IN RE: the MARRIAGE OF Daniel L. and Marjorie J. TOUCHSTONE.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: the MARRIAGE OF Daniel L. and Marjorie J. TOUCHSTONE. Daniel L. TOUCHSTONE, Petitioner and Respondent, v. Marjorie J. TOUCHSTONE, Appellant.

No. D008398.

Decided: February 23, 1990

Bruce M. Beals, San Diego, for petitioner and respondent. Sullivan, Delafield, McDonald, Allen & Middendorf and James D. Allen, San Diego, for appellant.

Marjorie J. Warriner, formerly known as Marjorie J. Touchstone, appeals from an order requiring Daniel L. Touchstone, her former husband and the father of her two oldest children, to pay her $850 monthly for child support.   Because the order does not demonstrate a clear abuse of the court's discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Daniel Touchstone (Daniel), and Marjorie Warriner (Marjorie) were married in 1973.   Two children were born of the marriage, Jennifer in 1976 and Deborah in 1978.   The marriage was dissolved in 1980, and Marjorie was awarded physical custody of the two children.   At the time of the dissolution Daniel indicated his gross income was $2,481.96 per month.   Marjorie was unemployed but had earned up to $780 per month three years earlier as a secretary.   Daniel agreed to pay Marjorie monthly child support of $225 per child, or $450.

In 1988 Marjorie filed an order to show cause for modification of child support.   At that time she had been remarried for several years, and she and her new husband had three young children, ages one, three and five.   Marjorie's current husband's monthly gross income was $4,200.   Daniel's monthly gross income for the past 12 months had been $8,616, and his net monthly disposable income had been $5,953.   He stated his current net monthly income was $4,599.

Marjorie submitted calculations which showed that according to discretionary child support guidelines Daniel should pay child support of between $1,276 and $1,631 per month.   At the hearing on the proposed modification she requested monthly child support of $700 per child, or $1,400.

The court found that Daniel had a monthly gross income of $7,433 and a monthly net income of around $5,000.   It noted that if support were increased to the amounts Marjorie requested, the additional support might be destructive of the family relationship and the money necessarily would be spent on her entire current family rather than solely on Daniel's two daughters.   It further found that if Marjorie had not voluntarily chosen to have three more children with her new husband she would be able to earn $1,000 per month.   The court increased Daniel's monthly child support obligation from the 1980 level of $225 per child to $425 per child, or $850.

CONTENTIONS

Marjorie appeals, contending the court abused its discretion in failing to grant a more substantial increase in support because it ordered an amount of child support far below that indicated by the San Diego County guidelines.   She argues an analysis of Daniel's greater wealth and their daughters' needs show the increase should have been larger.   She maintains it was error for the judge to reduce support to Jennifer and Deborah because of his concern that any additional money would be used for Marjorie's entire new family.   She further maintains the inadequate award deprives Deborah and Jennifer of their right to share in their father's standard of living.   She also claims the court erred in imputing $1,000 per month income to her.

DISCUSSION

As stated in White v. Marciano (1987) 190 Cal.App.3d 1026, 1033, 235 Cal.Rptr. 779, “[it] is well established that the amount of child support 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.   The appellate court should not substitute its own judgment for that of the trial court;  it should determine only if any judge reasonably could have made such an order.”

The Agnos Child Support Standards Act of 1984 established a system to determine mandatory minimum child support awards.  (Civ.Code,1 § 4720 et seq.)   Higher amounts of child support may be ordered and are encouraged to be awarded under appropriate circumstances.  (§ 4724.)   When setting an award higher than the mandatory minimum, a court is to be guided by criteria set forth in applicable statutes, relevant case law, state and local guidelines not in conflict with the provisions of the Agnos Act, and the legislative intent that children share in their parents' standard of living.  (§§ 4720(d), 4724(a).)  “The father and mother of a child have an equal responsibility to support and educate their child in the manner suitable to the child's circumstances, taking into consideration the respective earnings or earning capacities of the parents.”  (§ 196(a).)

Here, the court appears to have awarded child support well below the amount indicated by the discretionary guidelines in use in San Diego County.  (San Diego Co.Super.Ct.Rules,2 Div. III, rule 1.7, Child Support Guideline Information.)   Assuming the trial court's findings of monthly net income of $5,000 for Daniel and imputed income of $1,000 for Marjorie, and assuming (as Marjorie claims) the children reside with her 90 percent of the time, the guidelines indicate the monthly child support award should have been about $700 per child or about $1,400.3  Marjorie requested an award of $1,400 per month.   The trial judge appears to have recognized that a $1,400 award would be the result of utilizing the guidelines when he stated:

“I recognize the problems both counsel have had because we have the issue of guidelines.   The problem that I have is that we reach a point in child support where in effect it does become something else if $700 were paid—to be paid for each child.”

