In re Marriage of Donald and Lynnette Carlsen [96 C.D.O.S. 7737]

Cite as 96 C.D.O.S. 7737




LYNNETTE A. BERRY, Respondent.

No. C022288

Super.Ct.No. 10154

Appeal from an order of the Superior Court of Butte County modifying child support. Hon. Ann H. Rutherford, Judge. REVERSED.


Dennis Harvey, Harvey & Harvey for Appellant.

Monica C. O'Neil, Brislain & O'Neil for Respondent.

Filed October 18, 1996



In the course of responding to Donald Carlsen's motion to modify their visitation agreement, Lynnette Berry moved to modify Carlsen's child-support obligation. Based on the declarations of the parties, the trial court awarded an increase in child support from $950 to $2,029 per month. Without benefit of a statement of decision, Carlsen appeals. In the published part of the opinion, we agree the trial court improperly credited Berry with a hardship allowance (Fam. Code, sections 4071-4073 [undesignated section references will be to this code]), but reject his claim that the court violated section 4057.5 when it considered the income of Berry's new spouse in determining the tax rate to which Berry's income would actually be subject. In the unpublished part, we reject his claim the trial court erred in failing to depart from the support guidelines prescribed by section 4055. We shall reverse.


An order modifying child support is reviewed for an abuse of discretion. (In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951.) However, the determination of whether the criteria are present to permit application of a hardship deduction is reviewed for substantial evidence. (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382.)[FOOTNOTE 2] In the absence of a statement of decision, we must assume the trial court made any finding of fact necessary to sustain the judgment for which supporting evidence exists in the record. (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649.) We shall incorporate into the discussion the facts pertinent to each of Carlsen's contentions.




As the sole basis for her motion to modify child support, Berry cited a substantial increase in Carlsen's income (resulting from his second job as a professional football referee) since the prior support order. In her supporting income-and-expense declaration, she did not complete the portion of the Judicial Council form requesting a deduction for itemized "justifiable expenses that have caused an extreme financial hardship."[FOOTNOTE 3]

According to the minute order for the initial hearing, "Court makes findings as to the father's income. The issue of child support is taken under submission. Counsel will provide the court with points and authorities."[FOOTNOTE 4]

Berry's post-hearing briefing did not identify any issue of financial hardship except to claim Carlsen should pay her legal fees because they were "an extreme financial drain." However, she included an exhibit using the default settings of the so-called "DissoMaster" software to calculate child support that contained an entry for a hardship deduction of $2,034. Carlsen's briefing explicitly disputed the inclusion of any hardship deduction. He argued the expenses of twin sons born to Berry and her present husband could be met by the income of her new spouse.

After a May 26 hearing, the court issued its support order. The order itself did not address the hardship deduction in any respect. A DissoMaster printout incorporated by the order contained an entry of $2,029 in the hardship category. We attach a copy of this printout as an exhibit to this opinion.


In calculating the net disposable income of parents for purposes of the section 4055 support formula, a trial court is authorized to make a deduction from gross income "for hardship, as defined by Sections 4070 to 4073, inclusive, and applicable published appellate court decisions." (section 4059, subd. (g).) Section 4070 states, "If a parent is experiencing extreme financial hardship due to justifiable expenses resulting from the circumstances enumerated in Section 4071, on the request of a party, the court may allow the income deduction . . . necessary to accommodate those circumstances." (Emphasis supplied.) As noted above, among the statutory circumstances evidencing hardship are "[t]he minimum basic living expenses of either parent's natural . . . children for whom the parent has the obligation to support from other . . . relationships who reside with the parent. The court, on its own motion or on the request of a party, may allow these income deductions as necessary t! o accommodate these expenses . . . ." (section 4071, subd. (a)(2).) The maximum amount of this category of hardship exp enses "may be equal to, but shall not exceed, the support allocated each child subject to the order." (Id., subd. (b).) If the court decides to allow a hardship deduction,

"the court shall do both of the following:

"(1) State the reasons supporting the deduction in writing or on the record.

"(2) Document the amount of the deduction and the underlying facts and circumstances.

"(b) Whenever possible, the court shall specify the duration of the deduction."

(section 4072 [emphasis supplied].)

