The opinion
Filed 1/11/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANNA M., B267004
Petitioner and Respondent, (Los Angeles County
Super. Ct. No. BF029513)
v.
JEFFREY E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark A. Juhas, Judge. Affirmed.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for
Appellant.
Ribet & Silver, Claudia Ribet, and Elizabeth Skorcz-
Anthony for Respondent.
________________________
INTRODUCTION
Jeffrey E. and Anna M. are the parents of 10-year-old A.E.
They share equal physical custody. In 2013, Anna sought an
award of child support.1 Evidence adduced at trial established
that Davis F., Anna’s friend and A.E.’s godfather, supports Anna
financially and pays her expenses of over $30,000 per month.
Anna does not work and has virtually no other source of funds.
Jeffrey has an income of over $33,000 per month. Jeffrey argued
Davis’s financial support of Anna should be considered her
income for purposes of calculating child support, thereby
eliminating Jeffrey’s support obligation. The trial court rejected
this argument and issued an order requiring Jeffrey to pay Anna
$2,505 per month in child support. On appeal, Jeffrey argues the
trial court erred when it failed to characterize Davis’s gifts as
income to Anna in calculating the child support award. We find
no abuse of discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.E. was born in 2006. In August 2007, Jeffrey admitted
paternity and sought joint legal and physical custody of A.E.
In July 2008, the court granted the parties joint legal custody.
Since 2010, the parties have shared equal physical custody of
A.E. In October 2012, the trial court issued a bifurcated
judgment of parentage, reserving jurisdiction over all other
issues, including child support.
Trial on custody and support issues was held over 19 days
between August 2013 and March 2014. As relevant to this
appeal, the following facts were established at trial. Jeffrey is an
1 As is customary in family law proceedings, we refer to the
parties by their first names. (Rubenstein v. Rubenstein (2000) 81
Cal.App.4th 1131, 1136, fn. 1.)
2
investment manager. His October 2013 income and expense
declaration indicated his monthly income was over $33,000 and
he had over $11,000 in monthly expenses. Based on the
testimony of Jeffrey, his accountant, and Anna’s forensic
accountant, the trial court eventually found Jeffrey has a gross
monthly income of $33,130, which includes wages, salary, and
self-employment income.2
Anna’s income and expense declaration indicated she had
not worked since 2008 and had no income from any source. She
identified monthly expenses of over $33,000. At trial, Anna
provided only minimal testimony about Davis’s financial support
and her expenses. Her testimony mainly concerned the
information included in her income and expense declaration and
the source of that information.
Davis testified he met Anna in 2004. He considers her his
“closest best friend” and has no “romantic involvement” with her.
A.E. is his goddaughter. Anna lives in a house in Beverly Hills;
Davis pays the approximately $10,000 per month rent. Davis has
a room at the house. He currently stays there with Anna and
A.E. around two weeks of each month.3 Davis pays a person to
work at and take care of the house. He also pays for the food, “all
the bills to get paid at the house,” and “whatever household
products the house needs.” He pays a nanny to work for Anna on
an as-needed basis. Anna has the use of two vehicles, both of
which Davis owns or leases.
2 Jeffrey does not challenge this finding on appeal.
3 Davis testified he otherwise lives in Sherman Oaks, in a
house that has been his residence for approximately 20 years.
3
Anna uses a credit card issued in Davis’s name. Davis
prefers that she keep spending on the card under $10,000 per
month, but there are occasional exceptions. Davis also gives
Anna an average of $12,000 per month, which he deposits into an
account for her. He further testified he gives Anna money which
she uses to pay for clothes and whatever A.E. needs. Davis has
no agreement or expectation that Anna will pay him back for her
living expenses. Because a business manager pays Davis’s bills,
he was not sure if he pays the rent and house manager directly,
or if Anna pays those bills with money he gives her. He thought
Anna paid the “household expenses,” but believed he might pay
the nanny directly.
