Cnty. of San Diego v. P.B.

• Decision Date: 08 October 2020
• Docket Number: D075690
• Citation: 269 Cal.Rptr.3d 914,55 Cal.App.5th 1058
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF SAN DIEGO, Plaintiff and Respondent, v. P.B., Defendant and Respondent; L.C., Defendant and Appellant.

55 Cal.App.5th 1058

269 Cal.Rptr.3d 914

COUNTY OF SAN DIEGO, Plaintiff and Respondent,

v. P.B., Defendant and Respondent;L.C., Defendant and Appellant.

D075690

Court of Appeal, Fourth District, Division 1, California.

Filed October 8, 2020

Law Offices of David C. Beavans and John T. Sylvester, San Diego, for Defendant and Appellant.

No appearance for Defendant and Respondent.

GUERRERO, J.

L.C. (Mother) appeals from a final order of child support covering periods from 2014 to 2019, when Child turned 18. One of the components of the statewide guideline formula for calculating child support is the "approximate percentage of time that the high earner has or will have primary physical responsibility" for the child ( Fam. Code, § 4055, subd. (b)(1)(D) ), commonly referred to as "timeshare."¹ Mother contends the trial court's child support order must be reversed because the court calculated child support utilizing a 29 percent timeshare for P.B. (Father) during a period of time when Father had no visitation with the child, purportedly due to Mother's interference with Father's visitation rights. Mother also challenges the court's failure to include certain payments Father received from his parents as income available for child support. We agree with Mother's first contention—that it was improper to attribute nonexistent timeshare in response to Mother's alleged interference with visitation—and conclude the order must be reversed so that support can be recalculated based on Father's actual timeshare during the disputed time period, consistent with the statutory guideline under sections 4050-4076. In all other respects, the order is affirmed.

FACTS

Mother and Father were married in 1998, and Child was born in September 2001. In 2006, Mother filed for dissolution of marriage. The parties have been embroiled in litigation ever since. Child resides with Mother, but both parents share joint legal custody of Child. At some point the County of San Diego began child support enforcement in the matter, and since then, all child support matters were held in the Family Support Division of the superior court, while child custody matters remained in family court before different judicial officers.

In 2011, an incident at a restaurant resulted in Father's visitation being reduced from an equal timeshare of 50 percent to supervised visitation only. During the time period from October 2014 through July 2015, Father's parenting time resulted in an average timeshare of 29 percent.

In September 2014, Mother filed a motion seeking modification of child support payable by Father and a determination of arrears.² While the parties continued to litigate custody disputes, Mother's motion was repeatedly continued.

In October 2015, a counselor with Family Court Services (FCS) prepared a report in connection with the parent's custody dispute. The counselor's report reflected that Mother "claimed the child fears the father and does not want to have anything to do with him." Mother recalled the 2011 incident that she claimed caused the child to be fearful of Father. Father told the counselor Mother had made multiple false accusations against him. The counselor noted the Child "recalled events from his early childhood about his father's poor parenting, abuse of him, etc. When asked if he actually remembers these events, he stated he did not, but his mother had told him about them." The counselor described Child as "emotionally stunted" and opined that "the child is not able to psychologically see himself as a separate person from his mother." The counselor noted that Child "does not want to see his father" and Child "views the incident at [the restaurant] as total validation of the mother's conceptualization of the father. This incident may have been the father's biggest mistake. However, even if the ... incident had not happened, the child would have had to find some other reason to reinforce his (mother's) view of the father." The counselor opined reunification therapy would be unsuccessful if Child had no desire to reunify. The counselor recommended joint legal custody with Mother retaining full physical custody and Father having no parenting time at this time.

