In re Marriage of Smith

• Citation: 108 Cal.Rptr.2d 537,90 Cal.App.4th 74
• Decision Date: 25 June 2001
• Docket Number: No. F035091.,No. F034054.,No. F034080.,F034054.,F034080.,F035091.
• Parties: In re the MARRIAGE OF Debra D. SMITH and Michael Steven Smith. Debra D. Smith, Appellant, v. Michael Steven Smith, Respondent. County of Kern, Plaintiff and Appellant, v. Kevin Ray Polston, Defendant and Respondent. County of Merced, Plaintiff and Respondent, v. Charles Bryner, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

108 Cal.Rptr.2d 537

90 Cal.App.4th 74

In re the MARRIAGE OF Debra D. SMITH and Michael Steven Smith.

Debra D. Smith, Appellant, v. Michael Steven Smith, Respondent.

County of Kern, Plaintiff and Appellant, v. Kevin Ray Polston, Defendant and Respondent.

County of Merced, Plaintiff and Respondent, v. Charles Bryner, Defendant and Appellant.

No. F034054.

No. F034080.

No. F035091.

Court of Appeal, Fifth District,

June 25, 2001.

Certified for Partial Publication.^*

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Ann White and M.J. Hamilton, Deputy Attorneys General, Edward R. Jagels, District Attorney, and Keith H.

Cramer, Deputy District Attorney, for Plaintiff and Appellant Debra D. Smith (No. F034054) and Plaintiff and Appellant County of Kern (No. F034080).

Charles Bryner, in pro. per., for Defendant and Appellant Charles Bryner (No. F035091).

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, and M.J. Hamilton, Deputy Attorney General, for Plaintiff and Respondent County of Merced (F035091).

Jay C. Smith, Bakersfield, for Defendant and Respondent Michael Steven Smith (No. F034054).

No appearance for Defendant and Respondent Kevin Ray Polston (No. F034080).

OPINION

BUCKLEY, J.

The statewide uniform guideline for determining child support permits the court, in lieu of using actual income, to impute income to a parent based on his or her earning capacity. Earning capacity, in turn, requires that the parent have both the ability and the opportunity to work. In State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 83 Cal.Rptr.2d 229, we held this same earning capacity test applies whether or not the parent is incarcerated, and thus the court may not impute income to an incarcerated parent who has no opportunity to work in prison and no other assets with which to pay support. We declined to create a blanket "incarcerated parent" exception to the statutory guideline. We are asked here to revisit Vargas and create a somewhat more narrow exception that would permit the court to consider, in addition to the parent's ability and opportunity to work, the nature of the offense for which he or she is incarcerated. Again, we decline.

Since these three appeals all raise the same issue, we consider them together for purposes of oral argument and decision.

FACTS AND PROCEEDINGS

In re Marriage of Smith

Michael and Debra Smith separated in 1997 after 16 years of marriage. Their two children, twin boys, were 14 years old at the time. Michael filed a dissolution petition in November, and the following June he requested a disposition consistent with a marital settlement agreement (MSA) signed by the parties the same time. Judgment was entered accordingly on July 30,1998.

The M.S.A. noted Michael had been suspended from his job, and so had no income with which to pay child support. However, he agreed to give Debra his one-half interest, $22,500, in a 401(k) retirement plan. This amount was to be credited toward his support obligation at the rate of $2,566 per month, until exhausted. The $2,566 figure, in turn, was based on the assumption Michael was still working at his job, and that Debra was not working. Both circumstances would change shortly.

Michael had been arrested in May of 1998 for sending child pornography over the Internet. He pleaded guilty to the charge in December and began serving a 21-month term in federal prison in January of 1999. The money from his retirement plan ran out in February. Debra had, by then, obtained a license to operate a residential care facility in her home, and had started accepting clients.

In view of these changes, the County of Kern filed a motion in January of 1999 to modify Michael's child support obligation.¹ Michael testified, by telephone, at a hearing in March that he had no job in prison and was unable to pay anything. The county argued his obligation should continue nonetheless because he, rather than his family, should bear the burden of his criminal act. The court, mindful of our recent decision in Vargas, concluded Michael had "zero earning capacity" and therefore suspended his support obligation effective March 1, 1999. The county appealed.

