Need for Income & Expense Dec. (FL-150) in Child Support Modification

The consequences and rules for “timely filings” of income and expense declarations in the context of support modifications was discussed in the recent case of In re Marriage of Tydlaska 2003 DJDAR 13839

Lee and Darlene Tydlaska received a judgment of  divorce in September 2001 after a 27 year marriage.  Lee was ordered to pay, pursuant to the judgment, child support of $2,185 per month and monthly spousal support of $4,000. In December 2001, Lee filed an Order to Show Cause to modify child and spousal support. At that time, Lee provided an income and expense declaration dated December 24, 2001, showing his gross monthly income at that time was $10,423. At the hearing for the order to show cause in February 2002, the court appointed a special master to determine Lee’s income. The special master filed his report with the Court in July 2002. The special master found that for the year 2001, Lee’s gross income was $11,983.00. The Court held a hearing on August 8, 2002 and denied Lee’s request to modify support because Lee did not have a current income and expense declaration filed. Lee appealed the decision and the appellate court sustained and upheld the trial court.

In its decision, the appellate court cited local San Diego County Superior Court Rules 5.40 and 5.47 requiring that although an income and expense declaration needs to be filed with the moving papers supportive of a modification, an income and expense declaration is only deemed current if executed within 60 days of the hearing. The court also stated that pursuant to the local San Diego Superior Court rules, supplemental or updated income and expense declarations shall be filed at least five court days before the hearing. Apparently, Lee did not do either of those things and relied on the income and expense declaration filed with his moving papers in December 2001, almost nine months prior to the trial court’s ruling.

As the appellate court stated:

“In requesting modification of spousal support, Lee was required to present the trial court with evidence as to how his circumstances had materially changed since the original support order was made. However, he produced no evidence at the hearing specifically, a current income and expense declaration to prove that he was entitled to a modified support order. Instead, he chose to rely on outdated financial information from which the court cannot fairly and adequately determine whether a material change of circumstance had occurred and whether modification was warranted. Because Lee failed to present an ‘evidentiary yardstick’ with which the Court could determine the appropriateness of a modification, his request to modify support was probably denied.”

Lee contended that because the court had appointed a special master to determine his income for the court and the special master had submitted a report, that he did not have to file an updated income and expense declaration. The appellate court dealt with that issue summarily.

A special master, according to the appellate court,

“is not empowered to make binding factual findings or judicial determination. Rather, the court must make its own determination based on a report containing the special master’s findings and recommendations which the Court may either adopt or modify.”

In this particular case, at the time of the dissolution judgment, Lee was awarded the parties’ closely held corporation, Computer Conversion, Incorporated (”C.C.I.”). Part of the assignment for the special master, was to determine Lee’s income for support purposes from C.C.I. The appellate court pointed out that the special master had based his findings upon C.C.I.’s financial records for 2001. The Appellate Court noted that the special master “did not determine Lee’s unearned income, assets, expenses or standard of living all of which the court was required to consider in ruling on the modification motion.

“Through no fault of the court, the passage of time makes the special master’s finding as to “current income” obsolete.”

As the Court had earlier indicated, the burden of showing a modification was on the party requesting a modification of support and as such, the trial court was appropriate in denying Lee’s modification.

Although not cited by the appellate court, the case of In Re Marriage of Hoffmeister (161 Cal.App.3d 1163; 208 Cal.Rptr. 345 (1984)) also dealt with the issue of filing of a untimely income and expense declaration in a post-judgment support modification. In that case, the wife was requesting a modification of spousal support seeking an increase in the monthly amount she was to receive. After extensive discovery, the wife filed and served a “new” income and expense declaration three days prior to the court hearing. At the modification hearing, husband requested that either the court strike the “new” and untimely income and expense declaration or grant husband a continuance. The court denied the continuance request and received into evidence the “new” income and expense declaration. Husband appealed and the appellate court reversed the trial court’s decision.

Contrasting Tydlaska with Hoffmeister, one finds that the unlike Hoffmeister, there is no request by the responding party for a continuance and the question arises that since the moving party was not able to meet its burden in Tydlaska whether or not Hoffmeister even applies. One of Lee’s appellate contentions was that Darlene failed to file a timely income and expense declaration. The appellate court dealt with that contention by stating,

“Indeed, the court denied Lee’s request to modify support, because Lee, as the moving party, failed to meet his burden of proof. Whether Darlene’s income and expense declaration was timely served had no bearing on the court’s decision and the issue does not advance Lee’s position on appeal.”

It is interesting to note that Tydlaska involves a post judgment modification. A different standard to support modifications apply to pendente lite modifications. All pendente lite orders of support are made without prejudice and require no showing of a change of circumstance. Sande v. Sande (1969) 276 Cal.App.2d 324; 80 Cal.Rptr. 826; Family Code Section 3604.  Also of note in the Tydlaska case is that the court never states what the trial court found was Lee’s income at the time of the dissolution trial in September 2001 approximately three months prior to Lee filing a modification).  Presumably, Lee’s income was higher at the time of trial, even higher than the special master’s finding, but the court is silent on that.

Prior to a dissolution of marriage being granted, and all community interest and property divided, the parties stand in a fiduciary relationship to each other (Family Code Section 721 et seq.). The parties have a duty until the final judgment of dissolution of marriage to provide to the other party a current income and expense declaration (Family Code Sections 2104 and 2105).

Tydlaska provides that even after a dissolution of marriage, a party/payor requesting a modification of support, needs to provide the court and the other party with as current income information as possible similar to the requirement of the party prior to the final judgment of dissolution of marriage.

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