Davis has loaned Anna over $1 million for attorney fees in
the family law proceedings. He could not identify a source from
which he believed Anna could repay these loans. Davis testified
he provides financial support to Anna because he loves her and
A.E.
In his closing argument, Anna’s counsel contended it would
be absurd to conclude that because a “Samaritan” provides for a
child, the parent with a statutory duty to provide support “is
somehow off the hook . . . .” He argued Davis’s support was not
income to Anna and deviation from the child support guidelines
was not appropriate. Anna’s counsel asserted that if Davis and
Anna were married, the court could not consider “new mate”
income, and “[t]he fact that they’re not married shouldn’t
somehow elevate that into a consideration that the court can now
make.”
Jeffrey’s counsel argued the court should characterize
Davis’s support of Anna as her income and reduce Jeffrey’s
support obligation to zero. Counsel contended that given the
4
opulent lifestyle Anna provides to A.E. with Davis’s gifts,
requiring Jeffrey to pay child support would only negatively
affect A.E. by reducing the amount of money he could spend on
her in his own home. He argued a child support award would
therefore penalize Jeffrey while providing no benefit to A.E.
As to the “new mate” argument, Jeffrey’s counsel simply asserted
Davis was not a “new mate.”
The trial court found there was no evidence from which it
could impute an income to Anna.4 It determined Jeffrey earns
approximately $400,000 per year. The court found Davis pays all
of Anna’s expenses, totaling between $30,000 and $40,000 per
month, although the court noted even Anna “does not fully
understand the amount [Davis] pays.” The court declined to
“impute income under [In re Marriage of Alter (2009) 171
Cal.App.4th 718 (Alter)]” to Anna, explaining: “While the court
agrees that the money [Davis] pays is little more than a gift,
unlike Alter, he has not paid these expenses for ‘years’ and as
noted above, he is a legal stranger to [Anna] unlike Mr. Alter’s
mother.”
The court noted A.E. enjoys a comfortable lifestyle in both
of her parents’ homes and arguably a more affluent lifestyle with
Anna. Still, the court concluded: “Nevertheless there is a legal
preference that parents pay support for their children. Even
under the unusual circumstances of this case, this court cannot
deviate from guideline, thus effectively relieving [Jeffrey from]
4 The court explained: “[Anna] has been unemployed for
years and from what little information the court does have, it is
clear that she has limited marketable skills at this time. As a
result, the court does not currently impute an income to her.”
5
his financial responsibility.” The court ordered Jeffrey to pay
child support of $2,505 per month.
DISCUSSION
The Trial Court Did Not Abuse its Discretion in
Failing to Characterize Davis’s Gifts to Anna as Her
Income When Calculating Child Support
On appeal, Jeffrey argues the trial court erred when it
failed to deem Davis’s financial support of Anna to be her
“income” when calculating child support. We find no abuse of
discretion.
A. Applicable Legal Principles
The principles governing appellate review of child support
calculations and awards are well-established. “Awards of child
support and spousal 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 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.]”
(In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1312
(Williamson).)
“Statutory guidelines regulate the determination of child
support in California. (See Fam. Code, §§ 4050-4203.)[5] The
5 All further statutory references are to the Family Code.
6
guidelines set forth several important principles relating to child
support determinations, including that (1) the interests of the
child are the state’s top priority, (2) a parent’s principal
obligation is to support his or her children ‘according to the
parent’s circumstances and station in life,’ (3) ‘[b]oth parents are
mutually responsible for the support of their children,’ (4) ‘[e]ach
parent should pay for the support of the children according to his
or her ability,’ (5) children should share in both parents’ standard
of living, and (6) in cases ‘in which both parents have high levels
of responsibility for the children[,]’ child support orders ‘should
reflect the increased costs of raising the children in two homes
and should minimize significant disparities in the children’s
living standards in the two homes.’ (§ 4053, subds. (a),(b), (d)-
(g).) The guideline amount of child support, which is calculated
by applying a mathematical formula to the relative incomes of
the parents, is presumptively correct. (See §§ 4055, 4057, subd.
