Filed 9/12/19 Marriage of Stafford CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of MICHELE R. and DEREK J. STAFFORD.

MICHELE R. STAFFORD,

Respondent,

v.

DEREK J. STAFFORD,

Appellant.

A154243

(San Mateo County

Super. Ct. No. FAM095105)

Derek J. Stafford (Derek) appeals from a March 7, 2018 order denying his request for order to modify child support payable to Michele R. Stafford (Michele). The request was denied on the ground of “there being no change of circumstances.” Derek previously appealed from a May 16, 2016 order denying the same request on the same basis, and this court reversed and remanded for further proceedings. Because the March 7, 2018 order does not address the changed circumstances (i.e., Derek’s ongoing unemployment and the cessation of his unemployment benefits), we again reverse and remand for further proceedings.

BACKGROUND

We refer to our prior decision for a discussion of the background of this matter. (In re Marriage of Michele R. and Derek J. Stafford (Aug. 10, 2017, A148773) [nonpub. opn.].) In brief, on May 29, 2012, the court issued an order directing Derek to pay a total of $1,629 per month for child support for both of his children. A prior December 14, 2009 order directs Derek to pay 50 percent of certain additional child support expenses. In July 2015, Derek’s employment terminated and he sought to modify his monthly child support payments. On October 1, 2015, he filed another request for order to modify the December 14, 2009 order and at that time declared he was laid off on July 2, 2015, and since then his income was solely unemployment insurance compensation. On December 17, 2015, the trial court ordered that beginning August 1, 2015, and continuing through January 31, 2016, Derek’s obligation to pay child support was reduced to a total of $370 per month for both children and his “ ‘add on’ ” support obligations were reduced to eight percent. That order provided it was “TEMPORARY” and beginning February 1, 2016, “all prior Orders regarding support are back in place.”

On February 2, 2016, Derek filed a request for order for modification of child support with a supporting verified declaration stating he was laid off without severance on July 2, 2015, and that despite diligent efforts to search for a new job, he had not yet been offered employment. His declaration further states that he has exhausted the 26 weeks of unemployment insurance compensation available to him; that since January 16, 2016, his income has been zero; and that he has no income or assets to pay child support. Finally, he declares that Michele’s income has far exceeded his income since about 2012/2013.

On May 16, 2016, the court entered a written order denying Derek’s request, stating “ ‘there being no change of circumstances.’ ” Derek appealed, and our prior decision rejected Michele’s argument that the order was not appealable because Derek’s request for order was an untimely motion for reconsideration. We found that Derek “appropriately filed a motion to modify the reinstated child support provisions of the May 2012 court order based on changed circumstances that were first known after the October 2015 court hearing and the court’s December 17, 2015 order,” and that the May 16, 2016, order was an appealable order.

We further found that based on the appellate record we could not ascertain the basis for the trial court’s finding that there was “ ‘no change of circumstances.’ ” We specifically noted that Derek’s February 2016 request for modification submitted new information regarding the parties’ finances (e.g., his loss of unemployment insurance compensation) that was not available at the time of the October 2015 hearing or otherwise reflected in the court’s December 17, 2015 order. We therefore reversed and remanded for reconsideration of Derek’s February 2016 request for modification. Our prior decision did not opine as to whether Derek’s allegations of changes of circumstances are sufficient to warrant a child support modification, but rather left this determination to the trial court to be made on remand.

On remand, the parties appeared before the trial court on March 6, 2018, and agreed that no further evidence or hearing was required, but that the court would issue a new order on Derek’s February 2016 request. The court stated: “[T]he appellate court found that I had not set forth enough information in my ruling to indicate why I made a determination that there had been no change of circumstances in the support modification hearing. And so that’s what this Court—meaning me—that’s what I need to fix.”

On March 7, 2018, the court issued a “1st Amended Findings and Order After Hearing,” which summarizes the history of Derek’s July 2015 and October 2015 requests for modification of child support and the court’s December 17, 2015 order temporarily modifying Derek’s child support obligations. It then states, in relevant part: “On 2/2/16, [Derek] filed yet another RFO to modify Child Support. On 2/2/16 [Derek] filed his Income and Expense Declaration, under penalty of perjury, stating he became unemployed on 7/2/15. . . . [¶] . . . [¶] . . . In his RFO filed 2/2/16 [Derek] did not present any new facts or law. On 2/2/16 his employment termination date was 7/2/15, as it had been when his previous two previous RFOs were filed. Since 2012 [Derek] has had a zero time share with both of his children. On his 2/2/16 Income and Expense Declaration [Derek] alleges [Michele’s] income is $23,359, which identical to the amount he alleged in his Income and Expense Declaration filed 10/1/15. This court’s orders filed 12/17/15 from the 10/27/15 hearing, grant [Derek] relief in lowering his child support for a six month period after he had been terminated from his employment. [¶] The court makes the following order: [¶] [Derek’s] RFO filed 2/2/16 to modify child support is denied, there being no change of circumstances.” (Sic.)

DISCUSSION

The March 7, 2018 order does not acknowledge the lapsing of Derek’s unemployment benefits or Derek’s continued period of unemployment. As stated in our prior decision, these are changes in circumstances and new information Derek provided in his February 2016 request. Following Derek’s termination from his job in July 2015, he moved for a modification of child support, and the court’s December 17, 2015 order granted him temporary relief. Then, once the temporary time period expired on January 31, 2016, and after Derek’s unemployment benefits had lapsed and Derek remained unemployed, he filed his February 2016 request which seeks to extend the modification provided in the court’s December 17, 2015 order. The March 7, 2018 order after remand does not address the additional information provided in Derek’s February 2016 request (i.e., the lapse of his unemployment benefits resulting in zero income and his continued unemployment). Accordingly, we again remand for the court to consider these changed circumstances and determine whether they support a modification of the parties’ child support obligations.

Under California’s statewide uniform guideline, each parent’s income is a factor to be considered in determining child support obligations. (Fam. Code, §§ 4050–4076.) “A crucial component for determining the amount of child support is, of course, each parent’s income. (Fam. Code, §§ 4055, 4059.) ‘Income,’ itself, is broadly defined: ‘The annual gross income of each parent means income from whatever source derived . . . .’ (Fam. Code, § 4058, subd. (a).) Moreover, the court is not limited to the parent’s actual income. ‘The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.’ (Fam. Code, § 4058, subd. (b).).” (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1391.) “So long as a parent has an earning capacity, that is, the ability and the opportunity to earn income, the trial court may attribute income.” (Id. at p. 1392.) As stated in our prior decision, Derek’s February 2016 request presented changed circumstances regarding his income. While the court has discretion to consider his earning capacity, nothing in the record suggests the court considered evidence to support an imputation of income to Derek. On remand, as part of its consideration of whether the changed circumstances warrant a modification of the parties’ child support obligations, the court may consider Derek’s earning capacity.

DISPOSITION

The March 7, 2018 order is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.

 

_________________________

Wick, J.*

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A154243/In re Marriage of Stafford