(d) He receives the child into his home and openly holds out the
child as his natural child.

What does that mean? A man’s actions, after knowing he is not the child’s father, can lead to a situation (if everything else is in place) that creates a parent/child relationship, where one can be obligated to pay child support for a non-biological child. Of course you would then have rights of child custody regarding the non-biological child … but that is for another post.

“Guideline child support” is defined in California’s Family Code Section 4055, which specifies a complex algebraic formula into which the parties’ net incomes and respective percentages of time with the children are inserted. The result of the computation is the “guideline” amount, and is presumptively correct, subject to various rebutting factors. The “Dissomaster” is one of several proprietary computer programs that tax-impact gross incomes and otherwise “crunch” the numbers pursuant to the statutory formula. The formula is so complex that the assistance of this type of software is virtually obligatory.

Family law judges, attorneys and parties, must grapple with the problem of tailoring child support awards to the needs of the litigants and their children without running afoul of the statutory scheme. The objective is to make the inflexible statutory foundation permissibly accommodate a case’s special circumstances rather than assuming that child support orders must be “one size fits all.”

The solution, as explained in Wilson v. Shea, 87 Cal.App.4th 887 (2001), lies in the methodology. First the court must calculate guideline support under the guideline formula. Only then may the court deviate from guideline, articulating on the record the reasons for the deviation.

Wilson is the latest in a series of decisions holding that the failure to make a guideline child support calculation before departing from guideline is reversible error. In Wilson, the mother’s request to relocate to South Carolina with the parties’ child was granted. The trial judge then made a child support order based on an earlier Dissomaster calculation. The trial judge did not recalculate guideline child support to take into consideration new income and time-share variables.

The child support order also provided that a portion of the monthly child support would be deducted from the amount to be paid to the mother and put into a travel fund controlled by the father. The trial judge’s rationale behind the travel fund was that “‘Mother had basically alienated the relationship between father and daughter.’ The point of the deduction … was to attempt ‘everything we could to keep father involved in this child’s life.’” 87 Cal.App.4th at 891.

Wilson spells out the areas in which the statutory child support scheme is inflexible, and those that provide trial judges with flexibility in fashioning child support orders.

On the one hand, Family Code Section 4056(a) requires that when varying from guideline child support, “the court shall state, in writing or on the record … [t]he amount of support that would have been ordered under the guideline formula,” as well as the reason for making a different child support order and the reasons the order is consistent with the best interests of the children.

The inescapable duty to calculate guideline child support has been the subject of stinging judicial comments directed at the Legislature and nods of sympathy directed at the bench officers who must carry out that obligation. The task has been called a “tedious job,” and likened to “doing someone else’s tax returns.” In re Marriage of Hall, 81 Cal.App.4th 313, 317 (2000). In In re Marriage of Schulze, 60 Cal.App.4th 519 (1997), the algebraic formula was “likened to something out of Alice in Wonderland. Actually, it is worse than that. The system is a kind of hybrid of quantum physics and Zen philosophy.” 60 Cal.App.4th at 523 n.2.

Worst of all, the rigid formula, which requires the use of a computer, “is not understood by anyone, least of all the affected parties,” and not even the legislators who enacted it. In re Marriage of Fini, 26 Cal.App.4th 1033, 1040-41 (1994).

Counterbalancing the inelasticity of the guideline child support calculation, the Wilson holding reaffirms that trial judges must have great flexibility in deviating from the amount of support indicated by the guideline calculation. “There is nothing we or any other panel of the appellate court can do to relieve the burden [the child support] statutes place on family court trial judges to run the Dissomaster or some equivalent to calculate a guideline, but we certainly can refrain from enunciating common law rules that make an inflexible system even more inflexible.” 87 Cal.App.4th at 894.

Justice Sills’s comments echoed the earlier writing of Justice Donald B. King in Fini that “the court must have the ability to exercise discretion to achieve fairness and equity. … [T]he court, in child support cases, is not just supposed to punch numbers into a computer and award the parties the computer’s result without considering circumstances in a particular case which would make that order unjust or inequitable.” 26 Cal.App.4th at 1043.

The source of flexibility in child support orders, and thus of relief from the harshness of the guideline amount, lies in Family Code Section 4057(b). This section provides: “The presumption [of the formula amount] … may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case … because one or more of the following factors is found to be applicable by a preponderance of the evidence.”

