DaSilva v. DaSilva

[1]      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

[2]      G032410

[3]      119 Cal.App.4th 1030
[4]      June 25, 2004

[5]      JOSE DASILVA, APPELLANT,
v.
SHARON DASILVA, RESPONDENT.

[6]      Appeal from orders of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art VI., § 21.) Affirmed in part, reversed in part, and remanded with directions. (Super. Ct. No. 00D001518)

[7]      Vincent L. Goodwin for Appellant.

[8]      Obi I. Iloputaife for Respondent.

[9]      The opinion of the court was delivered by: O'leary, J.

[10]     CERTIFIED FOR PARTIAL PUBLICATION *fn1

[11]     OPINION

[12]     It has been four years since Jose and Sharon DaSilva began their divorce proceedings and about two years since we last reviewed their ongoing child support dispute. (In re Marriage of DaSilva (April 24, 2002, G028716) [nonpub. opn.].) In our previous opinion, we remanded the case to the trial court with directions to make a factual finding on the record supporting its "H%" calculation - which is a component of the equation used by trial courts when making child support orders. *fn2 It represents the ". . . approximate percentage of time that the high earner has or will have primary physical responsibility of the child[] compared to the other parent."

[13]     On remand, the trial court initially concluded Jose's timeshare was 42 percent but, a few months later, reconsidered the issue on its own motion and changed the figure to 29.1 percent. The "correction" was based in large part on the court's reading of this court's newly published opinion In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 826 (Rosen). On appeal, Jose argues the court misinterpreted Rosen as changing the rules on how to calculate timeshare percentages. We agree and again reverse the court's ruling based on this error, remanding the matter, hopefully, for the last time. In all other respects, the court's judgment is affirmed.

[14]     I.

[15]     "California's child support statutes are a legal world unto themselves." (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 316.) When making a child support order, trial courts are faced with a "rigid algebraic formula" found in Family Code section 4055. *fn3 "The actual text of section 4055 would probably not be called the Legislature's most lucid work by anyone. It is . . . a `glorified math problem.' One doesn't so much read it as plug numbers into the basic equation. ("CS = K [HN-(H%)(TN)]" -- There, we trust that's perfectly clear.) The statute virtually beckons the eyes to glaze over." (Id. at p. 317.)

[16]     The rules regarding how to calculate the "H%" factor of the uniform guideline formula were not changed by this court's opinion in Rosen, supra, 105 Cal.App.4th 808. The rules are well established by case law: The trial court is required to determine the "approximate" percentage of time Jose has or will have "primary physical responsibility" for his son Justin. This calculation "`is based on the parents' respective periods of primary physical "responsibility" for the children rather than physical "custody."'" (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1160 (Drake), citing Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2001) ¶ 6:168, p. 6-52.)

[17]     "The relevant phrase is `primary physical responsibility'" and as such timesharing "properly may be `imputed' to a parent (or between parents) when the child is not in either parent's physical custody. . . . [¶] Conversely, however, no timesharing adjustment should be made in the guideline formula where the child is not under either parent's physical supervision. [Citation.]" (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:168.1, pp. 6-66 to 6-67.)

[18]     Timesharing has been credited to parents having full responsibility for the physical situation and care of a disabled adult child (Drake, supra, 53 Cal.App.4th at p. 1160), and may also include the time spent during court ordered "grandparent's visitation (§ 3103, subd. (g)(1)), as long as that parent is responsible for the child during that time." (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 981 (Katzberg).)

[19]     In the case of In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 145, the court rejected the father's argument he should be given credit for the time his son spends in day care because he pays half of the tuition. The court reasoned his argument "ultimately founders on the practical reality of day-to-day responsibility for a child. It is the custodial spouse who, after all, has the burden of finding, arranging and fronting the money for appropriate day care, who must deliver and pick up the child, and whose work day will be interrupted if there are any medical or other emergencies." (Ibid.)