County of Kern v. Polston

The County of Kern filed a complaint against Kevin Polston for child support in September of 1997. He and his wife Wendy had separated several months earlier. In a default judgment entered in February of the following year, Kevin was ordered to pay Wendy child support for their two daughters in the total amount of $607 per month. Three months later in May, Kevin was convicted by plea of molesting the older daughter, and was sentenced to prison. Apparently, he made several unsuccessful attempts from prison to file a motion to modify the support order. When it learned of his efforts, the county filed a motion in June of 1999 seeking a preemptive determination that Kevin's incarceration was not a sufficient ground for modification. Kevin succeeded in filing his motion the same month, and the two matters were set for a hearing on July 30, 1999.

Kevin testified, by telephone, at the hearing that he had no job and no immediate prospect of a job in prison, nor any property or other assets with which to pay child support. Nonetheless, the county argued Kevin should not be allowed to benefit from his criminal act by being relieved of his duty to support his children while incarcerated. The court, although it expressed "some misgivings" about the law, concluded it was required to base its determination on Kevin's present ability to pay. Accordingly the court, in effect, granted Kevin's motion and reduced his support obligation to zero.² The county appealed.

County of Merced v. Bryner

Charles and Helen Bryner have one child, a daughter born in 1984. It appears Helen has at least two other, older children from a previous relationship who also lived with the couple at one time. In 1993, Charles was convicted of molesting one of these other children and sent to state prison.³ Around this same time, Helen began receiving Aid to Families with Dependent Children in Merced County for their daughter.

In 1994, the county filed a complaint against Charles for ongoing child support and reimbursement of the public assistance already paid on the daughter's behalf. A default judgment was entered against Charles, but the court reserved jurisdiction to determine the amounts. In 1996, the court ordered Charles to pay $101 per month in child support and an additional $35 per month toward arrearages then totalling $3,737. These amounts were based on the pretense Charles had a regular, full-time job in prison paying the minimum wage.

In August of 1999, the county filed an order to show cause for modification of the existing support order. It alleged Charles, who was still in prison, was $7,474 in arrears as of the end of June, and owed an additional $1,743 in accumulated interest. In a responsive declaration, Charles reported he was earning 40 cents an hour in the prison laundry and had a net monthly income of only $67, less expenses of $70. Charles also filed a motion seeking appointment of counsel.

These matters came to a hearing in November. The county explained its purpose in seeking the support modification was to reduce Charles's obligation to zero in keeping with our decision in Vargas, which had been filed the previous March.⁴ Helen appeared at the hearing to oppose any reduction. Charles did not appear, either in person or by telephone. The court stated it was familiar with Vargas, but explained it was inclined nonetheless "to impute some kind of earning capacity under these circumstances," i.e., where the noncustodial parent's incarceration was "related to an act that was against the child or one of the children living with the parties."⁵ It continued the hearing to permit Charles to address this particular issue.

The court denied Charles's request for counsel "subject to reconsideration" because it found it had no authority to appoint counsel under the circumstances.

The continued hearing was held on January 11, 2000. Charles did not appear. He had filed a declaration following the November hearing, but it did not address the specific issue raised by the court.⁶ According to its subsequent order, the court found "an exception to the Vargas case in that the crime for which [defendant] is incarcerated was committed against this family." (Capitalization omitted.) The exception evidently was based on a theory of estoppel. The court therefore refused to reduce Charles's child support obligation, but rather continued the existing order requiring him to pay $101 per month. It ordered that interest would not accrue on the arrearages, nor would Charles be required to pay them, until his release from custody. Charles appealed. We subsequently denied his request for appointment of counsel on appeal.

For purposes of the following discussion, we refer to the counties collectively and consider their arguments together.

DISCUSSION

I. Our Vargas Decision

California has implemented a "statewide uniform guideline" for determining child support according to a complex algebraic formula based on the parents' incomes and custodial time with the child. (Fam.Code § 4050 et seq.⁷ See generally Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2001) ¶ 6:130 et seq., p. 6-55 (rev.# 1, 1998).) The formula amount is rebuttably presumed to be correct; the court may depart from it only upon a finding, by a preponderance of the evidence, that one of five enumerated factors pertains. These factors generally apply in situations where "application of the formula would be unjust or inappropriate in the particular case" (§ 4057, subd. (b)), consistent with certain principles set out in section 4053. The principles recognize, among other things, that a parent's primary obligation is to support his or her minor children, that the interests of children are ...