In re Marriage of Fluckiger

Filed 11/28/05 In re Marriage of Fluckiger CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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In re the Marriage of ELIZABETH ANN and KELLAN L. FLUCKIGER.
EL DORADO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent, v. KELLAN L. FLUCKIGER, Appellant.	C044474 (Super. Ct. No. SDR20536)

Kellan L. Fluckiger appeals from a trial court’s postjudgment order requiring him to pay the sum of $1,417.11 per month to the County of El Dorado (the County) for the support of his two minor sons, who reside in rehabilitative group homes as a result of juvenile delinquency disposition orders. Fluckiger disputes the amount of the support order, claiming the trial court failed to apply the mandatory statewide guidelines for determining child support and failed to properly take into account that the delinquent minors’ six younger siblings remain in Fluckiger’s full-time custody. We shall reverse the order and remand for further proceedings.

FACTS

Fluckiger and Elizabeth Ann Crowley, who is not a party to this appeal, are the divorced parents of eight children, who ranged in age from 16 to 6 at the time of the trial court’s order. Fluckiger had physical and legal custody of the six younger children by virtue of prior court orders. The two older boys had been adjudged wards of the El Dorado County Juvenile Court, apparently as a result of acts of abuse the two inflicted on their younger siblings. The two boys lived in rehabilitative group homes, a placement supported in part by foster care funds, which made Fluckiger liable to reimburse the County for the cost of support.

Parents of a minor child have a joint and several obligation to support their child (Fam. Code, § 3900), and their liability extends to circumstances where the child is either committed to or voluntarily placed in a group home or other 24-hour out-of-home care. (Welf. & Inst. Code, §§ 903, 903.5.) When a county steps in for the parents and “furnishes support to a child, the county has the same right as the child to secure reimbursement and obtain continuing support.” (Fam. Code, § 4002, subd. (b); further section references are to the Family Code unless otherwise specified.) Thus, when the County furnished support to their two older sons by placing the boys in a group home, Fluckiger and Crowley were liable to the County for such support.

In January 2003, Fluckiger petitioned to reduce the amount he pays for support from $2,150 to $1,111 per month, on the ground that his annual salary as an energy consultant to the State of California had been reduced from $395,000 to $250,000, and he had received no salary at all since the previous month, when he entered negotiations for a new contract. He also sought an accounting of the County’s costs to support the two wards, and the establishment of a trust pursuant to Welfare and Institutions Code section 903.

Fluckiger urged the court to calculate his support obligation by using the statewide uniform guideline formula articulated in section 4055, taking into account all eight children for whom he is financially responsible. He argued the court should abandon the computer software program typically used to calculate child support because, in his view, that program cannot correctly determine the amount of support owed when some, but not all, of the children for whom support is calculated are in foster care. He also asserted that equitable considerations favor reducing child support for the two children adjudged delinquents because “child support provided to the two incarcerated children who molested the younger children will not increase their standard of living . . . [but] will decrease the standard of living for the remaining six victimized children who reside with the principal payor parent.”

The Placer County Department of Child Support Services (CSS) urged the court to calculate Fluckiger’s support obligation as though neither he nor Crowley “remains as a custodial parent” within the meaning of section 17402. CSS proposed that the court treat the six children in Fluckiger’s custody as children from “other relationships” and grant a hardship deduction (§ 4071). CSS suggested two alternative DissoMaster program calculations of Fluckiger’s support obligation for the two older boys, which would require him to pay either $2,660 or $2,246 monthly for their support.

The court entered an order reducing Fluckiger’s monthly child support obligation for the two older boys from $2,150 to $1,417.11^[1] and granted Fluckiger’s request for an accounting of the County’s costs of support.

The court stated that although “the method of calculation may not be ‘fair’ to the father and the six children in his custody[,] the legislature has clearly provided a mechanism for calculation of support in this scenario.” The “method” the court referred to is section 17402, former subdivision (c), which states in part: “If one parent remains as a custodial parent, the guideline support shall be computed in the normal manner. If neither parent remains as a custodial parent, the support shall be computed by combining the noncustodial parents’ incomes and placing the figure obtained in the column for noncustodial parent. A zero shall be placed in the column for the custodial parent and the amount of guideline support resulting shall be proportionately shared between the parents as directed by the court. The parents shall pay the amount of support specified in the support order to the local child support agency.”

The court acknowledged that this case presented several challenges to the conventional method of calculating support in

a foster care reimbursement case: “First, there is not a method for calculating the parties’ actual net incomes as father pays mother $2,700 per month in spousal support . . . . Second, father pays $3,000 per month for child care for the six children in his full-time custody. There is no mechanism for inputting childcare information into the calculation. Despite these problems, the language of the code is very specific . . . .”

