Basing Lower Support Award on a Reduced Work Regimen Is Not a Deviation from Family Code Section 4050-4076 Support Guidelines
In any situation involving children where the parents are no longer together, California Family Code section 4050 et seq. requires that each parent become as gainfully employed as possible for their own personal support as well as for the support of their children. Typically this standard is assumed to mean that a parent is expected to work full time unless health or economic reasons justify otherwise.
The California family courts use a guideline to calculate child support. This formula takes into consideration a number of key factors, especially the gross incomes of the parents and children’s timeshare with each parent.
Recently the California Court of Appeal held that the trial court did not make an error in basing its child and spousal support orders on a mother’s 80% of full time work schedule in a case where that percentage represented a reasonable work regimen and was in the children’s best interests.
The case in question, In re Marriage of Lim and Carrasco, was published March 18 2013. (cited as February 26, 2013; ordered published March 18, 2013
California Court of Appeal 6 Civil H037845, 214 Cal.App.4th 768, 154 Cal.Rptr.3d 179, 2013 FA 1582, out of Santa Clara County)
The facts are as follows:
Lily Lim and Michael Carrasco were married in 2003 and later had two children. During the marriage, Michael was a college professor and Lily was an attorney and partner in a law firm. The couple first separated in 2011, with Michael filing for divorce on August 22. He dismissed his petition three days later, however, and the two of them tried to reconcile. The attempt failed and on September 22, 2011, Lily filed for divorce.
On September 27, Michael filed an ex parte request seeking custody of the children, child support, visitation and temporary spousal support. In a supporting declaration, he stated that his flexible work schedule allowed him more time to care for the children, while Lily’s heavy burden of billable hours as an attorney in a busy law office required her to work much more. He reported monthly earnings of $9,156.
In opposition, Lily filed a responsive declaration to Michael’s motion, agreeing to pay guideline child support based on her recently adopted 80% work schedule. Lily stated that she had been on a medical leave of absence, but intended to return to work on October 31. She also asked the trial court to deny spousal support to Michael because of his “perpetrating acts of domestic violence” against her, along with his “violent behavior toward” the kids.
At a hearing on November 14, Lily and Michael reached an agreement on all the issues except whether Lily’s support payments should be based on a full-time salary of $27,595 a month or her 80% of full time work schedule salary of $22,076 a month.
Lily claimed that she had been on medical leave because of an incident of domestic violence perpetrated by her estranged husband in late September, but she now expected to return to work on November 28. She submitted a letter showing that she and her employer had agreed to this return date and to her working a reduced schedule of 80% of her former hours.
Lily also maintained that the reduced schedule would be in the children’s best interests because it would allow her to spend more time with them. Lily explained that she would have to work 80 hours a week to bill the 2,000 hours per year required by her law firm.
Michael claimed he worked full time and that he thought that letting Lily work less than her full-time earning capacity was not statutorily permissible under the Family Code and would “start a very dangerous precedent.”
When the hearing concluded, the trial court explained that it had discretion to base its support orders on either actual income or some amount of imputed income. The court noted that big law firms require big hours, considerably more than a 40-hour week. Even at her reduced work schedule, the court continued, Lily would still be “working a substantial amount of the time.” The 80% schedule, the trial court concluded, would be in the children’s best interests.
Accordingly, the court determined that child support should be based on Lily’s actual income under the 80% schedule. In its findings and order after hearing, the trial court found that child and spousal support should be calculated on the 80% schedule with income of $22,076 per month, and ordered Lily to pay, per the support program $1,568 a month for child support and $2,705 a month for spousal support.
The important insight gleaned from this decision is that the court has the power to use discretion in assessing support and can balance the need for a parent to be as gainfully employed as possible against the needs of children to have quality time with their parents.
