Entries Tagged 'Articles' ↓

Guideline Child Support Dissomaster Calculations

Guideline child support Dissomaster calculations æ sometimes referred to as “those dang things” (the “apt phrase” of the trial judge in In re Marriage of Whealon, as cited by Justice David G. Sills at 53 Cal.App.4th 132, 144 (1997) æ- are the Procrustean beds of child support cases.

“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. Continue reading →

Treatment of Social Security Benefits in Family Law Act Matters

Family law practitioners are well aware that they must incorporate knowledge of federal law regarding taxation and retirement benefits into their daily practice. However, those same knowledgeable attorneys often overlook another significant area of federal law which has a recurring and pervasive impact on domestic relations issues. That area is Federal Old Age, Survivors and Disability Insurance benefits (OASDI, commonly known as “Social Security”).

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. Continue reading →

Reductio Ad Absurdum

Family lawyers are often perplexed by individuals who have variable or seasonable income. An actor can make a huge amount of money for three months work on a film and then have nine months of unemployment. A commission sales person can be lured to a new job by an initial large bonus characterized as a “loan” which is thereafter immediately forgiven over the succeeding years of employment. How should a court deal with that individual’s income for the purposes of child/spousal support and attorney’s fees?  The recent case of In re Marriage of Riddle, (2005) 125 Cal.App.4th, 1075, 23 Cal.Rptr. 3d 273, discusses these issues and provides a road map for handling same. Continue reading →

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. Continue reading →

Child Support / Laches

One of the axioms in family law is that if you owe child support it is an obligation that will follow you forever.

This is clearly the intent of the California legislature. Prior to 1992, child support orders were like other civil judgments in that there was a set time period in which they could be enforced and then, after the time period renewed. In a series of legislation in 1992 and 1993, the scheme for enforceability of all support orders were dramatically changed. Family Code Section 4502 eliminated the need to renew judgments awarding support (both child and spousal) and effectively made support orders enforceable in perpetuity. Subsequent to the aforementioned new legislation, the courts, in interpreting same, found that latches could still be a defense not only to a collection of arrears of spousal support but also child support (In re Dancy (2000) 82 Cal.App.4th 1142, 1147-1160). Continue reading →

What Constitutes Income for Child Support

In the recent case of Yesem Asfaw v. Zeman Woldberhan, 2/27/07 DJDAR 2721. BI82096 (Second Appellate District Division 8)  the appellate court found that in determining what made up available income to utilize the formula for child support pursuant to Family Code Sections 4058 and 4059,  that in certain circumstances depreciation is not an allowable deduction from gross income.

The case involved a non-custodial father whose source of income was monies received from various investments including apartment buildings. In determining his income available for support calculations  with respect to money derived from his rental properties, the court deducted depreciation. The mother appealed and the appellate court reversed. Continue reading →

When Do You Owe What You Owe?

It is not uncommon for litigants in family law cases to find out that, unbeknownst to them, they owe substantial amounts of money in either spousal or child support arrearages. The usual response is “how did this happen”?

The simple answer to this question as to child support is found in this state’s public policy to maximize the collection of child support (See Family Code §4053 and §4071) coupled with the aggressive tactics of the district attorney’s offices throughout the state. The district attorney is the agency entrusted under Family Code §4002 and Welfare and Institutions Code §11350 and §11475.1 to collect child support. There has been a “split” in policy between district attorney’s offices throughout the state as to whether or not all child support orders could be retroactive to the date of commencement of the proceeding (i.e. the filing of a paternity action or a complaint to establish child support) or from the date the first motion or Order to Show Cause formally requesting a temporary order from the court was filed. Continue reading →

Grandparent Rights

Almost fifteen years ago, these authors examined the nascent trend of expanding visitation rights of nonparents, in their article “Stepparents, Grandparents, Lovers and Friends.” (Los Angeled County Bar Association Family Law Section News and Rreview Vol 7, No. 2) At that time, relatives and others who had some sort of relationship with a child were increasingly able to obtain court-ordered visitation with the child, over the objections of the parents.

Recently, in Troxel v. Granville (June 6, 2000) 2000 Daily Journal D.A.R. 5831, the United States Supreme Court made a rare incursion into the realm of visitation rights, a matter which the Court has traditionally left to the states. The Troxel decision, which appears to limit the availability of nonparental visitation, offers family law practitioners an analysis of the role of federal substantive due process and Constitutional rights on child custody litigation and the statutes governing such litigation. Continue reading →

Focus On The Best Interest of The Child

The Fourth Apellate District’s decision in Craig L. v. Sandy S. (2004) DJDAR 1505(a), is the latest pronouncement from the California Courts of Appeal holding that when there are dueling and/or competing “presumptions” of parentage the courts should focus on the best interest of the child, as opposed to maintaining the integrity of a marriage.

Craig L. and Sandy S., both married to others, had an affair in the Spring of 2001. Sandy became pregnant during the affair, and gave birth to Jeffrey S. on February 11, 2002. Routine blood testing at the hospital revealed that Brian could not be Jeffrey’s father. Sandy ultimately confessed the affiar to her husband, Brian, and told him that only Craig could be Jeffrey’s biological father. Craig L. also confessed to his wife, Katherine L. that he had had an affair. Craig and Katherine agreed to participate as fully as possible in Jeffrey’s upbringing. Craig L. signed a child support agreement for payments to Sandy S. The agreement provided that Craig’s wife Katherine would take care of Jeffrey three to four days a week in their family home. The visitation later included one overnight stay each week, as the child got older. Craig further alleged that he held Jeffrey out to his family and friends as his son. Continue reading →

Its Not Final Until It’s Final

Rose v. Richardson, (2002 DJDAR 11827)

In the Supreme Court case of Montenegro v. Diaz (2001), 26 Cal.4th 249; 109 Cal.Rpt.2d 575, the Court clearly stated that a custody stipulation entered into by the parties will not constitute a final judgment of custody unless there is a “clear, affirmative indication” (Page 581) that the parties intended it to constitute  a final judgment of custody. The practical effect of this finding is that if there is not a final adjudication of custody, any modification or changes in custody require only a showing of “best interest” and not a showing of the more difficult “a change of circumstances”. In custody litigation, this is a very significant difference. Often, a change in the custody/visitation schedule may be appropriate post judgment based upon the child’s age, multiple attachments, passage of time or other changing social and developmental needs that would impact upon a child’s “best interest”. However, parties are often unable to establish that the aforementioned happenings constitute result a “change of circumstances”. This increased post judgment burden is particularly important in “move away” cases where one party has “custody” and the other party  has only “visitation”. Continue reading →

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