In computing Fluckiger’s child support obligation, the court combined his monthly income with Crowley’s for a total of $21,000; determined that Fluckiger had custody of the two boys 10 percent of the time; granted Fluckiger a full hardship deduction of $6,944 for the six children in his sole care; and included extraordinary medical expenses of $550 per month, comprised of $400 for counseling and $150 in medical expenses.

The court determined that Fluckiger has 79 percent of the total gross income, but noted that section 17402, subdivision (c) states the guideline support “shall be proportionately shared between the parents as directed by the court.” The court concluded fairness required that Fluckiger’s spousal support obligation to Crowley be deducted from Fluckiger’s income and included in Crowley’s income, which meant that Fluckiger had 66.5 percent of the combined gross income, rather than 79 percent. The computer program used by the court calculated the parents’ total net disposable income as $5,382 and the total child support obligation as $2,131. The court found Fluckiger’s 66.5 percent share of this obligation was $1,417.11.

DISCUSSION

I

On appeal, Fluckiger does not dispute the County’s right to seek reimbursement from him for the costs of his two older sons’ stay in rehabilitative group homes or similar facilities. (See, e.g., County of Los Angeles v. Ralph V. (1996) 48 Cal.App.4th 1840, 1843-1848.) And he does not challenge the court’s findings regarding (1) the respective incomes of the parents; (2) most of the hardship deductions; (3) the percentage of time that Fluckiger has custody of, or visitation with, the two wards, or (4) the method of allocating between the parents the child support owed to the County. He simply disputes the court’s method of determining the amount of Fluckiger’s liability. In this regard, he contends the court did not correctly apply the statewide guideline formula set forth in section 4055. According to Fluckiger, the court erred in calculating his support obligation for the two wards as though he and Crowley have only two children and in treating his six other children as hardship deductions.

Generally, an order modifying child support is reviewed for abuse of discretion (In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215); however, because the determination of a child support obligation is a highly regulated area of the law, a trial court possesses only that discretion provided by statute or rule. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283; see also In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1042.) To the degree an appeal raises questions relating to interpretation of statutes, we consider those questions de novo. (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1316.)

Hence, prior to addressing Fluckiger’s claims, it is helpful to set forth the relevant statutory framework.

A

In California, there is a “statewide uniform guideline for determining child support orders.” (§ 4055, subd. (a).) The guideline is an algebraic formula, expressed as:

CS = K [HN - (H%)(TN)]

“H%” is the “approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. In cases in which parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.” (§ 4055, subd. (b)(1)(D).)

“HN” is the high earner’s net monthly disposable income (§ 4055, subd. (b)(1)(C)), and “TN” is the total net monthly disposable income of both parents. (§ 4055, subd. (b)(1)(E).) Pursuant to section 4055, subdivision (b)(2), “net disposable income” is computed in accordance with section 4059, which directs that certain expenses be deducted from the parties’ annual gross income, such as state and federal income tax liability, Federal Insurance Contributions Act (FICA) contributions or retirement contributions for persons not subject to FICA, mandatory union dues and retirement benefits, health insurance premiums, child or spousal support, allowed job-related expenses, and hardship deductions as defined in sections 4070 to 4073.

“K” is the amount of the parents’ combined income to be allocated for child support, which is computed by another formula set forth in the statute. (§ 4055, subd. (b)(1)(B) & (3).)^[2]

“CS” is the amount of child support resulting from the calculation. (§ 4055, subd. (b)(1)(A).) If there is more than one child for which the court is determining a child support obligation, it must multiply the “CS” amount by a factor specified in section 4055, subdivision (b)(4).^[3]

The Legislature has declared that the payment amount established by the formula in section 4055 “is presumed to be the correct amount of child support to be ordered” (§ 4057, subd. (a)), unless the presumption is rebutted by a showing that application of the formula “would be unjust or inappropriate in the particular case . . . .” (§ 4057, subd. (b).) “‘The intention of the Legislature in adopting the uniform guideline was “to ensure that this state remains in compliance with federal regulations for child support guidelines.” (§ 4050.) The court may depart from the guideline only in “special circumstances” set forth in the child support statutes. (§ 4052.) “[W]hen ordering child support the trial court lacks discretion to vary from the presumptively correct amount, calculated by applying the algebraic formula in the statute, unless one or more of the statutorily enumerated rebuttal factors is found to exist.” [Citation.]’” (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 979-980; see also In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 183.)

Accordingly, trial courts “are required to calculate child support in accordance with the mathematical formula set forth in the statute.” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 284, italics added.) “[A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes.” (Ibid., and cases cited therein.)