Carlsen argues there is no evidence to support a hardship deduction in this record. While we agree, there is a more fundamental flaw in the support order--its failure to comply with the requirements of section 4072 prescribing express findings by the trial court. The rules applied in the absence of a statement of decision do not cure this problem. The Legislature has determined it is the obligation of the trial court to identify in a support order the evidence on which it bases its decision to allow a hardship deduction and its reasons for allowing it, as well as the duration of the deduction where feasible. (Kepley, supra, 193 Cal.App.3d at p. 952 [findings required by predecessor to section 4072]; 1 Hogoboom et alia, Cal. Practice Guide: Family Law (1996), para.para. 6:498, 6:500, pp. 6-142 to 6-143.)

Berry argues the DissoMaster printout satisfied the statutory requirement for findings. The fact this piece of paper results from calculations performed by a computer after the trial court inputs the figures the court has exercised its discretion to select does not imbue the printout with any greater talismanic value than if the trial judge had performed the calculations in her head and wrote down the resulting figures. The amount of the hardship deduction is a mere conclusion. What the Legislature has prescribed in section 4072 is an articulation of the reasoning by which the court has determined that the minimum basic living expenses of resident dependent minors from other relationships constitute a hardship rather than an expense the custodial parent is expected to bear without assistance from the obligor parent.[FOOTNOTE 5]

This leaves the question of the nature of the trial court's error. Many considerations favor terming a failure to make prescribed findings "reversible per se." The purpose in requiring findings is to demonstrate to a losing party the possible futility of any appeal, and to focus the appellate review on the pertinent portions of the record underlying the trial court's determination. (Cf. Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129-1130; [Code of Civ. Proc. section 632].) Required findings are also intended to insure that the trial court does not abuse its power to act only in the exceptional case. (Cf. People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 [Pen. Code section 1385]; West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 705-706 [Code Civ. Proc. section 128.5].)

Nonetheless, we are enjoined by our Constitution from imposing a reversible-per-se rule here. (Cal. Const., art VI, section 13.) Unlike statements of decision, the Legislature has not precluded us here from implying findings. (Compare Code Civ. Proc., section 634.) Nor do we have the constitutional due process concerns presented by the imposition of sanctions (West Coast Development, supra, 2 Cal.App.4th at p. 705), or the need to protect against "corrupt" judicial interference with the criminal process (People v. Orin (1975) 13 Cal.3d 937, 944). Thus, we determine here if the trial court's failure to include express findings was nonprejudicial.

It was not. There is no evidence in the declarations supplied by Berry from which we can infer the necessary findings, nor is there any reporter's transcript. The sole reference to the hardship deduction appears as an entry in Berry's proffered DissoMaster printout without comment. We thus have no basis for determining the basic minimum living expenses attributable to the new children, or whether the hardship deduction should be for a limited duration. We will accordingly reverse the allowance of the deduction as unsupported.

There is no indication the trial court would resolve any differently on remand the issues underlying Carlsen's other arguments. In the interest of judicial economy, we thus address them in the present appeal for guidance in subsequent proceedings.


Because Berry's tax status is "married filing jointly," the calculations of her net disposable income include her new spouse's income for the purpose of determining her tax rate. Renewing the argument made in his trial court briefing, Carlsen argues section 4057.5 precludes this use of the new spouse's income.

The Legislature added section 4057.5 after its enactment of the Family Code. It provides in pertinent part, "(a)(2) The income of the obligee parent's subsequent spouse . . . shall not be considered when determining or modifying child support . . . ." (Emphasis supplied.) Broadly read, one "considers" the income of Berry's new husband in calculating Carlsen's support obligation because it is part of the determination of Berry's income-tax rate. However, it is our obligation to construe a statutory scheme as a whole, harmonizing its components. (Sanford v. Garamendi (1991) 233 Cal.App.3d 1109, 1119.) In its definition of net disposable income, the Legislature directed trial courts to deduct from annual gross income "the actual amounts attributable to the following items . . . (a) The state and federal income tax liability resulting from the parties' taxable income. . . . State and federal income taxes shall be those actually payable . . . after considering appropriate filing! status . . . ." (section 4059 [ emphasis supplied].) Thus, the income of a new spouse must be "considered" to the extent it is necessary to determine the obligee spouse's actual (and appropriate) tax rate.

The Legislature's object in adding section 4057.5 was to change previously existing law under which a court could depart from child support guidelines if there was "income of a parent's subsequent spouse . . . which helps meet that parent's basic living expenses, thus increasing that parent's disposable income. [para.] This bill would delete this factor, and instead provide that the income of the . . . subsequent spouse . . . shall not be considered when . . . modifying child support, except as specified." (Legis. Counsel's Dig., Sen. Bill No. 145, Stats. 1993, ch. 935, p. __ [emphasis supplied].) The use of a subsequent spouse's income to determine the actual income tax rate to which the parent's income would be subject does not violate this concern, because the subsequent spouse's income is not being used to subsidize the parent's expenses in any way. Since Carlsen does not dispute the accuracy of the tax liability computed when using the new spouse's income to set the ra! te, there is no error in the support order in this regard.


