DONALD F. CONVISER, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, 818/880-8990, brings you another informative blog, addressing the treatment of gifts in Child Support calculations, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce.
In Marriage of ALTER (2009) 171 Cal.App.4th 718, 736-737, the Appellate Court held that where a party receives recurring gifts of money, the Trial Court has discretion to consider that money as income for purposes of the Statewide Uniform Child Support Guideline.
In Marriage of SCHLAFLY (2007) 149 Cal.App.4th 747, 754-755, the Appellate Court approved the approach previously used in Marriage of LOH (2001) 93 Cal.App.4th, 325, 333-336, and allowed deviation from the Statewide Uniform Child Support Guidelines where regular non-cash gifts (such as free housing) are provided to a party. The LOH court concluded that if a Trial Court determines that a parent's housing situation (or other lifestyle factors) renders application of the Guideline amount inappropriate or unjust, such a fact may be considered by the Court in a deviation from the Guideline.
The authorities addressed above demonstrate how the Court handles cash gifts to a parent and non-cash gifts to a parent in different ways, cash as income (if regularly recurring), and free rent or other non-cash gifts as justification to deviate from the Guideline Child Support figures.
If your former spouse or the other parent of your child receives regular gifts of cash, housing, or payment of expenses from his/her parents or relatives, those gifts should be brought to the Court's attention by appropriate legal means, so that the Court may consider that evidence in either its Guideline Child Support calculations, or as justification to deviate from Guideline figures.
Posted by DONALD F. CONVISER, CFLS, owner of Warner Center Law Office, representing people in divorce and family law cases before the Superior Courts in Los Angeles, Ventura, Van Nuys, San Fernando, Simi Valley, Santa Monica, Torrance, Burbank, Glendale, Pasadena, and Pomona (among others) involving Child Support, Child Custody, Visitation, Premarital Agreements (aka Prenuptial Agreements), Divorces, Paternity, Stepparent Adoptions, Nonmarital Dissolutions, and all other areas of family law and divorce law practice. If you have any question or concern regarding Child Support, call DONALD F. CONVISER at 818/880-8990 for a free, confidential consultation.
Showing posts with label child support. Show all posts
Showing posts with label child support. Show all posts
Tuesday, December 1, 2009
Sunday, September 7, 2008
A CHANGE OF CIRCUMSTANCES MAY JUSTIFY A REDUCTION OF CHILD AND SPOUSAL SUPPORT; and BEWARE TO THE SPOUSE WHO CHOOSES TO BE UNDEREMPLOYED OR UNEMPLOYED
In Marriage of Mosley, a case decided in late Summer, 2008, the appellate court overturned a significantly unfair trial court ruling which refused the former husband a reduction in his child and spousal support because of the possiblity that the former husband might get a year-end bonus that could increase his income to or past the level of his pre-divorce income.
Both dad and mom were attorneys: dad was a real estate attorney, and mom was a stay-at-home mom for the parties' five children, although she had been an editor of law review at law school and she had previously worked for a prestigious law firm, Latham and Watkins.
Following the downturn of the real estate market, dad was laid off from his job at the real estate law firm. He took a position as house attorney for a homebuilder at a base salary substantially lower than his former income at the real estate firm, but with the possibility of a substantial discretionary bonus based on his performance and the performance of the homebuilder in this "down" market.
Dad sought a reduction in child and spousal support based on his change of circumstances. Also, since the trial court had given mom a "GAVRON" warning (a warning that she should make reasonable efforts to become self-supporting), Dad asked the trial court to impute income to mom. The trial court refused any of the relief that Dad sought. Dad appealed.
The MOSLEY case reads like a bar exam question, rich in the discussion of important authorities, including Marriage of OSTLER and SMITH, Marriage of RIDDLE, Marriage of ROSEVEAR, Marriage of GAVRON, Marriage of La BASS and MUNSIE, and Family Code Sections 4060, 4064 and 4320(l), among other authorities.
The appellate Court reversed the trial court, finding that the trial court's exercise of discretion exceeded the bounds of reason.
