In these consolidated appeals from a judgment of dissolution and posttrial orders, Frank Regnery contends the trial court erred in refusing to modify temporary spousal and child support, in awarding permanent support, and in its postdissolution order denying modification of permanent support.
Frank, unemployed at the time of each order he attacks, contends the trial court (1) improperly applied the capacity to earn standard when determining permanent support at a time he was unemployed; (2) abused its discretion in not reducing the permanent support payments upon his
DISCUSSION
I
Frank contends the trial court improperly applied the capacity to earn standard to determine his support obligations, because no evidence justifies applying a punitive standard rather than one based on ability to pay.
Recently, the Legislature enacted statutory guidelines by which to calculate support payments (Civ. Code,
"Discretionary factors like the child's need and the parent's ability to pay are considerations for an award greater than the mandatory minimum but
To determine a parent's ability to pay the mandatory minimum child support, courts must consider the parent's ability to earn to the extent consistent with the best interests of the children. (§ 4721, subd. (a).) "The above quoted section of the [Agnos] Act appears to alter the historically punitive nature of such a consideration, mandating it `to the extent consistent with the best interests of the child....' Indeed, consideration of earning capacity appears to be one of the very few areas in the Act where the trial court has some discretionary input in the otherwise lockstep computation and allocation of the minimum award." (In re Marriage of Nolte (1987) 191 Cal.App.3d 966, 973 [236 Cal.Rptr. 706].)
If all three factors are present, the court must apply the earning capacity standard to derive the mandatory minimum support payment to the extent the application is consistent with the needs of the child. The court may also
II
For the 20 years and 9 days of Frank and Marvelle's marital cohabitation he was gainfully employed. When they separated Frank was ordered to pay Marvelle $215 for each of two children then residing with her and $220 a month for her support. At the time of this December 18, 1984, order and continuing until April 1985, Frank earned $29,000 a year as a customer accounts supervisor. One month after the order was entered, one child became a full-time resident in Frank's care. From April 1985 until February 1986, Frank was employed as a senior cost accountant at $31,800 per year. He voluntarily left that employment and, at least until November 2, 1987, remained unemployed.
Of significance to the disposition of the issues on this appeal is that Frank, although fully employed from November 1984 through February 1986, paid a mere $910 in combined spousal and child support, and that during the first two months.
After voluntarily terminating employment, Frank returned to court from time-to-time in renewed motions re contempt, in an attempt to avoid execution of the suspended sentence, a motion to reduce the temporary order, and to contest the setting of a permanent support order. It is in light of this historical background we evaluate the court's implied finding that Frank's claim to be unable to find any gainful employment for almost two years was
The record itself clearly supports the trial court's belief Frank "could go to work if he wanted to go to work...." Frank's moving papers and the oral proceedings are replete with conclusory assertions of his inability to obtain employment in positions either within or outside the financial and cost accounting career field for which he admittedly is highly trained. Indeed, he cites his lengthy professional experience, education and expertise as a hinderance to his finding employment. That is, prospective employers perceive him as overqualified to be a stable employee for jobs in less technical fields. "Stable," at least in the employers' view, means an employee whose immediate employment potential is not in a skilled job or professional capacity significantly more demanding than the vacancy a particular employer needs to fill; one who is not likely to move to a "better" job in the immediate future.
We find the only relevant evidence concerning Frank's inability to find employment consists of his declaration of August 21, 1987; and testimony he gave during the dissolution trial. He grossed $31,800 per year from April 15, 1985, through the end of February 1986, at which time he claims to have left the job because it had been misrepresented to him. He stated, "[w]ell, basically, I was told that the department — I went with the company because it was supposed to grow. It didn't grow. There was supposed to be help coming in the department. There wasn't. I was working 60 to 70 hours a week doing tasks that were not associated with my position, with what should have been." He then stated he had no alternative but to quit. If nothing else, Frank's elitist attitude at a time he was being threatened with contempt procedures for not complying with court ordered support payments is not designed to instill confidence in his claim of inability to find any income-producing employment thereafter. On the date of this testimony, April 14, 1987, Frank was representing himself and had introduced no evidence relating to why, in light of his continuous ability to remain gainfully
However, in his posttrial declaration of August 1987 supporting a motion to modify support, Frank lists more than 200 companies he claims to have contacted from March 1986 through August 12, 1987, seeking employment as financial analyst, cost accountant, tax professional, auditor and related professional positions. The list contains notations that in many cases he received a negative reply, and in others his inquiry elicited no response. Included also were a significant number of letters in response, none of which offered employment. Although most returns indicated there was either no opening, his training and background did not fit the employment slot to be filled, or some other person had been selected, at least one referred to his being overqualified for their entry-level position. Frank's declaration states, "[s]ince March, 1986, I have been diligently searching for a position" and he has existed on governmental assistance and food stamps. He refers to having a bachelor degree in business administration and alleges he has "applied at every conceivable place where I might receive employment. The problem that I am finding is that many people are afraid to hire me because they feel that I might leave for another job, if they hire me at the salary they are offering me, which is often one-half my prior salary. Therefore they consider me over-qualified for many jobs." Suffice to say there is no evidentiary support in this record for this conclusion. However, then he goes on to allege "I am in competition with CPA's and MBA's; I do not have those Degrees; and therefore, those individuals are preferred over me. This has been a problem in finding work." This is not disputed, but its overall relevance to the issue we address, whether Frank deliberately remained unemployed, is minimal. Although some employment opportunities in the financial field may force Frank to compete with persons having more impressive credentials, there is no evidence this is the case. It is hardly likely Frank expected the trial court to believe he lost any opportunities in the fast food or janitorial services industries because of such competition. Nor, has he introduced evidence to support an inference he was denied employment in service-related employment areas because of his purported "over qualification."