The statute then lists a number of factors, concluding with subdivision (b)(5), “Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: …”

As the Wilson opinion points out, “As draconian as the guideline scheme is, the Legislature still could not bring itself to make the list of exemplary special circumstances … exhaustive. … Just because a circumstance is not mentioned in section 4057 does not mean ipso facto that it does not merit reducing support from the guideline amount.” 87 Cal.App.4th at 898.

Wilson holds that one of the unenumerated circumstances that may justify variance from guideline support is the noncustodial parent’s travel expenses for visitation. As noted, Wilson involved a cross-country relocation by one parent and the parties’ child. The trial judge in Wilson used a portion of child support to create a travel fund that the father could utilize to fund his cross-country trips to visit with his daughter. There is no provision in the Family Code for a travel fund.

However, as stated in the Wilson, flexibility is “particularly important” in move-away cases. 87 Cal.App.4th at 894 n.6. That is because, except in the case of relatively wealthy families or very short moves, the expense of travel will limit the frequency of contact between the child and the noncustodial parent.

Family Code Section 4056(a)(3) requires that any justification for departing from guideline child support be based on the “best interests of the children.” Elsewhere in the Family Code, the Legislature has declared that “it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated.” Family Code Section 3020.

Although Family Code Section 4062(a) permits the court, in its discretion, to order allocation of travel expenses for visitation as additional child support, there is no explicit reference in the Family Code to a reduction of child support for travel expenses. In recent years, there has been a conflict as to the authority of the court to deduct travel expenses from child support. Wilson clearly identifies Family Code § 4057(b) as the source of that authority.

In Fini, one of the earliest cases to interpret the present child support statutes (Family Code Sections 4050-4076, formerly Civil Code Sections 4720-4732, effective July 1, 1991), the court dealt with the issue of allocation of expenses under Family Code Sections 4061 and 4062. With regard to travel expenses, the court observed, “The statutory language concerning additional child support in the discretion of the court for travel expenses for visitation is confusing, because such expenses are usually incurred by the noncustodial parent who is paying child support. Under these circumstances, it is a misnomer to call it additional child support or an add-on, since incurring the financial burden of this expense usually will result in some reduction of the child support otherwise ordered. In this sense, although semantically peculiar, it might more properly be called a negative add-on.” 26 Cal.App.4th at 1039 n.5. Thus, the Fini court found it permissible to deduct travel expenses from, as well as add them to, child support.

The following year, a different appellate panel reached the opposite conclusion in In re Marriage of Gigliotti, 33 Cal.App.4th 518 (1995). That court held that, “To the extent that the court in Fini interpreted Family Code section 4062 to permit a reduction of the guideline amount of child support, or what it denominated a “negative add-on,” because of travel expenses for support, we find no such authority therein or elsewhere in the code. In fact the language of subdivisions (b)(1) and (b)(2) of section 4061 appears to authorize only additions to the guideline formula amount because of expenses set out in section 4062. 33 Cal.App.4th at 528-29 (emphasis in original). The Gigliotti court concluded that, “the trial court lacked authority to reduce the guideline amount of child support due to [the noncustodial parent's] travel expenses.” 33 Cal.App.3d at 529.

In In re Marriage of Burgess, 13 Cal.4th 25 (1996), which did not expressly consider child support issues but which placed the burden on the noncustodial parent to show that a move is prejudicial to the child, the Supreme Court commented that the trial court has “broad discretion” to make orders which minimize the minor children’s loss of contact with the noncustodial parent by, among other things, “allocating transportation expenses to the custodial parent.” 13 Cal.4th at 40. The Wilson panel did not rely exclusively on Burgess, however, but instead dealt directly with the issue raised by Fini and Gigliotti.

Disagreeing with Gigliotti, the Wilson court pointed out that the portion of that case that finds no authority for reducing child support by allocating travel expenses for visitation is dicta. Gigliotti was dealing with a case where the custodial parent was required to incur travel expenses for herself, in order to accompany her young son for purposes of visitation. Although, as in Wilson case, the father was permitted to deduct sums from child support for a travel trust to be used for his travel expenses for visitation, over the course of a year, the mother paid more travel expenses than did the father. Nevertheless, only his travel expenses were allocated. Under those circumstances, the Wilson opinion concluded, Family Code Section 4062(b)(2) should have been utilized to increase child support, not to decrease it.