The judge then determined not to award the $1,400 amount indicated by the guidelines.   He stated two reasons for deviating from that amount.   First, he was concerned that for Marjorie to spend more on Jennifer and Deborah than she could afford to spend on her other children would be destructive of the family relationship.   Second, he determined the money ultimately would be spent on the entire family, rather than solely on Jennifer and Deborah.   The judge stated:

“And in this case if that money were spent on each of these children, then that would be destructive of the relationship of Jard [Jared], Rebecca and Lea [Marjorie's younger children].   Because that would mean $1,400—I mean these parties don't have enough money to spend $2,100 on the other two [three].”

“So the end result would be that these monies would obviously be used for someone other than the two children either as a family support issue—excuse me, as and for the entire family of the Pettit's.”

The court then set child support at $850, rather than the $1,400 amount indicated by the guidelines.

 When a court sets a child support award below the applicable level indicated by the discretionary guidelines, it is required to state its reasons and to cite the documentation of any underlying facts and circumstances for the award given.  (§ 4724(d).)   We have no clear legislative indication of the purpose for the requirement of the giving of “reasons.”   It seems most likely, however, that at least one of the purposes for the requirement is to provide the appellate court with a basis for review of the validity of the “reasons” selected.   Although, again, no guidelines are provided by the statute as to what would be acceptable or unacceptable “reasons,” we presume it is our function not only to make this decision but also to determine whether evidence was presented to the court which supported its selection of “reasons.”

 We look, therefore, to the reasons given by the court for its decision to award less than the guideline amount, and we search the record for evidentiary support for same.   The first reason given by the court was that awarding the guideline amount would destroy the familial relationship among the several children of the family because of resulting disparate levels of support.   We decline to consider whether, under any circumstance of fact, this reason could be accepted.   The judge's conclusion must be rejected because there is no evidence in the record supporting it.   The judge had before him no evidence whatsoever either that disparate levels of life-style would result or that if such disparate levels did result they would cause envy or other problems among the siblings.

We do find, however, that there is at least some cognizable evidence to support the court's other “reason.”   This was that the high level of support sought by Marjorie would inevitably be used, if awarded, not solely for the two legally supported children but also for the other members of the family.   The judge knew the financial circumstances of Marjorie's family:  that her present husband earned approximately $4,200 gross per month.   This permitted the inference that the three children of the new family could not be supported at the same level as that sought for the two older children, because that would require a support contribution of $2,100 per month.   No evidence being provided by Marjorie to the contrary, this led the court to the supportable conclusion that the higher level of support would be utilized not solely for the two older children but also for the family in general.

 The purpose of an award of child support is just that—to support one's own children.   Upon a finding that an award of an amount larger than that appropriate to the living standard or the circumstance of the child would inevitably be used for purposes other than child support, a court is entitled to reduce the award to an amount found appropriate.   We believe this is a “reason” qualifying as such under the Agnos Act.   We certainly cannot say that as a matter of law the court's reason shows a clear abuse of discretion.   Unless no judge could reasonably have made the order under the circumstances, the appellate court cannot interfere.   It cannot substitute its own judgment.  (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 553, 251 Cal.Rptr. 370;  White v. Marciano, supra, 190 Cal.App.3d at p. 1033, 235 Cal.Rptr. 779.)

