IN RE: the MARRIAGE OF Linda and Gerald BOUDREAUX.

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Court of Appeal, Sixth District, California.

IN RE: the MARRIAGE OF Linda and Gerald BOUDREAUX. Linda (Boudreaux) MULLEN, Appellant, v. Gerald G. BOUDREAUX, Appellant.

No. H002116.*

Decided: May 18, 1988

Law & Mediation Office of Williams & Lober and Peggy Williams and Anne Lober, Soquel, for petitioner and appellant. Robert G. Newton, Santa Cruz, for respondent and appellant.

Linda R. Mullen (mother) appeals from a superior court order reducing child support, establishing joint legal custody in the natural parents, and ordering that visitation between the parents and child be subject to the election of the child.   Gerald Boudreaux (father) cross-appeals from that part of the superior court order denying his request for attorney fees.

On appeal, mother contends the court erred when it awarded child support in a dollar amount less than the minimum established by the Agnos Act.   (Civ.Code, §§ 4720–4732.)   We conclude the court's decision to depart from the Agnos Act principles is justified by exceptional circumstances (Civ.Code, § 4720, subd. (e)).  However, we agree with father that the trial court denied his request for attorney fees on improper grounds.   Consequently, we reverse only that part of the judgment denying father's request for attorney fees.

FACTS

Viewing the evidence on the child support issue in the light most favorable to father (In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479), the record discloses the following:

Mother and father were married in 1967.   Mother gave birth to the couple's only child, son Shawn, in May of 1975.   The marriage withered, and the couple separated in 1980 and were finally divorced in 1981.   Pursuant to the parties' stipulation, the court granted mother custody of Shawn and awarded father visitation on alternate weekends and holidays, for one week during Christmas, and for four consecutive weeks each summer.   In addition, the parties agreed that father would pay $150 per month as child support.

Mother married her second husband, Stan Mullen, in May of 1982, and she and Shawn moved into Mullen's house in Santa Cruz.   Shawn initially disliked and feared Stan, and told father that he wanted to live with him instead.   However, shortly after the mother's remarriage, Stan began efforts to undermine Shawn's relationship with his father.   Stan told Shawn to call him “dad” and forbade Shawn from speaking positively about his real father.   Shawn was not allowed to have a photograph of father nor was he allowed to call him.

In July of 1982, father's attorney wrote to mother complaining about these attempts to alienate Shawn from his father.   In response, mother telephoned father and told him that if he attempted to visit Shawn, she and Stan would consider his appearance on their property “a hostile act.”   Mother threatened to file kidnapping charges if father continued to exercise his right to visit Shawn.

In August of 1982, mother and Stan retained an attorney who wrote to father's attorney concerning the visitation problems.   In that letter, the attorney indicated Stan was interested in adopting Shawn.   The attorney suggested that “we could possibly stage the separation of the father and son over some period of time so that the natural father can continue to see his son in decreasing amounts over the next couple years.”

Father's attorney wrote a letter in response stating that a stepparent adoption was “definitely not a possibility” and that father would not tolerate interference with his right to visit his son.   Further, father would not tolerate any frustration of his right to speak with his son on the telephone.

At the same time Stan was making overtures to adopt Shawn, Stan and mother wrote a letter to the United States Department of Justice stating that back in 1969 father deliberately cut off two fingers in order to get out of the army and avoid serving in Vietnam.1  Mother claimed she actually saw father cut off his fingers.   Moreover, mother and Stan stated that they wanted father prosecuted as soon as possible as “he was giving them trouble.”   In a statement given to Veterans Administration investigators, Stan indicated that he wanted to adopt Shawn but that father had refused to allow the adoption.   As explained in greater detail below, the Veterans Administration ultimately determined that these claims were untrue and were motivated by Stan's and mother's desire to discredit father because he would not allow the adoption.

In September of 1982, Shawn was again told that he could not call his father because his father was no longer a part of the family.

During the early part of the 1982–1983 school year, father, who was a grammar school teacher, went to Shawn's school in order to help Shawn with his academic difficulties.   Shawn's teacher believed that father was unusually dedicated in assisting Shawn.   It was apparent there was mutual love, trust, and understanding between father and son as they worked and played together.

Nevertheless, in December of 1982, the father-son relationship began to deteriorate.   Before Shawn went to spend a week of Christmas vacation with father, Stan and mother had “negative discussions” with Shawn regarding the visitation.   Their comments were so effective that it took several days for 7–year–old Shawn to recover and enjoy his visit with father.