In September 2016, the parties entered a stipulation regarding "custody and timeshare." The stipulation indicated that Father had "no timeshare of [Child] for approximately the past year." The parties stipulated that Child and Father would commence reunification therapy immediately, with sessions to occur twice per week. After 60 days of reunification therapy, Father's parenting time (and associated timeshare) would increase to 50 percent, unless opposed by minor's counsel or the reunification therapist based on Child's best interests. The parties agreed the stipulation was a final order pursuant to Montenegro v. Diaz , requiring a "significant change of circumstances" to modify the order. (See Montenegro v. Diaz (2001) 26 Cal.4th 249, 256, 109 Cal.Rptr.2d 575, 27 P.3d 289.) The parties stipulated that "[a]ll custody claims and allegations of either side in the family law case are hereby considered resolved as of signing this stipulation."

Despite the stipulation, reunification therapy did not go as planned. At a hearing on child support in January 2017, the parties explained to the court that, when Child was scheduled to meet for his first therapy session with Father, Child refused to attend and threatened suicide. Instead of attending the session, Child was taken to the hospital for evaluation. Father's attorney indicated Father had filed in the family law action a motion "to switch custody and to eliminate the mom completely," averring that Child had been " ‘brainwashed’ " by Mother, a "restrictive gatekeeper" who would "go to no end to keep this child away from the dad." The court declined to make any findings regarding Mother's role in Child's estrangement from Father, noting a full hearing on the issue would be required. Father's attorney argued that child support should be calculated based on a 50 percent timeshare because that had been the parties’ agreement, and it was solely Mother's fault that this timeshare was never achieved. Father's attorney further argued that Father "has had contact with [Child]"; he had been participating in "therapeutic visitation" with Child over the past 12 months, and as such was entitled to timeshare reflecting that visitation. Nonetheless, the court indicated it would use a zero percent timeshare for Father in an interim support order. The court remarked, "If there is a finding that there was interference by mother, that would allow me to use other timeshares," but in the absence of any such finding, the court must calculate support based on the statutory guideline.

Applying the zero percent timeshare, the court set an interim monthly support amount of $819, "reserving back to October 1, 2014."

In March 2017, Father submitted a declaration averring that Mother interfered with Father's visitation time and failed to support Father and Child's reunification therapy.

The parties appeared before the court for a hearing on child support issues again in May 2017. Effective January 1, 2017, the court determined the parties had roughly equal incomes, applied a 50-50 timeshare, and set the interim monthly support amount at zero. The court stated that this interim support order was based on allegations raised in the custody dispute before the family court, which the court stated presented "as a case of alienation and interference of custody and visitation." The court noted its order was not final and was made without prejudice, "because if [the family court judge] reaches a different conclusion based upon the evidence that I have just considered, I will certainly readdress these issues then." The court stated that it was "using the timeshare that the parties should have been out [sic ]" and stated its findings were made under section 4057, as application of the guideline support formula without modification " ‘would be unjust or inappropriate due to special circumstances in this case.’ "³ The court described the following special circumstances: "[T]here was an agreement for visitation; there was an agreement and a stipulation for reunification.... [T]o have one party ignore it or specifically interfere with it and then seek child support based on a change in timeshare would be [inequitable]." The court referenced In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 160 Cal.Rptr. 379 ( Popenhager ), noting, " ‘he who seeks equity may not take advantage of his wrong,’ " and concluded, "under [section] 4057, this would fall under a very limited application of a special circumstance due to Mother's failure to comply with court-ordered reunification efforts."⁴

Mother objected, citing section 3556, and arguing "support shouldn't be set at zero because of the visitation and custody being what it is, regardless of any perceived refusal by the custodial parent implementing rights to visitation."⁵

The parties next appeared for a child support hearing in September 2017. They informed the court the custody litigation remained ongoing in family court. Mother informed the court that Father and Child were continuing conjoint therapy but that Child refused to go on visitation with Father. The court made updated, interim support orders. For the time period October 2014 through July 2015, the court used a timeshare of 29 percent—which represented an average for this time—and set child support at $286 per month.⁶ For the time period of August 2015 through December 2016, the court utilized a two percent timeshare and set child support at $817 per month. The court noted that it "made [timeshare] two percent because there were some therapy sessions, and I think [F]ather should be given credit for that." For the time period January 2017 forward, the court applied a two percent timeshare and set child support at $892 per month. The court also set a monthly arrears payment of $200...