County of Stanislaus v. Gibbs

• Decision Date: 12 November 1997
• Docket Number: No. F024647,F024647
• Citation: 59 Cal.App.4th 1417,69 Cal.Rptr.2d 819
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 9379, 97 Daily Journal D.A.R. 15,064 COUNTY OF STANISLAUS etc., Plaintiff and Appellant, v. Terry D. GIBBS, Defendant and Respondent.

Page 819

69 Cal.Rptr.2d 819

59 Cal.App.4th 1417, 97 Cal. Daily Op. Serv. 9379,

97 Daily Journal D.A.R. 15,064

COUNTY OF STANISLAUS etc., Plaintiff and Appellant, v. Terry D. GIBBS, Defendant and Respondent.

No. F024647.

Court of Appeal, Fifth District, California.

Nov. 12, 1997.

[59 Cal.App.4th 1419] Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White, Statewide Support Coordinator, and Mary J. Hamilton, Deputy Attorney General, for Plaintiff and Appellant.

Peter Koulouris, Elk Grove, for Defendant and Respondent.

OPINION

WISEMAN, Associate Justice.

INTRODUCTION

In California there is a "statewide uniform guideline for determining child support orders." (FAM.CODE, § 4055¹, subd. (a).) This guideline is an algebraic formula. (Ibid.) The intention of the Legislature in adopting the uniform guideline was "to ensure that this state remains in compliance with federal regulations for child support guidelines." (§ 4050.) The court may depart from the guideline only in "special circumstances" set forth in the child support statutes. (§ 4052.) "[W]hen ordering child support the trial court lacks discretion to vary from the presumptively correct amount, calculated by applying the algebraic formula in the statute, unless one or more of the statutorily enumerated rebuttal factors is found to exist." (In re Marriage of Carter (1994) 26 Cal.App.4th 1024, 1026, 33 Cal.Rptr.2d 1.) Application of the guideline has resulted generally in a "significant increase in the proportion of the payor's income now ordered for child support...." (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043, 31 Cal.Rptr.2d 749.)

There is a rebuttable presumption that the statewide uniform guideline formula amount is the correct amount of child support to be ordered. (§ 4057.) The presumption can be rebutted by showing that application of the formula "would be unjust or inappropriate in the particular case...." (Ibid.) For example, the statewide uniform guideline formula amount need not be applied when the parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. (§ 4057, subd. (b)(3); Estevez v. Superior Court (1994) 22 Cal.App.4th 423, 27 Cal.Rptr.2d 470 [guideline formula need not be applied when payor's income was not less than 1.4 million dollars for each of the previous three years]; see also County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1105-1106, 22 Cal.Rptr.2d 804 [court has discretion to reduce the amount of child support below presumptive amount in statute where the court finds that application of the statutory formula would be unjust].)

If the court determines that the statewide uniform guideline formula amount would be unjust or inappropriate in a particular case, the court must state "in writing or on the record" the reasons why the amount of support ordered differs from the guideline amount. (§ 4056, subd. (a)(2).) The court must also state in writing or on the record the amount of support that would have been ordered under the guideline formula. (§ 4056, subd. (a)(1) [but see Estevez, supra, 22 Cal.App.4th 423, 27 Cal.Rptr.2d 470, and In re Marriage of Fini, supra, 26 Cal.App.4th at p. 1044, 31 Cal.Rptr.2d 749].) The court's order is reviewed for an abuse of discretion. (County of Lake v. Antoni, supra, 18 Cal.App.4th at p. 1105, 22 Cal.Rptr.2d 804.)

PROCEDURAL AND FACTUAL HISTORY

On February 14, 1995, the County of Stanislaus (County), on behalf of "DESHAUN SMITH" (Deshaun), ² filed a complaint to establish child support and a parental relationship against Terry D. Gibbs (Gibbs). The complaint alleged Deshaun was born on October 11, 1979, and had been receiving public assistance from the County since August 1, 1994. The County also filed notice the custodial parent had assigned all rights to support to the County under Welfare and Institutions Code section 11477, subdivision (a).

On March 16, 1995, Gibbs filed an answer denying paternity.

On May 15, 1995, Deshaun's mother filed a declaration stating she and Gibbs had engaged in sexual intercourse which resulted in Deshaun's birth, a male born on October 11, 1979.