Over the next 18 months, father was repeatedly thwarted in his efforts to visit Shawn.   His relationship with his son virtually collapsed.

Frequently, when father would arrive to pick up Shawn, he would be met by a note on the mother's front door indicating that Shawn had a “prior commitment.”   When Shawn was allowed to visit father, the boy would be briefed before the visit and “debriefed” afterwards.   Ultimately, Shawn told father he would rather not visit him because of the pressure placed on him by mother and Stan.

On one occasion, father visited Shawn at school after a weekend visit was thwarted.   In the presence of the school principal, Shawn broke into tears and told his father he could not talk to him.   On other occasions, when Shawn was allowed to visit his father, father would ask Shawn a question and Shawn would reply “[Y]ou aren't part of our family, I don't have to tell you that.”

While father's relationship with his son was apparently being sabotaged by Stan and mother, Stan, who was a devotee of boxing and hunting, got Shawn interested in boxing and gave Shawn a .22 caliber rifle.   In fact, Shawn became so involved in boxing that he adopted the nickname “Rocky.”   Shawn began calling Stan “dad” and came to believe that he and Stan were “gung ho” and had “guts,” while his father was a liar who didn't have “guts.”   At about this time, close family friends observed a drastic change in Shawn's personality.   They noticed that Shawn—who had been a gentle and sensitive boy—had shaved his head and talked about fighting and killing animals.   The friends suspected that it was Stan's influence which had changed Shawn.

During this time, Stan also repeatedly told father that he did not need any money from him.

Father visited with Shawn for the final time in May of 1984.   At that time, Shawn “ran away” from the visit and told his father that he hated him, that he did not want to see or hear from him any more, and told his father not to try to contact him.

After mother refused to enter into mediation concerning the visitation problems, father filed an order to show cause in July of 1984, seeking joint legal custody of Shawn and requesting that physical custody alternate every two weeks between the parents.   Father also sought a modification in child support by requesting that each parent be responsible for Shawn's support during the period Shawn resided with the parent.   Mother filed a responsive declaration opposing any change in child support or custody, but agreeing to modify the visitation agreement so that Shawn would be allowed to make his own decisions respecting visitation.   Mother subsequently filed a motion to increase child support and requested a monthly amount “per schedule.”   Father opposed this request, but filed an Income and Expense Declaration and Minimum Child Support Worksheet showing that his minimum child support payment under the Agnos Act would be $227 per month.

In August of 1984, mother reactivated the story about father cutting off his two fingers in order to avoid going to Vietnam.   This time she informed the Veterans Administration that she had not actually witnessed the amputation, but that father had told her he had chopped off his fingers with an axe and had thrown them down a hill by a road.   After considering all of mother's allegations, the Veterans Administration issued an administrative decision in December of 1984 concluding that the charges were motivated by a desire to discredit father.   The Veterans Administration found that the loss of father's fingers “was not due to [father's] own willful misconduct and the injury is determined to be in [the] line of duty.”

In October of 1984, after father made efforts to again visit his son, he received a handwritten letter from 9–year–old Shawn which said:  “I want you to know that I am very happy here.   I have made up my mind this is where I want to live.  [¶]  [ ] Like I have told you before, I am not interested in any more visitation.  [¶] PLEASE LEAVE ME ALONE.”

To those who knew Shawn, it seemed as if he had been coached as to how to respond to questions concerning his family life.   A former teacher, concerned about Shawn, stopped him on the playground and asked him about the problems he was having with his father.   Shawn responded with “pat phrases” and stated that “These are my own words, nobody told me to say them.”   The teacher felt that Shawn had been “brainwashed.”

In November of 1984, pursuant to a stipulation between the parties, the Santa Cruz Probation Department conducted a child custody and visitation investigation over a period of 11 months.   After interviewing the parties involved and reviewing a psychologist's report, the probation officer concluded there was a “possibility” mother and Stan had consciously or unconsciously sabotaged Shawn's relationship with his father.   The probation officer also concluded that the rift between Shawn and father was so severe that it was virtually irreparable.   At the hearing on father's order to show cause, the probation officer testified that he had “never seen a child with a more firm attitude [against his father] and, in my view, more baseless than in this case.”   Nevertheless, because of Shawn's feelings about his father, the probation officer recommended that custody remain with mother and that the court make no order regarding visitation.