(a); [citation].) ‘The court may depart from the guideline only in
“special circumstances” set forth in the child support statutes.
(§ 4052).’ [Citation.]” (In re Marriage of Schlafly (2007) 149
Cal.App.4th 747, 753 (Schlafly).)
“Trial courts must calculate child support in accordance
with the mathematical formula contained in Family Code section
4055. [Citation.] This mandatory formula ‘takes into account
both parents’ “net monthly disposable income” (§ 4055, subds.
(a), (b)), which is determined based upon the parents’ “annual
gross income” (§ 4058). Section 4058, subdivision (a), defines
“annual gross income” as “income from whatever source derived,”
and lists more than a dozen possible income sources to be
considered as part of annual gross income.’ [Citation.]”
(Williamson, supra, 226 Cal.App.4th at p. 1312, fn. omitted.)
7
B. Financial Contributions from Others and
“Income” in Child Support Calculations
In defining “annual gross income” for a child support
calculation, section 4058, subdivision (a) sets forth a non-
exclusive list of possible sources of income that does not mention
gifts. California courts have accordingly considered gifts and
other financial benefits not identified in the statute in the factual
contexts in which they arise to determine whether they may be
included or excluded as “income” in a child support guideline
calculation.
For example, in In re Marriage of Scheppers (2001)
86 Cal.App.4th 646 (Scheppers), the obligor father sought a
reduction in his child support obligation based on the mother’s
receipt of a lump sum payment as the beneficiary of a life
insurance policy. The trial court treated the interest that could
be earned from the lump sum amount as income to the mother,
but not the corpus of the life insurance death benefit itself.
The Court of Appeal affirmed the trial court ruling. The court
noted that while the statutory definition of income is broad under
section 4058, “it is not unlimited. It does not extend to every type
of payment or economic benefit received by a parent.” (Id. at
p. 649.) The court explained, in part: “First, it is established that
gifts, whether inter vivos [citation] or testamentary [citation], are
not within the scope of the statutory definition of income. It is
impossible to draw a rational distinction between a gift made by
designating the donee as the beneficiary of a will and a gift made
by designating the donee as the beneficiary of a life insurance
policy.” (Ibid.)
8
The court further reasoned life insurance death benefits are
not income under the federal Internal Revenue Code, which is
persuasive in the interpretation of section 4058. Life insurance
proceeds also do not fall within the common-law definition of
income. The Scheppers court explained: “The traditional
understanding of ‘income’ is the gain or recurrent benefit that is
derived from labor, business, or property [citation] or from any
other investment of capital [citation]. Almost every type of
income specified by section 4058, subdivision (a), is either a
return from labor, business, or property (such as wages,
dividends, and rents) or else a substitute for that return (such as
disability insurance benefits).” (Scheppers, supra, 86 Cal.App.4th
at p. 650.)
Several courts have also considered whether non-cash
financial benefits may be considered income to a parent in a child
support calculation. In In re Marriage of Loh (2001) 93
Cal.App.4th 325 (Loh), the court rejected an approach that would
characterize as income anything that reduces a parent’s living
expenses, such as mortgage-free or rent-free housing. (Id. at
p. 334.) In Loh, the obligee mother sought an increase in child
support based on evidence of the father’s “lifestyle” with his
girlfriend. (Id. at p. 327.) The court concluded the trial court
erred in finding the father’s income was greater than the
evidence established, and in departing from a calculation based
on income reported in the father’s tax returns. (Id. at p. 333.)
The Loh court further considered how the trial court should
proceed when significant nontaxable benefits are involved, such
as when the parent has free housing:
9
“[T]he proper course was to first calculate the guideline
amount in light of the parents’ incomes as revealed by such
evidence as tax returns, income and expense declarations and
pay stubs, and then, under section 4057, to adjust the amount
upward in light of the free housing benefit. Such an approach
respects the rebuttable correctness of the mechanically calculated
guideline amount, and allows child support awards to properly
reflect the parents’ standard of living without doing violence to
the word ‘income’ in a way that would make the Sheriff of
Nottingham proud.”6 (Loh, supra, 93 Cal.App.4th at pp. 335-336,
fn. omitted.)