Marjorie contends because of Daniel's increased wealth and their daughters' needs it was error to award so much less than the amount indicated by the guidelines.   She argues that her case is similar to In re Marriage of Hubner (1988) 205 Cal.App.3d 660, 252 Cal.Rptr. 428, where there was a great disparity between the income of the custodial parent and that of the noncustodial parent.   There, the trial court had awarded child support of $2,200 per month, less than half the amount indicated by the guidelines in use in Los Angeles County.  (Id. at p. 667, 252 Cal.Rptr. 428.)   The appellate court found an abuse of discretion and directed that in setting support a trial court should focus on the noncustodial parent's wealth rather than on the custodial parent's poverty (ibid.), pointing out that “ ‘where the supporting parent enjoys a lifestyle that far exceeds that of the custodial parent, child support must to some degree reflect the more opulent lifestyle even though this may, as a practical matter, produce a benefit for the custodial parent.’ ”  (Id. at p. 668, 252 Cal.Rptr. 428, quoting In re Marriage of Catalano, supra, 204 Cal.App.3d at p. 552, 251 Cal.Rptr. 370.)   There are significant differences between the instant case and Hubner, however.   In Hubner the noncustodial parent had monthly net disposable income of over $43,000, while the custodial parent's was $1,000.  (Id. at p. 664, 252 Cal.Rptr. 428.)   Income for Daniel's and Marjorie's households is not nearly so disparate.   Also, the Hubner court was only concerned with one child and his parents.   Marjorie's household now includes her current husband and three young children, an important difference which makes the discretionary guidelines less applicable.

Marjorie also argues because it is more costly to care for older than for younger children 4 and because Daniel tripled his income between 1980 and 1988 while hers stayed the same, child support must be tripled just to allow her to stay even.   Marjorie omits the fact that her situation also has changed since the original 1980 order.   Her current household expenses are now met by her current husband's earnings, thus her costs are reduced by his contributions.

 Marjorie also claims the trial court erred in imputing $1,000 per month income to her.   We agree that this conclusion on the part of the trial court cannot be supported.   The record shows actual earning capacity at a time several years earlier of only $780 per month.   There was no evidence in the record upon which to base a finding of earning capacity of $1,000.   More importantly, however, the youth of Marjorie's new family reasonably prevented her from entering the job market.5  A trial court may base support awards upon earning capacity rather than actual earnings only when it is shown that the lack of earnings results from an intentional avoidance of responsibilities.  (In re Marriage of Catalano, supra, 204 Cal.App.3d at p. 555, 251 Cal.Rptr. 370.) 6  We know of no authority for the proposition that a decision to increase one's family equates to avoidance of support obligations.   The authorities permitting substitution of “capacity” for actual earnings all reflect situations of irresponsible conduct in derogation of family obligations.7  The increase of family obligations by the having of additional children, without highly unusual circumstances not present here, surely cannot be deemed an irresponsible parental act.

 However, we conclude that this comment by the court does not require reversal because it was not a factor entering into the court's ultimate decision.   The attribution of earning capacity to Marjorie was utilized only in terms of calculation of guideline support.   The court's decision, however, was completely unrelated to guideline calculations, and was based upon “reasons” unrelated to the guidelines.   It is our conclusion that the decision would have been the same without the finding of earning capacity, and hence the error was harmless.

CONCLUSION AND DISPOSITION

The petition in this case required the trial judge to determine the appropriate increase in child support where the parties' changed circumstances clearly required a modification.   The petition requested an increase of 211 percent;  the court awarded an increase of 89 percent.   The essence of our opinion is we find no abuse of discretion.   We have examined the reasons behind the court's ruling, as we are required to do.   We have found the judge erred in at least two of his preliminary determinations but the errors were insufficient to require a reversal.   We must reject the dissent's contention that the trial court's actions reflect invidious gender bias.   Neither party on appeal has suggested or accused the trial judge of gender bias.   We should all be aware of the serious implications of the existence of gender bias in the administration of justice.   Certainly that awareness will be improved by the report of the Judicial Council Advisory Committee, referenced in the dissent.   That gender bias is an important issue to all in the judiciary heightens, however, the significance of accusations of bias.   To wrongly accuse a judge of gender bias is similar to falsely accusing a legislator of being a racial bigot.   The sting of the unsupported accusation achieves the result without need of facts, argument or logic.   We are required not only to reject the contention, but to object to the unwarranted attack on a trial court which, as all appears, was attempting to conscientiously grapple with the problems created when couples with children divorce and form new families.

The order is affirmed.