The psychologist involved in the probation investigation concluded that Stan and mother had “exercised an extreme form of control over Shawn, who is now forced to repeat ‘the party line’.”   According to the psychologist, “Shawn ․ is in a situation where his only choice psychologically is to spout and believe his total committment [sic ] to only one male in his life, and thus must pick Stan Mullen.”   Nevertheless, because of Shawn's firm opposition to living with his father, the psychologist concluded that Shawn should continue living with the Mullens and should visit his father only “on a rare occasion.”

In March of 1986, a hearing was finally held on father's order to show cause filed in July of 1984.   At the hearing, the court heard testimony from the probation officer assigned to the case and reviewed the probation officer's report and the psychologist's report which was prepared in connection with the probation department investigation.   In addition, the judge spoke with Shawn in chambers.   Afterwards, the judge stated that “whether the mother and stepfather like this or not, the boy is an absolute robot.   His statements are, as [the psychologist] commented, right down the party line.”   According to the court, “a graduate school psychology class could be devoted” to this “most incredible situation.”   The court concluded that the only answer to the dilemma created by Shawn's cultivated dislike of his father was to grant joint legal custody, with physical custody in the mother, and to allow visitation with the father at Shawn's election.   Over mother's objection, the judge ordered no monthly child support payments, since he believed regular child support was “inappropriate” in the circumstances of this case.   However, the court ordered father to maintain Shawn on his employee medical policy and to pay one-half of Shawn's uncovered medical costs;  further, the court retained jurisdiction to increase child support in the future.   Finally, the court denied father's request for attorney fees and costs.

After the court orally stated its decision but before the written findings and order were filed, mother's attorney wrote to the court pointing out that the court and parties had “overlooked” the Agnos Act child support minimums.   Although mother had not calculated this minimum in connection with her financial declaration, father had filed a minimum child support worksheet showing father's minimum support payment as $227 per month.   Consequently, mother requested modification of the court's proposed order.

The trial judge responded by letter to mother's request for modification, and gave the following reasons for refusing to order regular child support payments:  (1) The Agnos Act does not apply to middle income wage earners;  (2) father was ordered to provide support in the form of health insurance and medical payments;  (3) since joint custody was awarded and visitation with father was at Shawn's election, “it is not unlikely that the child could share substantial time with the natural father”;  and (5) mother and Stan “actively impaired the father-son relationship” (citing Solberg v. Wenker (1985) 163 Cal.App.3d 475, 209 Cal.Rptr. 545).   The trial court thereafter issued its written order granting joint custody, allowing visitation with father at Shawn's election, and declaring that neither party was obligated to pay child support to the other, except that father would be required to maintain Shawn on his medical insurance and to pay one-half uncovered medical costs.

Mother has appealed from that portion of the order denying her monthly child support payments.

DISCUSSION

A. Mother's Appeal

 Mother's primary contention on appeal is that the court erred when it failed to award her the minimum child support award as calculated under the Agnos Act—here, $227 per month.   In making this argument, mother attacks the reasons the trial court articulated in support of its decision not to award any monthly support payments.   However, “[t]he task of this court is to determine whether the judgment is correct upon any theory of law, regardless of the consideration which may have moved the trial court to its conclusion.”   (State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 455, 241 Cal.Rptr. 812;  D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)   Even though not specifically articulated as a justification by the trial court,2 we conclude that the facts of this case constitute “exceptional circumstances” which justified a departure from the principles of the Agnos Act.3  (Civ.Code, § 4720, subd. (e).)

 The Agnos Child Support Standards Act of 1984 establishes a system of mandatory minimum child support payments based on the parents' income and other factors.  (Civ.Code, §§ 4720, 4721, 4723.)   The act provides that “in no event shall the court award less than the mandatory minimum child support allowable pursuant to this chapter.” 4  (Civil Code, § 4720, subd. (d);  In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951, 238 Cal.Rptr. 691.)   However, the act also provides that a court may depart from the principles of the act “in exceptional circumstances.”  (Civ.Code, § 4720, subd. (e);  In re Marriage of Kepley, supra, 193 Cal.App.3d at p. 951, 238 Cal.Rptr. 691;  In re Marriage of Norvall, supra, 192 Cal.App.3d at p. 1054, 237 Cal.Rptr. 770.) 5  We believe the facts of this case constitute exceptional circumstances which justified a departure from the Agnos Act minimums.

