Marriage of Hubner, In re

• Decision Date: 27 October 1988
• Docket Number: No. B028472,B028472
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Ursula A. and William F. HUBNER. Ursula A. HUBNER, Appellant, v. William F. HUBNER, Respondent.

Page 428

252 Cal.Rptr. 428

205 Cal.App.3d 660

In re the MARRIAGE OF Ursula A. and William F. HUBNER Ursula A. HUBNER, Appellant, v. William F. HUBNER, Respondent.

No. B028472.

Court of Appeal, Second District, Division 7, California.

Oct. 27, 1988.

Lurvey & Shapiro and Judith Salkow Shapiro and Ira H. Lurvey, Los Angeles, for appellant Ursula A. Hubner

James E. Sutherland Law Corp., Long Beach, and Irving S. Feffer, Beverly Hills, for respondent William F. Hubner.

SOVEN, Associate Justice. ^*

In this child support proceeding, Ursula Hubner (hereinafter "Ursula" or "mother") appeals from a trial court order modifying child support. Respondent is William Hubner (hereinafter "William" or "father"). We reverse on grounds that the trial court failed to set a level of child support consistent with the father's ability to pay support, and the Judicial Council guidelines for discretionary child support.

FACTS

William and Ursula were married in June 1975 and separated in October 1979 after a marriage of four years and three months. In March 1980, a son, Ryan, was born. In November 1980, a judgment of dissolution of marriage, incorporating a marital settlement agreement, was filed by the Orange County Superior Court.

The agreement provided that Ursula would receive spousal support totaling about $501,000 from October 1980 through April 1984, averaging $11,600 per month. The judgment also provided that pending a conclusive determination of paternity William would pay Ursula $250 monthly for child support starting October 1980. William later agreed to pay child support of $500 per month from the date of the child's birth.

In 1986, Ursula made a motion to transfer the case to Los Angeles County on grounds that Los Angeles would be a more convenient forum because William lived in Beverly Hills. Ursula continued to live in Orange County. The Orange County court denied the motion to transfer.

In June 1986, Ursula filed a statement to register the Orange County judgment in Los Angeles under Code of Civil Procedure section 1697, subdivision (b) on grounds that William resided in Los Angeles County. William filed a motion to quash the registration on grounds that although he owned residential property in Los Angeles, his primary residence was in Michigan. In December 1986, William's motion to quash the registration was denied.

In February 1987, Ursula filed an order to show cause seeking modification of the child support order and attorney's fees and costs. Ursula requested support in an "amount to be determined in accordance with the Court's Guidelines, but no less than $6,000 per month." Ursula also requested attorney's fees and costs of at least $30,000.

When these proceedings were heard in April 1987, Ursula had spent the entire spousal support of $500,000, paid to her between October 1980 and April 1984, owed credit card charges of $21,000, and was unemployed. She was the child's sole caretaker, because William had no contact whatsoever with the child. She testified that she met William in 1970, when she was 19 years old and William was 36 years old. She was going to court stenography school, but stopped. She worked briefly for an airlines as a gate agent in 1976. After the dissolution in 1980, Ursula did various things, "lots of tele-marketing," applied for a job with other airlines, and worked in field service for a car polish company in 1983. She had a job with Mayflower Transit Company for three months in 1987, but was fired because she "was not qualified." When these proceedings were heard, Ursula was doing some tele-marketing, and would be driving a limousine at $6 an hour starting May 1, 1987. Ursula and the minor child were living in a house in Costa Mesa which Ursula had bought after the dissolution. She declared that the house was worth $100,000, that the mortgage payment was $1,872, and that her total housing cost was $2,400 monthly.

Ursula filed an income and expense declaration showing her net disposable income to be $1,000 a month. She attached a list of expenses totalling $8,600, of which she attributed $5,760 to expenses solely for or for the benefit of the minor child. The child's expenses included $1,200 for housing (or one-half of Ursula's total housing expenses), $100 for telephone use, $300 monthly for clothing, about $550 for private school, $400 for tutoring, $1,000 for child care, and $200 for eating out.

