The Family Law Court May Not Exercise its Discretion by Treating Spousal Support as Gross Income Which the Legislature Has Excluded from Gross Income

Clifford and Cindy were married on June 20, 1981, and separated on November 20, 1992, after a marriage of 11 years. The Orange County divorce court entered a judgment of dissolution on November 16, 1993, incorporating the provisions of the marital settlement agreement. The parties agreed that Clifford would pay Cindy $1,500 per month in child support and $4,000 per month in spousal support. The spousal support order was nonmodifiable and payable until either party’s death, Cindy’s remarriage, or June 1, 2005, whichever first occurred.

On January 30, 1996, Clifford’s Orange County divorce lawyer filed an order to show cause to modify the existing child support order. Clifford had remarried in 1994 and was supporting a child from his new marriage and a 17-year-old daughter from a previous marriage, in addition to supporting the twins. After a hearing on April 25, 1996, the Orange County divorce court ordered Cindy to pay child support to Clifford of $500 per child per month, retroactive to February 1, 1996. The Orange County divorce court used a computer software program to calculate the statutory guidelines child support. The guideline established that Clifford should pay Cindy $36 per month in child support. The guideline did not change when the Orange County divorce court accorded Clifford two hardship deductions for the two minor children he supported from other marriages. The Orange County divorce court found that guideline child support was not appropriate due to two special circumstances: (1) the nonmodifiable spousal support provided Cindy with a steady stream of income; and (2) the guideline was insufficient and unrealistic to provide proper support for the twins. The Orange County divorce court recalculated the child support by including Cindy’s $4,000 monthly spousal support as gross income and deducting the spousal support from Clifford’s income. Based on this information, Cindy was ordered to pay Clifford child support totaling $1,000 per month.

“The trial court’s determination to grant or deny modification of a support order will be ordinarily upheld unless an abuse of discretion is demonstrated.” Courts begin with the “touchstone of statutory interpretation, namely, the probable intent of the Legislature. To interpret statutory language, we must ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.” California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14. Cal.4th 627, 632.

The Legislature adopted the Statewide Uniform Guidelines for child support. The family law court uses an algebraic formula to calculate the presumptively correct amount of child support (§4055). In computing guideline child support, the Orange County divorce court first determines each parent’s annual gross income. Section 4058(a) defines gross income expansively. And Section 4058(c) excludes from annual gross income any child support received for children of other relationships and payments from public assistance programs. The question arises whether the spousal support received from a party to the child support proceeding constitutes gross income under Section 4058(a). Although Section 4058 defines gross income broadly, and party spousal support is not expressly excluded, the only type of spousal support specifically included in gross income is spousal support from a person who is not a party to the child support proceeding. By necessary implication, the Legislature did not intend the inclusion of spousal support from a person who is a party to the proceeding. Thus, the specific inclusion of nonparty spousal support as gross income impliedly excludes party spousal support, despite the expansive initial definition of gross income. The Legislature acknowledged that spousal support being paid between the parties to the proceeding required consideration in apportioning additional child support expenses; however, the Legislature chose to omit spousal support between parties to the proceeding from the definition of gross income for purposes of calculating guideline child support. This Court concluded gross income under Section 4058 does not include spousal support from a party to the proceeding.

In this case, the Orange County divorce court properly excluded Cindy’s spousal support from gross income in determining the guideline child support. However, when the guideline child support payable from Cindy to Clifford was calculated to be zero, the family law court determined that the guideline child support was unjust and inappropriate under the circumstances. The Orange County divorce court found that Cindy’s nonmodifiable spousal support constituted a “special circumstance” justifying deviation from the guidelines. In this respect, the Orange County divorce court erred.

The presumption that guideline child support is correct may be rebutted by evidence that application of the formula would be unjust or inappropriate in the particular case because one or more of the five factors apply (§4057(b)). The fifth factor as stated in Section 4057(b)(5) is the “application of the formula would be unjust or inappropriate due to special circumstances in the particular case. When the divorce court exercises its discretion to depart from the statutory guideline the amount of child support, as here, we review that departure for an abuse of discretion. Here, the Orange County divorce court departed from the guideline because it found that the nonmodifiable spousal support order was a special circumstance sufficient to make application of the guideline inappropriate. However, the Orange County divorce court may not exercise its discretion by treating a gross income a type of spousal support which the Legislature has excluded from gross income. Moreover, Clifford and Cindy bargained for and agreed to a nonmodifiable monthly spousal support order. The inclusion of spousal support to Cindy’s income would result in a de facto modification of the nonmodifiable spousal support order.

This Court concluded that Orange County divorce court could not, under the facts of this case, consider Cindy’s nonmodifiable spousal support as a special circumstance justifying a departure from the guidelines.

In re Marriage of Corman, 59 Cal.App.4th 1492 (1997).