Marriage of Carson

Filed 12/1/05 Marriage of Carson CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of SANFORD A. and DONNA L. CARSON.
SANFORD A. CARSON, Appellant, v. DONNA L. CARSON, Respondent.	G035021 (Super. Ct. No. 97D011914) O P I N I O N

Appeal from an order of the Superior Court of Orange County, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const. art VI, § 21.) Reversed and remanded.

Law Office of Patrick A. McCall and Patrick A. McCall for Appellant.

Patterson, Hanna & Associates and Alan W. Metcalf for Respondent.

* * *

Sanford A. Carson (father) appeals from an order increasing child support payments after the court imputed additional income to him based on a finding he had the ability to earn it. He contends this was error, claiming in part that Donna L. Carson (mother) had not shown a change of circumstances warranting any increase. It was error for the court to attribute additional income to father or to modify the original order crediting him with a 49 percent timeshare if he visits at least 30 percent of the time. Thus we reverse and remand for the court to make the proper calculation.

FACTS

In 2003, the court issued a judgment on reserved issues. The judgment, which runs some 25 pages with attached exhibits, covers a multitude of issues. Insofar as relevant to this appeal, it provides a detailed child custody and visitation schedule, which gives father slightly more than 30 percent of the children’s time, and also provides “that, for child support purposes the Court, on it[]s own motion, orders that so long as [father] exercises at least a [30 percent] timeshare with the minor children on average during the year, [father’s] timeshare factor shall be computed as [49 percent] for child support purposes. This order is made so as to allow the parties to be more flexible with each other in sharing the children and allowing the children to participate in their extracurricular activities.”

The judgment orders father to pay $682 per month for the youngest of two children and $449 per month for the oldest. The judgment also contains findings with respect to the income of both parents. It notes that mother was awarded income producing assets of $600,000 to which the court attributed earnings at the rate of 6 percent or $36,000 per year. The court found that mother had the ability to earn $3,000 per month, for a total income to her of $6,000 per month. With respect to father’s income, the judgment included findings that father has the ability to earn $8,000 per month based on his possession of M.D. and MBA degrees and that his income from investments is $8,000 per month.

The court also found “that for a substantial period of time at or near the end of the marital years, neither party worked and enjoyed simply a life style that was paid for through a return on investments, both community and separate, which, by prior stipulation the parties have agreed was in the sum of approximately [$12,000] per month.”

Eight months after the judgment was entered, mother filed an order to show cause seeking, among other things, to modify the amount of child support. Her declaration indicates that father previously filed a similar order to show cause, but it is not included in the record provided. Father’s declaration refers to the earlier order to show cause as having been filed to permit him to obtain a 50 percent timeshare for visitation and resolve some financial issues. During the hearing on the order to show cause both parties agreed that, whatever issues had been raised in the earlier order to show cause, they had been resolved except for child support and attorney fees.

In the declaration mother filed in support of the new order to show cause she appended unverified statements allegedly written by the children, which expressed dissatisfaction with visitation issues. Mother’s declaration states, among other things, that father “needs to pay more child support because he is not exercising the contact that was anticipated when the custody order was originally written and I am asking for guideline support.” The income and expense declaration attached to mother’s order to show cause indicates she received an average monthly salary of $3,066 and $2,224 in average monthly income from dividends and interest. She claimed average monthly expenses totaling $4,699. Mother noted that father spent 4.3 percent of the time with the oldest child and 38 percent of the time with the younger, and stated that she received $1,131 for child support.

Father filed a 27-page responsive declaration, properly verified, wherein he opposed changes in visitation and support. He denied that he had reduced his visitation with the children. Father’s income and expense declaration indicates he had not worked since the middle of 1996. He lists his average monthly income as $10,112 and his monthly expenses at $8,008.

No evidence was presented at the hearing. The court apparently decided the matter on the basis of the documents submitted and counsel’s argument pursuant to Code of Civil Procedure section 2009. (See Reifler v. Superior Court (1974)

39 Cal.App.3d 479, 483.) The court took the information contained in the parties’ financial statements and prepared a new “dissomaster” report based on these statements.

