August 2019 Update
The current update includes changes that reflect recent developments in case law, legislation, and court rules. Summarized below are some of the more important developments included in this update.
If a party requests attorney fees under Fam C §2030(a), the trial court must make explicit findings on the issues listed in Fam C §2030(a)(2), which include whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. Fam C §2030(a)(2). If those findings demonstrate a disparity in access and ability to pay, the court must make an order awarding attorney fees and costs. Marriage of Morton (2018) 27 CA5th 1025. See §2.71.
By requiring consideration of the parties’ circumstances relative to each other, Fam C §2032 authorizes a need-based fee award even if the party requesting fees can pay his or her own attorney fees. Marriage of Ciprari (2019) 32 CA5th 83. See §6.14.
Adult child support. A trial court did not err by finding that plaintiffs failed to demonstrate a triable issue of fact as to an adult child’s incapacity and lack of means after a motorcycle accident under Fam C §3910 when he was able to continue the same employment that he held before the accident. Lederer v Gursey Schneider LLP (2018) 22 CA5th 508. See §1.7.
Analysis of financial information. A trial court’s use of a 2013 income tax return as a sole measure of income when modifying temporary child and spousal support when a more recent one was available was an abuse of discretion and resulted in a reversal of a support award. Marriage of Ciprari (2019) 32 CA5th 83. See §2.43.
An optional deduction, such as a contribution to an IRC §401(k) account, should be included in a support calculation as an adjustment to income, because the contribution is income but is not presently taxed. In addition, a parent’s state and federal income tax refunds must be added to his or her annual net disposable income when that parent’s income tax withholdings and estimated income tax payments have been deducted from his or her gross income. Marriage of Morton (2018) 27 CA5th 1025. See §§2.48, 3.32.
A deduction for the depreciation of motor vehicles in the calculation of business income available to pay child support is disallowed, since the asset depreciation does not actually reduce a parent’s available income or come within the scope of any specific deduction permitted under Fam C §4058 or §4059. Marriage of Rodriguez (2018) 23 CA5th 625. See §§2.52, 3.39.
Arrearages. A lump-sum benefits payment may be credited retroactively against support already paid in order to avoid a parent’s overpayment of support. Y.H. v M.H. (2018) 25 CA5th 300. See §9.5.
Calculation of child support. Compensation from vested and matured stock options must be included in gross income for purposes of calculating child support under Fam C §4058(a)(1), regardless of whether the parent elects to exercise the option and sell shares of stock. Marriage of Macilwaine (2018) 26 CA5th 514. See §§3.12, 3.55.
A lump-sum benefits payment may be credited retroactively against child support already paid in order to avoid a parent’s overpayment of support. Y.H. v M.H. (2018) 25 CA5th 300. See §9.5.
Effective May 18, 2018, Evid C §351.3(a) generally precludes the disclosure of a person’s immigration status in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status. The circumstances presented in each case should be evaluated to determine whether the exceptions or provisions in Evid C §351.3(b) apply. See Stats 2018, ch 12, §1. See also §6.26B.
Legislation effective January 1, 2019, adds “domestic violence felony” to the type of conviction that will trigger protections against a victim paying an abuser spousal support. To protect spouses who were convicted of felony domestic violence but were actually the abused spouse, the law also authorizes the court to make a fact-based determination and decline to apply select provisions. These changes only apply to convictions that occur on or after January 1, 2019. See Fam C §§4324.5, 4325 (Stats 2018, ch 850). See also §§6.26A, 7.27, 8.29.
The trial court retains an inherent authority to reconsider a temporary spousal support order on its own motion, in order to correct an error. Marriage of Spector (2018) 24 CA5th 201. See §§7.4, 8.1.
When support is governed by a marital settlement agreement or stipulated judgment that does not explicitly limit or waive the change of circumstances rule, the trial court’s changed-circumstances determination must give effect to the intent and reasonable expectations of the parties as expressed in the agreement. Marriage of T.C. & D.C. (2018) 30 CA5th 419. See §8.18.
Set asides. The failure of the parties to actually provide their declarations of disclosure despite a stipulation averring they did so constituted a mistake of fact justifying the set-aside of a judgment. Marriage of Binette (2018) 24 CA5th 1119. See §12.26.