The Agnos Act itself does not define “exceptional circumstances” and no case has yet properly defined this term.6  (See, e.g., In re Marriage of Norvall, supra, 192 Cal.App.3d at p. 1054, 237 Cal.Rptr. 770.)   We conclude, however, that mother's efforts in concert with Stan to frustrate father's right to visit Shawn and to effectively destroy the relationship between father and son constitute “exceptional circumstances” which justified the trial court's decision to award child support below the Agnos Act minimum.

 Interference with visitation rights does not justify a parent's refusal to make payments pursuant to an existing child support order.  (Civ.Code, § 4382;  In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 618, 231 Cal.Rptr. 6;  In re Marriage of Anderson (1981) 125 Cal.App.3d 553, 559–560, 178 Cal.Rptr. 117.)   The rationale for this rule is that children should not be left without support because of the misconduct of the parents.   (Solberg v. Wenker, supra, 163 Cal.App.3d at pp. 479–480, 209 Cal.Rptr. 545.)   Nevertheless, where visitation rights have been deliberately sabotaged, the noncustodial parent may seek modification of the original child support and custody orders as a method to enforce visitation.  (Id. at p. 480, 209 Cal.Rptr. 545;  Moffat v. Moffat (1980) 27 Cal.3d 645, 652, 165 Cal.Rptr. 877, 612 P.2d 967;  In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293–294, 132 Cal.Rptr. 261.)   This is precisely what father did in the present case.7

We believe that such deliberate attempts to interfere with visitation rights also constitute “exceptional circumstances” which justify a trial court's decision not to apply the Agnos Act minimum support payment.   Here, there is ample evidence that mother intentionally interfered with father's visitation rights.   Even worse, the record demonstrates that mother and Stan worked together to turn Shawn against his father, and effectively destroyed any possibility of a relationship between father and son.

It is also important to note that the trial court's order does not undermine the primary purpose of the Agnos Act.   The primary purpose is to prevent children who should be supported by their parents from becoming charges of the Aid to Families with Dependent Children program.  (Civ.Code, § 4720, subd. (d).) 8  Here, Shawn is amply supported by his stepfather and mother, and, in fact, Stan has repeatedly informed father that he doesn't need additional support.   We note also that the trial court did not terminate child support completely, but required that father maintain Shawn on his insurance and that he pay one-half of Shawn's medical costs.   In addition, the court retained jurisdiction to modify child support in the future.   Thus, if circumstances should change and Shawn requires support in the future or the mother demonstrates that she and her husband have abandoned their efforts to destroy the relationship between father and son, mother is free to petition the court for an increase in support.

 Since we believe the trial court was not required to adhere to the Agnos minimums in this case, the actual amount of child support awarded “rests in the sound discretion of the trial court and an appellate court will not interfere with the trial court order unless an abuse of discretion is shown.”   (White v. Marciano (1987) 190 Cal.App.3d 1026, 1033, 235 Cal.Rptr. 779.)   We perceive no abuse of discretion in the court's decision.   A moving party need not show a change in circumstances when he seeks court aid in remedying a frustration of visitation rights (In re Marriage of Ciganovich, supra, 61 Cal.App.3d at p. 294, 132 Cal.Rptr. 261) and, in our view, the child support order is completely reasonable in light of the facts.

In her additional arguments, mother contends the trial court misapplied the factors to be considered in determining the Agnos Act minimum payment.   Since we have already concluded the trial court was justified in departing from the Agnos Act principles, we need not address these arguments.   Accordingly, we affirm the superior court's custody and support orders.

B. Father's Appeal

Father contends the trial court abused its discretion because it failed to consider the respective incomes and needs of the parties in denying his request for attorney fees.   We agree.

The trial court denied father's request for attorney fees because it believed “the thing that probably has the greatest source of aggravation for the parties is the payment of the other party's attorney fees․  [¶] ․ I want to do everything I can to encourage the parties to bury their animosities and anguish and bitterness and whatever else, and the desire to do whatever that's caused this thing to get here.”   The court continued:  “[W]e're not really dealing with dollars here.   We're dealing with a future of a little boy.   And I think that his future is going to be best served by neither party having to [pay attorney fees]—because I don't want anybody to look at this as a win-loss situation.   I really don't.”   The court concluded that he was not ordering mother to pay father's attorney fees because “of my concern for the boy on—and I don't want the bitterness that has ․ arisen in the past ․ to be aggravated.”   Although the parties' income and expense declarations were in the court file at the time it ruled on the motion for attorney fees, the court did not indicate it was relying on those declarations in denying the request.

