So You Want To Litigate Your Case In California . . . ?

hl-admin Blog, Child support 1 Comment

“Jeffrey and Andrea married in 1989 and had two children, born in October 1994 and October 1996.  Prior to 2004, the family lived in Westlake, Ohio, where Andrea was employed by a pharmaceutical company while Jeffrey worked as a certified public account (CPA).  In February 2004, Jeffrey accepted a job working as director of internal audit for a manufacturing company in California.  He moved to Orange County and rented a house while Andrea and the children remained behind for several months.  In July, Andrea and the children arrived in California and joined Jeffrey.  Approximately six weeks later, in August, Jeffrey admitted to extramarital affairs.  Within two days, Andrea and the children returned to Ohio.  On August 24, Andrea filed for dissolution in Ohio, while Jeffrey filed in Orange County on August 25.

Jeffrey also filed an order to show cause (OSC) seeking return of the children to California.  Andrea appeared and opposed the motion.  At or prior to the hearing on Jeffrey’s OSC, the hearing officers conducted a discussion pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq.).  The California case was stayed pending the Ohio proceedings.

Litigation proceeded in Ohio for the next 31 months.  Jeffrey continued to object that the Ohio court lacked jurisdiction.  In Jeffrey’s motion to dismiss before the Ohio magistrate, he claimed Andrea’s removal of the children from California back to Ohio was “misconduct.”  The magistrate found these allegations to be “brazen and not founded in the facts of the case.”  The magistrate also concluded that had Andrea known of Jeffrey’s extramarital affairs, “she would not have surrendered her job, sold the marital home and moved her children to California . . . .”  The magistrate denied Jeffrey’s motion and concluded the Ohio courts had jurisdiction.

In due course, the Ohio court made findings and entered child support orders.  Child support was set at $1295 per month, retroactive to November 2004, later increased to $1600 per month.  The Ohio support orders were never registered in California.”

Jeffrey continued his two-front battle:  trying to get the Ohio case dismissed, while simultaneously trying to get California to take control.  Eventually he won on both fronts.  The Ohio case was dismissed, and the California case pressed on.  And, Jeffrey then lost the war.

The California court found that setting child support retroactively to the date of Jeffrey’s initial complaint was appropriate, and the court imputed income to Jeffrey for the years 2008 and 2009 at $10,000 per month.  If I am interpreting the California appellate opinion correcting, Jeffrey was less than honest during his dealings in the California court system.

There is simply no way to sugarcoat the extent to which the court concluded that Jeffrey lacked all credibility when it came to reporting financial matters.   “The court carefully watched and listened to Petitioner’s trial testimony on direct examination, cross-examination and when responding to the court’s questions. Over time the court lost confidence in Petitioner’s ability or willingness to tell the truth.”  The court believed Jeffrey was “being purposefully vague and evasive.”

. . .

The court concluded that Jeffrey “is a highly educated and intelligent man, with years of financial experience and a licensed CPA in both Ohio and California.  [¶]

. . . However, using his professional skills, Petitioner has undertaken a course of action to understate his actual income for the purpose of skewing the court’s calculation of guideline child support.  [¶] . . . Based on Petitioner’s multiple instances of presenting false or misleading sworn testimony, this judge has little confidence in the trustworthiness of his financial reports and oral testimony regarding his actual income, except where his testimony was independently corroborated.  [¶] . . . While Petitioner’s tax returns would otherwise be presumed correct, that presumption is soundly rebutted in this case.  (IRMO Loh (2001) 93 Cal.App.4th 325, 337-338.)  Petitioner’s 2008 and 2009 tax returns substantially understate his actual gross income.  [¶] . . . [¶]  Petitioner has purposefully understated his living expenses to match his professed de minimis self-employment income, for the purpose of skirting his obligation to pay guideline child support.  [¶] . . . To the extent Petitioner’s self-employment income is accurately reported, a conclusion this Court rejects, then Petitioner is woefully and purposefully under employed, based on his age, education, work experience, and earning history and a lifestyle that includes homes and businesses in Ohio and California.  [¶] . . . Petitioner has misrepresented his housing circumstances in Ohio, and in fact he is living rent-free in a home owned by his mother.  [¶] . . . Petitioner has not told the truth for the specific purpose of reducing his child support obligations.”