The court found there was insufficient evidence to
upwardly modify the child support award using this approach in
the case before it. (Loh, supra, 93 Cal.App.4th at p. 336.)
The mother had not attempted to establish the father’s tax
returns did not fairly reflect his income. (Id. at pp. 337-338.)
Further, section 4057.5 prohibited the trial court’s consideration
of the father’s lifestyle, which was subsidized by his new
girlfriend.7 (Loh, at p. 337.)
6 The Loh court thus disagreed with the approach taken in
Stewart v. Gomez (1996) 47 Cal.App.4th 1748 (Stewart) and
County of Kern v. Castle (1999) 75 Cal.App.4th 1442 (County of
Kern), in which the courts included the value of “mortgage-free”
or “rent-free” housing as income to the obligor parent in a child
support award calculation. (Loh, supra, at pp. 334-336.)
7 Under section 4057.5, subdivisions (a)(1) and (a)(2), the
income of the obligor or obligee parent’s “subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying child support,” excepting only the “extraordinary case
where excluding that income would lead to extreme and severe
hardship to any child subject to the child support award. . . .”
10
The appellate court followed a Loh approach in Schlafly,
supra, 149 Cal.App.4th 747. The obligor father lived in a
“mortgage-free” home that had a rental value of $3,000 per
month. (Id. at p. 751.) The reviewing court reversed an order in
which the trial court included $3,000 of non-taxable income to the
father in the child support calculation, based on the rental value
of the house. The court noted the mortgage-free housing was
neither an employee benefit nor resulted “from an effort to funnel
income into a form that would not be recognized in the
DissoMaster calculation.” (Id. at p. 759.) However, the reviewing
court concluded the trial court properly considered the father’s
lack of any housing expense when deviating upward from the
guideline in temporary child support orders and it could do so
again on remand. (Id. at pp. 759-760.)
Likewise, in M.S. v. O.S. (2009) 176 Cal.App.4th 548
(M.S.), the reviewing court concluded the trial court erred when it
characterized as income an Indian tribe’s direct payment of the
obligor father’s attorney fees in the proceedings. Although the
payment of the fees could be easily valued, the court explained
the tribe paid the attorneys directly, and if the father incurred no
fees he received no benefit. Thus, “the payments are not part of
[the father’s] regular income or included in his cashflow. This
case is akin to Stewart, in which the inclusion of a benefit
resulted in a presumptively correct guideline amount based in
part on money the father simply does not have available for
support.” (Id. at p. 560.) While bonuses the father received from
the tribe were properly deemed income to him for purposes of
calculating child support, the tribe’s direct payment of his
attorney fees was not.
11
These cases reflect a concern that a child support award
should usually not be based on monies the parent does not
actually have available for support. Under a Loh approach, while
nontaxable financial or non-cash monetary benefits may justify a
deviation from the child support guidelines under section 4057,
they are not characterized as income to the parent. (cf. In re
Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1080 [rejecting
argument that husband’s income consisted only of his “cash flow”
and did not include loan forgiveness that was “income” under tax
laws].)
C. Alter and Subsequent Cases
In Alter, supra, 171 Cal.App.4th 718, the court considered
whether cash a grandparent provided to an obligor parent could
properly be characterized as income to that parent in a child
support calculation. In Alter, the obligor father sought a
reduction in his child support obligations. His mother paid many
of his expenses, allowed him to live in a house she owned, and
gave him $6,000 each month, $3,000 of which was to pay the rent
she charged him. The grandmother’s $6,000 monthly payments
to the father occurred during the marriage and continued after
the dissolution; indeed, the monthly payments had occurred for
more than a decade. The trial court characterized the monthly
$6,000 as the father’s income, as well as $1,000 in other cash and
benefits. (Id. at pp. 723-725, 731.)