Two statutes appear to govern a parent’s liability for the costs of supporting children during their placement in foster care group homes: section 17402 and Welfare and Institutions Code section 903. (See County of San Mateo v. Dell J. (1988) 46 Cal.3d 1236, 1246, 1253-1255 [construing Welf. & Ins. Code, § 11350, predecessor to Fam. Code, § 17402]; County of Los Angeles v. Ralph V., supra, 48 Cal.App.4th at p. 1843.) Both of these statutes incorporate the aforementioned child support guideline.

Former section 17402 stated in pertinent part: “(a) In any case of separation or desertion of a parent or parents from a child or children that results in aid under Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code being granted to that family, the noncustodial parent or parents shall be obligated to the county for an amount equal to the following: [¶] . . . [¶] (2) For all cases filed on or after January 1, 2000, the amount of support that would have been specified in an order for the support and maintenance of the family during the period of separation or desertion . . . . [¶] . . . [¶] (c) The amount of the obligation established under paragraph (2) of subdivision (a) shall be determined by using the appropriate child support guidelines currently in effect. If one parent remains as a custodial parent, the guideline support shall be computed in the normal manner. If neither parent remains as a custodial parent, the support shall be computed by combining the noncustodial parents’ incomes and placing the figure obtained in the column for noncustodial parent. A zero shall be placed in the column for the custodial parent and the amount of guideline support resulting shall be proportionately shared between the parents as directed by the court. The parents shall pay the amount of support specified in the support order to the local child support agency.” (Italics added.)

Welfare and Institutions Code section 903 applies when children have been separated from their parents following a juvenile court adjudication. (County of Los Angeles v. Ralph V., supra, 48 Cal.App.4th at p. 1843.) It states in pertinent part: “(a) The father, mother, spouse, or other person liable for the support of a minor . . . shall be liable for the reasonable costs of support of the minor while the minor is placed, or detained in, or committed to, any institution or other place pursuant to Section 625 or pursuant to an order of the juvenile court. . . . The liability of these persons and estates shall be a joint and several liability. [¶] (b) The county shall limit the charges it seeks to impose to the reasonable costs of support of the minor and shall exclude any costs of incarceration, treatment, or supervision for the protection of society and the minor and the rehabilitation of the minor. . . . [¶] (c) . . . In evaluating a family’s financial ability to pay under this section, the county shall take into consideration the family’s income, the necessary obligations of the family, and the number of persons dependent upon this income. Except as provided in paragraphs (1), (2), (3), and (4), ‘costs of support’ as used in this section means only actual costs incurred by the county for food and food preparation, clothing, personal supplies, and medical expenses, not to exceed a combined maximum cost of fifteen dollars ($15) per day, except that: [¶] . . . [¶] (4) For those placements of a minor subject to this section in which an AFDC-FC grant is made, the local child support agency shall, subject to Sections 17550 and 17552 of the Family Code, seek an order pursuant to Section 17400 of the Family Code and the statewide child support guideline in effect in Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9 of the Family Code. For purposes of determining the correct amount of support of a minor subject to this section, the rebuttable presumption set forth in Section 4057 of the Family Code is applicable. . . .” (Italics added.)

In other words, Welfare and Institutions Code section 903 directs that when, as in the present case, an AFDC-FC grant is made on behalf of a minor placed in a foster care group home pursuant to a juvenile court order, the local child support agency shall seek reimbursement from the minor’s parents in an amount calculated pursuant to the statewide child support guidelines. (Welf. & Inst. Code, § 903, subds. (a), (c)(4).)^[4]

B

Fluckiger does not dispute the court’s use of section 17402, subdivision (c) to combine his income with Crowley’s income, and he does not dispute the court’s determination that he had 66.5 percent of the available income. However, he contends that the court erred in failing to properly use the statewide uniform guideline formula set forth in section 4055, i.e., CS = K [HN - (H%)(TN)].

As explained above, sections 4057 and 17402, and Welfare and Institutions Code section 903, all mandate the use of the guideline formula.

Fluckiger focuses on the “H%” component of the formula, which is the approximate percentage of time the high earner will have primary physical responsibility for the children. In cases in which the parents have different time-sharing arrangements for different children, it equals the average of the approximate percentages of time the high earner parent spends with each child. (§ 4055, subd. (b)(1)(D).) The H% factor rests upon the premise that when a parent has primary physical responsibility, he or she “contributes a significant portion of available resources for the support of the children.” (§ 4053, subd. (i); cf. In re Marriage of Katzberg, supra, 88 Cal.App.4th at pp. 979-983.)