Ursula provided the court with calculations showing that under the Judicial Council guidelines for discretionary child support, William should pay child support of $5,900.

William stipulated that he could pay any reasonable amount of child support ordered, and filed an income and expense declaration form listing as his net monthly disposable income the sum of $43,529. William claimed ordinary monthly living expenses of $21,000, exclusive of loan repayment and support obligations.

After a hearing, the trial court ordered William to pay Ursula as child support The trial court issued an opinion stating its reasons for the award:

$2,215 per month, and also ordered William to pay all medical, dental and psychiatric expenses for the minor child. The court ordered William to pay as his contributive share of Ursula's attorney's fees the amount of $7,935. The court refused to order attorney's fees for the registration action on grounds that attorney's fees were specifically prohibited by the applicable code section.

"[A] child is entitled to share in the standard of living of his or her parents.... In the present case, however, the standard of living of the [father] and [mother] are very substantially different. The [father] has stipulated that he ... is able to pay child support at any amount that the court deems appropriate and proper. The [mother], on the other hand, had no steady employment at the time of the hearing.... Her prospects for income in the future are not bright. [p ] Absent the funds she might receive from child support, her standard of living would be, at best, low moderate and at worst, minimal.

"In attempting to determine the appropriate level of child support for this child, the court is guided by the following principles. First, the child's standard of living must be based on the reasonable lifestyle of both parents. Second, it would be inappropriate for the court to make an order which was a disguised form of support for the [mother] herself as opposed to support directed merely toward the child.

"Thus under the circumstances, it is certainly appropriate for the child to attend a private school which is for the benefit of the child alone, but it may be that the child and his mother will be required to reside in a less costly residence at that may be more appropriate in terms of the reasonable lifestyle of the [mother] herself. In some ways the lifestyle of the wealthier parent must control the circumstances of the child and in some ways the lifestyle of the poorer parent must control the circumstances of the child."

The court's order of $2,215 monthly child support was "based on the court's expectation that the child will be enrolled in private school," costing, including incidental costs, about $550 per month.

The court concluded:

"To the extent that any order made herein is not within the limits established by the support guidelines of the County of Los Angeles or State of California (to the extent they apply) said variation is made based upon the actual needs of the child for support."

DISCUSSION

Ursula contends that the trial court was compelled to apply the Judicial Council Guidelines for discretionary child support, abused its discretion in depriving the child of an appropriate standard of living, and erred in concluding that attorneys fees could not be awarded for that portion of the proceedings related to registration of the Orange County judgment.

Discretionary Child Support Guidelines ¹

The mother's contention that the trial court was compelled to apply the Judicial Council guidelines for discretionary child support is without merit. ²

The guidelines for discretionary child support are a product of the Agnos Child Support Standards Act of 1984. (See Civ.Code, §§ 4720-4732.) ^** In enacting the Agnos Act, the Legislature found and declared that the state had "no single standard to promote equitable, adequate child support awards," and that the current method of setting child support awards "led to substantial variation in these awards among families with similar circumstances and resources." ( § 4720, subds. (a), (b).) The Legislature stated its intent that a "system of standards and procedures shall be established which provide for a uniform determination of child support awards throughout the state," to assure that "no child receives a support award less than would otherwise be established as the need for that child under the AFDC program." ( § 4720, subd. (d).)

The Legislature then specified that:

"It is the intention of the Legislature that the court shall use the guidelines in use in its county to establish the child support award. However, in no event shall the court award less than the mandatory minimum child support allowable pursuant to this chapter. In setting an award higher than the mandatory minimum, the court shall be guided by the criteria set forth in applicable statutes, relevant case law, and state and local guidelines, so long as they are not in conflict with the provisions of this chapter." ( § 4720, subd. (d); italics added.)

"(e) It is the intention of the Legislature that the courts shall adhere to the principles set forth in this chapter and shall depart from them only in exceptional circumstances. A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life." ( § 4720, subd. (e); italics added.)

Section 4724 then provides:

"Upon request of either party, the court may award and, when appropriate, is hereby urged to award a higher...