During the hearing mother’s lawyer acknowledged that father, in fact, had 31 percent visitation. The lawyer representing the Orange County Department of Child Support Services (an entity that has declined to participate in this appeal) argued that the provision of the judgment crediting father with a 49 percent timeshare with the children as long as he visited at least 30 percent of the time was “against public policy, because it actually calls for a below guideline order, without the necessary waivers, and it also encourages . . . father to visit less.”

The trial court noted that the judgment did not specify it could not be modified and was therefore subject to modification. It concluded that the prior “order [i.e., the judgment] is valid and enforceable, up until it’s modified.” Later in the exchange between court and counsel, the court recognized that mother “would have to show some change in circumstances . . . .”

The focus of the argument was whether the court should recompute child support based on the finding in the judgment that father had the capacity to earn an additional $8,000 per month based on his possession of M.D. and MBA degrees and based on the actual visitation timeshare rather than one imputed to father in the judgment. After the conclusion of argument, most of which was not relevant to the issues before us, the court made a finding attributing the additional $8,000 income to father, used the actual visitation of 31 percent, and increased the child support accordingly.

DISCUSSION

The thrust of father’s argument here is that because he had retired from his profession many years before the marriage terminated, the court should not have computed child support on the basis of his unexercised ability to increase his income by returning to work. Subsidiary to this argument, father complains that the court should not have ignored the terms of the earlier judgment because mother failed to present evidence to demonstrate that, at the time of the hearing, father actually had the ability to return to work. Although not exactly phrased in these terms, we perceive the latter contention to be that mother had not demonstrated a material change of circumstances relating to imputation of income to father and to the visitation timeshare to support a modification of the child support payments.

“‘It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.’ [Citations.]” (In re Marriage of Murray (2002)

101 Cal.App.4th 581, 599; see also Pacific Mut. Life Ins. Co. v. McConnell (1955)

44 Cal.2d 715, 725.) So we start with the proposition that the judgment fixing child support that expressly refused to attribute income to father based on his capacity to work, and thus implicitly recognized that father’s retirement was legitimate, was a final judgment entitled to res judicata effect. The same thing is true about the portion of the judgment that permitted visitation exceeding 30 percent to be treated for child support purposes as being the equivalent of 49 percent visitation.

Mother’s reliance on In re Marriage of Simpson (1992) 4 Cal.4th 225 and other cases that impute income to a supporting parent based on the ability to work and availability of work opportunities is misplaced. The original trial judge could have concluded that the potential for any earnings father would realize if he returned to his profession should have been included in determining the amount of child support. Likewise, the trial judge could have used the actual visitation timeshare. It did neither. Perhaps it was error not to do so, as respondent contended. But we do not have a record of the earlier proceedings that would permit us to reach such a conclusion. And whether it was error or not is irrelevant. A final judgment is res judicata, even if erroneous. (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1619, fn. 6.)

Since “[it] would be incongruous to allow an appealable order to become final and yet to concede the power of a court at a later date, upon the same state of facts, to issue an order nullifying it” (Snyder v. Snyder (1933) 219 Cal. 80, 81), it is generally held that the “trial court is without authority to make an order reducing the amount of alimony [or support payments] awarded in an interlocutory [or final] decree of divorce in the absence of a showing that there has been a change in conditions subsequent to the entry of [such] decree . . . .” (Ralphs v. Ralphs (1948) 86 Cal.App.2d 324, 325; see also In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1292).

There was a change. Mother’s income decreased from $6,000 per month to $5,300 per month and father’s income decreased from $12,000 per month to $10,100 per month. It was for the trial court to determine whether this was a material change of circumstance and, if so, base its calculations on these facts. But this did not permit the court to revisit the wisdom of the determination implied in the earlier judgment that father’s retirement was legitimate and unrelated to his duty to support his children. Nor did it permit the trial court to reevaluate the earlier determination regarding visitation timeshares.

We therefore remand the matter to the trial court to recalculate the proper amount of child support without attributing an ability to earn additional income to father. The court shall also give effect to the provision in judgment crediting father with a 49 percent timeshare as long as he visits the children at least 30 percent of the time.

DISPOSITION

The order is reversed and the matter is remanded to the trial court to enter an appropriate order consistent with the directions contained herein. In the interest of justice, the parties shall bear their own respective costs.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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