Upon reflection, and especially in light of the new thrust of the majority opinion created by its extensive post-filing modification, I believe it important to address the trial court's decision and the attitudes it reflects, on two discrete levels.   The first addressing substantial institutional concerns relating to sex-based differential treatment in family law courts;  the second identifying the more technical legal flaws which require we remand this case for reconsideration.1

I

This case is a paradigm of Professor N.J. Wikler's assertion that “[d]espite the fact that the courts proceed upon the premise of equal treatment before the law, women are treated differently and unequally from men both in and by the courts.” 2  The same conclusion has been verified recently in detailed findings by the California Judicial Council Advisory Committee on Gender Bias in the Courts.3  Committee findings specifically related to family law proceedings are that judicial gender bias adversely affects the amount ordered for child support where the mother is the custodial parent;  that discretionary support guidelines are generally too low and too often used as a ceiling rather than, as the minimum intended by the Legislature;  judges seldom adhere to the admonition stated in In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 552, 251 Cal.Rptr. 370, that children have a right to share in the improved lifestyle of their parents 4 ;  male judges address issues relating to custodial mothers by applying stereotypical views of women rather than treating their concerns individually;  some judges appear to reduce child support requests out of sympathy for a noncustodial parent;  and, judges often adopt a patronizing, paternalistic, or reprimanding tone to women.   In this case, the comments of Daniel's attorney and the trial court during the support hearing, contain all of the above.5

At a time of heightened concern for the effects of gender bias on participants in the judicial system, it appears the majority either does not recognize it when it is presented explicitly or chooses to minimize its virulence.   I unhesitatingly presume the trial court did not recognize its uneven-handed treatment of these parties.   Such is the insidious nature of gender bias, a trait nurtured by culture, not malice.   However, its announced reasons to deviate from the county guidelines focus solely on Marjorie's new marriage, her extended motherhood and its impairment on her earning capacity, and an intuition that a child support contribution commensurate with the county's adopted guidelines might tangentially benefit this extended family.   The trial court expressed no similar concern about Daniel's decision to remarry and undertake an obligation to support a new wife and his new son.   Of course, Daniel's ability to maintain employment is hampered not one whit by the number of additional children he chooses to sire.   It seems more than a little inequitable to permit Daniel, as he has, to cite his new family support obligations as a legitimate reason to reduce support payments for his daughters in Marjorie's custody, and at the same time penalize those daughters for their mother's decision to remarry and have more children.   It is this kind of “double whammy” that courts should scrupulously avoid in every case, but requires extra vigilance in family law matters where gender issues are almost always present and, in particular in deciding an issue of child support in which the goal is to achieve the best interests of the child, not to punish or reward either parent.

This is not to say I disagree with everything the majority has said.   I specifically do concur with its statement that the trial court's reasoning here is unrelated to any legitimate reason to deviate from the guidelines.   However, unlike the majority, I find that fact should compel us to remand the matter for reconsideration.   The Legislature clearly intended for trial courts to limit their reasons to matters relevant to the guidelines.   That rationale permeates sections 4720 through 4725 of the Civil Code.6  Although the Draft Report recommends those sections be modified to be even more emphatic (see Appendix “A”) common sense and fundamental fairness already permits no other interpretation.

On the other hand, the majority's conclusion the trial court did not consider Marjorie's decision to have additional children in reaching its ultimate decision, reflects neither the record nor a sense of the real world.   It is the fact Marjorie's three younger children exist that is the sole basis for the trial court's undocumented conclusion Daniel's support money would be used for Marjorie's entire new family.   The majority itself adopts this view when it states, “Marjorie's household now includes her current husband and three younger [additional] children, an important difference which makes the discretionary guideline less applicable.”   Thus the majority does not prove the trial court's skewed sexist perception did not affect its decision to deviate far below the county guidelines, but to the contrary, in the guise of gentle reproof, the majority gives its imprimatur to gender-based decision-making.   This is the wrong message for an appellate tribunal to send.

Moreover, if the trial court's reasoning were hypothetically sound, consider its bizarre application had Daniel been ordered to pay support at the guideline level of $700 to $800 per child, before Marjorie bore any further children.   Under this principle, as Marjorie bore each additional child, the potential for economic benefit being diffused to benefit her extended family should be actuarially computed, and Daniel's obligation reduced accordingly.   More than just unfeasible, such a view is nonsensical.   There is no logical reason Marjorie's decision to have more children should work to the financial harm of Daniel's daughters, or to the benefit of Daniel or his newly acquired family.   Even here, the trial court does not mathematically justify the 40 to 50 percent deviation below the guidelines.   The extent of the deviation is totally arbitrary.

Further, for the majority to argue the emotional conflicts between extended family siblings could ever justify reducing child support, defies credulity.   Both the trial court and the majority appear oblivious to the very real potential for significant emotional tension when the daughters realize they are less well off financially by living with their mother than residing with their father and that their inability to fully share in the father's lifestyle results solely because their mother elected to have other children.   If the financial disparity is perceived by the daughters as significant, the resentment toward their younger brothers and sisters and their mother and stepfather would be understandable.   Further, it is impossible to minimize the impact of the emotional guilt trip imposed upon Marjorie when the trial court publicly pronounced it is her fault her oldest daughters are being short-changed.

