Six Reasons to Proceed Carefully Before Requesting a Modification of Child Support

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Published: 25Feb2012
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Requesting a modification of child support in California can be highly technical. In my numerous years of practicing Family Law I have observed many individuals come away unhappy from the court after seeking a downward modification of child support. For example, I have seen people go to court with the expectation that their child support orders would be significantly reduced, only to find that the orders were increased. With a little bit of guidance, these individuals could have avoided the bad results.

There are at least six reasons why an individual should think hard before filing a request for modification of child support:

REASON NO. 1:

The Court May Not Find a Material Change of Circumstances.

A party moving for a child support modification must show that there has been a material change of circumstances since the last order. In Re Marriage of Laudeman (2001) 92 Cal. App. 4th 1009. In Laudeman, the father agreed to pay the sum of $2,750.00 in child support plus 20 percent of his salary in excess of $182,000.00. In executing the stipulation for child support, the parties included the required declaration as spelled out in California Family Code Section 4065(a), i.e., that they were "fully informed of their rights concerning child support," that they agreed to the orders contained in the judgment "without coercion or distress," that the needs of the children would be adequately met, and that those orders were in the best interest of the children.

The father later filed an Order to Show Cause, requesting a downward modification of the child support order and he requested that the order pertaining to his excess income be eliminated. The mother opposed the request on the grounds that the father had reduced the amount of time he spent with the children, and pointed out that the father failed to allege any change of circumstances between the time of the judgment and the time he requested the modification. The father prevailed at trial and the mother appealed.

On appeal the trial court's decision was reversed. The appellate court's analysis included a review of the California Uniform Guidelines statutes, which permits divorcing parents to agree to child support orders in lieu of an order based upon the statutory formula. The appellate court stated that the parties' stipulated child support was entirely consistent with the underlying guideline objectives, which are "to encourage fair and efficient settlement of conflicts between parents and to minimize the need for litigation." The court noted that although the stipulated child support order was above the guideline figure, the parties' stipulation included the Family Code Section 4065(a) declarations. Consequently, the court found that a material change of circumstances was required for the trial court to modify the child support order and that no material change had occurred.

REASON NO. 2:

Individuals with Fluctuating Income are Treated Differently than People who Receive a Steady Paycheck.

Many litigants have fluctuating income due to the nature of their work. Individuals that have jobs in the entertainment industry, for example, usually experience regular periods of unemployment because they work on a job-to-job basis. California Family Code Sections 4060 and 4064 allows the court to exercise its discretion in ordering child support where there is seasonal or fluctuating income. In a recent case I handled, a professional actor who is the former husband of my client, attempted to obtain a downward modification of child support, at which time he argued that he was unemployed because he was in-between jobs. The court rejected this argument and refused to take a momentary "snapshot" of this actor's income. Such individuals should be aware that just because a party can demonstrate periods of unemployment does not mean he or she is entitled to a downward modification of child support.

In another recent matter I handled, the trial court indicated that it would use a two-year period in determining what the parties' income was. Point being, the court refused to find that the litigant's income was zero just because he was not working at the time of the hearing.

Case law gives the court the power to order, as additional child support, a percentage of a party's overtime income, bonus income and any income received over the base salary. Case law has carved out this rule so that the court can properly address scenarios involving such fluctuating or seasonal income.

REASON NO. 3

The Court May Not Accept Business Deductions As Necessary to the Operation Of a Business Therefore Increasing Income Available For Support.

It is no secret to our Family Courts that a party who owns a successful business is able to structure his or her income. In addition, a business owner may run personal expenses through the business, which depresses the income available support. The Family Court, however, does not have to take a business tax return or profit and loss statement at face value. The court may consider the various personal expenses paid by the business when determining the parent's actual gross income available for child support.

California Family Code, Section 4058 states, in pertinent:

(a) The annual gross income of each parent means income from whatever source derived, except as specified in (c) and includes, but is not limited to the following:

(2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.

(3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, and a corresponding reduction in living expenses, and other relevant facts.

In light of California Family Code § 4058, the burden of proving that business expenses are justified deductions, falls on the party who is the owner of the business. In most cases where a party is self-employed, there will be an analysis as to the perquisites that an individual takes from the business, such as his or her automobile expenses, travel expenses, and any other expenses that could be personal in nature. Frequently, an individual is going to have at least some of the perquisites added back to his or her income which may be enough for the supporting party to thwart the request for modification.

REASON NO. 4:

The Court May, In Its Discretion, Consider The Earning Capacity Of a Parent In Lieu Of The Parent's Income, Consistent with The Best Interest Of the Children.

Even if a litigant convinces the court his or her income has decreased, the court has the power to impute income based on his or her earning capacity. In my experience, the trial court will hear expert testimony from a vocational counselor regarding the ability to earn and opportunities in the community where he or she lives. An individual cannot afford expert opinion, he or she may testify regarding other party's ability to work and job opportunities that the supporting party has found over the internet. Consequently, the individual could be facing an upward modification of support if the court finds that the earning capacity is greater than the amount that was considered when the original child support order went into effect.

REASON NO. 5:

The Factors Considered in the Calculation of Child Support May Have Changed Warranting an Upward Modification.

The California guideline formula is so complicated, that we need a computer program to calculate child support. Individuals should beware of the numerous factors plugged into the formula. For example, one must take into consideration whether or not there has been a change in the supported party's financial situation. The supported party may have had a decrease of income or an increase in daycare expenses, for example. There may also be a reduction in the custodial timeshare, thereby increasing the child support obligation. The court may also take into consideration a number of mandatory and discretionary add-ons or deductions previously not contemplated. The risk, then, is that a child support order may increase despite a litigants motion to decrease his or her child support obligation.

REASON NO. 6:

The Prevailing Party May Obtain an Order of Attorney's Fees.

A party who unsuccessfully seeks a modification of child support can be on the hook for paying the other party's attorney's fees. Under the California Family Code, there are numerous codes that authorize the Court to award attorney's fees to the other party.

CONCLUSION:

Modifications of child support can be highly technical. A party seeking a downward modification needs to do his or her homework, not only on the facts, but the law as it applies to such facts. Otherwise, the party may end up with a big surprise from the court, in the form of an upward modification and an order of attorney's fees.

Donald P. Schweitzer The Law Offices of Donald P. Schweitzer 201 South Lake Ave., Ste 800 Pasadena, CA 91101 http://www.pasadenadivorce.com

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