Alexandra Burkhardt and David Burkhardt
Case No: 1265909
Hearing Date: Tue Aug 06, 2019 10:20

Nature of Proceedings: Req. for Order: Modification Child Support

Respondent’s Req. for Order: Modification Child Support

Attorneys: Mareika Schmidt for Petitioner; Respondent in pro per

Ruling: For the reasons set out below, father’s request is DENIED.

Background

On 6/28 father filed his RFO seeking a change in “child support” and set the hearing for 8/6; the form he submitted is improperly completed and seems to be seeking child support arrears. Where the form specifically asks for the dates from which the child support should be calculated to the date the calculation is sought, there is no start date; it may be that father has simply filled the form out incorrectly. The Court previously told father during the child custody phase of this case that it needed the additional information. Father never supplied it.

Father’s income and expense declaration filed 6/28

He attaches no Profit and Loss Statement even though he is self-employed. He claims that mother has a large Family Trust that pays her regularly; that his average monthly income over 12 months is $1,000/mo; that he has no assets of any kind; his living expenses, excluding rent, are $500 per month; his roommate pays $500 per month to offset expenses. He reports that the child lives with him 100% of the time and the Court should read case #1265909. He reports that he was granted full custody in 2012 and mother has provided $0 in seven years. Father has ignored the requirement that he must submit a child support calculation using the DissoMaster guidelines.

Mother’s Responsive Declaration to Father’s Child Support Request

Mother filed it on 7/24; she reports that father filed his Request for Order — Change of Child Support on June 28, 2019; to date, he has failed to serve his moving papers and all supporting papers on mother or mother’s counsel; he also failed to file a proof of service with the Court; it is reasonable to infer that father failed to serve mother and/or her counsel of record; father’s request should be denied for lack of service.

Additionally she report father filed the underlying Request for Order on or about June 28, 2019; he admits that the current child support order has been set at zero since April 12, 2012; the Court ordered the child support to be set at zero on July 24, 2012; child support matter was then continued to October 2, 2012, and October 23, 2012, in an effort to give the parties time to comply with any requests for financial transparency and to determine arrears (due to mother); on October 23, 2012, child support was confirmed at zero and the matter was moved off calendar; neither father nor mother brought a timely request to restore the matter to calendar following the Court’s order; no Request to Modify Child Support was filed at any time during the following six years and nine months until now.

Father comes now and moves the Court to order child support for a child who has not lived with him in over seven months and further attempts to request child support arrears based on a child support order that was set at zero on July 28, 2012; pursuant to California Family Code §3651, a “request for order to modify child support may be made retroactive to the date the applicant filed a RFO,” but generally not to a date before that.

Mother reports that a request to determine arrears requires a court order, that the court order orders the obligor to pay a sum certain each month, and that the obligor has notice of the court order to pay monthly child support; in the instant case, the child support order had been zero since July 28, 2012. Both father and mother were aware that mother’s child support obligation was zero; but father now seems to seek a child support order for the period of time that he had physical custody of the minor child, which was from April 14, 2012, until November 8, 2018; he did not file his Request until June 28, 2019, which is the earliest date the Court could make the order retroactive to; indeed, father lacks any basis for the relief he is seeking, whether it is current child support for a child who has not lived in his household since November 8, 2018, or whether it is for child support arrears on a child support order that has been zero for almost seven years.

Mother points out that father, unaccountably, perjured himself when he indicated on his Income and Expense Declaration that the minor child is living with him full-time, whereas Max has been living with the mother since November 8, 2018, and father stopped all visitations with Max on or about May 24. 2019.

The Court’s Conclusions

Mother’s documentation is very persuasive, credible, correct. Father has no basis for this request. The Court has considered awarding mother sanction-based fees against him, but decided against it.