Eugene E. Kinsey, Attorney at Law

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Modifiability Of Child Support Orders

The "statewide uniform child support guideline" (Ca Fam § 4050 et seq), child support orders are modifiable "at any time as the court deems necessary." [Ca Fam § 3651(a); see also Ca Fam § 3651(d)] In other words, a domestic relations judgment can never be considered a "final" adjudication of the extent of the parents' obligation to support their minor children.

Child support jurisdiction even continues after the custodial (obligee) parent's death in favor of his or her successors in interest. [Marriage of Drake (1997) 53 Cal.App.4th 1139, 1153, 62 Cal.Rptr.2d 466, 476]

Parents cannot, by agreement or stipulation, restrict the court's authority to modify child support. Such agreements and stipulations are per se unenforceable.

Basis For Modification - "Change In Circumstances"

As a general rule, courts will not revise a child support order unless there has been a "material change of circumstances." This rule applies to any form of child support order--i.e., pendente lite and "permanent."

Exception - Change To Conform To Statewide Guidelines: However, by statute, child support orders predating the Ca Fam § 4050 et seq. "statewide uniform child support guideline" are per se modifiable when application of the current formula and standards would yield a different amount of support (whether higher or lower).

The guideline has been amended several times since July 1, 1992. These and any future amendments probably trigger the language in the code allowing modifications to conform to current state guidelines so that any child support order that does not conform to the current guideline in effect at the time of the modification proceeding would be "per se" modifiable.

Exception - Stipulation To Order Below State Guidelines: Also if the parties stipulated to a child support order below the statutory formula amount "no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above." [Ca Fam § 4065(d)]

Sufficiency Of Changed Circumstances

There are no rigid guidelines for judging whether circumstances have sufficiently changed to warrant a child support modification. So long as the statewide statutory formula support requirements are met (Ca Fam § 4050 et seq.), the determination is made on a case-by-case basis and may properly rest on fluctuations in need or ability to pay. The ultimate decision lies within the trial court's sound discretion and is reversible only for abuse of discretion.

Changes In Visitation Time With Children

A downward child support modification may be appropriate where the amount of time the obligor parent has physical responsibility for the children increases or decreases (whether by greater visitation or otherwise) . . . on the theory that the obligor's child care expenses rise with his or her increased timeshare and the obligee experiences a concomitant child care savings

Increased Travel Expenses

Travel expenses for visitation" are one of the discretionary items that may be added to statutory formula support "as additional support for the children. [Ca Fam §§ 4061 & 4062(b)] Thus, an obligee parent who experiences increased child-related travel expense because of visitation changes may be entitled to a corresponding increase in child-support add-ons.

Changes In Ability To Pay

A shift in either parent's financial position is not per se a ground for modification. The court must examine both parties' circumstances as a whole; and must also evaluate those circumstances in light of the statutory factors which may properly be considered in fixing child support.

Noncustodial Parent's Increased Wealth: However, because children are entitled to share in both parents' standard of living, the noncustodial (obligor) parent's enhanced wealth often itself will be ground for increasing the child support level. This is so notwithstanding the custodial (obligee) parent's relative unchanged "poverty."

Statutory "Hardship Expenses": The court has discretion to modify child support by allowing a deduction from income (in the formula child support calculation) of a parent who is suffering "extreme financial hardship" resulting from (i) extraordinary health expenses, (ii) uninsured catastrophic losses, or (iii) the birth or adoption of new children from another marriage or relationship (deduction here is for minimum basic living expenses of such children who are living with the hardship parent). [Ca Fam §§ 4059(g), 4070-4072]

But the granting of a statutory hardship deduction is not automatic. Even though the Code recognizes the circumstance as a "hardship," the court must look to the facts of each case and consider the alleged "hardship family's" income as well as itspurported expenses. What may cause a solid, middle-class family to experience extreme financial hardship probably would have little (if any) economic impact on a Donald Trump, J. Paul Getty, or Bill Gates.

Consideration Of "Earning Capacity" As Opposed To Actual Earnings: The parents' actual earnings are not necessarily controlling on the question of ability to pay. "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parents' income, consistent with the best interests of the children." [Ca Fam § 4058(b)]

Thus, child support orders and modifications may be based on earning capacity even in the absence of a showing the obligor intentionally and deliberately sought to avoid family financial responsibilities. The court has discretion to impute earnings (based on earning capacity) to anunemployed or underemployed parent, consistent with the children's best interests, where the ability and opportunity to work (or otherwise earn) are present.

