Khera v. Sameer (In re Khera)
| Decision Date | 12 April 2018 |
| Docket Number | F070938 |
| Parties | In re the Marriage of SAMEER KHERA and MADHU SAMEER. SAMEER KHERA, Respondent, v. MADHU SAMEER, Appellant; FRESNO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Fresno County. Gary L. Green, Commissioner.
Madhu Sameer, in pro. per., for Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez, and Jennevee H. de Guzman, Deputy Attorneys General, for Intervener and Respondent.
No appearance for Respondent.
-ooOoo- A custodial parent filed a motion to enforce child support arrearages from 2003 through 2012. The trial court denied the motion, stating there was neither legal nor factual support for the requested relief. Among other things, the court stated the custodial parent failed to (1) identify the specific underlying orders giving rise to the alleged arrears, and (2) provide documentation of amounts actually paid and the specific amounts of arrears claimed.
A threshold legal question presented is the allocation of the burden of proof. We conclude the custodial parent had the burden of proving which child support orders were operative during the period of claimed arrearages, the amount of fixed child support payments received, the amount of "Ostler-Smith"1 child support payments received, and when the payments were received. Once the custodial parent has established the existence of an obligation to make Ostler-Smith payments and the amount of those payments received, the noncustodial parent has the burden of proving those payments (or absence of payment) complied with the support order. This burden requires the noncustodial parent to present evidence establishing the amount of bonus and additional income upon which the Ostler-Smith payment is calculated.
Another legal question presented is which standard of appellate review applies when the trial court determines an appellant has failed to carry his or her burden of proof relating to child support arrears. We conclude the applicable standard of review requires the appellant to demonstrate the evidence compelled a finding in appellant's favor as a matter of law. A finding is compelled as a matter of law only if the appellant's evidence was uncontradicted and unimpeached and of such a character and weight as to leave noroom for a judicial determination that it was insufficient to support a finding. Applying this standard of review to the evidence in the appellate record, we conclude the custodial parent did not establish the trial court erred when it determined she failed to carry her burden of proof.
We therefore affirm the order denying the motion to enforce arrearages.
Appellant Madhu Sameer (Madhu) and respondent Sameer Khera (Sameer) were married in 1986, had three children (born 1989, 1998, and 1999) and separated in 2003. Madhu asserts they first separated in 1995 when they lived in Sydney, Australia and she worked as an executive in the information technology industry. Madhu also contends she was forced to give up her job and move to the United States where she was cut off from her family, prevented from working, and endured domestic violence. Madhu asserts she requested a divorce between 2000 and 2002, with Sameer moving out of the family residence so she and the children could continue to live in the family home. Sameer refused this request.
In 2003, Madhu moved to Fresno. In October of that year, Sameer filed a petition for dissolution of marriage in Santa Clara County. Pursuant to a DissoMaster calculation, Sameer was ordered to pay $2,332 monthly in temporary child support and $1,535 monthly in temporary spousal support. In February 2004, the court modified these amounts slightly and directed Sameer to pay one-half of health and school expenses.
At the time of the temporary support orders, Sameer worked for Cisco Systems, Inc., and received a base salary and significant additional income. Consequently, the temporary support order directed him to notify his counsel immediately upon learning of a bonus for any period and directed the parties to meet and confer with respect to additional support payable from the bonus.
In May 2005, Madhu submitted an application to the Fresno County Department of Child Support Services (DCSS) for child support services. In September 2005, DCSSfiled (1) a statement for registration of California support order; (2) a notice of registration of California support order; and (3) a notice regarding payment of support and substitution of payee. These documents directed Sameer to pay all support obligations to the Fresno office of the DCSS.
In September 2005, Madhu filed a motion for modification of child support, requesting the monthly amount of child support of $2,332 be modified to the guideline amount. Madhu asserted Sameer had not reported any bonus, and she referred to an earlier order requiring him to disclose his bonus income and share a portion of it as additional child support. She requested an order compelling Sameer to disclose his bonuses and stock option income and to divide that income in accordance with the guideline. On appeal, Madhu asserts this motion was never heard and is still pending.
In January 2008, DCSS filed a declaration in support of order for child support requesting Sameer to pay Madhu $8,186 monthly child support and $2,047 monthly toward accrued arrearages and reimbursement. This filing was made in Fresno Superior Court. The declaration stated Sameer was employed by Cisco Systems, Inc., had monthly net disposable income of $35,571, and had monthly taxable gross income of $62,580; guideline child support equaled $8,186 per month.
On February 25, 2008, a judgment of dissolution was filed in Santa Clara Superior Court. It dealt with reserved issues and reflected the parties' May 2007 oral stipulation in open court. The judgment addressed issues of property division, child custody, child support, spousal support, and pending contempt proceedings. A provision on child support stated: "Guideline child support, including a bonus table, shall be re-calculated and modified as of June 1, 2007 based on [Sameer's] current income and [Madhu's] income set at zero, the Parties' timeshare, and the Parties' other relevant financial circumstances." In the judgment's provisions addressing property division, each party waived and released the other from any and all liability and claims for child and spousal support arrears accrued prior to June 1, 2007.
March 10, 2008, was the date scheduled for the initial hearing in Fresno Superior Court on DCSS's January 2008 request for a modification of child support. The matter was continued a number of times and the contested hearing did not begin until June 21, 2011. On June 13, 2011, shortly before the start of the contested hearing, the Fresno Superior Court ordered Sameer to pay child support of $3,225 per month plus an Ostler-Smith percentage of "11.25 percent of any gross bonus income and from the sale of any non-community stocks or stock options regardless of how they are characterized." The order stated the child support "is a compromise number until the next hearing and is without prejudice to either party." The order also identified the matters to be tried later in June as including (1) child support "retroactive to January 1, 2008"; (2) reimbursements, arrearages, and setoff; and (3) attorney fees.
On June 21, 2011, the Fresno Superior Court began the contested hearing on DCSS's January 2008 motion to modify child support. The court heard testimony on several nonconsecutive days. The testimonial phase of the hearing lasted for two years.2
In January 2013, the children made allegations of domestic violence and sexual molestation against Sameer. At the direction of the court, the parents participated in emergency screening in March 2013. On March 18, 2013, the Santa Clara Superior Court signed a request and order pursuant to an emergency screening that gave Madhu temporary sole legal and physical custody of the two minor children. Sameer was allowed supervised visitation twice per month for up to 16 hours and directed to have no other contact with the children.
Later in 2013, posthearing briefing on the DCSS's January 2008 motion to modify child support was completed. In October 2013, counsel for Madhu substituted out of the case and Madhu represented herself. In November 2013, the motion finally was submitted.
On February 3, 2014, the court filed its ruling on modification of child support and attorney fees. The court found changed circumstances existed justifying a modification of child support effective January 4, 2008. The court found child support calculated solely on the guideline formula was inappropriate in light of Sameer's bonus and stock income. The court found it was in the best interests of the children to deviate from guideline support and require an Ostler-Smith percentage of "any bonus or stock income" to be paid as additional child support. The additional support would allow the children to share in the standard of living of their father.
The order addressed the variable components of Sameer's annual income as follows:
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