II.

A.

In this case, the issue we face is not whether the amount of child support ordered ($425 per month per child) is factually fair, but the sufficiency of the reasons given by the court to support its decision not to follow the child support guidelines set forth in the San Diego Superior Court Rules.   Those guidelines have been adopted from the Santa Clara County support schedule and establish a formula for ascertaining the minimum award which must be made unless the court states reasons supported by documented facts justifying an order below that level.  (§ 4724, subd. (d).)

The superior court is on record as stating it adopted these guidelines only after considering the best available statistical data on the cost of raising children and the philosophical consideration that each parent should be responsible for support commensurate with his or her financial circumstances, the time each parent spends with the child and a fair allocation of income between the separating spouses.  (See comments to San Diego Superior Court Rules, rule 3.7(a).)   Thus, the formulae contained in the court rules contain certain rebuttable presumptions concerning the minimum adequate amount required to support a child in San Diego County and the parental obligation to pay support based on that cost where the parent has the financial ability to do so.   Applying the San Diego guidelines to the actual facts ascertained by the court here would require the children's father to pay approximately $700 per month per child.

The trial court awarded payment of child support by Daniel for the support of Jennifer and Deborah at a level less than the San Diego discretionary guideline, for the following stated reasons:  (1) if $700 each was spent for Jennifer and Deborah, it would be destructive of the relationship between them and their three half-siblings, since Marjorie and her second husband did not have enough additional income to spend the same amount on each of them;  (2) the end result necessarily would be that some of the monies would be used for family members other than Jennifer and Deborah, that is, it would inure to the benefit of the entire family.

B.

On the first question, sidestepped by the majority, whether the emotional effect of a child support award on the relationship with nonmarital children living in the same household ever could support the trial court's award of less than the discretionary guideline, the answer is a resounding, NO!

The stated reason, the consideration of emotional conflicts and familial disruption by sibling rivalry, fails on two grounds.   First, there is no evidence in the record from which such a finding can be made.   It appears to be a generalized observation of the trial court based on factors outside this record and not specifically related to the children with which this order is concerned.   Second, even if there were some objective evidentiary basis, expert or otherwise, upon which to make such a finding in this case, its relevance is not shown.   If such a factor were relevant, it would have to be such as to outweigh the benefit to the supported children from being supported at the minimum level their father would otherwise be required to contribute.   It is incongruous to permit a wealthy father to pay less child support because the mother of his children chose to marry a poor, but honest, minimum-wage-earner and have additional children, than a less wealthy father would have to pay to support a child in the custody of his ex-wife who has no other children or, having other children, fortuitously marries someone who has greater earnings than Marjorie's present husband.

Further, it would seem, that to the extent emotional frictions would occur were Daniel to contribute the minimum amount called for by the court's own guidelines, that is a “burden” which the custodial family would have to bear, not a factor justifying creating a financial boon for Daniel.   By analogy, had Daniel died leaving a substantial estate in trust for the support of the children subject to the discretion of a trustee under court supervision, it is hard to believe a residual beneficiary could oppose any withdrawal on the basis that it would disrupt intrafamily relationships.

Moreover, this factor is not mentioned in the legislative guidelines.   Section 4720, subdivision (e) states “[i]t 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.”   The principles delineated in that subdivision include:  (1) the parent's obligation to support his or her children according to the parent's circumstances and station in life;  (2) a recognition that a variety of factors affect a parent's circumstances, including income, earning capacity, assets, and the income of a subsequent spouse to the extent it meets the parent's living expenses and increases the parent's ability to pay more than the mandatory minimum child support;  and (3) the needs of the child.

Here, the trial court was statutorily required to make express findings if it saw fit to deviate from the minimum award established by the guidelines.   Because these guidelines have already factored in the presumed cost of supporting each San Diego County child as well as the presumed appropriate proportionate shares to be allocated between the custodial and noncustodial supporting parent, any stated reason to deviate below this presumed minimum should be directed to factors showing the supporting parent's financial hardship (see § 4725) or the child's lack of need when compared with his right to share the noncustodial supporting parent's standard of living.