On appeal, the father argued the trial court erred as to the
$6,000 payments, contending gifts cannot be considered income
in the guideline support calculation. The Alter court rejected any
such “absolute rule.” (Alter, supra, 171 Cal.App.4th at p. 731.)
The court noted section 4058, subdivision (a)’s list of income
sources is nonexclusive and nothing in the statute precludes a
12
court from considering gifts as income for child support purposes.
(Id. at pp. 732-733.) The court reviewed common definitions of
income and determined they also do “not unequivocally preclude
considering recurring gifts of money as income.”8 (Id. at pp. 733-
734.) Alter distinguished California cases that considered only
one-time gifts (Scheppers; County of Kern), and cases in which the
court refused to characterize noncash benefits unrelated to
employment as income for child support purposes (Loh; Schlafly).
(Alter, supra, at pp. 733-734.) The court reasoned that concerns
related to the complicated nature of determining the value of
noncash benefits and the potential for inconsistent results are not
present when the gifts are cash and are recurrent. (Id. at pp.
734-735.)
The Alter court explained that although the definition of
income under federal tax law is helpful in many cases, it is not
controlling. This is in part because the child support and federal
income tax statutes have differing purposes and a parent may
have non-taxable income that is nonetheless available to support
the child. (Alter, supra, 171 Cal.App.4th at p. 735.) The court
further rejected the argument that a gift should not be deemed
income because of the lack of a guarantee that the obligor parent
will continue receiving such gifts in the future. (Id. at p. 736.)
8 The court considered definitions such as: “ ‘income’ is
simply ‘a gain or recurrent benefit that is usu[ally] measured in
money and for a given period of time, derives from capital, labor,
or a combination of both . . . .’ [Citation.]” (Alter, supra, 171
Cal.App.4th at p. 733.) But the court also considered a legal
dictionary definition of income as “ ‘[t]he money or other form of
payment that one receives, usu[ally] periodically, from
employment, business, investments, royalties, gifts and the like.’
[Citation.]” (Id. at p. 734.)
13
Adopting the reasoning of an Illinois appellate court decision, the
court explained few sources of income are certain to continue
unchanged year after year, thus the relevant focus is “ ‘the
parent’s economic situation at the time the child support
calculations are made by the court.’ [Citation.]” (Ibid.)
However, the Alter court did not hold gifts to a parent must
always be considered income. Instead, the court concluded:
“[N]othing in the law prohibits considering gifts to be income for
purposes of child support so long as the gifts bear a reasonable
relationship to the traditional meaning of income as a recurrent
monetary benefit. But while regular gifts of cash may fairly
represent income, that might not always be so. Therefore, the
question of whether gifts should be considered income for
purposes of the child support calculation is one that must be left
to the discretion of the trial court.”9 (Alter, supra, 171
Cal.App.4th at pp. 736-737.)
In Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633
(Kevin Q.) and In re Marriage of Smith (2015) 242 Cal.App.4th
529 (Smith), the reviewing courts found no abuse of discretion in
the trial court’s consideration of regular, recurrent gifts from a
parent to an adult child when assessing the adult child’s ability
to pay attorney fees in a family law proceeding. Although both
Kevin Q. and Smith relied in part on Alter, neither concerned
“income” in the context of the child support calculation, which
involves policy objectives different from those involved in a fee
9 We note that in Alter, the obligor father also argued the
trial court should have attributed income to the obligee mother
based on money the grandmother (his mother) spent directly on
the children’s expenses. (Alter, supra, at p. 738.) The appellate
court did not consider the claim because the father provided no
authority for the argument and failed to raise it in the trial court.
14
award. (See Kevin Q., supra, 195 Cal.App.4th at p. 645 [parents
had equal ability to pay fees in light of regular, recurrent
infusions from parent to adult child made over a long period of
time]; Smith, supra, 242 Cal.App.4th at p. 535 [parent’s payment
of wife’s attorney fees allowed her to engage in abusive litigation;
§§ 2030 and 2032 intended to prevent a party from litigating the
other side out of the case].)
