Marriage of Flaherty, In re

• Citation: 646 P.2d 179,183 Cal.Rptr. 508,31 Cal.3d 637
• Decision Date: 17 June 1982
• Docket Number: S.F. 24307
• Court: United States State Supreme Court (California)
• Parties: , 646 P.2d 179 In re MARRIAGE OF James and Jacquelyn FLAHERTY. James O. FLAHERTY, Appellant, v. Jacquelyn C. FLAHERTY, Respondent.

Page 508

183 Cal.Rptr. 508

31 Cal.3d 637, 646 P.2d 179

In re MARRIAGE OF James and Jacquelyn FLAHERTY.

James O. FLAHERTY, Appellant, v. Jacquelyn C. FLAHERTY, Respondent.

S.F. 24307.

Supreme Court of California,

In Bank.

June 17, 1982.

Jay-Allen Eisen, Rothschild & Eisen, Michael Rothschild, Anthony S. Dick, Roberta Ranstrom, Sacramento, and Wilson Curle, Redding, for appellant.

Douglas R. Page, Walnut Creek, as amicus curiae on behalf of appellant.

Lee A. Lopez, Redding, and Michael J. Hamilton, Lompoc, for respondent.

Jonathan Milberg, Los Angeles, as amicus curiae.

BIRD, Chief Justice.

Did the trial court abuse its discretion under the particular facts of this case when it refused to order a mother, who testified she worked part time but could obtain full-time work if she chose, to pay child support and ordered both parents to pay the child's transportation costs? Was an appeal based on this issue frivolous? What procedures should the Courts of Appeal follow before fining or criticizing attorneys for prosecuting frivolous appeals? (See Code Civ.Proc., § 907; Cal.Rules of Court, rule 26(a).)

I.

Jacquelyn and James Flaherty were married in 1974. Their child, Melissa (Missy), was born in January of 1975. The couple separated in 1976, and Jacquelyn filed for divorce in Kentucky. She was awarded temporary custody of Melissa. The Kentucky divorce proceedings were never completed.

Jacquelyn and Melissa moved to California in 1977. In early 1978, Jacquelyn left Melissa in the care of Norma Chambers, Jacquelyn's mother. Later that year, the Chambers filed for guardianship of Melissa. James then moved to California and began living with the Chambers and Melissa. At this point, the guardianship petition was withdrawn.

On December 1, 1978, James filed a petition in Shasta County Superior Court for dissolution of his marriage to Jacquelyn. He asked for the custody of Melissa and child support from Jacquelyn. The court awarded temporary custody to James and reasonable visitation rights to Jacquelyn. Thereafter, James moved back to Kentucky with Melissa.

In October of 1979, while the dissolution action was still pending, Jacquelyn asked the court to modify its temporary order and award joint custody to each of the parents. The court denied the request for joint custody in December of 1979 but modified the visitation order to provide that Melissa could visit Jacquelyn for approximately four months each year, including the Christmas and summer vacations. The trial court ordered Jacquelyn to pay the transportation cost of Melissa's trips to visit her and ordered James to pay for the return trips.

Jacquelyn and James filed financial declarations with the court. James' declaration stated that his gross monthly income was $990, his net monthly income $682.52. His monthly expenses were $707, including $42 a month toward the costs of transporting Melissa home after her visits to her mother. Jacquelyn reported a gross monthly income of $398, a net monthly income of $373, and monthly expenses of $580. In her attached declaration, Jacquelyn stated that she would spend as much money on Melissa during her four months of visitation as James spent during the rest of the year.

At a hearing on Jacquelyn's change of custody motion, she testified that she could work full time if she wished. She said, "The only reason I am on part time at work is because I asked for it. You know, at the time if I needed to have more money to support Missy I could be put on full time anytime."

In April of 1980, the court entered an interlocutory decree dissolving the marriage. The prior orders awarding custody to James, granting Jacquelyn specified visitation rights, and dividing the transportation costs between the parents were incorporated into the decree. James' request for child support was denied.

James appealed two issues, the denial of child support and the order dividing the transportation costs. The Court of Appeal affirmed the trial court judgment and fined James' attorney $500 for the filing of a frivolous appeal. (See Code Civ.Proc., § 907; Cal.Rules of Court, rule 26(a); see post at p. 514.) The court chastized the attorney for burdening the court with a patently unmeritorious appeal and certified the opinion for publication.

James' petition for a hearing before this court was granted. The grant of the petition for hearing nullified the penalty, vacated the Court of Appeal opinion, and required this court to decide the appeal as if it were originally taken here. (Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 541, fn. 1, 67 Cal.Rptr. 775, 439 P.2d 903; Knouse v. Nimocks (1937) 8 Cal.2d 482, 483-484, 66 P.2d 438; see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 617, p. 4540.) However, for future guidance, this opinion will examine the superseded penalty and the procedure by which it was imposed, as well as the merits of the appeal.