In contrast, in Wilson only the father had travel expenses associated with visitation. In such a case, Wilson holds, the court has authority to adjust guideline support take those expenses into consideration. That authority need not be found in Family Code Sections 4061-4062. Travel expenses can properly be deemed a “special circumstance” justifying deviation from guideline support under Family Code Section 4057(b), in order to promote frequent and continuing contact with both parents after the parents have separated. The “practical necessity” of creating a travel fund in such a case, the court said, “is certainly a factor which may mean that the rote application of the guideline formula is unjust or inappropriate in some cases. A case such as we have here, where the custodial parent has interfered with visitation rights, is a prime example.” 87 Cal.App.4th at 898.

Finally, the Wilson court dealt with the propriety of the travel trust mechanism, in which control of the portion of child support funds reserved for travel expenses was given to the noncustodial parent. The court found no abuse of discretion in vesting control in the father in this instance, given that the custodial parent had a history of interfering with visitation, “and therefore might be tempted to play games or dip into the trust fund.” 87 Cal.App.4th at 898.

Although an order establishing a trust fund for college and other expenses had been reversed in In re Marriage of Chandler, 60 Cal.Rpp.4th 124 (1997), that case was distinguishable because the trust in Chandler was directed at future needs, after the child had attained majority. Such a trust was, in effect, adult child support. The order for the trust in Chandler also allowed the noncustodial parent to interfere or otherwise direct the custodial parent’s use of support money. In Wilson, however, the funds were earmarked for one “very worthy — and current — purpose, necessitated by the custodial parent’s unilateral decision to move out of state. 87 Cal.App.4th at 896.

Although Wilson appears to deal with a relatively narrow issue of allocation of travel expenses for visitation, the decision is far more significant than its facts suggest. The central theme of Wilson is reinforcement and facilitation of “the common law policy in favor of maximum possible discretion within the confines of the statutes.” 87 Cal.App.4th at 898. In furtherance of that policy, the Wilson decision harmonizes seemingly disparate portions of the child support statutes, so as to provide the trial court with the greatest flexibility in fashioning child support orders.

Thus, when advocating child support issues, the family law practitioner should always remember that plugging numbers into the guideline formula is the necessary beginning, but only the beginning. After “those dang things” (guideline calculations) have been determined, where either party is requesting a deviation from guideline, the focus must always be on the best interests of the child æ and on the court’s maximum possible discretion to make orders in the child’s best interest within the statutory scheme.

Shelley L. Albaum, Harold J. Kohn and Seth D. Kramer, attorney with Starre & Cohn in Los Angeles, limit their practice to family law matters. Mr. Kramer and Mr. Cohn are certified family law specialists.

Issues pertaining to Social Security benefits arise for family law practitioners in connection with characterization and division of property, bifurcation and early termination of marital status, calculation of child and spousal support and determination of child support arrears.

There are two categories of OASDI retirement benefits — direct or “primary” and derivative or “family.”

Primary benefits are payable to a retired, fully insured worker are 62 or older.

Under federal law, the primary Social Security benefits earned by the employee spouse during marriage are the employee’s separate property. Thus, the state court has no jurisdiction to divide or award offsetting property for the benefits.

In In re Marriage of Kelley (1976) 64 Cal.App.3d 82, the Court of Appeal held that the right to future Social Security benefits is not subject to division as community property in the course of a dissolution of marriage action. Characterization of Social Security benefits as divisible community assets would seriously interfere with the express statutory scheme of the Social Security Act, and would run afoul of the supremacy clause of the United States Constitution, held the court in In re Marriage of Nizenkoff (1976) 65 Cal.App.3d 138, relying in large part on Flemming v. Nestor (1960) 363 U.S. 603. The Kelley court reasoned that the statutory scheme underlying Social Security benefits is “one of social insurance designed to provide financial security to covered workers and their families rather than one of deferred compensation for past labor.”  64 Cal.App.3d at 268.

Derivative benefits are payable to a spouse or ex-spouse after retirement following a marriage of at least 10 years’ duration, measured from date of marriage to the date the marital status is dissolved. The spouse or ex-spouse must be 62 years of age or greater. The ex-spouse must satisfy a two-year waiting period if the employee was not actually receiving benefits before the divorce. The benefits are based on the working spouse’s contributions to the Social Security system.

