Filed 5/22/20 Marriage of Kennard CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of MICHAEL and JENNIFER KENNARD. B291126

(Los Angeles County
MICHAL J. KENNARD,

Respondent,

v.

JENNIFER BROOKE KENNARD,

Appellant.

Super. Ct. No. ND057982)

APPEAL from an order of the Superior Court of Los Angeles County, Maria Puente-Porras, Commissioner. Affirmed in part; reversed and remanded in part.

Holstrom, Block & Parke, Ronald B. Funk for Respondent.

Brandon Law Group, Lisa E. Brandon for Appellant.

________________________________

Appellant Jennifer Brooke Kennard appeals from a portion of a post-judgment order denying modification of child support and calculating the accrued interest on a debt. On appeal, Jennifer contends that the trial court erred by (1) failing to calculate guideline child support, (2) considering her nonmarital partner’s contribution to her expenses, and (3) failing to calculate interest from the date she asked respondent Michael Kennard to reimburse her for the debt. We conclude that the trial court abused its discretion by failing to calculate guideline child support; we remand the matter for the trial court to address Jennifer’s child support modification request. We affirm the trial court’s order that interest due on the debt accrues as of November 1, 2016.

FACTS AND PROCEDURAL BACKGROUND

Dissolution Judgment and Post-Judgment Events

Jennifer and Michael were married on September 15, 2002, and have one child, born March 9, 2004. The parties separated on August 8, 2007. On December 1, 2008, the family law court entered a dissolution judgment based on the parties’ stipulation. At the time of the dissolution, the parties each earned approximately $4,000 a month from their respective jobs. The judgment ordered Michael to pay child support to Jennifer in the amount of $451 per month. The judgment stated: “The parties acknowledge that this support is not within the guidelines but believe it is in the best interest of the child.” The judgment awarded joint legal custody to the parties, primary physical custody to Jennifer, secondary physical custody to Michael, and visitation for Michael on alternate weekends and on his days off.

The judgment also awarded a Chevrolet Suburban to Jennifer. However, the judgment provided that “[Michael] is assigned all the community debts and shall hold [Jennifer] harmless therefrom,” and specifically identified as one of those debts the “[the] Auto Loan Chevy Suburban in the approximate amount [of] $13,633.00.” Michael made monthly payments to a credit union on the loan until, on March 16, 2009, Jennifer traded-in the car and was required to pay the remaining loan balance of over $10,000. Jennifer asked Michael for reimbursement, including offering to have Michael pay directly to her pursuant to the same monthly installment schedule on the underlying loan that he had been paying to the credit union, but he refused.

In 2011, Jennifer had a child with her nonmarital partner and left her job to care for both children.

Request for Modification of Child Support and Payment of Judgment Interest

October 20, 2016, Jennifer filed a request for modification of child support and a determination that Michael owed her the balance that she had paid on the car loan, plus interest.

Jennifer requested that Michael begin paying guideline child support. She argued that “[t]here has been a significant change in circumstances since the current order was made nearly eight (8) years ago.” She explained that at the time the judgment was entered, the parties earned approximately the same income. However, Jennifer had since left her job to raise the children, and Michael’s income had significantly increased. In support of her requested relief, Jennifer attached a recent income and expense declaration from Michael, dated October 7, 2016, which indicated that he earned $9,943 per month. In addition, Jennifer attached her own income and expense declaration, dated September 15, 2016, which indicated that she had no income. Based on a DissoMaster calculation using these figures, guideline child support would be $1,364 per month.

Regarding the car loan, Jennifer requested in her moving papers that the court order Michael to reimburse her for the balance she paid on the car of $10,180.66, plus interest at the legal rate, accruing as of April 1, 2009—i.e., the date she claimed Michael stopped tendering payments on the loan. Jennifer included a calculation of simple interest at annual rate of ten percent on the full $10,180.66. As of the date the request for order was filed, Jennifer claimed $7,712.20 in interest had accrued.

On January 26, 2017, Michael filed a request for an order to modify custody and visitation. His request for order is not part of the record on appeal.