In contrast, in Williamson, the reviewing court found no
abuse of discretion in the trial court’s ruling declining to base a
child support calculation on gifts the obligor father had
historically received from his wealthy parents. During the
marriage, the grandparents regularly gave the husband, wife,
and children annual tax-free gifts of $26,000 each. On one
occasion the grandparents gave the father a one-time gift of
$900,000. On other occasions the grandparents advanced money
to the father and mother for various expenses, such as home
purchases and renovations. (Williamson, supra, 226 Cal.App.4th
at p. 1308.) On appeal, the obligee mother contended the trial
court should have characterized the grandparents’ historical cash
advances as income to the father for the purposes of calculating
child and spousal support. (Id. at p. 1307.)
The Williamson court disagreed. The court discussed Alter,
but noted two features that distinguished the case before it.
The first was that the cash advances from the grandparents
“were made upon request, depending upon the family’s
needs . . . . In some years [the parents] needed large sums of
cash, primarily to purchase and renovate homes. In other years,
they requested little or no assistance. In that sense, the
advances were irregular and outside ‘the traditional concept of
15
income as a recurrent, monetary benefit.’ [Citation.]”
(Williamson, supra, 226 Cal.App.4th at p. 1314.)
The second distinguishing feature was evidence
establishing the grandparents had ceased giving the obligor
father gifts. Thus, even though the trial court properly
characterized the annual $26,000 gift as income, substantial
evidence supported the trial court’s conclusion that it would be
speculative to assume such gifts would be made in the future.
The appellate court reasoned: “Generous relatives do not have a
duty to support a family member’s minor children. That duty
belongs to the children’s parents. (§ 4053, subd. (b).) Once gifts
to a supporting parent have ceased, without any reasonable
indication they will resume, they may not be used to impute
income to that parent. [Citation.] Treating such gifts as income
would ‘lead [] to support payments based on money the parent
does not have.’ [Citations].” (Williamson, supra, 226 Cal.App.4th
at p. 1315.) The trial court’s decision to exclude the cash
advances as income was therefore “within the proper exercise of
discretion.” (Ibid.)
D. The Trial Court Did Not Abuse its Discretion in
this Case
The legal authorities discussed above indicate regular,
recurrent gifts to a parent may be characterized as income to that
parent for purposes of calculating guideline child support, but
they do not indicate gifts must be so characterized in every case.
Instead, the trial court has discretion to consider gifts as income
when they are a regular, recurrent monetary benefit to the
parent. Further, courts are mindful not to base a child support
calculation on monies a parent does not actually have.
16
i. We Do Not Resolve this Case Under Section
4057.5
On appeal, Anna contends section 4057.5 determines the
outcome of this case. We decline to resolve the case under section
4057.5 for two reasons. First, while the parties agree there is no
statutory definition of “nonmarital partner,” the evidence did not
clearly establish the relationship between Davis and Anna is
equivalent to a spousal relationship. Instead, the uncontradicted
evidence was that Davis is A.E.’s godfather and he considers
Anna his “best friend” with whom he has no romantic
involvement. Further, Anna’s trial brief identified Davis only as
Anna’s friend and A.E.’s godfather.
Second, and related, is the fact that Anna did not contend
in the trial court that section 4057.5 applied. As a result, the
record on this issue was not developed. Although Anna’s trial
brief acknowledged Jeffrey intended to argue Davis’s financial
support of Anna should be characterized as her income, and
argued in response that Alter did not apply to the case, the brief
did not invoke section 4057.5. In closing arguments, Anna’s
counsel raised section 4057.5, but only as an analogy.10 The trial
10 Counsel argued: “I just want to ask if I can just make one
more point, not a factual point . . . . If the court doesn’t consider
new mate income when considering a child support –and I’ll
accept if to not do so would not be in the best interest. If the
court doesn’t consider new mate income, if [Davis] and [Anna]
were married, the moneys that she is receiving to defray her
living expenses wouldn’t be considered. The fact that they’re not
married shouldn’t somehow elevate that into a consideration that
the court now can make. It’s less compelling.”