 Civil Code section 4370, subdivision (a), provides that “[i]n respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorneys' fees as may be reasonably necessary to maintain or defend any subsequent proceeding” in a family law matter.9  (In re Marriage of Sullivan (1984) 37 Cal.3d. 762, 768, 209 Cal.Rptr. 354, 691 P.2d 1020.)   In exercising its discretion to award attorney fees under Civil Code section 4370, the trial court must consider the respective incomes and needs of the parties.  (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219, 215 Cal.Rptr. 789;  In re Marriage of Popenhager, supra, 99 Cal.App.3d at p. 525, 160 Cal.Rptr. 379.)   Where the record affirmatively reflects the trial court based its denial on some other improper factor, the order respecting attorney fees must be reversed.  (In re Marriage of Hatch, supra, 169 Cal.App.3d at pp. 1219–1220, 215 Cal.Rptr. 289;  In re Marriage of Popenhager, supra, 99 Cal.App.3d at pp. 525–526, 160 Cal.Rptr. 379.)

In Popenhager, the reviewing court reversed an order respecting attorney fees because the trial court indicated it was summarily denying the request because of the parties' “derelict behavior.”  (99 Cal.App.3d at pp. 525–526, 160 Cal.Rptr. 379.)   In Hatch, the reviewing court reversed an order denying interim (pre-dissolution) attorney fees, because the trial court summarily stated it never awarded attorney fees prior to dissolution.  (169 Cal.App.3d at pp. 1217–1219, 215 Cal.Rptr. 789.)  Hatch reasoned that reversal was required because “the [lower] court refused to consider the factors required by law, the respective incomes and needs of the parties.”   (Id. at p. 1219, 215 Cal.Rptr. 789.)

The record in this case also indicates the trial judge did not consider the factors required by law—the respective incomes and needs of the parties—but instead denied the request for fees because he did not want to cause further antagonism between the parties.   There is no indication the trial judge ever considered the income and expense declarations and, in fact, the court stated he was not “dealing with dollars” but the future of a little boy.

 Where, as here, the record affirmatively shows that the trial court denied attorney fees for a reason unrelated to the needs and income of the parties, we are compelled by Hatch and Popenhager to remand the matter to the trial court so that it can exercise its discretion in light of the appropriate legal criteria.10

DISPOSITION

That portion of the trial court judgment denying father's request for attorney fees is reversed, and the case is remanded to the trial court for rehearing on the question of attorney fees and costs.   At the hearing, the entitlement and amount of attorney fees for this appeal should also be determined.  (In re Marriage of Popenhager, supra, 99 Cal.App.3d at p. 526, 160 Cal.Rptr. 379;  In re Marriage of Hatch, supra, 169 Cal.App.3d at p. 1222, 215 Cal.Rptr. 789.)   In all other respects, the judgment is affirmed.   The parties shall bear their own costs on appeal.

I respectfully dissent.

We need not look beyond Civil Code section 4382 to determine that the order terminating child support was improper.   It provides:  “The existence or enforcement of a duty of support owed by a noncustodial parent for the support of a minor child shall not be affected by a failure or refusal by the custodial parent to implement any rights as to custody or visitation granted by a court to the noncustodial parent.”   Never has the duty of a parent to support his or her minor child been said to rest upon the parent's receiving the minor's affection in return.   The duty arises from the relationship itself.   (Civ.Code, § 196.)

The facts of this case admittedly are outrageous and present, as the trial court observed, a “most incredible situation.”   The remedy, however, is not to reduce or eliminate support, which amounts to a sanction against the child.   As the court noted in Solberg v. Wenker (1985) 163 Cal.App.3d 475, at 480, 209 Cal.Rptr. 545, “courts have been instructive in these cases to remind noncustodial parents that they are not without a remedy:  ‘[T]he parent whose rights are in jeopardy may seek enforcement of the judgment, order, or decree in the rendering court.  (Id., § 4380.)   The Ciganovich court identified several appropriate sanctions when the custodial parent acts with an intent to frustrate or destroy visitation rights.   These include holding the parent in contempt, terminating or reducing spousal support, and requiring a bond to assure compliance with the visitation order.  ( [In re Marriage of Ciganovich (1976) ] 61 Cal.App.3d [289] at p. 293 [132 Cal.Rptr. 261].)  Moreover, the court has authority to award a change of custody or to otherwise modify the custody and child support provisions of the original decree.   (Ibid.;  Civ.Code, §§ 4603, 4700.)   The deliberate sabotage of visitation rights not only furnishes ground for modification, it is a significant factor bearing on the fitness of the custodial parent.   (Ciganovich, supra, 61 Cal.App.3d at p. 294 [132 Cal.Rptr. 261].)’  (Moffat v. Moffat (1980) 27 Cal.3d 645, 652 [165 Cal.Rptr. 877, 612 P.2d 967];  see also In re Marriage of Anderson, supra, 125 Cal.App.3d at pp. 559–560 [178 Cal.Rptr. 117].)” 1