No future bonus was guaranteed by the homebuilder.
In a case where there might be income exceeding base salary, the trial court should structure a support order in two parts - base support (based on dad's base salary), and additional support comprising a percentage of any of dad's income over the figure upon which base support was calculated.
Mom does not have the right to divest herself of her earning ability at the expense of the minor children. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income -- otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the children, causing the entire burden of supporting the children to fall upon the employed parent.
Also, the court must consider the stated (by the legislature) goal that supported spouses ultimately become self-supporting.
This writer notes that dad did not voluntarily quit his job at the real estate law firm. He was laid off due to the economic downturn caused at least in part by the collapse of the subprime lending industry. He took a job with potential, but no guarantee.
This writer also notes that Mom felt "entitled" to support, but even though she was educated as, and had held a job with a presigious law firm as an attorney, she never read the portion of the Judgment which provided the GAVRON order warning her to seek to become self-supporting.
In Marriage of LaBASS and MUNSIE, cited in the MOSLEY case, the mom was a college professor who chose to work only part time so that she could devote more time to the minor children. In that case, as in MOSLEY, the appellate court held that income could be imputed to an unemployed or underemployed parent - the minor children are entitled to be supported by BOTH parents.
This case comprises an important precedent regarding change of economic circumstances in these trying times, as well as imputation of income to a voluntarily underemployed or unemployed former spouse.
Written by Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices, whose website may be found at www.conviser.net
Both dad and mom were attorneys: dad was a real estate attorney, and mom was a stay-at-home mom for the parties' five children, although she had been an editor of law review at law school and she had previously worked for a prestigious law firm, Latham and Watkins.
Following the downturn of the real estate market, dad was laid off from his job at the real estate law firm. He took a position as house attorney for a homebuilder at a base salary substantially lower than his former income at the real estate firm, but with the possibility of a substantial discretionary bonus based on his performance and the performance of the homebuilder in this "down" market.
Dad sought a reduction in child and spousal support based on his change of circumstances. Also, since the trial court had given mom a "GAVRON" warning (a warning that she should make reasonable efforts to become self-supporting), Dad asked the trial court to impute income to mom. The trial court refused any of the relief that Dad sought. Dad appealed.
The MOSLEY case reads like a bar exam question, rich in the discussion of important authorities, including Marriage of OSTLER and SMITH, Marriage of RIDDLE, Marriage of ROSEVEAR, Marriage of GAVRON, Marriage of La BASS and MUNSIE, and Family Code Sections 4060, 4064 and 4320(l), among other authorities.
The appellate Court reversed the trial court, finding that the trial court's exercise of discretion exceeded the bounds of reason.
No future bonus was guaranteed by the homebuilder.
In a case where there might be income exceeding base salary, the trial court should structure a support order in two parts - base support (based on dad's base salary), and additional support comprising a percentage of any of dad's income over the figure upon which base support was calculated.
Mom does not have the right to divest herself of her earning ability at the expense of the minor children. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income -- otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the children, causing the entire burden of supporting the children to fall upon the employed parent.
Also, the court must consider the stated (by the legislature) goal that supported spouses ultimately become self-supporting.
This writer notes that dad did not voluntarily quit his job at the real estate law firm. He was laid off due to the economic downturn caused at least in part by the collapse of the subprime lending industry. He took a job with potential, but no guarantee.
This writer also notes that Mom felt "entitled" to support, but even though she was educated as, and had held a job with a presigious law firm as an attorney, she never read the portion of the Judgment which provided the GAVRON order warning her to seek to become self-supporting.
In Marriage of LaBASS and MUNSIE, cited in the MOSLEY case, the mom was a college professor who chose to work only part time so that she could devote more time to the minor children. In that case, as in MOSLEY, the appellate court held that income could be imputed to an unemployed or underemployed parent - the minor children are entitled to be supported by BOTH parents.
This case comprises an important precedent regarding change of economic circumstances in these trying times, as well as imputation of income to a voluntarily underemployed or unemployed former spouse.
Written by Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices, whose website may be found at www.conviser.net
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