Basing support award on reduced work regimen is not deviation from guideline . . .
In affirmance, Sixth District holds that trial court did not err by basing its support orders on mom’s 80% work schedule where that percentage constituted objectively reasonable work regimen and was in kids’ best interests
In re Marriage of Lim and Carrasco
(February 26, 2013; ordered published March 18, 2013)
California Court of Appeal 6 Civil H037845, 214 Cal.App.4th 768, 154 Cal.Rptr.3d 179, 2013 FA 1582, per Bamattre-Manoukian, J (Elia, Acting PJ and Marquez, J, concurring). Santa Clara County: Johnson, J, affirmed. For appellant: Stuart Fishman, (408) 293-9998. For respondent: Courtney Towle, (903) 792-7080. CFLP §§E.38.8, F.97.20.
Lily Lim and Michael Carrasco were married in 2003 and later, had two children. During marriage, Michael was a college professor and Lily was a partner in a law firm. The couple first separated in 2011, with Michael filing for divorce on August 22. He dismissed his petition three days later, however, and the two of them tried to reconcile. The attempt failed, and on September 22, 2011, Lily filed for divorce.
On September 27, Michael filed an ex parte request seeking custody of the kids, child support, visitation, and temporary spousal support. In a supporting declaration, he stated that his flexible work schedule allowed him more time to care for the children, while Lily’s heavy burden of billable hours required her to work much more. He reported monthly earnings of $9,156. In opposition, Lily filed a responsive declaration, agreeing to pay guideline child support based on her recently adopted 80% work schedule. Lily stated that she had been on a medical leave of absence, but intended to return to work on October 31. She also asked the trial court to deny spousal support to Michael because of his “ ‘perpetrating acts of domestic violence’ ” against her, along with his “ ‘violent behavior toward’ ” the kids.
At a hearing on November 14, Lily and Michael reached an agreement on all the issues except whether Lily’s support payments should be based on her full-time salary of $27,595 a month or her 80% work schedule salary of $22,076 a month. Lily made an offer of proof that she had been on medical leave because of an incident of domestic violence in late September, but she now expected to return to work on November 28. She submitted a letter showing that she and her employer had agreed to this return date and to her working a reduced schedule of 80% of her former hours. Lily also maintained that the reduced schedule would be in the children’s best interests because it would allow her to spend more time with them. Lily explained that she would have to work 80 hours a week to bill the 2,000 hours per year required by her law firm. Michael’s offer of proof was that he worked full time and that he thought that letting Lily work less than her full-time earning capacity was not statutorily permissible and would “ ‘start a very dangerous precedent.’ ” When the hearing concluded, the trial court explained that it had discretion to base its support orders on either actual income or some amount of imputed income. The court noted that big law firms require big hours, considerably more than a 40-hour week. Even at her reduced work schedule, the court continued, Lily would still be “ ‘working a substantial amount of the time.’ ” The 80% schedule, the trial court concluded, would be in the children’s best interests. Accordingly, the court determined that child support should be based on Lily’s actual income under the 80% schedule. In its findings and order after hearing, the trial court found that child and spousal support should be calculated on the 80% schedule with income of $22,076 per month, and ordered Lily to pay, per DissoMaster, $1,568 a month for child support and $2,705 a month for spousal support.
Michael appealed, but the Sixth District affirmed.
Tote that barge, lift that bale . . .
Michael’s main contention, the justices noted, was that the trial court should not have based its temporary support orders on Lily’s income from her 80% work schedule, but on her earning capacity as a full-time attorney. Therefore, the panel first reviewed “the general rules regarding earning capacity.” The justices found that in In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 111 Cal.Rptr.2d 755, 2001 CFLR 8849, 2001 FA 1017, the court defined earning capacity as “ ‘the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.’ ” They also noted that the court in Cheriton, as well as the courts in other cases in which earning capacity was an issue, have held that a trial court may not impute earning capacity to a parent unless it is in the child’s best interests to do so. Moreover, per In re Marriage of Simpson (1992) 4 Cal.4th 225, 14 Cal.Rptr.2d 411, 1993 CFLR 5608, 1992 FA 575, earning capacity should be based on an “ ‘objectively reasonable work regimen,’ ” not on a regimen involving “ ‘excessive hours or an onerous work schedule.’ ” The panel acknowledged that what is a reasonable work regimen in one occupation is not necessarily the same in another occupation. As the Supremes said in Simpson, “ ‘[a] regimen requiring excessive hours or continuous, substantial overtime, however, generally should be considered extraordinary.’ ”
More time with mom . . .
Applying that rationale to the facts at hand, the panel reasoned that by declining to base Lily’s earning capacity on her full-time schedule, the trial court impliedly found that that schedule was excessive. It had also found that her 80% schedule would still mean that she was working at least 40 hours a week, and that this schedule would be in the children’s best interests. The justices found sufficient evidence that working fewer hours would give Lily more time to spend time with and care for her children. Moreover, they noted, her reduced work schedule did not mean that she “had divested herself of her earning capacity at the expense of [Michael] or their children.” Given all that, the justices concluded that the trial court had not erred by basing Lily’s support orders on her reduced work schedule.
It says right here . . .
Michael also contended that the trial court should have stated on the record its reasons for deviating from the guideline award and for determining that deviating was in the children’s best interests. Lily countered that the trial court did not deviate from guideline because it based its support orders on her actual income. The justices agreed with Lily. They pointed out that the written agreement admitted into evidence showed that her actual income from her 80% work schedule would be $22,076 as of November 28, 2011, and the court had based its orders on that figure. Therefore, it had complied with Fam C §4053(c), which requires the trial court to calculate guideline support by taking into account the actual income of each parent. Summing up, the panel held that the trial court did not abuse its discretion by basing its support orders on Lily’s income from her reduced work schedule and affirmed those orders.
This opinion was originally unpublished and was ordered published at the request of the Association of Certified Family Law Specialists (ACFLS). It has special significance for attorneys, who will be pleased to have a published opinion acknowledging what they have long known: full-time law firm partners work excessive hours and have onerous, excessive work regimens. The facts of this case are somewhat unusual in that the wife is the high earner and the husband is urging the court to make her work longer hours. Still, the panel sticks to precedent in refusing to require Lily to maintain a work regimen that is not in her children’s best interests. In any case in which a reduced work schedule is an issue affecting support, it is important to do what the attorney did here; get it in writing. It is clear that the written agreement between Lily and her law firm regarding her new work hours and salary were important in supporting her claims that reduced hours would be beneficial and in giving the trial court a solid figure on which to base support.
It’s also worth noting that the justices do not consider the support orders to involve a deviation from guideline. With written proof of Lily’s actual income when she returns to work, the panel can emphasize that the support orders were based on actual income, not some version of imputed income. The justices decline to require the trial court to start from Lily’s former full-time income, then drop that figure to her 80% income, call it a deviation from guideline, and give reasons on the record for having done so. Given that she will still earn $22,076 a month, it’s no stretch for the court to find that Lily will not be depriving her kids of a comfortable standard of living by reducing her hours; she just won’t be paying Michael quite as much spousal support.