I realize that the issue of change of custody, unfortunately, is not before us in this appeal and that the trial court fashioned what it considered the best order it could under the circumstances.   I deem it significant, though not dispositive, that the court's order speaks to the future and holds out the hope that the child will resume visitation with his father.   In my view, the termination of child support will only serve to deepen the chasm in the father-son relationship.

Nor do I believe that the majority's resort to the “exceptional circumstances” provision of the Agnos Act supports its conclusion that the termination of child support is justified.   Acknowledging the primary duty of support owed by parent to child, the Agnos Act merely provides uniform standards to be applied by the courts in determining the amount of child support to be awarded in particular cases, while allowing for departure from the standards under “exceptional circumstances.”  (Civ.Code, § 4720.)   Nothing in the Agnos Act concerns itself with frustration of the parent-child relationship by the custodial parent and the effect of such conduct upon the duty of support.

Finally, it should be noted that while the trial court did order the father to provide medical insurance and to pay a portion of the child's medical expenses it expressly determined that regular child support would be inappropriate.   The prominent reason given by the court for its order was the mother's conduct “impaired the father-son relationship.”   The case, therefore, cannot be viewed as one in which the court in fact ordered child support in the form of medical expense payment because the payment of such expense was the child's only demonstrated need.

I would reverse the trial court's order modifying child support.

FOOTNOTES

FOOTNOTE.  

1.   Father claimed he lost his fingers during an accident which occurred while he was helping a woman change a flat tire.   As a result of this injury, father was honorably discharged from the army and has continuously received Veterans disability payments.

2.   Although the trial court did not explicitly state it was departing from the Agnos Act minimum because of “exceptional circumstances,” it implied as much when it stated child support would be “inappropriate” in the circumstances of this case.

3.   Father also contends mother waived this issue because she failed to raise it orally at the hearing on the order to show cause.   We disagree.   Father's pleadings indicated that mother was entitled to a minimum payment under the Agnos Act of $227 per month.   Thus, this issue was before the court at the time of the hearing.   Moreover, although mother did not raise this issue orally at the hearing, she did raise it in a letter before the trial court issued its written order.   Thus, the trial court was given an opportunity to respond—and in fact did respond—to the charge that it had not complied with the Agnos Act.   Consequently, the trial court was given an opportunity to correct any potential error at trial.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321.)

4.   Contrary to the trial court's understanding of the law, there is nothing in the Agnos Act which excludes “middle class wage earners” from its provisions.  (See In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 237 Cal.Rptr. 770, where the Agnos Act was applied to a father earning more than $6,000 per month in gross income, and a mother earning $1,800 per month in gross income [including spousal support].)

5.   Civil Code section 4720, subdivision (e), states:  “It is the intention of the Legislature that the courts shall adhere to the principles set forth in this chapter and shall depart from them only in exceptional circumstances.   A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.   In this regard, the Legislature recognizes that a parent's circumstances and station in life are dependent upon a variety of factors, including his or her earned and unearned income;  earning capacity;  assets;  and the income of his or her subsequent spouse or non-marital partner, to the extent that the obligated parent's basic living expenses are met by the spouse or other person, thus increasing the parent's disposable income and therefore his or her ability to pay more than the mandatory minimum child support award established by this chapter.   The court shall take into consideration the needs of the supported child or children in determining whether circumstances give rise to an increase or decrease in a child support award.”

