Mariage of Kuhlman

Filed 11/29/05 Mariage of Kuhlman CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

In re the Marriage of PAMELA J. and RICHARD KUHLMAN.
PAMELA J. KUHLMAN, Respondent, v. RICHARD KUHLMAN, Appellant.	F045819 (Super. Ct. No. R-1502-FL-3581) O P I N I O N

APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Wayne Silva for Appellant.

Pamela J. Kuhlman, in pro. per., for Respondent.

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Appellant, Richard Kuhlman (Husband), challenges the trial court’s calculation of his child support obligation. According to Husband, the court abused its discretion when it denied his request for an income deduction to compensate for the financial hardship Husband is experiencing because of his medical condition. Husband argues that is unfair to require a disabled person who has significant expenses for health care related needs to pay the same amount of child support as a healthy individual.

A child support order is reviewed for an abuse of discretion. Under the circumstances of this case, we cannot say that no judge could reasonably have made the order at issue. Accordingly, the order will be affirmed.

BACKGROUND

Respondent, Pamela Kuhlman (Wife), lives in California with the parties’ two minor children and her son from a previous relationship. Husband lives in Colorado and has the children with him for nine weeks each year.

Husband is suffering from multiple sclerosis. He is totally disabled and requires full time care and assistance. Husband pays his brother $2,000 per month for in-home care. He must also travel 200 miles four times per month to see his doctor.

Husband is receiving non-taxable benefits from the Veteran’s Administration and social security in the amount of $6,424 per month. The veteran benefits are being paid to Husband as a veteran with four dependents. Wife earns $10.40 per hour on a full-time basis. For purposes of calculating his child support obligation, Husband requested a monthly deduction from his gross income in the amounts of $2,000 for in-home care, $292 for travel expenses, and $225 for vitamins and non-prescription medications for a total of $2,517.

Following a hearing on Wife’s order to show cause for child support, the trial court denied Husband’s request for a hardship deduction for his monthly health expenses. The court noted that Husband was also spending $700 per month on a $30,000 loan balance for a new vehicle that he could not personally drive, $200 per month for a pool table, and $650 per month for groceries for a single man. The court concluded that these expenditures were either inflated or extravagant. Accordingly, the court held that it could not find that Husband was experiencing extreme financial hardship due to the approximately $2,500 in monthly expenses relating to his health condition. The court ordered Husband to pay child support in the amount of $1,829.00 per month.

DISCUSSION

A child support order is reviewed for an abuse of discretion. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) Accordingly, the appellate court cannot substitute its judgment for that of the trial court but rather, can only determine if any judge reasonably could have made such an order. (Ibid.) Moreover, the review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial court’s conclusions. (Ibid.)

Family Code^[1] section 4070 permits a court to modify child support to accommodate a parent who “is experiencing extreme financial hardship due to justifiable expenses” resulting from specified circumstances. Such a modification is accomplished by allowing a deduction from the income of the parent experiencing the hardship. Circumstances evidencing the hardship include “[e]xtraordinary health expenses for which the parent is financially responsible ….” (§ 4071, subd. (a)(1).)

Nevertheless, the granting of a hardship is not “automatic.” (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1383.) The parent seeking the deduction must prove that the financial hardship is extreme.

Here, it cannot be concluded that no judge would reasonably deny Husband’s hardship deduction request. Rather, the evidence supports the trial court’s determination that certain of Husband’s expenditures were either inflated or extravagant. Husband, who cannot drive, purchased a new truck for over $30,000 that was not specially modified except for a wheelchair carrier attached to the back. Further, Husband purchased a $6,000 pool table. It was also reasonable for the court to question Husband spending $650 per month on groceries. Under these circumstances, the trial court’s ruling did not constitute an abuse of discretion.

Contrary to Husband’s position, the trial court’s ruling does not place an unfair burden on Husband as a disabled individual. Rather, the court merely concluded that Husband unnecessarily increased his monthly expenses by financing purchases that were extravagant for his income level and therefore had not shown extreme financial hardship.

Husband further argues there is no substantial evidence to support the trial court’s denial of Husband’s request to share transportation costs for visitation. However, the appellate record does not include such a request. Further, the only order regarding visitation made by the trial court was to terminate the May 1, 2003, order. That order is also not part of the appellate record. Thus, Husband has not met his burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)

Additionally, although the court did make a factual error, Husband has not shown how that error was prejudicial. The court incorrectly stated that Husband and Wife lived in the same city. However, that error worked to Husband’s benefit. It caused the court to credit Husband with an additional ten percent in calculating the time he had primary physical responsibility for the children. This resulted in a decrease in his child support.

Finally, Husband objects to the trial court’s failure to attach a copy of a “Dissomaster” printout to the child support order. According to Husband, without this printout he cannot determine how the court calculated child support. However, the order and the statement of decision contain all of the facts relied on by the court in calculating child support under the statewide uniform guidelines. Thus, Husband has not demonstrated prejudice from the trial court’s omission.

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondent.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Cornell, J.

_______________________________

Dawson, J.

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^[1] All further statutory references are to the Family Code.