In re Marriage of Stanton

• Decision Date: 23 February 2011
• Docket Number: No. D056713.,D056713.
• Citation: 118 Cal.Rptr.3d 249,190 Cal.App.4th 547,10 Cal. Daily Op. Serv. 14, 745
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Soloman Robert and Carol Adrianne STANTON. Soloman Robert Stanton, Appellant, v. Carol Adrianne Stanton, Respondent; San Diego County Department of Child Support Services, Intervener and Respondent.

190 Cal.App.4th 547

118 Cal.Rptr.3d 249

10 Cal. Daily Op. Serv. 14,745

2010 Daily Journal D.A.R. 17,809

In re the MARRIAGE OF Soloman Robert and Carol Adrianne STANTON.

Soloman Robert Stanton, Appellant,

v.Carol Adrianne Stanton, Respondent;

San Diego County Department of Child Support Services, Intervener and Respondent.

No. D056713.

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

Nov. 24, 2010.

Review Denied Feb. 23, 2011.

**252 Soloman Robert Stanton, in pro. per., for Appellant.

Law Offices of Andy Cook and Andy Cook for Respondent.

Edmund G. Brown Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Paul Reynaga and Mary Dahlberg, Deputy Attorneys General, for Intervener and Respondent.

McCONNELL, P.J.

*551 An issue of first impression in California is raised in this dissolution action: Does the federal preemption doctrine prohibit the inclusion of military allowances for housing and food in a party's gross income for purposes of calculating child and spousal support, since under federal law such allowances are not taxable or subject to wage garnishment? We conclude the doctrine is inapplicable, as under United States Supreme Court authority family law support matters are within the province of state law unless " 'Congress has "positively required by direct enactment" that state law be pre-empted.' " ( Rose v. Rose (1987) 481 U.S. 619, 625, 107 S.Ct. 2029, 95 L.Ed.2d 599 ( Rose ).) "Before a state law governing domestic relations will be overridden, it 'must do "major damage" to "clear and substantial" federal interests.' " ( Ibid.) We join courts across the nation in holding such allowances are included in a party's gross income for purposes of support when state law encompasses them. We affirm orders denying Soloman Robert Stanton's requests for modification of awards of temporary child and spousal support to Carol Adrianne Stanton,¹ which are based in part on his military allowances.

BACKGROUND ²

The parties married in August 1993, and they have a teenage son. The parties separated in 2005 and in March 2007 Soloman filed for dissolution of the marriage. The dissolution was granted, effective March 2008.

*552 The parties had signed a stipulated marital settlement agreement (MSA), which purported to settle all financial issues, including support. After a hearing on September 1, 2009, however, the court granted Soloman's order to show cause (OSC) to set aside the MSA for equitable reasons, with the exception of the termination of the parties' marital status. The court's order states: "To make sure that some support orders are in effect no later than September 2, 2009, the Court schedules a review hearing for September 8, 2009."

After a hearing on September 2, 2009, the court awarded Carol $1,415 per month **253 in temporary child support. After a hearing on September 8, the court awarded Carol $1,600 in temporary spousal support.³ Soloman did not appeal those orders.

Soloman is a member of the United States Navy. In calculating temporary support, the court included in his gross income nontaxable military allowances, a basic allowance for housing (BAH) and a basic allowance for subsistence (BAS).⁴ Soloman's May 2009 pay stub shows he had monthly base pay of $3,995.40, BAH of $2,159, BAS of $323.87, and special duty pay of $300. Carol's income and expense declaration stated Soloman had stopped paying child and spousal support and she had just begun working. She also has a young daughter.

On October 29, 2009, Soloman filed an OSC for a reduction in child support, and on November 4, he filed a petition for a modification of spousal support. His August 2009 pay stub showed his monthly base pay had increased to $4,474.80, and his BAH had increased to $2,199. His BAS and special duty pay remained $323.78 and $300, respectively. Carol's updated income and expense declaration stated gross monthly income of $2,097 as a graduate research assistant.

In his memoranda of points and authorities, the only argument Soloman raised was that the court erred by including his BAH and BAS in his gross income. He argued the court violated the federal preemption doctrine since *553 federal law exempts military allowances from the definition of income for federal tax purposes, and they are not subject to wage garnishment for support arrears. The memoranda also claimed his updated income and expense declaration showed changed circumstances, but he developed no argument on the matter.