Additionally, in section 4724, subdivision (d), the Legislature (1) urges the court to award a higher amount than the mandatory minimum;  (2) instructs that in setting a higher level, the court should be guided by statutory criteria, case law, state and local guidelines, and the legislative intent that children share in their parents' standard of living;  and (3) requires that if an award is made below the level in the discretionary county guideline the court “shall state its reasons on the record, citing the documentation of any underlying facts and circumstances for the award.”

In sum, the principles set forth by the Legislature to determine child support are:  the parent's ability to pay;  the child's needs;  and, the child's right to share in his or her parent's standard of living.  (See also In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 953, 238 Cal.Rptr. 691, and In re Marriage of Hubner (1988) 205 Cal.App.3d 660, 667, 668, 252 Cal.Rptr. 428, setting forth the same criteria in case law.)

Here, in awarding less than the level in the discretionary guideline because of the effect on the nonmarital children, the trial court relied on a factor which is unrelated to, and departs from, these statutory and case law criteria.   That is, the court made no finding Daniel could not afford to pay $1,400 per month for his two daughters nor that the girls did not reasonably need the money, when it made the lower award which deprives Daniel's children of the full benefit of his standard of living, i.e., the higher standard of living they would have if Daniel had their custody.

Even if the above factor had been relevant, the majority correctly notes the trial court failed to factually document its finding as required by section 4724, nor could it have.   Reviewing the record, Marjorie's second husband (Mr. Pettit) earns $4,200 gross income per month.  (The record on appeal apparently does not reflect his net income.)   If Jennifer and Deborah could be supported primarily by Daniel's child support payments, then more of Mr. Pettit's earnings could be directed towards his own children.   From this perspective, an award of $700 each to Deborah and Jennifer would enhance, not impair their relationship with their half-siblings, since it would free more of their stepfather's earnings to be directed toward the younger children.   Accordingly, I agree with the majority there is no evidence in this record to support an inference that awarding $1,400 a month to the two older girls would create family hostility.   Mr. Pettit's income is not insignificant;  and, as stated, if more of his earnings could be directed towards the younger children, a benefit rather than a detriment would accrue to the younger children based on the $1,400 award to the two older girls, eliminating any concern for sibling tension.

C.

Regarding the trial court's “second finding,” that the end result would be the use of the monies for the entire family, this concern can be addressed, if the court deems it necessary, by tailoring the order to ensure the money is spent on Jennifer and Deborah, not on the other children or family members.   Such an approach is recommended in In re Marriage of Hubner, supra, 205 Cal.App.3d at page 669, 252 Cal.Rptr. 428, for example, by ordering direct payment to providers of services to the children.   Even so, the mere fact that the custodial parent (or, here, nonmarital children) may as a practical matter benefit from a child support award based on a noncustodial parent's higher standard of living, does not in itself justify depriving the marital children of their fair share of their noncustodial parent's station in life.  (Id. at p. 668, 252 Cal.Rptr. 428, and cases cited therein.)

However, here again the trial court has not documented any facts justifying its “short-changing” these children by permitting their father to pay less than the superior court has declared is minimally required.   The majority points to no facts in the record to support a legitimate conclusion that Daniel would be financially subsidizing persons other than his own children at all, or at least to any extent not to be anticipated because of the fiscal impossibility of discretely segregating portions of rent, costs of utilities, transportation and similar basic family expenditures to reflect pro rata benefits for each family member.   It is content to approve the trial court's “gut feeling,” in face of a statute which is deliberately enacted to promote uniformity and ensure adherence to local guidelines by preventing deviations based on mere surmise or personal predilection.

Although the majority concedes there is no evidentiary support for the trial court's conclusion that setting Daniel's child support according to the county's minimum guidelines would be “destructive” of the relationship between his children and their “less-affluent” siblings, it is this false premise from which the trial court derived its conclusion that Daniel's money would “obviously be used for someone other than the two children.”   The trial court reasoned that because it believed their stepfather could not afford to separately expend $700 for each of his other children, it necessarily followed that in order to prevent sibling rivalry and friction, Marjorie would throw Daniel's support money into the communal pot so each of the five children could share equally.   There is simply no factual documentation to support this inference and, if there were, there is no showing the trial court could not tailor its order to ensure such abuse does not occur.   Accordingly, I would reverse and remand the matter for reconsideration in light of my stated concerns.