Frank concedes his willful failure to make direct payments while gainfully employed is a factor which could support an inference his current unemployed status was intentional. He claims, however, such an inference is negated because he "voluntarily accepted custody of and full financial responsibility for" his teenage son during that period, and thus he cannot be viewed as a "skip-out" father. His syllogism is flawed. Essentially, he is a "skip-out" spouse and his failure is in not supporting his ex-wife and child not in his custody. Historically, Frank always supported those family members who lived with him. Since the parties separated, he has just as consistently failed to support those who do not.
Viewed in light of the entire background which clearly establishes Frank deliberately refused to pay child and spousal support when well able to do so, his voluntarily leaving employment to which he objected merely because he found it arduous, and the lengthy period of unemployment during which Frank's efforts to enter the labor market appear to be limited to job seeking in the cost accounting/auditing field, and his apparent unwillingness to make reasonable efforts to accept either temporary or permanent hire in service industries which had been tendered, the evidence fully supports the court's implied finding his avoidance of family financial responsibilities was deliberate.
III
After the court set permanent support in the judgment of dissolution, Frank promptly moved to have it reduced or terminated. He again cited his lengthy unemployment, his numerous attempts to find work, and changed circumstances concerning Marvelle's income and reduced financial need. Marvelle countered with an order to show cause re contempt and request the previously suspended sentence be executed. These combined matters were first scheduled to be heard in superior court, department K, and were called in front of the Honorable Jeffrey Miller who noted the record suggested the trial judge may have expressed an interest to retain ongoing personal jurisdiction. Judge Miller conditionally retained jurisdiction, but ordered the parties to first appear before the trial judge, the Honorable Frank Mitchell, to determine if he had intended to retain personal jurisdiction over all future matters, or only the suspended contempt sentence. Judge Miller specified that unless Judge Mitchell determined he had retained jurisdiction over all future litigation between these parties, the issues relating to Frank's motion for modification would be returned to department K. When confronted, Judge Mitchell declared he had intended to retain personal jurisdiction over all further family law issues in the case and, over strenuous objection, proceeded to deny modification. Frank claims Judge Mitchell's order is void for lack of jurisdiction.
This principle applies to postdissolution proceedings. In In re Marriage of Matthews (1980) 101 Cal.App.3d 811, 815-816 [161 Cal.Rptr. 879], the appellate court held the trial court's personal retention of jurisdiction was beyond the court's authority. Here, also, Judge Mitchell was without power to reserve personal jurisdiction over this cause. Thus, an order to that effect was beyond the court's jurisdiction and could not have been enforced. (Id. at p. 816.)
Judge Miller erred in removing the matter from his calendar solely in deference to Judge Mitchell's desire to retain jurisdiction. However, the legal unenforceablity of a jurisdictional retention order does not affect the jurisdiction of the ordering judge once the matter comes before him. Frank
Frank argues the invalidity of the order retaining personal jurisdiction renders Judge Mitchell's orders void for lack of jurisdiction. He cites no authority for his proposition, apparently equating the lack of power to enforce an order of personal retention with a lack of authority to decide the matter once it is before the ordering judge. We have found no reported case precisely on point. However, in In re Christian J. (1984) 155 Cal.App.3d 276 [202 Cal.Rptr. 54], the court considered the effect of an erroneous denial of a peremptory challenge pursuant to Code of Civil Procedure section 170.6. After reciting related precedent, the court concluded an erroneous denial of a motion to disqualify did not deprive the particular judge of subject matter jurisdiction and the "jurisdictional" defect was one which could be waived. Here, however, Judge Mitchell was not disqualified from hearing this matter merely because it was improvidently transferred to him and he never lacked jurisdiction to decide these issues. Thus, there is no need to find any waiver by a failure to object. Judge Mitchell's decisions were not in "excess of jurisdiction."
IV
Frank contends the court erred in not finding he established the presumption of a reduced need for support because Marvelle did not affirmatively deny the cohabitation. However, the court's statements clearly show it did not find that cohabitation had been proved. Frank introduced only his unsupported conclusory allegation; Marvelle's declaration identifies the alleged male cohabitant as a "tenant" whose "rental" contribution was listed on her income and expense declaration. On this record there is ample support for the court's determination that cohabitation had not been proved. Lacking that, no rebuttable presumption was established.
V
Judgment of dissolution and posttrial orders are affirmed.
Kremer, P.J., and Froehlich, J., concurred.
FootNotes
The court continued execution of the sentence imposed for the multiple contempts several times to permit Frank to find employment. On one occasion the court stated "I believe [Frank] could go to work if he wanted to go to work, and possibly he can't find a position he'd like to have, a lot of us can't, but there has been no effort to pay support in this matter for a substantial period of time." It was not until October 7, 1987, that the last 50 days stayed on the previous contempt was ordered served. Moreover, on an earlier occasion, Frank's attorney represented to the court that Frank had been offered employment in two entry-level positions, but purportedly had been unable to accept them because of some undefined court appearances which interfered. However, he produced no evidence to that effect and, if the attorney's representation is accepted as factual, it would suggest Frank has employed every possible excuse to avoid employment, rather than accepting the job opportunities.
Comment
User Comments