The following colloquy ensued with Jeffrey’s counsel: “[Court]:
And, what about Mr. Kaplan’s argument that if it were a new
17
court made no findings of fact on the nature of the relationship
between Anna and Davis; to do so would have required credibility
determinations and a drawing of inferences from the evidence, all
of which are within the province of the trial court. We therefore
decline to resolve this case under section 4057.5. (14859
Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th
1396, 1403, fn. 1; McDonald’s Corp. v. Board of Supervisors
(1998) 63 Cal.App.4th 612, 618.)
ii. The Trial Court’s Ruling was Within its
Discretion
We turn to the issue of whether the trial court erred in
failing to characterize Davis’s financial support of Anna as her
income. Jeffrey contends Alter governs. However, this case
differs from Alter in several respects.11 A large portion of the
mate, if she were married to Davis, you wouldn’t take it into
consideration in a dissomaster, but you could deviate from
guideline because of it? [Jeffrey’s Counsel]: But she’s not. It’s not
a new mate. [Court]: Right. That’s right. [Jeffrey’s Counsel]: So
that argument existed in Alter. . . . It’s actually a more
interesting argument to make when it’s mom as opposed to some
guy who for some reason just continues to give her this money.
It’s actually a more interesting argument in Alter than even
here.”
In his rebuttal argument, Anna’s counsel stated: “This is
not a case where the court could consider nonmarital partner
income. It shouldn’t consider. And I think the court has
indicated, or at least I interpret that the court won’t include that
in this case.” However, counsel made this statement in the
context of a discussion of Jeffrey’s income and contributions his
girlfriend made to the household.
11 Jeffrey does not contend on appeal that the trial court
abused its discretion in failing to consider Davis’s financial
18
financial support Anna receives from Davis is in the form of
indirect, non-cash benefits, such as rent-free housing, payments
to others for services provided to her, and use of Davis’s
possessions, such as his cars. The evidence did not establish the
money Davis uses to cover those expenditures is otherwise
available to Anna for other purposes. Consistent with Loh,
Schlafly, and M.S., the trial court reasonably excluded this
financial support from the calculation of Anna’s income.
Even as to the cash or cash-equivalent financial support
Davis gives Anna, the court could reasonably determine these
benefits were not properly characterized as income to her for
purposes of the child support calculation. Under several analyses
courts have used to determine income, Davis’s financial support
would not qualify. There was no evidence the financial support is
derived from Anna’s capital, labor, or any combination of the two.
(Alter, supra, 171 Cal.App.4th at p. 733.) There was no evidence
Davis’s financial support is income to Anna for federal income tax
purposes; Jeffrey did not argue Anna’s true income under the tax
laws was different from what she represented to taxing
authorities. (Loh, supra, 93 Cal.App.4th at p. 336.)
Moreover, while Alter provided legal authority for the court
to characterize at least some of Davis’s financial support as
Anna’s income, the facts of this case are significantly different.
Unlike the situation presented in Alter, very little about Anna’s
arrangement with Davis appeared clear cut. The relationship
between Davis and Anna is one of legal strangers. There is no
support of Anna as a basis to deviate from the guideline amount,
as suggested in Loh. Jeffrey also does not challenge the trial
court ruling declining to impute income to Anna based on her
earning capacity.
19
familial relationship between Davis and Anna as there was in
Alter, Kevin Q., Smith, and Williamson. The evidence did not
establish how long Davis had been fully supporting Anna, how
long he had been giving her cash gifts, or how much the amount
of cash he gives her varies from month to month.12 Davis
testified the arrangement he has with Anna was not in place
when A.E. was born and it “evolved throughout the years” after
she was born. He further indicated his financial arrangement
with Anna “was not the same when [A.E.] was born as it is
now.”13 He was not asked how the arrangement had changed.
