Technical and caselaw questions

[DecentDad]

Hi Soc,

START REMINDER OF BACKGROUND

Via deposition, biomom has admitted her monthly earning capacity, her education, her work experience, her willful avoidance of work for 3 years so she could be a "full-time mother", and that she'd refuse full-time work today if offered it.  

Via her Aug 2004 income/expense declaration, she notes that she works 4 hours per week and nets $187 per month.  She lists her monthly expenses at just under $3,000.  She writes, "Family support varies" as an additional note.

Via her response to form interrogatories, she states child has no special needs and that she herself has no condition that prohibits her from working.  Childcare isn't an issue B/C my work schedule is flexible, and my employer is willing to get creative with me if needed.

Per your guidance, I'm arguing LaBass/Munsee that earning capacity can be imputed and that it's in child's best interest for both parents to financially support child to his/her ability.  My attorney has mentioned this to OC while trying to settle on CS matters in the judgment.

END REMINDER OF BACKGROUND

In discussion, OC has raised Marr. of Cheriton.  The wealth aspect doesn't apply to me-- I have no assets worth more than 4 digits, and  the standard of living in both homes are relatively comparable (i.e., my home is a few hundred sq feet bigger, and my unspectacular car is a few years newer).  There hasn't been a hearing yet on the matter, so I'm not sure why imputation error would apply.

At Aug 30 hearing, judge asked me to file my objections to OC's proposed judgment.  Judge didn't want to read two proposed judgments (i.e., I had filed my own proposed judgment based on actual settlement).

The signed settlement at time of trial in May 2004 doesn't include CS.  But OC's proposed judgment of Aug 2004 DOES include CS.  So, the court hasn't yet ruled on the judgment yet because it has to review my objections.  So it seems like the CS order is in quasi-limbo gray area, and I'm confused on when to file OSC to modify CS.  This is even though I can argue significant change of circumstance from 2002 CS amount, the last actual orders on it.

1.  First, given what I've outlined, does Cheriton apply here on the CS matter?

2.  Given the last paragraph above, at this time, can I file OSC to modify CS?  My main "rush" is so I can get it retroactive to file date, regardless of when the hearing itself happens.  Or would waiting until judgment is entered be less messy, even if it costs me a few hundred a month in additional CS due to much later retroactive date?

Thanks, Soc.

DD

[socrateaser]

>1.  First, given what I've outlined, does Cheriton apply here
>on the CS matter?

You are missing the point of Cheriton. The court said in dicta, that it couldn't imagine a situation where it was in the child's best interests to impute earnings to the custodial parent in order to lower the non-custodial parent's obligation. The court went on to say that rulings such as Munsee and others never discussed exactly what the trial court had found making the ruling in the child's best interests, but said, that it was unnecessary for the Cheriton court to determine this because it wasn't relevent to the Cheriton ruling.

So, what does this mean? The Cheriton court is issuing a not-so-veiled suggestion, that there will never be an instance where a custodial parent's income should be imputed to the benefit of the non-custodial parent. Nevertheless, the Munsee court did, in fact, find that it was proper for the trial court to impute income to the custodial parent, and Munsee, not Cheriton, is still the leading case in this area of law.

Now, how does this affect you. First, if you run a couple of Dissomaster hypotheticals, you will quickly discover, that $1 of custodial parent income, is MORE valueable than $1 of non-custodial parent income, even though the non-custodial parents support obligation is lowered as a result. So, your argument to defeat the Cheriton dicta, is, that if a trial court believes that the best interests of children are to be measured mostly by money (a little legal uppercut at the utter nonsense that is the California Uniform Guideline), then the more money that the custodial parent earns, means more total money allocated to the support of the children, and therefore, a better life for those children. Therefore, the court MUST impute income to incentivize the custodial parent to act in the children's best interests.

A colleteral, and very interesting argument flows from all this, i.e., if the custodial parent is not working to her earning capacity, and working to earning capacity is in the child's best interests, then the custodial parent is not acting in the children's best interests, and therefore, this is a substantial change of circumstances affecting the children's best interests, and grounds for a NEW custody hearing (once again, showing how the Guideline is nonsensical, because child support is not legally permitted to affect custody, custody must be decided first, then child support applied to the outcome).

If I were confronted by OC's veiled threat to use Cheriton, I would give him the above argument, and then I'd tell him that I'd see him in court. But, that's just me.

>
>2.  Given the last paragraph above, at this time, can I file
>OSC to modify CS?  My main "rush" is so I can get it
>retroactive to file date, regardless of when the hearing
>itself happens.  Or would waiting until judgment is entered be
>less messy, even if it costs me a few hundred a month in
>additional CS due to much later retroactive date?

