December 6, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

If you want to know just how crazy family courts can be, here’s a good example. As you read the appellate court’s opinion linked to, remember that the father in this case won this one. By who knows what means, he managed to appeal the mind-blowingly unjust and absurd ruling of the lower court and get it reversed. Needless to say, most people have neither the money nor the education to do that.

Dean and Carolyn Grover married in 1980 and divorced in 2011. He was a software engineer with IBM and apparently earned a pretty good living. They had two children, one of whom continues to live with Carolyn despite being an adult. Reading between the lines, I conclude that she probably has some form of disability that requires continued care and support from her parents. Part of the lower court’s order was for child support for that daughter and Dean didn’t appeal that part of the order, so I suspect he thinks she needs it.

Whatever the case, when the two divorced, the trial court ordered Dean to pay Carolyn $1,000 in adult child support and $1,600 per month in spousal support. But Dean was laid off his job at IBM. He sought other employment, placing some 70 applications, but received only one offer – from Costco stocking shelves. That pays him $13 per hour.

So he moved the court for an order reducing both his child and spousal support obligations. The court did so. It reduced his child support to $800 per month and his spousal support to the same figure.

There was just one problem; Dean Grover doesn’t earn $1,600 per month. He only grosses $1,350 per month, i.e. $250 short of the mark. Not only that, his current wife earns $2,890 per month, but their monthly expenses average $5,447 per month before his child support and alimony obligations. So while he individually earns $250 less than the court ordered him to pay, he and his wife earn $3,847 less than they’re required to pay out. (Prior to the court’s modification, the number was $4,847.)

Now, according to trial court Judge Harry J. Tobias, that was all just fine. It made perfect sense to him to order a man to pay to his ex-wife more money than he earns. And, just in case you’re wondering, Tobias specifically found that Dean was doing all he could to find better employment, so he didn’t impute any income to him. No, he just figured that some way, things would work themselves out.

The court further indicated its “hop[e]” that Dean would “be able to increase [his] salary…”

I’m sure Dean hoped the same thing, but, as everyone but Harry J. Tobias and a few four-year-olds knows, hoping doesn’t pay the rent. In fact, Dean had done everything he could to find better-paying work and failed. In fact, his expenses far exceeded his income. In fact, were he to be required to pay what the court ordered, he’d be going in the hole every month, i.e. draining his rather meager retirement savings. But facts impressed Tobias far less than his own fantasies about where money comes from.

Plus, I suspect, his order also reflects the pro-mother bias for which family courts are so justifiably famous. I say that because,

[Carolyn] declared in an income and expense declaration that she was 55 years old; she has no college degree; she lives in California with her adult daughter; her income is $5,833 per month; her expenses are $6,314.13 per month, including $700 in charitable donations…

So, if she just stopped the charitable giving, she’d make ends meet. But Carolyn didn’t want to do that, so she opposed Dean’s motion to modify the original order. Tobias seems to have thought that asking Carolyn to cut back in that way was beyond the pale.

Sensibly, the court of appeals reversed Tobias’s order, citing much the same common sense as I just did.

What’s nowhere mentioned, because no one raised the issue, is why Carolyn isn’t paying alimony to Dean. Yes, she’s barely paying her bills, but he and his wife aren’t paying theirs. Even if he owed no child support or alimony at all, they’d still be going in the hole. He lost a pretty good job on which they obviously depended. And California law intends that each spouse should be able to live as closely to the marital standard of living as possible.

“ ‘A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order.’ ” (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) The circumstances listed in section 4320 include “[t]he ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living”; “[t]he needs of each party based on the standard of living established during the marriage…”

Obviously, Dean and his wife can’t come close to the standard of living he enjoyed while married to Carolyn. So, according to the applicable law, she should contribute to his welfare.

I’ve for years inveighed against alimony and it’s clear to me that this is a case in which neither ex should pay it to the other. But California law disagrees with me. Given that, it should be applied here in a gender-neutral fashion. If it were, Carolyn would be paying Dean.

Maybe that’ll be the subject of his next motion. But for now, we should all content ourselves with realizing that a judge in California actually convinced himself that ordering a man to pay more than 100% of his before-tax income in some way made sense.

 

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