And a parent's earning capacity is not confined to income that could be earned from working. In an appropriate case, a parent may be charged with imputed earnings based on income-producing or nonincome-producing assets.

Impact Of Obligations To Creditors: Child support must be paid before the satisfaction of other creditor obligations (Ca Fam § 4011). Therefore, an obligor generally cannot obtain a reduction in court-ordered child support on the ostensible premise that voluntary debt repayments have reduced his or her ability to pay.

Income From Third Parties: A parent's "circumstances" may change because a third party's income is contributed to the parent's basic living expenses, in turn increasing the parent's "net disposable income" available to pay child support.

However, except in a specified "extraordinary case" that would otherwise result in "extreme and severe hardship" to the child, courts cannot consider the income of either parent's "subsequent spouse" or "nonmarital partner" when "determining or modifying child support." [Ca Fam § 4057.5] Thus, a motion to modify child support based solely on the fact income from a parent's new spouse or nonmarital partner has increased the parent's ability to pay must be denied absent the requisite showing of extreme and severe hardship to the child.

Passage Of Time As Changed Circumstances

There is some legal authority that the mere passage of time can be a changed circumstance warranting greater child support . . . because of cost of living increases in the intervening years and the fact it costs more to raise a child as the child gets older. [See Marriage of Cheriton (2001) 92 Cal.App.4th 269, 300, 111 Cal.Rptr.2d 755, 779]

Simplified Procedure To Determine Whether There Has Been A Change In Circumstances

There is a unique and inexpensive Family Code procedure under which parties to a child, family or spousal support order can ascertain whether a change of financial circumstances has occurred before commencing support modification or termination proceedings and without undertaking formal (and costly) discovery (Ca Fam § 3660 et seq.).

Up to once a year after entry of a marriage dissolution, legal separation or paternity judgment providing for support, either party may demand from the other party production of a current income and expense declaration accompanied by the prior year's federal and state personal income tax returns. [Ca Fam §§ 3663, 3664, 3665] If the responding party does not comply within 35 days (or responds incompletely), the requesting party may obtain "income and benefits" information from the nonresponding party's employer. The nonresponding party is also subject to sanctions in a subsequent modification or termination proceeding. [Ca Fam §§ 3664(b)-(f), 3667]

Modification Procedure

Modification proceedings must ordinarily be commenced in the court where the underlying order or judgment was rendered.

Since both parties were subject to the court's jurisdiction in the underlying action, the party seeking modification may proceed either by Order To Show Cause ("OSC") or notice of motion (Ca Rules of Court Rule 5.118).

Financial information must be current as of the time of the hearing. Where the only evidence in support of the modification request is an outdated income and expense declaration, the court properly acts within its discretion in denying the motion outright.

Absent an order shortening time all moving papers must be served in sufficient time before the hearing to comply with the Ca Civ Pro § 1005(b) minimum notice rules (ordinarily, at least 16 court days before the hearing, but longer if service is effected by mail, express mail, other overnight delivery method or fax.).

The burden of proving a prima facie case for modification (e.g., usually changed circumstances and, in custody cases, that custody change is in child's best interests) is on the party seeking modification.

The parties must be prepared to present their positions fully in their moving and opposing declarations. Whether testimonial evidence will be allowed generally lies solely within the court's discretion.

Alternative Simplified Modification Procedure

The Legislature has recognized the importance of a low-cost, simple and expeditious way to obtain a modification of support orders that have become "inappropriate" based on the parties' financial circumstances. The Legislature therefore directed the Judicial Council to "adopt rules of court and forms for a simplified method to modify support orders . . . designed to be used by parents who are not represented by counsel." [Ca Fam § 3680; see Ca Fam § 3680(a)(3)]

The application, opposition and hearing procedures are explained in the FL-391 and FL-393 "Information Sheets". Basically, normal modification procedures apply, and the usual forms and financial information will be required. The only difference is that application is made by the FL-390 Notice of Motion; and opposition is made by the FL-392 Responsive Declaration). Proofs of service are contained on the reverse sides of those forms.


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