[20]     Katzberg, supra, 88 Cal.App.4th 974, is also instructive. There, the parents disputed how to apportion the time their child spent in boarding school. The trial court had imputed all the time to the father, who was the primary custodial parent and whose home was the child's primary residence. The Katzberg court found this was not an abuse of discretion because the record showed the child's ". . . transportation costs to and from school, as well as his incidental expenses, were borne exclusively by father; that the education trust that was being used to pay the cost of [the child's] school-related expenses represented the `majority share of [the father's] personal inheritance' and would be `completely depleted by the time of [the child's] graduation from high school'; and that mother refused to sign the school contract assuming responsibility. It can be inferred that should an emergency arise, financial or otherwise, the father would be primarily responsible for taking whatever action was necessary to remedy the situation." (Id. at p. 983.)

[21]     In summary, if a parent desires credit for time the child is not physically with them, then the parent has the burden of producing admissible evidence demonstrating he or she is primarily responsible for that child during those challenged times. *fn4 Relevant factors include: (1) who pays for transportation or who transports the child; (2) who is designated to respond to medical or other emergencies; (3) who was responsible for paying tuition (if any) or incidental school expenses; and (4) who participates in school activities, fundraisers, or other school-related functions.

[22]     It is often the case that the above categories, on any given day, are shared by both parents to some degree. We recognize many families have complex arrangements (and various backup plans) for dealing with transportation issues, school hours, and related extracurricular activities that can change on a daily basis. In recognition of this reality, courts are asked to "approximate" hours of responsibility and have the discretion to apportion time for school hours depending on the particular parent's overall level of involvement in the school day routine.

[23]     In our case, the record showed the parents shared the responsibility of delivering and picking up their son from school, but there was little evidence regarding who was responsible for Justin during school hours. At issue was the allocation of approximately 1260 hours, which computes to approximately 52 days. (This calculation is based on several assumptions. We recognize each school district is different, but estimate there are approximately 180 school days in a year. Due to Justin's age, we will assume a seven-hour school day. Of course, these figures can be adjusted according to proof at trial.)

[24]     However, allocating hours of "responsibility" was not an issue before the court in Rosen, supra, 105 Cal.App.4th at page 824. In that case, a different panel from this court, determined the court's award of spousal support and child support had to be recalculated because it was based on erroneous findings of the father's cash flow and ability to pay. (Id. at p. 815.) In so ruling, this court also rejected the father's additional argument that "the trial court calculated child support based upon an incorrect calculation of [the mother's] custody time with the children." (Id. at p. 823.)

[25]     In Rosen, the father was awarded primary physical custody of the children. The mother's visitation/custody hours were delineated in a schedule contained in the judgment. There was no dispute over whether the father had primary physical responsibility during any of the mother's designated hours of custody. Nor did the mother claim she was primarily responsible for the children at any time other than her scheduled custody hours. The parties only disputed whether the court miscalculated the mother's total hours with the children.

[26]     In the Rosen case, this court independently calculated the hours and concluded, "[t]he trial court . . . did not err in calculating child support based upon a finding that [the mother] has custody 30 percent of the time." (Rosen, supra, 105 Cal.App.4th at p. 826.) *fn5 This court did not engage in a comprehensive discussion of the child support formula. Nowhere in the Rosen opinion did this court hold trial courts are to disregard the large body of case law and rules regarding calculation of the "H%" factor. Rosen was a rare case in which the term "hours of custody" and "hours of primary responsibility" were interchangeable. It should not be implied from the Rosen opinion that this court disagrees with or disapproves of the cases interpreting the "H%" factor to require calculations based on "`the parents' respective periods of primary physical "responsibility" for the children rather than physical "custody."'" (Drake, supra, 53 Cal.App.4th at p. 1160.)

[27]     Unfortunately, the trial court believed it was following the law (Rosen) when it mistakenly calculated the "H%" factor solely on Jose's awarded hours of physical custody. *fn6 It appears from the record that Jose should have been credited for at least some of the time his son spent at school. Accordingly, the court's orders to the contrary must be reversed and the matter remanded for the timeshare percentage to be recalculated.

[28]     II.

