C.A. 4th
G045142

The Fourth Appellate District affirmed a judgment. The court held that where divorce proceedings were filed concurrently in California and Ohio, and child supports orders issued in Ohio was later deemed void, the California court had the authority to order the payment of child support retroactive to the date of filing in California.

Andrea and Jeffrey Barth separated in 2004. Andrea took the couple’s children and moved back to Ohio, where the couple had previously made their home, and filed for divorce there. Jeffrey filed for divorce in Orange County. The California case was stayed pending the Ohio proceedings.

Over Jeffrey’s objection, the Ohio court found it had jurisdiction. It ordered Jeffrey to pay child support of $1295 per month, retroactive to November 2004. That amount was later increased to $1600 per month.

Jeffrey continued to challenge the Ohio court’s jurisdiction and, in 2007, the Ohio Supreme Court rendered judgment in his favor, finding that Andrea had failed to satisfy Ohio residency requirements. As a result, the Ohio family court orders were void.

Jeffrey promptly filed an order to show cause in Orange County, seeking to lift the stay and obtain child support orders.

Following hearings before a child support commissioner, Jeffrey was ordered to pay retroactive support for the period from October 2004 to December 2007, in amounts ranging from $2,253 to $7,239 per month. Based on Jeffrey’s representations regarding his currently modest income, as well as Jeffrey’s representations regarding his expenditures to travel to Ohio to visit his children, the commissioner set zero child support effective January 2008.

Jeffrey objected and requested a de novo hearing before a judge.

Following a hearing, in 2011, the family court upheld in large part the commissioner’s findings with regard to retroactive support, but rejected the commissioner’s recommendation to set Jeffrey’s current support obligation at zero. The court instead imputed income to Jeffrey for the years 2008 and 2009 at $10,000 per month.

In so ruling, the court noted that Jeffrey, an accountant, had submitted voluminous trial exhibits, including financial reports, all prepared by him in contemplation of trial. The court concluded that, in general, Jeffrey’s financial statements “were intended to mislead, and not inform.” The court found that many of the business expenses claimed by Jeffrey, who was no self-employed, were either “phony or personal.” In the court’s view, Jeffrey had used his professional expertise “to understate his actual income for the purpose of skewing the court’s calculation of guideline child support.” Jeffrey had “purposefully understated his living expenses to match his professed de minimis self-employment income, for the purpose of skirting his obligation to pay guideline child support.” Further, the court found, to the extent Jeffrey’s reported self-employment income was accurate, which the court found it was not, then Jeffrey was “woefully and purposefully under employed, based on his age, education, work experience, and earning history and a lifestyle that includes homes and businesses in Ohio and California.” The court accordingly found it appropriate to impute income to Jeffrey in accordance with the recommendations of Andrea’s expert witness.

The court calculated Jeffrey’s child support obligation as $3,125 per month for September to December 2004, $2,762 per month for the first half of 2005, $2,742.00 per month for the second half of 2005, $7,645 per month for 2006, $3,343 per month for 2007, $1,748 per month for 2008, $1,921 per month for 2009, and $1,058 per month for 2010. With credit given for the $58,384 Jeffrey had paid to that point, his arrears were calculated at $171,358, and he was ordered to and deemed capable of paying $1,000 per month to satisfy that amount.

Jeffrey appealed, challenging both the imputation of income and the imposition of a retroactive support order.

The court of appeal affirmed, holding that the family court did not err in ordering retroactive support.

Pursuant to Family Code §4009, as amended in 1999, “[a]n original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading.” The plain language of §4009, the court found, gave the family court the legal authority to make an original order for child support “retroactive to the date of filing the petition, complaint, or other initial pleading.”

The court rejected Jeffrey’s contention that §4009 did not apply. Neither the Ohio litigation nor the now-void Ohio support orders rendered §4009 inapplicable. Andrea’s election to litigate this matter in Ohio did not negate the minor children’s right to support. Further, from a legal standpoint, the Ohio orders never existed. They were thus no bar to the entry of retroactive support orders in California.

The court found further that the family court did not abuse its discretion in imputing income to Jeffrey. Although Jeffrey claimed he had been “[un]employed” for three years prior to the date of the hearing, the evidence showed that he was self-employed, with clients in both California and Ohio, and was either substantially understating his income or was “woefully and purposefully under employed.” The family court concluded Jeffrey had falsely and significantly underrepresented his actual living expenses for 2008 and 2009, failed to disclose rental and other income, falsely claimed no one was contributing toward his living expenses, and underreported income on his tax returns. Simply put, the family court found that Jeffrey was not to be believed on any issue relating to his finances, and this finding was supported by overwhelming, persuasive evidence. That court had no choice but to impute income to Jeffrey for the purpose of establishing child support, and it did so in a fair manner that was supported by the evidence.