Instead of calculating Fluckiger’s support obligation to the two wards as though they represented two of eight siblings for which he is responsible, the court gave Fluckiger a “hardship” deduction from his income for the six children in his sole care. (§§ 4059, subd. (e), 4071, subd. (a)(2) [allowing hardship deduction for “minimum basic living expenses of either parent’s natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent”].)

However, the six children in Fluckiger’s custody are not children from another marriage or relationship. All eight of the children are the offspring of both Fluckiger and Crowley. Therefore, the hardship deduction does not apply. Instead, all eight of the children must be considered in calculating the H% factor in the uniform guideline. This is so because of the express directive set forth in section 4055 for calculating the H% factor, and because of the directive in Welfare and Institutions Code section 903, subdivision (c) that the court “take into consideration the family’s income, the necessary obligations of the family, and the number of persons dependent upon this income.”

In accordance with these statutory directives, Fluckiger contends that because he has primary physical responsibility for the two wards only 10 percent of the time, but has complete responsibility for the other six children 100 percent of the time, the guideline required the trial court to average the approximate percentages of time he spends with each child in computing the “H%” component. Calculating the H% factor in the manner Fluckiger suggests yields an H% factor of 77.5 percent, rather than the 10 percent factor used by the court.^[5] We agree.

If a child support obligation was calculated under a situation where Crowley had custody of the two wards 90 percent of the time and Fluckiger had custody of the other six children 100 percent of the time, then the H% factor would be calculated in the manner Fluckiger suggests in computing his child support obligation to Crowley. Neither the court nor the County offered any reason to deviate from this method where it is the County who has custody of the two wards for 90 percent of the time instead of Crowley. The only deviation from the guideline authorized by section 17402 is that the parents’ income be combined. This means that support is calculated, in effect, as if the two parents are one of the wards’ parents and the County is the other parent, who is entitled to receive child support.

The application of the uniform guideline is mandatory, except under specified circumstances. (§§ 4052, 4057.) Even assuming the trial court’s deviation from the guideline formula was proper, the court was first required to determine the amount of support that would have been ordered pursuant to the formula. Subdivision (a) of section 4056 provides: “To comply with federal law, the court shall state, in writing or on the record, the following information whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula amount under this article: [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount. [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children.” Because the court did not make these findings, it did not justify its deviation from the guideline.

These statutory findings are mandatory, and the failure to comply with the statutory statewide uniform guidelines when calculating a support obligation is reversible error. (In re Marriage of Hubner, supra, 94 Cal.App.4th at pp. 183-184 [failure to make required findings precludes effective appellate review and constitutes reversible error unless missing information is otherwise discernible from the record]; Wilson v. Shea (2001) 87 Cal.App.4th 887, 891 and fn. 3 [section 4056 “requires the court to state the amount of support that would have been ordered under the guideline formula before it can make an order differing from the guideline formula” and “[w]hile this court has expressed its sympathy for trial judges who are forced, by the statutory language of section 4050 et seq., to calculate a guideline amount for child support, the grisly math must still be done. There is simply nothing appellate courts can do to ease the trial courts’ burden in this regard”]; see also In re Marriage of Hall (2000) 81 Cal.App.4th 313, 320-321.)

Since the trial court failed to correctly use the guideline calculation, and failed to justify its deviation from the guideline as required by section 4056, the judgment must be reversed and the matter must remanded for the court to make the mandatory calculation under the guideline.

II

Although we must reverse the judgment, it is necessary to address Fluckiger’s other appellate contentions for the guidance of the trial court on remand.

Fluckiger admits he is not entitled to a hardship deduction for his other six children when the H% factor is calculated correctly. Thus, he concedes the deduction of $6,944 should be added back to the total net disposable income of $5,382 calculated by the trial court, to yield a new total net disposable income (TN) of $11,833. Because the parents’ income is combined for purposes of determining their obligation to reimburse the county for child support, TN is also the equivalent of HN. Since the H% factor of 77.5 percent is greater than 50 percent, and because TN is over $10,000, K equals (2 - H%)(0.12 + 800/TN). (See § 4055, subd. (b)(3).)

Using these figures in the formula of CS = K[HN - (H%)(TN)] results in a total monthly child support obligation (CS) of about $612.^[6] Of course, the CS calculation must be multiplied by the factor set forth in section 4055, subdivision (b)(4) since more than one child is involved. (See fn. 3, ante.) Relying on section 4055, subdivision (b)(8), Fluckiger argues the greatest amount of support must be allocated to the youngest children. Therefore, rather than multiplying CS by the factor for two children, he claims we should multiply CS by the factors for six children and for eight children, and deduct the first result ($1,606.50) from the second ($1,721.56). This results in a child support obligation of $115.06 for the two wards. Multiplying this amount by the 66.5 percentage of income attributable to Fluckiger yields a monthly obligation of $76.51.