[29]     The parties appear to be somewhat confused about the scope of the trial court's various orders and which orders are appealable. We start with the court's most recent order made on July 10, 2003: The court stated, "the court has determined that the correct H% calculation, which should have been utilized is 29.1%, and upon that basis, [Jose] owes to [Sharon] the sum of $421 for each month the months between February 15, 2000 and April 1, 2003." As explained above, the court's calculation was based only on the number of hours Jose had been awarded physical custody of his son. This is clearly an appealable order.

[30]     Two months earlier, on April 25, 2003, the court filed two orders. One order addressed Sharon's recent request to modify the visitation schedule (April visitation order). Justin (then 13 years old) no longer wanted to be shuttled between his parents' homes on a daily basis. Justin's attorney argued a change allowing Justin to stay primarily in one home during the school week would be in his best interest. In the new order, Jose was awarded weekends (when Friday is an odd-numbered date), and Wednesday evenings from after school until 7:00 p.m. Based on its reading of Rosen, supra, the court calculated the actual hours of physical custody and determined Jose had a 25 percent timeshare under the new visitation schedule. Based on this figure, Jose was ordered to pay $639 per month for child support. This final determination of the parties' rights was an appealable order.

[31]     The second order (April timeshare order) was an obvious prelude to the July 10th order. The court simply ruled its previous judgment (entered October 21, 2002) as to Jose's timeshare percentage must be set aside. It explained Jose's timeshare was likely "only about 29%" and "it would seem that the matter should be set for further hearing to reconsider the other orders made." The court stated, "On its own motion, all issues shall be reset on a date convenient to counsel's calendar." Because there were clearly issues left for future consideration, this was not a final appealable order. Further judicial action was essential to a final determination of the parties' rights concerning child support. (See In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689 [order in dissolution proceedings leaving spousal support and property issues to be tried is not final].)

[32]     Jose filed a notice of appeal "from the Findings and Order After Hearing following a hearing on March 18, 2003. The order was signed and filed on April 25, 2003, by Commissioner Richard G. Vogl." Although Jose refers to only one order, his opening brief challenges both the April visitation order and the April timeshare order.

[33]     As noted above, the April timeshare order was non-appealable. However, we will construe Jose's notice of appeal liberally in favor of its sufficiency (Cal. Rules of Court, rule 1(a)), and interpret it to apply to the subsequently entered appealable July 10, 1993 timeshare order, rather than the non-appealable interim April order. (See Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) *fn7

[34]     III.

[35]     The court's July 10th timeshare order must be reversed. As explained above, it is based on the court's mistaken belief Jose's timeshare must be based on the hours of physical custody rather than "`the parents' respective periods of primary physical "responsibility" for the children . . . ."'" (Drake, supra, 52 Cal.App.4th at p. 1160.) On remand, the trial court must exercise its discretion and decide how many hours of Justin's school day should be apportioned to each parent.

[36]     We need not disturb the court's interim April timeshare order setting aside its previous timeshare ruling. Publication of the Rosen opinion was not the only reason the court set aside its prior order. The court also believed there to be mathematical errors in the prior judgment. In the briefing submitted to the trial court on this issue, both parties agreed the court made a few mistakes in the arithmetic but disputed whether these errors were prejudicial. Because the issue of child support is being remanded for the trial court to apportion Justin's school hours, we also pass along the task of correcting the arithmetic.

[37]     IV.

[38]     As for the April visitation order changing Jose's hours of visitation, it must be reversed in part. Jose correctly points out that in this order the court recalculated child support using a timeshare percentage based on his new hours of physical custody rather than "`the parents' respective periods of primary physical "responsibility" for the children . . . ."'" (Drake, supra, 53 Cal.App.4th at p. 1160.) In this respect, the order must be reversed.

[39]     However, we are not persuaded by Jose's argument the entire order should be vacated. He asserts the court abused its discretion by changing the visitation schedule because it was not based on substantial evidence. As a general rule, the party seeking to modify custody must show a material change of circumstance sufficient to justify the change. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730.) However, as correctly pointed out by the trial court in its statement of decision, this rule is inapt because Jose and Sharon share joint custody of their son and Sharon was merely seeking to modify the "co-parenting residential arrangement." (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513 (Birnbaum).) Because there has been no change of custody, there is no need for a showing of changed circumstances.

