to satisfy the obligation. Such an order would effectually impose a lien on trust property in violation of 28 USC §1360(b). But the Bureau of Indian Affairs may encumber an Individual Indian Money (IIM) account if it receives an order from a court of competent jurisdiction awarding child support from an IIM account (25 CFR §115.601(b)(1)). In this situation, a California court may be a court of competent jurisdiction if no other federal or tribal court has jurisdiction (25 CFR §115.002).

It is important to be aware that tribal courts may also exercise jurisdiction over child and spousal support issues. Tribal courts have very broad authority to hear civil disputes, which arise in Indian country, involve tribal members, or otherwise fall within the jurisdiction of the court, particularly when the dispute involves some area of domestic relations matter such as marriage, adoption, or child custody (see Canby, William C. Jr., American Indian Law in a Nut Shell 5th ed (West; St. Paul Minnesota, 2009)).

The federal Full Faith and Credit for Child Support Act (28 USC §1738B) requires state courts to respect child support orders issued by tribal courts. Similarly, the Uniform Interstate Family Support Act (Fam C §§4900 et seq) mandates full faith and credit for tribal court spousal support orders by defining “state” (at Fam C §4901(u)(1)) to include “an Indian tribe.” a. [§201.8] Business Income The court must consider a parent’s business income, that is gross receipts from the business reduced by expenditures required for the operation of the business. Fam C §4058(a)(2). If the business is a sole §201.9 California Judges Benchguide 201–12 proprietorship, the parent’s form 1040, Schedule C, shows the business income. However, the court is not bound to accept all of the entries on a Schedule C as appropriate deductions from income available for support.

For example, depreciation may be an appropriate deduction for tax purposes, but the court might not deduct it to reduce the amount of income available for support.

 JUDICIAL TIP: In a sole proprietorship, there exists the possibility of deducting personal expenses to reduce net income.

If the parent has applied for a loan, many judges review that application, in which income is typically maximized, together with the Schedule C, and question any disparity between the incomes claimed in the two documents.

In a case with a wealthy support obligor who voluntarily deferred most of his salary from his employer, the court should have considered the deferred salary as actual earnings. Marriage of Berger (2009) 170 CA4th 1070, 88 CR3d 766.

b. [§201.9] Bonuses and Commissions Bonuses and sales commissions ordinarily must be included in the calculation of a party’s gross income. However, the court must determine whether the bonus or commission income is predictable or speculative (County of Placer v Andrade (1997) 55 CA4th 1393, 1396–1397, 64 CR2d 739; M.S. v O.S.

(2009) 176 CA4th 548, 554, 97 CR3d 812):

• Predictable. When a parent receives a routine bonus of a certain percentage of salary or has a predictable pattern of commissions; it is appropriate for the court to average the bonus or commissions income over 12 months and include it in the parent’s annual gross income.



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