6.   A very recent case (In re Marriage of Hanchett (1988) 199 Cal.App.3d 937, 245 Cal.Rptr. 255) indicates that the “exceptional circumstances” which permit a trial court to depart from the principles of the Agnos Act (Civ.Code, § 4720, subd. (e)) are limited to the circumstances described in Civil Code section 4725.   We believe this case incorrectly interprets the relevant code sections.Civil Code section 4720, subdivision (e), provides that “the courts shall adhere to the principles set forth in this chapter [i.e. the Agnos Act] and shall depart from them only in exceptional circumstances.”  (Our emphasis.)  Civil Code section 4725, which is part of the Agnos Act and, consequently, is part of “the principles set forth” in that act, defines what expenses may be considered in determining if a parent is suffering from “extreme financial hardship.”   If a parent is experiencing “extreme financial hardship due to justifiable expenses,” the court may allow “such income deductions as may be necessary to accommodate those circumstances” in applying the Agnos Act formula.   This deduction is in addition to the standard income deductions specified in section 4721, subdivision (c).What is important to note is that the rule set out in section 4725 does not purport to define “exceptional circumstances” as that term is used in section 4720, subdivision (e).   In fact, the Hanchett interpretation of the statutes is illogical.  Section 4720, subdivision (e), allows a court to depart from the principles set forth in the Agnos Act in exceptional circumstances.  Section 4725 is a principle (i.e. rule) of the Agnos Act.In our view, the Hanchett court misread the relevant statutes.

7.   The dissent contends that we may not rely on the interference with the father-son relationship as an “exceptional circumstance” because Civil Code section 4382 indicates that “[t]he existence or enforcement of a duty of support” is unaffected by a failure of the custodial parent to implement custody or visitation rights.We remain unpersuaded by the dissent.   First, the mother and stepfather's conduct goes far beyond a mere failure to implement custody or visitation rights.   Rather, the record supports a finding that the mother and stepfather actively, and, perhaps, irreparably sabotaged the relationship between father and son.Moreover, although interference with visitation rights is not a defense to a pre-existing obligation to pay child support, the Supreme Court has recognized that a noncustodial parent may seek modification of a child support award in response to the custodial parent's failure to honor visitation rights.  (Moffat v. Moffat, supra, 27 Cal.3d at p. 652, 165 Cal.Rptr. 877, 612 P.2d 967.)To the extent the dissent implies that a change in custody was the most appropriate remedy here, we again disagree.   The remedy of change in custody is illusory where the mother has succeeded in destroying the child's relationship with the father.   At this juncture, to switch custody in order to punish the mother would, in fact, punish the child.   Finally, as we explain, the child is not punished by being deprived of the father's support because the stepfather can and does support the child.

8.   Civil Code section 4720, subdivision (d), provides:  “The Aid to Families with Dependent Children program (hereinafter referred to as AFDC) established by the Burton–Miller Act (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code) is the state program most likely to be affected by the failures and inadequacies of child support awards, and is the program by which the cost of maintaining those children adversely affected by these failures and inadequacies would otherwise be provided.   Furthermore, the minimum amounts necessary for the support, maintenance, and care of children have been established by the Legislature in the monthly needs standards set forth in the AFDC program.   Therefore, it is the intent of the Legislature that a system of standards and procedures shall be established which provide for a uniform determination of child support awards throughout the state, and which assures that, dependent upon the financial ability of each parent to do so, no child receives a support award less than would otherwise be established as the need for that child under the AFDC program.  [¶] The level of child support resulting from the application of the formula established by this chapter shall be treated as the minimum award for support.   It is the intention of the Legislature that the court shall use the guidelines in use in its county to establish the child support award.   However, in no event shall the court award less than the mandatory minimum child support allowable pursuant to this chapter.   In setting an award higher than the mandatory minimum, the court shall be guided by the criteria set forth in applicable statutes, relevant case law, and state and local guidelines, so long as they are not in conflict with the provisions of this chapter.”

9.   Mother points out that attorney fees could have been awarded in this case under Civil Code section 4370 or section 4700, subdivision (a), which provides for an award of attorney fees to the prevailing party “[i]n any proceeding where there is at issue the support of a minor child․”  (See In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 524–525, 160 Cal.Rptr. 379.)   However, where both statutes apply, section 4370 takes precedence and the court must first determine if attorney fees are appropriate under that section.  (Id. at p. 525, 160 Cal.Rptr. 379.)

10.   We do not mean to imply by our decision that the trial court must award attorney fees to father.   We remand only so that the trial court will exercise its discretion on the basis of the appropriate legal criteria.

1.   The holding in Solberg dealt with the noncollectibility of arrearages in child support when the custodial parent had actively concealed herself and the child during the support accrual period.   The holding is therefore inappropriate here.

ZECHER, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

BRAUER, J., concurs.