On May 17, 1995, Gibbs filed an income and expense declaration in which he indicated he is a parole agent with the California Department of Corrections, and that he had earned $50,000 in the preceding 12 months. He also noted he and his current wife have three children, ages three, five and seven. On that day, blood tests were ordered by the court to determine paternity.

On September 12, 1995, a hearing was held. Gibbs stipulated to paternity of Deshaun. The parties also stipulated the presumptive amount of child support under the guidelines with the correct information used in the "Dissomaster" computer program was $838. Although stipulating to the $838 support obligation, Gibbs argued the court should use its broad discretion to adjust downward from the guidelines due to his large debt and in consideration of the best interests of all his children. In support of this request, Gibbs introduced another version of Dissomaster results based on the incorporation of hardship deductions for Gibbs's three other children. Under this version, the presumptive amount was $485 in support. He urged a support order between $485 and $838.

The County attempted to call the parties as witnesses to establish their standards of living. The court refused to allow testimony on this subject. However, the County was allowed to make an offer of proof that Gibbs is living in a $340,000 home in the Bay area; ³ Deshaun's mother was receiving Aid to Families with Dependent Children (AFDC) for the minor in San Joaquin County even before his birth; and Gibbs's present wife earns $4,166 a month, for a combined household income of over $100,000 a year.

The court ordered Gibbs to pay child support in the amount of $675 monthly, plus $75 monthly toward 14 months of arrearages ($9,450). The court found the presumed guideline support was $838 monthly. The reduction in the support order from the minimum guideline was based on Gibbs's "large consumer debt which has established over time." The court ruled from the bench as follows:

"THE COURT: Based on the evidence that's been presented and the numbers that have been stipulated to, the Court finds that presumed child support in this case is $838 per month.

"This is a situation where there are several factors which lead this Court to deviate from presumed child support and finding that the amount of presumed child support would be unjust and inappropriate in this case.

"Those factors include the fact that Mr. Gibbs' expenses, consumer debt, et cetera, which has been established over time, guideline child support were ordered, even considering his wife's income--if I were to plug back in what she brings home--I am not certain as I sit here and rough out what I believe his monthly expenses are that they would be able to meet those expenses considering the fact that they have three other children and have had them over the course of time also.

"This is not a case where--I don't know whether it is or it isn't, I'm not going to get into that--but this isn't a case where we have a young child. This is case [sic ] where this is a new paternity action and this child is already 15 years old and there has not been a previous order for child support.

"So, considering the Antony type analysis, the Court would deviate based on the debt that Mr. Gibbs currently has. Because, as I see it, his expenses on a monthly basis are in excess of what appears to me to be about 67 to 70--6700 to $7,000 a month. And that's just playing with the numbers from the income and expense declaration and considering other expenses associated with having kids, school, clothes, food for the home, et cetera.

"However--the other thing--factor that I would consider in this case is the fact that mom has no income and is living on AFDC; however, at the same time, I have no evidence in front of me that would indicate that she is incapable of being employed, particularly in consideration, I've got a 15, almost 16-year-old child here. This kid's going to be 16 next year. There's certainly in front of me that would indicate she is unemployable. [Sic.]

"To that extent, I take that into consideration and I also have to take into consideration that I'm really dealing here with four children, not just with one child, as Mr. Gibbs has three other children of his current relationship.

"MS. WESSELIUS [for County]: Your Honor, I hate to interrupt.

"The mother just informed me that she has a six-year-old in the home as well.

"THE COURT: Six years old. I have a nine-month-old and I work full time every day. It's possible.

"I have heard nothing that indicates ...

"....

"... that there is a reason why she could not have been employed or is not employed currently.

"To that extent, I am going to order child support in the amount of $675 a month.

"I think that that amount appropriately takes into consideration the earnings of Mr. Gibbs and what he gives to his current children and at the same time hopefully gets mom off of AFDC.

"And, even if it doesn't, that's--it's, I think, a fair amount of child support given all of the circumstances and is in the best interest of all the children in this case."

Timely notice of appeal was filed by the County.

DISCUSSION

The court's reduction of the presumptively correct support amount of $838 to $675 based on high consumer debt was error.

County contends the court abused its discretion when it made a downward deviation from the presumptively correct guideline support amount on the various grounds articulated. We agree.

As noted in the introductory remarks, in fixing the amount of child support the court must adhere to the statewide uniform guidelines except where there are special circumstances. (§ 4052.) In implementing...