Additionally, a widow, widower or surviving ex-spouse of an employee who remarries after age 60 is entitled to receive derivative benefits.

Just as is the case with primary benefits, derivative benefits are the separate property of the ex-spouse. In re Marriage of Hillerman (1980) 109 Cal.App.3d 334. Since an ex-spouse becomes entitled to such benefits only if the marriage lasts 10 years or longer, if the marriage is close to 10 years’ duration, counsel should attempt to delay termination of marital status until after ten years’ duration.

Counsel should be particularly alert to this issue where the opposing party has requested bifurcation as to marital status and early termination of the marital status. Family Code § 2337 provides some protection in the form of a condition that may be imposed on party requesting bifurcation:

(c)  The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that party’s death, an order of any of the following conditions continues to be binding upon that party’s estate [until entry of judgment on remaining issues]:

(7) [H]old the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.

(8) Any other condition the court determines is just and equitable.

One condition which might be requested is delay in entry of judgment until following the tenth anniversary of the marriage.

Social Security benefits, whether primary or derivative, are includible in income for purposes of determining spousal support. In re Marriage of Nizenkoff (1976) 65 Cal.App.3d 136.

Upon the retirement or disability of a parent, the children of that parent are entitled to receive secondary benefits under the Social Security Act. 42 U.S.C. § 402(d). Those benefits may be included in the custodial parent’s income for purposes of calculating child support pursuant to Family Code § 4058(a)(1).

However, if the benefits are not considered in the child support calculation, they offset the payor parent’s child support obligation in the manner set forth in Family Code § 4504, which provides:

If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act or Railroad Retirement Act because of the retirement or disability of the noncustodial parent and transmitted to the custodial parent or other child support obligee each month shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid. If a lump-sum payment which represents payments for more than one month is transmitted to the custodial parent or other child support obligee, credit shall be given for each month for which the lump-sum payment was made.

In contrast, Social Security death benefits received by a child in connection with the death of the supporting parent do not offset the child support obligation of the deceased parent, since Family Code § 4504 specifically refers to retirement and disability benefits, but not to death benefits. In re Marriage of Bertrand (1995) 33 Cal.App.4th 437. The child support obligation continues beyond the death of the supporting parent [Stein v. Hubbard (1972) 25 Cal.App.3d 603] or the recipient parent [In re Marriage of Gregory (1991) 230 Cal.App.3d 112].

Where the child’s parents were not married, the child will not be entitled to Social Security survivor benefits arising out of the death of the father unless a judgment of paternity is entered before the father’s death [Casserino v. Sullivan (9th Cir. 1990) 921 F.2d 862] or the father was living with or contributing to the support of the child at time of death

In In re Marriage of Robinson (1998) 65 Cal.App.4th 93, the Court of Appeal held that Social Security retirement or disability payments which fall within the purview of Family Code § 4504 are credited only against the amount of child support “ordered by the court to be paid for that month” and are not to be credit toward amounts due for prior months or to accrued interest on arrearages. The appellate panel relied in part on Sullivan v. Stroop (1990) 496 U.S. 478, in which the United States Supreme Court held that although a child’s Social Security insurance benefits are “child support” in the generic sense, they are not child support payments from obligor parents, but rather are insurance benefits.

The Robinson holding is entirely consistent with the last sentence of section 4504, which was added to the statute by 1996 amendment. The holding further clarifies certain ambiguities in the holdings of In re Marriage of Denney (1981) 155 Cal.App.3d 543, and County of Napa v. Combs (1990) 222 Cal.App.3d 1077.

Denney had held that the noncustodial parent was entitled to credit against his child support obligation for disability payments made on his behalf for his minor children, and upheld the predecessor statute to section 4504 against constitutional challenges based on both the supremacy clause and the prohibition of taking of property without due process. However, Denney, did not reach the issue of credit against arrearages.

Combs clarified that the predecessor statute to section 4504 did not apply to Social Security survivor benefits received on behalf of the child with respect to the death of the custodial parent.

Thus, in any dissolution of marriage action in which one or both parties have paid into the Social Security system — which encompasses almost every marriage — and in any child or spousal support action in which Social Security disability, retirement, or survivor benefits are being paid or have been applied for, counsel should be cognizant of the interplay between state and federal law governing Social Security benefits.