On March 2, 2017, Michael filed another income and expense declaration, which indicated that he earned $9,780.49 per month. He also estimated that Jennifer earned income of $7,923 per month, in the form of expenses paid by her nonmarital partner.

Michael’s response to the order seeking modification of child support is not part of the record on appeal.

On March 9, 2017, Jennifer filed a reply. She stated that when she left her job, she was earning $3,300 per month. She has no legal relationship to her nonmarital partner, and he voluntarily pays for her expenses. Jennifer recalculated guideline child support with Michael earning $10,011 per month and Jennifer earning $3,300 per month. Using these figures, guideline child support would be $1,054 per month. With respect to the loan, Jennifer stated that the loan balance she paid in March 2009 was $10,216.72. She indicated that at the time she paid the loan balance, there would have been 41 of the 60 monthly payments left on the loan that Michael would have had to pay to the credit union. Jennifer offered to Michael that he could pay her back on that same monthly schedule, but he refused. She requested interest on the entire amount owing (i.e., $10,216.72) from the date she paid the loan balance.

On March 9, 2017, Jennifer filed another income and expense declaration, stating that she has no income.

A hearing on Jennifer’s request for order was held on May 9, 2017, in front of Commissioner John Chemeleski. Michael’s attorney explained that he had not completed a guideline child support calculation, because it was unclear how much income should be imputed to Jennifer. The court ran a guideline child support calculation imputing minimum wage income to Jennifer at the rate of $1,820 per month, and set Michael’s income at $9,804 per month, resulting in a guideline child support obligation of $1,243. The court issued a temporary order to pay guideline child support, and continued the remaining issues.

On September 14, 2017, after hearing argument on Michael’s request for order, the family law court modified father’s custody/visitation schedule slightly.

On July 17, 2017, Jennifer filed another income and expense declaration indicating that she earned no income.

On July 19, 2017, Michael filed another income and expense declaration, indicating that he earned $9,812.44 per month. He estimated that Jennifer earned $8,233 per month, based on the expenses indicated on her income and expense declaration.

On January 9, 2018, Jennifer filed a notice requesting, among other things, specific findings as to all of the factors that were to be included in the calculation of guideline child support.

On January 22, 2018, Michael filed another income and expense declaration indicating he earned $10,497 per month, and again contended that Jennifer earned $8,233 per month.

On April 27, 2018, Jennifer filed a declaration, wherein she agreed to the imputation of $1,820 per month. The same day, Jennifer filed another income and expense declaration indicating that she earned no income.

After several continuances, Jennifer’s request for order was heard on May 3, 2018, before Commissioner Maria Puente-Porras.

At the start of the hearing, the court asked, “Have there been any stipulations before we get started?” Mother’s attorney responded, “Counsel and I have met and agreed upon as many factors for guideline child support as we could.” Father’s attorney stated, “I think we’re down to only one.” Mother’s attorney affirmed, “I believe that’s true on the child support calculation.” The court did not resolve the factual dispute over the guideline factor, and denied Jennifer’s request to modify child support, without determining the guideline amount.

The court took judicial notice of Jennifer’s previously-filed income and expense declarations, dated: October 20, 2016, March 9, 2017, and April 27, 2018. The court noted that the income and expense declarations from 2016 and 2017 both included Jennifer’s $3,200 monthly mortgage as an expenditure, but the 2018 income and expense declaration no longer included the mortgage payment as an expenditure. The court opined that the reason Jennifer no longer listed the mortgage payments was because “somebody is filling the gap. And to have me believe that I should not consider that, that would not be equity.” The court continued, “So while I appreciate that [Michael]’s counsel would like for me to impute income, I don’t have enough to determine what dollar amount. I know what she was earning. I know and by her own statements what she has the capacity or had the capacity to do. But I don’t have enough information to give me a good sense to make a finding that she could earn X amount.” The court denied Jennifer’s request to modify child support, without determining the guideline amount, leaving child support at the stipulated, non-guideline amount contained in the 2008 judgment (i.e., $451 per month).