APPENDIX A

RECOMMENDATION 1

“Request the Judicial Council to

“(a) fund and adopt as a top priority a study by a trained economist of the application of child support guidelines with the ultimate goal that guidelines would be established which would conform to federal mandates for uniformity and the rebuttable presumption of validity, would reflect fair calculations of the amount required to raise children in a divorcing family, and would not necessarily link amounts due to shared custody.

“(b) urge introduction of and support legislation which would

“(1) amend Civil Code section 4720(a) by requiring that all child support awards, even those which are equal to the amount designated by the applicable guidelines, shall set forth the factors on which the judge relied in setting the award at that level.

“(2) amend Civil Code section 4724 to provide and ensure that children, after divorce, continue to share in the increased standard of living of the higher income parent who is usually the noncustodial spouse.

“(3) extend the duration of child support obligations prospectively to age 21.”

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN1. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   All rule references are to the San Diego County Superior Court Rules.   At the time of the trial court order, Child Support Guideline Information was numbered rule 3.7.   Renumbering became effective January 1, 1990.

3.   Under the guidelines, support is computed by determining total net disposable income of both parents and allocating a percentage of the available income to child support.   Then the amount of child support to be paid by each parent is calculated by considering each parent's share of the total net income and the percentage of time the children reside with each parent.  (Div. III, rule 1.7.)

4.   Her declaration in support of her request to increase support included special monthly expenses for Jennifer and Deborah of $270.85.

5.   According to division III, rule 1.7(f), subject to section 4801, a court will take into account a parent's earning capacity where the parent is not earning to his or her capacity for reasons within his or her control or because he or she is being supported by another.   Section 4801 requires a court to consider as a circumstance in making a spousal support award the supported spouse's ability to engage in gainful employment without interfering with the interests of dependent children in his or her custody.  (§ 4801(a)(7).)In In re Marriage of Nolte (1987) 191 Cal.App.3d 966, 973, 236 Cal.Rptr. 706, the appellate court recognized that considering a parent's earning capacity was one of the few areas in which a trial court has some discretion in computing and allocating the minimum child support award under the Agnos Child Support Standards Act.   In that case the court held there was no error in not imputing income to the wife since the record did not show that such would be in the child's best interests or that the wife had a measurable earning capacity.

6.   A court must consider earning capacity to the extent consistent with a child's best interests when determining the mandatory minimum award.  (§ 4721(a).)

7.   See, for example, Pencovic v. Pencovic (1955) 45 Cal.2d 97, 287 P.2d 501 [The Supreme Court affirmed an increased child support obligation for a father who claimed he received no income but only support as a gift from a religious society.   The court commented even if the trial court had found the father was not receiving compensation, but only gifts, it could have reasonably based the award on his earning capacity.]  In re Marriage of Barnert (1978) 85 Cal.App.3d 413, 427–428, 149 Cal.Rptr. 616  [The court affirmed a child support award based on a trial court's finding husband had deliberately attempted to show diminished income.]   In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 593, 251 Cal.Rptr. 379  [The court affirmed the trial court's refusal to modify or terminate spousal support, applying an “ability to earn” standard rather than actual earnings and finding voluntary early retirement was an attempt to shirk support obligations.]

1.   In spite of the majority's suggestion to the contrary, an objective reader should not perceive this dissent as a “hit piece” on the motives of judges, either in general or in particular.   Nor do I intend to imply a pattern of disparate application of criteria between parties on the part of the trial court who presided in this case;  a jurist who is a highly regarded expert in family law and whose contributions to that specialty have been significant.   On the other hand, I cannot agree with my colleagues' apparent perception that because they consider it indiscreet to call a spade, a spade, my observations based on this record may be invalid.

2.   Crites and Hepperle, Women, the Courts, and Equality (1986) Volume 11, Educating Judges About Gender Bias in the Courts, at page 227.

3.   See the Committee's draft report, March 1, 1990, entitled Achieving Equal Justice for Women and Men in the Courts.   This Committee, consisting of a broad representation of judges, legislators, knowledgeable professionals appointed by then Chief Justice Bird and Chief Justice Lucas, began its study in 1987.

4.   “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.”  (Civ.Code, § 4720.)

5.   In cases, such as this, where custody and visitation have been bitterly contested, the court's attitude and decision regarding child support unfairly tilts the balance toward the father.   As the Judicial Council Committee observes in its Draft Report, in custody determinations, child support is often an important chip in the “family poker game.”

6.   All statutory references are to the Civil Code unless otherwise specified.

FROEHLICH, Associate Justice.

NARES, J., concurs.