When asked how much money he deposited into Anna’s account
12 While Davis testified he transferred money directly to
Anna, the hearing also included the following colloquy:
“Q: At the present time, do you provide funds to Anna for her and
[A.E.’s] support?
[Davis]: Yes.
Q: And is there a fixed amount or is there some other
arrangement by which you do that?
A: There’s another arrangement how I do that.
Q: What’s that arrangement?
A: I, you know, give Anna some limits to stay within a certain
amount of, you know, from here to there. And I have a feel for
how much things cost and stuff. And the house, because I stay
there too, I mean, I eat all the food and I have, you know – you
didn’t ask me this question, but I have the house set up so that it
has someone that works there that takes care of the house and
just to keep the house well. And that keeps me happy too.”
13 In an earlier deposition, Davis testified he had transferred
money into Anna’s bank account before she stopped working as a
personal trainer, and when she stopped working the amount of
money he provided to her changed. He did not know the amount
of the change.
20
on a monthly basis, Davis answered the amount varied every
month. When asked about the range, he responded the average
was “about 12 grand a month.”
The record does not indicate whether the amount of cash
Davis gives Anna is based on her requests for a particular sum, is
tied to her actual spending and is intended to pay for specific
expenditures, or if the amount is determined at Davis’s whim.
A reasonable interpretation of the evidence is that Davis’s
support of Anna resembles the gifts provided to the obligor father
in Williamson that were not deemed income: occurring on an as-
needed basis to pay particular expenses. (Williamson, supra, 226
Cal.App.4th at p. 1314.) In contrast, in Alter, the obligor’s
mother had been giving him $6,000, a fixed amount, every month
for over a decade.
It is reasonable for a court to conclude a grandparent’s
monthly gifts to a parent, in the same amount, not tied to a
specific expense, and continuing for years, are regular enough to
be characterized as income to that parent and are funds available
to pay child support. It is equally reasonable to conclude, in this
case, that gifts from a legal and familial stranger, of less than
specific amounts, that have taken place for an unestablished
duration, do not bear enough of a reasonable relationship to the
traditional meaning of income as a recurrent monetary benefit to
be deemed income to that parent for purposes of calculating—and
ultimately eliminating—the child support that would otherwise
be payable.
Under section 4053, the trial court must consider several
principles in implementing the child support guideline, including
that a parent’s first and principal obligation is to support his or
her minor children according to the parent’s circumstances and
21
station in life (§ 4053, subd. (a)), both parents are mutually
responsible for the support of their children (§ 4053, subd. (b)),
and the guideline “seeks to place the interests of children as the
state’s top priority.” (§ 4053, subd. (e).)
In Alter, failing to characterize the grandmother’s cash gifts
as the father’s income would take money away from the children,
inhibiting their ability to share in the lifestyle enjoyed by both
parents, including the father. In this case, characterizing Davis’s
financial support as Anna’s income does not increase the child
support award, and, in practical terms, it would render A.E.
completely dependent on the largesse of a legal stranger when in
her mother’s care. Moreover, in light of Jeffrey’s monthly income
and expenses, the trial court could reasonably conclude obliging
Jeffrey to make a child support payment of $2,505 per month
would not impact his ability to provide for A.E., or have any
significant detrimental impact on his financial situation. (In re
Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1050-1051.)
Consistent with Alter, the trial court had the discretion to
characterize Davis’s cash gifts to Anna as her income, but it was
not required to do so if it concluded those gifts do not fairly
represent income and are not funds available for child support.
We conclude the evidence was sufficient for the trial court to
reasonably conclude the financial support Davis provides Anna
does not represent a regular, recurrent monetary benefit fairly
representing income for purposes of calculating the child support
award.
22
DISPOSITION
The trial court order is affirmed. Respondent to recover her
costs on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P.J.
We concur:
FLIER, J.
GRIMES, J.
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