With regard to Jennifer’s reimbursement claim, after the parties confirmed the amount that remained outstanding, Jennifer argued that interest should accrue on the full amount outstanding as of the date Michael stopped making payments—i.e., April 2009. Michael urged the court to forgive the debt entirely, since Jennifer had sold the subject car.

The court commented that the stipulated judgment included the sum that Michael was to pay. The court also recognized that Jennifer’s decision to sell the car frustrated Michael’s ability to pay the credit union over time. In its ruling, the court rejected the positions of both parties. The court found that Jennifer’s paying early did not result in forgiveness of Michael’s obligation. The court also found that the actual amount owing after Michael was credited for payments already made was not settled until Jennifer filed her request for order, stating: “So the court is going to find that the amount is $10,216.72 that is owed by [Michael] to [Jennifer] in fulfillment of . . . the judgment. And because [Michael] was on notice, at least by October of 2016 [when the request for order was filed] that this was an issue that was going to be addressed. And more importantly, . . . there was no effort to make good on this existing debt. . . . The court finds that interest should accrue at the rate of 10 percent per annum commencing 11/1/2016.”

The court’s minute order stated: “The Court finds [Jennifer] failed to comply with Family Code section 4000 [concerning a spouse’s right to bring an action to enforce a child support obligation] and DENIES the Request to Modify Child Support and the Judgment previously ordered on December 1, 2008 shall revert and remains in full force and effect. [¶] The Court orders as to the Vehicle Issues, [Michael] shall pay to [Jennifer] the sum of $10,216.72 in fulfillment as to the Judgment . . . . The Court finds [Michael] was noticed by October 2016 such issue was going to be addressed. Such sum interest will incur at the rate of 10% commencing November 1, 2016.”

The court issued its findings and order after hearing on May 31, 2018, which reiterated its findings from the hearing.

On June 26, 2018, Jennifer filed a notice of appeal.

DISCUSSION

Calculation of Guideline Child Support

“Awards of child support . . . are reviewed for abuse of discretion. [Citation.] ‘[W]e do not substitute our judgment for that of the trial court, and we will disturb the trial court’s decision only if no judge could have reasonably made the challenged decision. [Citation.]’ [Citation.]” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1312 (Williamson).)

“In reviewing a child support order, ‘we are mindful that “determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule.” [Citation.]’ [Citation.] ‘[T]he trial court’s discretion is not so broad that it “may ignore or contravene the purposes of the law regarding . . . child support. [Citations.]” [Citation.]’ [Citation.]” (Williamson, supra, 226 Cal.App.4th at p. 1312.)

Jennifer argues that the court abused its discretion in denying her request for modification without even calculating or considering guideline child support. We agree.

As an initial matter, we reject Michael’s contention on appeal that the trial court’s order should be affirmed because the trial court’s refusal to increase the support amount set forth in the original judgment should be understood as an implicit finding that Jennifer failed to show changed circumstances that would permit revisiting the judgment amount. Section 4065, subdivision (d) provides a statutory basis to modify a child support stipulation without first showing changed circumstances. “If the parties to a stipulated agreement stipulate to a child support order below the amount established by the statewide uniform guideline, no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.” (Fam. Code § 4065, subd. (d).) “In short, the statute lets either party ‘“renege” on the stipulation at any time, and without “grounds,”’ if the stipulated award is below the guideline amount [citation].” (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.) That is precisely what Jennifer did here. In their stipulated judgment, the parties expressly agreed to an amount of child support that was not based on the guideline. Thereafter, Jennifer filed a request to modify child support.

Once Jennifer made this request for a modification of child support seeking an amount based on the guidelines, the trial court was not in a position to determine the amount of child support without first calculating a guideline amount. “[C]ourts are required to calculate child support in accordance with the mathematical formula in section 4055. . . . [A]dherence to the guideline is mandatory and the guideline amount of child support is presumptively correct.” (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 385.) “The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.” (§ 4053, subd. (k).) “The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article.” (§ 4052.) “[T]he court shall state, in writing or on the record, the following information whenever the court is ordering an amount for support that differs from the statewide uniform guideline formula amount[:] [¶] (1) The amount of support that would have been ordered under the guideline formula. [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount.” (§ 4056, subd. (a).)