[40]     "Equal division of a child's time between the parents is not the hallmark of joint custody. After all, . . . `Custody should be awarded . . . according to the best interests of the child . . . .' Thus, the primary focus must be what is best for the child, not what is best for the parents. Although time is important to the parents, the determining factor as to whether joint physical custody is in the best interest of the child is the nature of the parenting relationship between the parents." (Birnbaum, supra, 211 Cal.App.3d at pp. 1515-1516.)

[41]     "Parents must understand that successful joint physical custody depends upon the quality of the parenting relationship, not the allocation of time. Parents must also understand that it is much harder to be a joint physical custody parent than a sole custody parent. Fully participating with the other parent to share the burden of cooperative or shared parenting for the benefit of the child is much more demanding than having sole physical custody or being a non-custodial parent." (Birnbaum, supra, 211 Cal.App.3d at p. 1517.)

[42]     "As this case amply demonstrates, a point can be reached where parents, unwilling or unable to communicate for the best interest of their child, call upon a judge to become super-parent and make parenting decisions the parents themselves cannot agree upon. As a practical matter, if parents with joint physical custody are unable to modify residential arrangements for their children and call upon the court to do so, they have no basis to complain about the decision that is made. In such circumstances the court possesses the broadest possible discretion in adjusting coparenting residential arrangements involved in joint physical custody. The appellate court certainly cannot second-guess a conscientious and competent trial court, which has had the opportunity to observe the parents and the children personally. Thus a change of the joint custody residential arrangement cannot be reversed on appeal unless the trial judge has abused the very broad discretion he possesses in such cases, that is, has exceeded the bounds of reason." (Birnbaum, supra, 211 Cal.App.3d at pp. 1517-1518.) It cannot be said such is the case here.

[43]     In its statement of decision, the court stated several reasons why it believed modification of Justin's residential arrangements was warranted. For example, the court determined: (1) Justin needed "structure and watching" and Sharon was "more likely to provide this than the father"; (2) Justin's outlook (and grades) improved when "the constant change from one home to another ceased"; (3) Sharon should not be faulted for taking the initiative to have Justin tested for learning disabilities; (4) Justin "is of an age where his thoughts may be considered," and (5) Justin's counsel had opined some changes are in the child's best interests.

[44]     On appeal, Jose attacks a few but not all of the court's factual conclusions. To summarize, Jose argues he is not to blame for his son's poor grades, depression, or unhappiness. He contends there is no evidence Sharon is better suited to care for Justin, and Jose believes she should not be rewarded for using "every opportunity to interfere in and frustrate his efforts to establish a stable, structured relationship with his son." He adds Justin lacks the intelligence, maturity, and emotional stability to form an "intelligent preference" as to custody issues. He suggests Justin "has played the parties against each other," and the evidence established he is "using the divorce to his advantage." Finally, Jose points to evidence showing he is a loving, responsible, and good parent. He concludes that due to the lack of evidence suggesting otherwise the court had no right to change his visitation hours.

[45]     However, it cannot be said the court exceeded the bounds of reason simply because it disagreed with Jose's assessment of the situation. The determination of whether a teenager's opinion is relevant, whether grades can be improved and unhappiness resolved, and which parent is more suited to giving Justin the structured lifestyle he craves, cannot be resolved by simply looking at a cold record. The court's assessment of a such nebulous subjects as maturity level, credibility, and parenting abilities is necessarily based on the court's personal observations of the parties, and its perception of what is best for the child. We have no reason to "second-guess a conscientious and competent trial court." (Birnbaum, supra, 211 Cal.App.3d at p. 1518.)

[46]     V.