Carlsen's final argument claims the trial court either failed to exercise discretion or abused its discretion in refusing to depart downward from the section 4055 support formula. The record belies either aspect of this argument.

The formula contained in section 4055 creates a "rebuttable presumption" of the proper amount of support which

"may be rebutted by admissible evidence showing that application . . . would be unjust or inappropriate in the particular case . . . because one or more of the following factors is . . . applicable . . . (3) The [obligor] parent . . . has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. . . . (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. . . ."

(section 4057.) If a special circumstance contemplated by section 4057 is present, the trial court has discretion to depart from the section 4055 formula. (In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1069; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043-1044.) The court is required to supply findings only if it exercises this discretion. (section 4056.)

In his briefing following the initial hearing, Carlsen specifically invoked the trial court's discretion to depart downward from the statutory support formula. Carlsen has not produced any evidence the court failed to exercise its discretion.[FOOTNOTE 6] We therefore assume it exercised its discretion in denying Carlsen's request. (Evid. Code, section 664; Civ. Code, section 3548.)

Carlsen also fails to establish an abuse of discretion by the trial court in adhering to the section 4055 support formula. While his income may be extraordinarily high for Butte County, "A parent's duty of support does not end with the furnishing of mere necessities if the parent is able to afford more." (White v. Marciano (1987) 190 Cal.App.3d 1026, 1031-1032; accord Estevez v. Superior Court (1994) 22 Cal.App.4th 423, 428.) According to the Legislature, "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" (section 4053, subd. (a)), and "Children should share in the standard of living of both parents. . ." (id., subd. (f)). In determining whether an amount of support will allow minors to enjoy a station in life commensurate with their parents, the court need not scrutinize the living circumstances of the parents in exacting detail. Carlsen's financial declarations demonstrate he can ! afford the amount of support ord ered, and we do not find that amount will result in a standard of living for the minors that is "absurd." (See Estevez, supra, 22 Cal.App.4th at p. 430, fn. 6.) Therefore, we do not find an abuse of discretion.


The judgment is reversed. Neither party shall recover costs of appeal or attorney's fees expended on appeal.

BLEASE, Acting P.J., and SCOTLAND, J., concurring.

:::::::::::::::::::: FOOTNOTES ::::::::::::::::::::

FN1. Pursuant to California Rules of Court, rule 976(b), all of this opinion except Part III of the Discussion is certified for publication.

FN2. Although Paulin does not expressly segregate these separate standards of review, the analysis does apply the substantial evidence standard to the finding of extreme financial hardship. As we have previously explained, the "substantial evidence" standard applies when reviewing the quantum of proof adduced at a hearing to determine if the elements necessary to support a judgment are present, while the "abuse of discretion" standard reviews only whether the trial court's resolution is within the range of options allowed by the relevant criteria. (Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680.) Because the trial court cannot invoke a hardship deduction absent the element of extreme financial hardship, review of this aspect of its ruling is subject to "substantial evidence" review. The amount of the deduction--like the amount of support generally--then falls within the court's discretion.

FN3. Tracking the language of section 4071, the form lists three categories of expenses: extraordinary health care costs, uninsured catastrophic losses, and the minimum basic living expenses of resident dependent minor children from other relationships.

FN4. Apparently, the sole evidence considered at the hearings on this support motion was the income-and-expense declarations. Therefore, neither party has requested a transcript of the hearings.

FN5. If the minimum basic living expenses of other-relationship resident dependent minors were to be considered as a matter of course, they would have been included among the standard deductions in section 4059. Thus, the Legislature has limited the deduction for hardship to the unusual situation, such as where the custodial parent does not receive any support for these children or the reasonable minimum living expenses are unusually high in the context of the family's income. (In re Marriage of Paulin, supra, 46 Cal.App.4th at pp. 1382-1383.)

FN6. Although Carlsen states, "The trial court evidenced its failure to exercise discretion by making the following statement at the time of the ruling: 'The real spirit of the child support law is that the children should share in the standard of income of both parents,'" he does not provide a citation to the record, nor can we find this remark. Moreover, we do not believe this remark demonstrates a failure to exercise discretion; it is instead a reason for adhering to the section 4055 formula.