After a hearing on December 3, 2009, the court denied Soloman's OSC regarding child support. The court explained, "[I]f it looks like income, it is income no matter how it's paid to you. And this court has always considered BAH and BAS to be income." After a hearing on December 23, the court denied Soloman's motion for modification of temporary spousal support. The court again set temporary spousal support at $1,600 per month.

DISCUSSION

IFederal Preemption Is Proper Issue on Appeal

Preliminarily, we address the Department's comment at oral argument that we need not reach the federal preemption issue because it is a legal issue, and we may affirm the December 2009 orders on the sole ground Soloman presented no changed factual circumstance justifying a modification of support. Since the September 2009 support orders are based in part on his BAH and BAS, the federal preemption issue arose then, and he did **254 not challenge the orders on appeal and they are final.

Under state law, a "variety of interim, 'temporary' orders (also referred to as 'pendente lite' relief) may issue in domestic relations proceedings pending trial and ultimate judgment." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ch. 5, Scope Note, p. 5-1.) Pending final resolution of the case, the court may order one spouse to support the other and either or both parents to pay "any amount necessary" to support the children. (§ 3600.) "As a general rule, courts will not revise a child support order unless there has been a ' material change of circumstances.' This rule applies to any form of child support order—i.e., whether pendente lite or 'permanent.' " (Hogoboom & King, supra, ¶ 17:25, p. 17-10.) The majority view is that the same general rule applies to temporary spousal support. ( Id., ¶ 17:139, pp. 17-35 to 17-36.)

Without a changed circumstances rule, " 'dissolution cases would have no finality and unhappy former spouses could bring repeated actions for *554 modification with no burden of showing a justification to change the order. Litigants "are entitled to attempt, with some degree of certainty, to reorder their finances and life style [ sic ] in reliance upon the finality of the decree." [Citations.] Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order.' " ( In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413, 6 Cal.Rptr.2d 791.) This is true of temporary support orders, which are directly appealable as an exception to the one final judgment rule. ( In re Marriage of Skelley (1976) 18 Cal.3d 365, 368, 134 Cal.Rptr. 197, 556 P.2d 297.)

There are, however, "some recognized exceptions to the general rule that collateral attack will not be allowed where there is fundamental jurisdiction [as here].... For example, a judgment may be collaterally attacked where unusual circumstances were present that prevented an earlier and more appropriate attack." ( Pacific Mut. Life Ins. Co. of Cal. v. McConnell (1955) 44 Cal.2d 715, 727, 285 P.2d 636; In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988-989, 39 Cal.Rptr.3d 365 [collateral attack not allowed absent unusual circumstances or compelling policy considerations]; 2 Witkin, Cal. Procedure (5th ed.2008) Jurisdiction, § 338, pp. 961-963.) For instance, in Bierl v. McMahon (1969) 270 Cal.App.2d 97, 104, 75 Cal.Rptr. 473, the court allowed a collateral attack on an out-of-state order establishing a contingency child support fund, when "the appellant personally attempted to object to [the] order ... and was told by the court to remain silent and let his attorney speak."

Soloman asserts that because of the procedure the court adopted after setting aside the MSA on September 1, 2009—scheduling a child support hearing the following day and then awarding spousal support on September 8 at what he thought would be a review hearing—he was unprepared to address the federal preemption doctrine. He submits the matter was not argued on the merits until December 3 and 23, 2009, at the hearings on his OSC and motion for modification. The record does show that when the court set aside the MSA on September 1, 2009, it moved quickly to establish new support orders to avoid any gap in support.

At the hearing on Soloman's OSC for modification of child support, the court did not prohibit him from collaterally attacking the September 2009 support orders. Rather, it allowed him to thoroughly argue the merits of the federal preemption issue.**255 ⁵ From this record, we may infer the court found unusual circumstances justifying a collateral attack. We conclude the court *555 had jurisdiction to consider the issue, and its ruling is properly before us on appeal.

IIFederal Preemption Doctrine Is Inapplicable to California Support Law

A

Parents "have an equal responsibility to support their child in the manner suitable to the child's circumstances" (§ 3900), and "[e]ach parent should pay for the support of the children according to his or her ability" (§ 4053, subd. (d)). The amount of child support must be in accordance with a statewide uniform guideline. (§ 4055.) The calculation begins with a determination of the parents' "annual gross income," which "means income from whatever source derived." (§ 4058, subd. (a).) The court may consider "employment benefits," "taking into consideration the benefit to the employee, [and] any corresponding reduction in living expenses...." (§ 4058, subd. (a)(3).) The statute expressly...