The trial court failed to comply with these statutory mandates. The court denied Jennifer’s request before calculating child support pursuant to section 4055, relying instead on section 4000 as a justification for denying the requested modification. Section 4000 provides: “If a parent has the duty to provide for the support of the parent’s child and willfully fails to so provide, the other parent . . . may bring an action against the parent to enforce the duty.” Section 4000 simply authorizes one parent to bring a child support enforcement action against the other parent. Nothing in section 4000 authorizes a trial court to avoid consideration of the statutory guidelines in determining the correct amount of support.

Over the course of the recently-revived family court proceedings, between 2016 and 2018, the parties each filed four separate income and expense declarations. Michael indicated that he earned monthly income ranging from $9,780 to $10,497, whereas Jennifer consistently indicated that she earned no income. However, in April 2018 Jennifer filed a declaration stating that she agreed to the imputation of minimum wage income, for the purpose of calculating guideline child support. Further, at the hearing, the parties presented a stipulation to the court regarding most of the applicable guideline factors. Despite having all this evidence before it, the court appears to have disregarded all of it in refusing to calculate the amount of guideline child support. Therefore, the trial court abused its discretion in denying Jennifer’s request for order without first calculating the amount of guideline child support, and then articulating its basis for deviating from said amount. We reverse the trial court’s order and remand for the trial court to determine child support consistent with the provisions of the Family Code.

Judgment Interest

If a nondebtor spouse is assigned a debt as part of a property division, the debtor spouse has a right of reimbursement to the extent he or she is compelled to satisfy the debt. (§ 916, subd. (b); Lezine v. Security Pacific Fin. Services, Inc. (1996) 14 Cal.4th 56, 65, 74.)

After the division of property in a dissolution action, “[i]f property of a married person is applied to the satisfaction of a money judgment . . . for a debt incurred by the person that is assigned for payment by the person’s spouse, the person has a right of reimbursement from the person’s spouse to the extent of the property applied, with interest at the legal rate.” (§ 916, subd (b).)

“Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.” (Code Civ. Proc., § 685.010, subd. (a).) “[I]nterest commences to accrue on a money judgment on the date of entry of the judgment.” (Code Civ. Proc., § 685.020, subd. (a).) “[I]f a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.” (Code Civ. Proc., § 685.020, subd. (b).)

On appeal, Jennifer cites Code of Civil Procedure section 685.020 to argue that the trial court abused its discretion by not ordering interest “commenc[ing] April 1, 2009 on the monthly payment then due and on each payment thereafter, as each became due.” That is not the argument for interest that Jennifer made to the trial court: Jennifer asked the trial court to order simple interest on the entire amount she paid to retire the loan obligation (i.e., $10,216.72), commencing on April 1, 2009. Moreover, although Jennifer stated in her declaration that she gave Michael the opportunity to pay her monthly, based on the 41 remaining payments that had been due to the credit union, she did not submit to the trial court any specificity or evidence of the installment amounts due on particular dates. Given that Jennifer neither requested that the trial court order interest based on the schedule of installment payments due to the credit union, nor provided any factual basis for determining those monthly amounts, we conclude the trial court did not abuse its discretion in ordering a different interest payment.

Jennifer does not attempt to argue, on appeal, for the interest payment calculation she actually presented to the trial court. Even were she to have pursued this argument, however, she fails to show an abuse of discretion. As noted in the colloquy with the trial court, and conceded by her counsel, while Michael certainly was aware of his obligation to make payment of the debt, the court did not abuse its discretion in finding that there was uncertainty as to the amount owing until the time of the filing of the request for order, in October 2016.

DISPOSITION

The order is reversed and remanded, in part; and affirmed, in part. The trial court’s order of child support is reversed, and the matter is remanded to the trial court to consider appellant’s request for modification anew and to make an order of child support consistent with the provisions of the Family Code. The order requiring Respondent Michael Kennard to pay interest on the car loan commencing on November 1, 2016, is affirmed. Each party is to bear its own costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.