Retroactivity cuts both ways, but, if you have a provable case for imputing income, then I would be pressing it now to avoid the possibility that your opponent will claim that there are no facts, subsequent to final judgment, and therefore no change in circumstances under which to move for a CS mod.

[DecentDad]

Okay, thanks for clarifying Cheriton.  

And thanks on the thought to get the changes of circumstance outlined and filed.  Is it still critical if my objection to CS included mention that relevant circumstances have changed?

Aside from the wealth component, I thought Cheriton primarily stated that the trial court erred by not stating how it was in child's best interest to impute mother's income (i.e., a lack of information, as opposed to bad discretion in acting in best interest).

But what you outlined... despite your very logical progression and extrapolation, the outcome is idiotic (as probably was your point).  I don't know how attorneys keep their heads because so many of these rulings are so micro in nature that there's no seeming consideration for the ultimate nonsensical conclusion.

That rant aside....

In my work, I have access to data findings that show that even controlling for many other determinants, the "General Health Status" of a child in a single parent home is positively and strongly correlated to income of that parent.  The difference in kids' health status is very significant when comparing homes earning less than 100% poverty level versus homes earning 200%+ of it.  Parents who earn the most have kids who are healthiest.

Now, in science, correlation isn't the same as causation, but the law ain't science.

This data would supplement the argument you suggest that it's in child's best interest for biomom to earn more (i.e., per your point that every dollar she earns is a net gain, not a net loss).  The data source is bulletproof-- the project is funded by state and federal resources, is used by state and federal agencies, and the data have been cited in hundreds of publications.

Obviously, while the data don't specifically name my 4 year old daughter and state that SHE is/isn't harmed by her mother's income, it's the same anticipated premise on which Cheriton concludes reducing child support would harm daughter if mother's income is imputed.

1.  Would a court care if I included data findings as exhibits?  Would it strengthen a court's resolve to disagree with a Cheriton argument?

2.  Is it relevant if I were to get an expert who can testify that household income is among the strongest determinants of a child's overall welfare?  I have such experts as colleagues, but they're arguably biased towards me.

Always appreciative for your guidance in navigating these waters, including the seeming rogue currents that occassionaly pop up.

DD

[DecentDad]

That's essentially what it'd be doing if it refused to impute income to the mother.

In 2001, 2002, 2003, and 2004, her net monthly income has hovered around $200, but she has 10+ years experience teaching, has a Masters, and concedes her earning capacity is $5k/month.

If a court refuses to impute income, it's giving a green light to every custodial parent to quit his/her job.

[socrateaser]

>1.  Would a court care if I included data findings as
>exhibits?  Would it strengthen a court's resolve to disagree
>with a Cheriton argument?

I don't know. You may actually confuse the issue -- or maybe not.

You're correct that Cheriton ruled that the trial court failed to state why it was in the child's best interests to impute support, but your opponent is about to try to use the dicta that I referred to as the rebuttal to your argument to impute. And, your oppoent is depending upon you to simply do what he and the Cheriton court did, i.e., not actually investigate the facts, and simply conclude that more income from the non-custodial parent is better than less. The fact is, that the three judge panel, and now your opponent has failed to actually examine the facts, which, as I point out, reveal a dollar of custodial income is more valueable in terms of income available for support than is a dollar of non-custodial income, therefore, imputing income to the custodial parent, assuming that additional earning capacity exists, is more in the child's best interests than not imputing income -- assuming that there is no other credible reason to allow the custodial parent to not work -- and there may be (such as, with a very young child, one could argue that the child is better served by the custodial parent directly caring for the child, than by placing the child in daycare).

But, that argument is for your opponent to make -- and, he/she will more than likely capitulate when he/she realizes that the dicta of Cheriton that he/she wants to rely on as a legal argument is pure B U L L S H I T ! ! !

Nuff said on this.

>
>2.  Is it relevant if I were to get an expert who can testify
>that household income is among the strongest determinants of a
>child's overall welfare?  I have such experts as colleagues,
>but they're arguably biased towards me.

That would probably be great. Your opponent isn't gonna buy a rebuttal expert on this issue.

[socrateaser]

>That's essentially what it'd be doing if it refused to impute
>income to the mother.
>
>In 2001, 2002, 2003, and 2004, her net monthly income has
>hovered around $200, but she has 10+ years experience
>teaching, has a Masters, and concedes her earning capacity is
>$5k/month.
>
>If a court refuses to impute income, it's giving a green light
>to every custodial parent to quit his/her job.

Right. Your facts are almost exactly the same as Munsee. Trial courts are terrified to not go with the guidelines, and imputing income is part of the guidelines, not a deviation from them, because, with the exception of Marriage of Hall, no appeal of guideline support has ever been reversed.

[DecentDad]

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