The express statutory language of section 4055, subdivision (b)(8) indicates Fluckiger’s reliance is misplaced. It states: “Unless the court orders otherwise, the order for child support shall allocate the support amount so that the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest child is the difference between that amount and the amount for two children, with similar allocations for additional children. However, this paragraph does not apply to cases in which there are different time-sharing arrangements for different children or where the court determines that the allocation would be inappropriate in the particular case.” (Italics added.)

Fluckiger’s innovative approach to calculating the support owed fails because he has different time sharing arrangements for the children. He has six of the children 100 percent of the time and the remaining two boys for 10 percent of the time. That is why the H% factor is 77.5 percent, not the 10 percent figure used by the trial court, and that is why section 4055, subdivision (b)(8) is inapplicable.

Fluckiger also contends the court erred in using a computer program to calculate the child support obligation.

The trial court is permitted to use computer software to assist in determining the appropriate amount of child support, as long as the software conforms to the rules of court adopted by the Judicial Council prescribing standards for the software. (§ 3830, subd. (a); Cal. Rules of Court, rule 5.275.) These standards are designed to ensure that the software performs in a manner consistent with the statutes applicable to the determination of child support. (§ 3830, subd. (a).) If the software meets these requirements, then the Judicial Council is authorized by section 3830 to certify the software for use by trial courts. The list of acceptable software is available on the Judicial Council website (www.courtinfo.ca.gov/programs/

cfcc/faq/#services), and it includes the Xspouse software program used by the trial court.

Under the circumstances, the trial court did not err in using a computer program to calculate Fluckiger’s child support obligation. Rather, the error involved the information input into the computer, including the incorrect H% factor and hardship deductions for Fluckiger’s other six children.

DISPOSITION

The judgment is reversed, and the matter remanded for proceedings consistent with this opinion. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a)(4).)

SCOTLAND , P.J.

We concur:

SIMS , J.

ROBIE , J.

^[1] The court reached this conclusion using a computer software program called Xspouse 2002-2-CA.

^[2] Section 4055, subdivision (b)(3) provides: “K (amount of both parents’ income allocated for child support) equals one plus H% (if H% is less than or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction: Total Net Disposable Income Per Month K $0-800 0.20 + TN/16,000 $801-6,666 0.25 $6,667-10,000 0.10 + 1,000/TN Over $10,000 0.12 + 800/TN For example, if H% equals 20 percent and the total monthly net disposable income of the parents is $1,000, K = (1 + 0.20) x 0.25, or 0.30. If H% equals 80 percent and the total monthly net disposable income of the parents is $1,000, K = (2 - 0.80) x 0.25, or 0.30.”

^[3] Section 4055, subdivision (b)(4) provides: “For more than one child, multiply CS by: 2 children 1.6 3 children 2 4 children 2.3 5 children 2.5 6 children 2.625 7 children 2.75 8 children 2.813 9 children 2.844 10 children 2.86”

^[4] The parties both refer to the funds paid on behalf of the two wards as AFDC-FC funds, although they do not refer us to any court order in the appellate record directing the payment of such funds to the foster care group home. AFDC-FC funds are available for children placed in a foster group home pursuant to Welfare and Institutions Code section 11401, which provides in relevant part: “Aid in the form of AFDC-FC shall be provided under this chapter on behalf of any child under the age of 18 years, . . . who meets the conditions of subdivision (a), (b), (c), (d), (e), or (f): [¶] . . . [¶] (b) The child has been removed from the physical custody of his or her parent, relative, or guardian as a result of a voluntary placement agreement or a judicial determination that continuance in the home would be contrary to the child’s welfare and that, if the child was placed in foster care, reasonable efforts were made, . . . to prevent or eliminate the need for removal of the child from his or her home and to make it possible for the child to return to his or her home, and any of the following applies: [¶] . . . (2) The child has been adjudged a ward of the court on the grounds that he or she is a person described by Sections 601 and 602.”

^[5] (6 children x 100%) + (2 children x 10%) divided by 8 total children = 77.5%.

^[6] The total child support amount is calculated as follows: K = (2 - H%)(0.12 + 800/TN) = (2 - 0.775)(0.12 + 800/11,833) = (1.225)(0.12 + 0.0676075) = 0.2298, rounded up to 0.23 CS = K[HN - (H%)(TN)] = 0.23 x [11,833 - (.775)(11,833)] = 0.23 x 2,662.42 = $612.35, rounded down to $612