For the entire period retroactive to Jeffrey’s complaint, the court calculated Jeffrey’s child support as $3,125 per month for September to December 2004, $2,762 per month for the first half of 2005, $2,742.00 per month for the second half of 2005, $7,645 per month for 2006, $3,343 per month for 2007, $1,748 per month for 2008, $1,921 per month for 2009, and $1,058 per month for 2010.  Remember, in Ohio it was never set higher than $1,600 per month!   With credit given for the $58,384 Jeffrey had paid to that point, his arrears were calculated at $171,358, and he was ordered to and deemed capable of paying $1,000 per month to satisfy that amount.

Jeffrey appealed, arguing that the court could not issue retroactive child support orders.  He loses.

Technically this case is really about California Family Code Section 4009.  The extensive factual history appears to demonstrate that cheaters get their due.  Section 4009 states:

An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading.  If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service.

According to the Appellate Court:

The plain language of section 4009 gives the trial court the legal authority to make an original order for child support “retroactive to the date of filing the petition, complaint, or other initial pleading.”  While Jeffrey is entitled to his own opinion about what the statute intended, we need not ponder the Legislature’s intent when its language is clear.  “Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law.  [Citation.]  In determining intent, we look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.  [Citation.]”  (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)  Because this case fits within the statutory framework, it was not, as Jeffrey claims, “erroneous on the facts of this case” to apply section 4009, or “an abuse of discretion for the trial court to exercise its Section 4009 power in a way to reward Respondent’s three year efforts to evade California jurisdiction of this case . . . .”

Please click here to read the entire Barth opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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Comments 1

  1. Interesting analysis. Sadly what is missing in this analysis is that the only reason California Jurisdiction was sought was because the Mother/Respondent moved back to Ohio solely to prevent the Father/Petitioner from having “frequent continuing contact” with the minor children. Unreported in your analysis was the fact that Mother originally absconded with the children to Florida where she hid out for a week and only returned to Ohio when she learned that Father who had searching for his missing wife and children had found them and was no proceeding to a california court to seek their return. Fortunately for more than 8 years Father/Petitioner was successful in maintaining as close to a 50-50 custody arrangement as possible given the 3,400 mile geographic barrier and legal obstacles mother had created. Not withstanding this. Interestingly enough the California Court of Appeals did note that sometimes custody arrangements have to be adjusted to accomodate parents work schedules… seemingly placing greater weight on the need for financial support versus emotional support and continuing frequent contact? Is this good public policy? As to the issue of retroactive modification of Ohio orders (which in fact were “agreed judgment entries” or “stipulations”) those orders were based on Ohio cost of living standards and formula which is quite different and distrinct from California’s Child Support Formula (which incidentally takes into consideration the higher cost of living in ‘California’). Apparently much seems to turn on the crediblity of the pro-per Petitioner… perhaps this is a better example of it’s difficult to represent yourself in a legal proceeding, especially when the oppossing counsel is willing to materially misrepresent facts before the judicial tribunal. Fact is a practicing attorney before the bar is inherently going to be considered more credible then a self-represented party. Not withstanding such a generalization, is reasonable for a member of the bar to misrepresent to the Court that no monies were paid except through ‘seizure’ when in fact the parties had voluntarilly entered into a wage-garnishment order to affect support? Is it reasonable for an attorney to misrepresent to the Court of Appeals that the Respondent made three or four general appearances between 2004-2007 when in fact that is absolutely not true? And, just out of curiosity would you have any concern with the expert witness going into the Judge’s chambers immediately after he testified in a case, at the Judge’s request, to have a private conversation without counsel present? Regardless, if you step back and take a deeper look at this case perhaps you might have a different perspective of some of the underlying issues which actually make this somewhat of a problematic and disturbing ruling with respect to 4009 and child support/child custody and jurisdictional matters. If you’d like to take a deeper look and consider this in an objective light that would be welcome.

    Best Regards,

    Jeff

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