Child Support can be Paid by Transferring Property

Parents may agree to provide for child support by transferring real property to obligee parent, with conditions

In a recent unpublished opinion on November 21, 2011, the Court of Appeal ruled that parties may agree to provide for child support through the transfer of real property so long as the court retains jurisdiction to modify child support upon a showing of changed circumstances.

In the Gonsalez case, Husband executed three “quiclaim” deeds (also called Interspousal Transfer Deeds in divorce cases) in favor of Wife of property the parents acquired during their marriage in exchange for Wife’s agreement not to seek child and spousal support.  Thereafter, Husband left California and didn’t pay any child support to Wife for six years. 

In 2006, Wife obtained a default judgment and obtained a divorce from Husband.  The court reserved jurisdiction to award child support.  In 2007, Husband filed a motion seeking a court order setting aside the three quitclaim deeds that he signed.  The court denied his request, citing the finding that Husband knew exactly what he was signing and he understood what he was signing.  Husband also intended to transfer his interest to Wife and did so specifically in consideration of the agreement that Wife would not seek support from Husband.

The Court explained that it is not unheard of that parents would exchange property for future child support payments.  Parents are permitted to make agreements for child support.  (Family Code 3580).  Since the trial court retained jurisdiction to award child support in the future if there were any changed circumstances, the default judgment was proper.  Additionally, Wife had not sought any support from Husband so it was not an illusory agreement.  Further, the court lost the jurisdiction to retroactively modify child support to an earlier date because child support had been set (to zero).  (Family Code 3651).

Child support agreements can be crafted in a variety of creative ways.  Notwithstanding an agreement outside of court, the trial court in every case must order the “guideline” amount of child support.  Our attorneys have extensive experience in negotiating and drafting child support agreements.  We are ready and available to speak with you today regarding your child support matter.  Feel free to call or email us today.

Specific Language Needed to Retroactively Modify Child Support

Orange County Child Support Law Firm  – Support Experts

In a recent unpublished Department of Child Support Services case arising out of District 1, the Court of Appeals affirmed a trial court’s ruling which denied retroactive modification of a child support order.  The facts of this case commonly occur in many family law matters where child support is an issue.   

In the Naracic matter, the parties divorced their marriage using a Marital Settlement Agreement incorporated into a judgment in 2006.  In 2007, an Order to Show Cause was filed wherein a modification of child support request was made.  In February 2007, the trial court ordered that effective January 1, 2007, Father would pay Mother $2774 per month in child support.  The trial court also reserved jurisdiction to retroactively modify its order if either party provided new information regarding certain financial factors.  The trial court set a trial for 2008.

Before the trial, the parties stipulated (agreed) to take the trial “off calendar”.  This means that the underlying motion was not heard by the trial court and therefore it did not make any further rulings.  Almost one year later, Father filed a motion to downward modify his child support obligation, and further requested that the trial court downward modify the support retroactive to January 1, 2007.  Father argued that the trial court reserved jurisdiction to retroactively modify the support amount to that date.

Unfortunately for Father, the trial court did not agree.  The court declined to retroactively modify the support amount to any date prior to when Father’s present motion was filed.  The Court of Appeal agreed with the trial court and Father lost on appeal.  The trial court and Court of Appeal looked at Family Code 3653, which prohibits retroactive modification of a child support order unless the retroactive order is made to the date of filing of the present motion or any subsequent date.  The Court of Appeal rejected Father’s argument that the trial court expressly reserved jurisdiction to retroactively modify, agreeing with the trial court’s logic that because the parties’ trial was taken off calendar, the parties’ previous dispute was resolved completely.  Therefore, the court no longer had any jurisdiction to modify child support until a new motion was filed.

The result in this case confirms that very specific language is needed if retroactivity is truly desired by the parties.  Since there was not substantial evidence to support Father’s claim that the court intended to reserve jurisdiction to modify a child support order, it is imperative that in your case, if retroactivity is an issue, that your attorney include specific and direct language setting forth exactly the court’s ability to order support to a date sometime in the past.  Our attorneys are experienced at drafting such language.  Feel free to call our divorce specialists today at (714) 667-0045 or send us an email.  Our attorneys are available to speak to you now.

Imputation of Income in Child Support Case

Santa Ana Child Support and Spousal Support Lawyers

If a party voluntarily quits his job to avoid paying child support, the court can base his earning capacity on an average of two prior years of income.

Has your ex threatened to quit his higher paying job in favor of starting a new business, which reduces his income available for child and spousal support?

In the recently decided Harrison v. Harrison, the court imputed a wage of $100,000 per year to Mr. Harrison after the Court found that Mr. Harrison voluntarily quit his job as a pyrotechnician (a manufacturer of fireworks) to start his own business.  The California Court of Appeals held that if a party voluntarily quits his job to shirk his child support obligation, the court can base his earning capacity on the average of the last two years of income.

Mr. and Mrs. Harrison had one son. In 2008, a hearing was held on Ms. Harrison’s Order to Show Cause for child support, spousal support and attorney fees. At the hearing Mr. Harrison argued that he did not quit his job voluntarily, but that he was fired because he was expressing safety concerns at his job site. However, the court struck those pleadings because he filed them late. The trial court ordered that Mr. Harrison pay $1,579 in child support, $1,851 in spousal support and $15,000 in attorney fees.

Undeterred, Mr. Harrison filed a motion for reconsideration. He urged the court to reconsider its decision based on recently decided case law, new financial records that he claimed his wife withheld from him and a declaration from his employer stating that Mr. Harrison was fired. The court held that all of that information could have been presented at the prior hearing. Accordingly, the court denied his motion and awarded Ms. Harrison another $5,000 in attorney fees.

Mr. Harrison figured “third time was the charm,” so he appealed to the Second District Court of Appeals. On appeal Mr. Harrison contended that the trial court improperly imputed a wage far and above his actual earnings. He once again asserted that he was fired for voicing safety issues with his employer. Ms. Harrison testified that her husband informed her of his plan to seek custody. His plan was to quit working so he could stay home and take care of him. Ms. Harrison also testified that Mr. Harrison threatened to show he had no income to the court so he could shirk his child support obligation. The Court found Ms. Harrison to be more credible and affirmed the trial court on both the support and attorney fee issues.

Unfortunately there are many “Mr. Harrisons” out there who threaten their former spouses with unrealistic legal consequences to gain some tactical advantage. Not everyone has the gumption of a “Ms. Harrison” to stand up to the intimidation. This situation underscores the need to seek independent legal counsel knowledgeable in all areas of family law before making any important decisions about your divorce, paternity action or domestic partnership. Instead of “going along to get along” with the angry spouse, you may realize that the threats of the “Mr. Harrison” in your life will backfire before he does.

Feel free to Contact our Attorneys Today to schedule your free initial consultation.  You can also call (714) 667-0045 to speak immediately with our divorce and family law attorneys.