[47]     Jose contends he is entitled to recover his attorney's fees and costs on appeal based on his financial need, or alternatively, in the nature of sanction due to Sharon's "uncooperative conduct below and in this appeal." In her respondent's brief, Sharon questions how much longer Jose will be "allowed to drag this case along[,]" and requests that we order Jose to pay all of her costs and attorney fees. In addition, Sharon requested sanctions in conjunction with her motion to dismiss the appeal.

[48]     As for the issue of fees as sanctions, we will not address the matter. Jose failed to follow the rules for bringing such a motion set forth in California Rules of Court, rule 26(e). (See generally Cal. Civil Appellate Practice (Cont.Ed.Bar 3d ed. 2001) §§ 20.17, p. 998, 20.27-20.28, pp. 1006-1007.) Sharon's separately filed sanction request was based on her contention the appeal was taken from an interlocutory non-appealable order warranting dismissal. As discussed earlier in this opinion, the dismissal motion lacks merit, and as such, cannot support a sanction request.

[49]     Similarly, we will not address Jose's request for appellate attorney fees pursuant to sections 2030 and 2032 (need based fees). "`Such a request must properly be addressed to the trial court in the first instance, and we express no opinion on that subject.' [Citations.]" (In re Marriage of Petropoulous (2001) 91 Cal.App.4th 161, 180.) Disposition

[50]     The court's orders concerning Jose's (past and current) timeshare percentages are reversed. The trial court is directed to reconsider "`the parents' respective periods of primary physical "responsibility" for . . .'" Justin during school hours (Drake, supra, 53 Cal.App.4th at p. 1160), as well as any other mathematical errors contained in its previous orders. The court's March 2003 ruling, changing the joint custody residential arrangement, is affirmed. Jose's request for attorney fees is denied. Sharon's motion to dismiss and request for sanctions/attorney fees are denied. Respondent shall recover her costs on appeal.

[51]     CERTIFIED FOR PARTIAL PUBLICATION

[52]     WE CONCUR:

[53]     BEDSWORTH, ACTING P. J.

[54]     MOORE, J.

 
  Opinion Footnotes
 
[55]     *fn1 Under California Rules of Court, rules 976(b) and 976.1, only the Introduction, part I of the Discussion, and the Disposition are certified for publication.

[56]     *fn2 The full equation can be found in Family Code section 4055. It is CS = K [HN- (H%)(TN)].

[57]     *fn3 All further statutory references are to the Family Code, unless otherwise indicated.

[58]     *fn4 As noted in one treatise, "As a practical matter, if the non-custodial parent does not raise the issue and come forth with competent evidence on the point, most trial courts will credit the time the child spends in day care or school to the custodial parent." (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:169.1, p. 6- 69; Katzberg, supra, 88 Cal.App.4th at p. 983 (citing text).)

[59]     *fn5 The analysis of this dispute is contained in a few short paragraphs. This court stated, "We have independently calculated the number of hours of custody in both odd and even years based upon the `Judgment on Bifurcated Issue of Custody and Visitation.' In making this calculation, we have assumed a seven- hour school day and a December vacation two weeks in length, with each parent having custody for one of those weeks. [¶] With those assumptions, we have calculated [mother] has custody for . . . 30.97 percent in odd years and 30.93 percent in even years. There might be some overlap between [mother's] weekend custody and holidays that could reduce that percentage to 30 percent, the amount used by the court. The trial court . . . did not err in calculating child support based upon a finding that [mother] has custody 30 percent of the time." (Rosen, supra, 105 Cal.App.4th at p. 826.)

[60]     *fn6 We note, the record shows the trial court was reluctant to make this ruling but felt it must follow the case law. It believed the ruling was unjust: After all, there was evidence Jose was partially responsible for Justin during school hours. The court had previously determined: (1) Jose was listed (in addition to Sharon) on the school emergency card; (2) Jose often took Justin to school; (3) Jose chaperoned at school events and acted as a field trip supervisor; (4) Jose cared for Justin when he was ill; and (5) both parents worked 20 hours per semester ". . . as active parents at the child's school[.]"

[61]     *fn7 For this reason, we deny Sharon's motion to dismiss the appeal and likewise deny her request for sanctions based on the claim this appeal should be dismissed.