Marriage of Rocha, In re
| Decision Date | 09 December 1998 |
| Docket Number | No. E021150,E021150 |
| Citation | 68 Cal.App.4th 514,80 Cal.Rptr.2d 376 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 98 Cal. Daily Op. Serv. 8998, 98 Daily Journal D.A.R. 12,561 In re the MARRIAGE OF Andria M. and Alexandre A. ROCHA. Andria M. ROCHA, Respondent, v. Alexandre A. ROCHA, Appellant. |
After Andria Rocha (wife) filed an order to show cause regarding an increase in child support payments from her former spouse Alexandre Rocha (husband), the court ordered an increase and included as income that portion of husband's student loan for law school above the cost of books and tuition. Husband appeals persuasively arguing that the student loan retains its loan status irrespective of the fact that the proceeds were in excess of the costs of books and tuition. Thus, we reverse.
The parties were married in 1989 and their marriage was dissolved in 1994. Two children were born of that union. Husband entered law school and obtained loans to finance his tuition and for his living expenses while in school. 1 The difference between Alexandre's student loans and his actual school expenses, tuition and books, is about $9,000. The court found that the loans received in excess of actual school expenses are income for purposes of assessing child support despite the fact that this income is derived from loans. 2
This case requires us for the first time to consider whether a student loan, later subject to repayment, falls within the meaning of Family Code section 4058. 3 It does not.
Section 4058 defines income for purposes of determining support. It provides:
The trial court noted that this section does not specifically include proceeds from loans as income but concluded that failure to mention loans as a source of income does not exclude them. In Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 55 Cal.Rptr.2d 531, we noted, " 'the definition of income under the Agnos Act is very broad, while the deduction provisions are specific and should be narrowly construed.' " (Id., at p. 1755, 55 Cal.Rptr.2d 531, quoting In re Marriage of Rine (1993) 18 Cal.App.4th 953, 958, 23 Cal.Rptr.2d 10.) However, we also observe that in cases cited both in Stewart and those items listed as sources of income in section 4058, all represent a form of income where there is no expectation of repayment or reimbursement. Thus, we do not find a loan for education which includes proceeds over that required for books and tuition to be income for purposes of section 4058.
While no California case has considered this issue, it has been considered in other jurisdictions. In Thibadeau v. Thibadeau (Wis.App.1989) 150 Wis.2d 109, 441 N.W.2d 281, 285, the Wisconsin court held that federally sponsored educational grants are not subject to inclusion as income because they are need based. In Milligan v. Addison (Fla.App.1991) 582 So.2d 769, 770, overruled on other grounds, Overbey v. Overbey (Fla.1997) 698 So.2d 811, 815, the Florida court of appeal determined that a student loan for a law student could not be considered income for purposes of child support...
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