II.

James challenges the trial court order denying his request for child support and requiring him to share the transportation costs associated with Melissa's visits to her mother. He argues that the trial court improperly failed to consider Jacquelyn's earning capacity, were she to accept full-time employment. He claims that the denial of child support was based on a statute which unconstitutionally distinguishes between the child support obligations of a mother and of a father.

It has long been the rule in this state that a parent's earning capacity may be considered in determining spousal and child support. (See, e.g., Eidenmuller v. Eidenmuller (1869) 37 Cal. 364, 366; Webber v. Webber (1948) 33 Cal.2d 153, 160, 199 P.2d 934.) As Justice Tobriner stated over 20 years ago, "the cases have frequently and uniformly held that the court may base its decision on the husband's ability to earn, rather than his current earnings." (Meagher v. Meagher (1961) 190 Cal.App.2d 62, 64, 11 Cal.Rptr. 650; see also Pencovic v. Pencovic (1955) 45 Cal.2d 97, 100-102, 287 P.2d 501; In re Marriage of Chala (1979) 92 Cal.App.3d 996, 999, 155 Cal.Rptr. 605.)

James contends that the trial court disregarded this well-established rule because it relied on a sex-biased statute, former Civil Code section 196. ¹ Former section 196 provided, "The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a child is able to give are inadequate, the mother must assist him to the extent of her ability." The clear implication of the statute was that the father had a greater support obligation than the mother, who was required to assist him only if his resources were inadequate.

Section 196 was first enacted in 1872. Some courts have interpreted the statute as placing the primary duty of support on the father with the mother's duty secondary to his. (Stargell v. Stargell (1968) 263 Cal.App.2d 504, 509-510, 69 Cal.Rptr. 715; Fox v. Industrial Acc. Com. (1924) 194 Cal. 173, 181, 228 P. 38.) One commentator called this the "traditional interpretation of section 196." (Recent Cases, Family Law (1970) 7 San Diego L.Rev. 134 137.) ² Other courts, however, interpreted former section 196 in a sex-neutral manner, viewing it as placing the primary duty of support on the custodial parent, be that the mother or the father. (In re Marriage of Barnert (1978) 85 Cal.App.3d 413, 425-426, 149 Cal.Rptr. 616; Moore v. Moore (1969) 274 Cal.App.2d 698, 701-703, 79 Cal.Rptr. 293; Levy v. Levy (1966) 245 Cal.App.2d 341, 357-359, 53 Cal.Rptr. 790; Smith v. Workmen's Comp. App. Bd. (1966) 245 Cal.App.2d 292, 297-298, 53 Cal.Rptr. 816.)

These courts attempted to reconcile former section 196 with case law and with other sections of the Civil Code which impose a duty of support on both parents. (See, e.g., Nunes v. Nunes (1964) 62 Cal.2d 33, 39, 41 Cal.Rptr. 5, 396 P.2d 37; Civ.Code, §§ 4357, 4700; see also former Civ.Code, §§ 137.2 and 139.) They read the statute as stating only half of the intended rule. The unstated half imposed a similar burden on the mother: if she were the custodial parent, the primary duty of support fell on her. Thus in Smith v. Workmen's Comp. App. Bd., supra, 245 Cal.App.2d 292, 53 Cal.Rptr. 816, after noting that former section 196 had been a "source of confusion" (at p. 297, 53 Cal.Rptr. 816), the court held that when the father has custody of a child, the father's duty of support is primary, while the mother's is secondary. (Id., at p. 298, 53 Cal.Rptr. 816.) Similarly, "[w]here custody of a child is awarded to the mother, the effect of section 196, as between the parents, absent any decree of court directing otherwise, is to shift the primary duty to support from the father to the mother ...." (Ibid.; see also In re Marriage of Barnert, supra, 85 Cal.App.3d at p. 425, 149 Cal.Rptr. 616.) ³

James asks this court (1) to assume that the trial court applied the sex-biased interpretation of former section 196 and (2) to find the statute unconstitutional. However, it is not necessary to decide whether former section 196, as interpreted by some courts, was unconstitutional since James points to no evidence in the record to support his claim that the trial court applied a sex-biased standard.

The extent of child support in each case is within the discretion of the trial court. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947, 126 Cal.Rptr. 805, 544 P.2d 941.) A trial court's ruling will be disturbed on appeal only if the record shows that the court has abused its discretion. (Ibid.) Neither party requested findings of fact from the trial court. In the absence of such findings, an appellate court must presume that the facts would support the trial court's judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.) Here, the record fails to support the conclusion that the trial court did not consider Jacquelyn's earning capacity. The record merely reflects the fact that the...