Filed 7/1/22 Marriage of Lewis CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
In re the Marriage of TALMADGE and JENNIFER C094817
LEWIS.
TALMADGE LEWIS, (Super. Ct. No.
FLFL2000382)
Respondent,
v.
JENNIFER LEWIS,
Appellant.
Appellant Jennifer Lewis (Mother) and Respondent Talmadge Lewis (Father) have
two children. In connection with the couple’s divorce, the trial court ordered Father to
pay child support to Mother, taking into consideration a $1,000-a-month benefit the
couple had been receiving in connection with their adoption of their younger child, who
has special needs. On appeal, Mother challenges the trial court’s order, arguing that (1)
the monthly benefit is not “a permissible basis to deviate downward from a guideline
child support calculation”; (2) the trial court deviated from the statutory guideline
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calculation without making required findings; and (3) a “credit” to Father in the amount
of one-third of the monthly benefit “is not permissible” under California child support
statutes.
We conclude Mother’s first two claims are unpersuasive because the credit to
Father was not a deviation from the statutory guideline formula. We conclude Mother’s
third argument is forfeited on appeal.
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
During their marriage, Father and Mother had two children, A.L. and T.L. A.L.,
born in 2012, is the couple’s biological daughter. T.L., born in 2018, was adopted by the
couple.
In connection with T.L.’s adoption, the couple made an agreement with the Yuba
County Health & Human Services Department, whereby the couple received $1,000 per
month as “an adoption assistance benefit for [T.L.],” who “me[t] the definition of a
special needs adoption” and therefore was eligible to receive a “federally funded subsidy”
meant to “encourage the adoption of special needs children.”
During divorce proceedings that began in 2020, Mother asked the trial court to
order Father to pay basic child support, in addition to one-half of employment-related
childcare costs, and one-half of all uninsured healthcare costs. In the first “income and
expense declaration” that Mother filed in the trial court, she represented that she earned
$6,270 per month in wages, and that her average monthly childcare expenses were
$1,600, and that average monthly health care costs not paid by insurance amounted to
$100. In his “income and expense declaration,” Father represented that he earned $750
per week in wages. In November 2020, and pursuant to the parties’ agreement, the trial
court ordered Father to pay $850 per month to Mother “as a temporary order.”
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In April 2021, the parties filed pleadings regarding how, if at all, T.L.’s monthly
adoption assistance payments should feature in the trial court’s eventual child support
order. Counsel for Father proposed “three ways in which the adoption assistance
[payments]” could be “allocated” by the trial court. Counsel for Mother argued the
“payments should not be included in the [c]ourt’s determination of guideline child
support.”
In a July 2021 filing, the trial court ordered Father to pay: (1) monthly child
support to Mother in the amount of $933; (2) half of all employment-related childcare
costs; and (3) half of all reasonable uninsured healthcare costs for the children. Further,
the trial court determined the adoption assistance payment was a “special
circumstance[ ]” under Family Code section 4057, subdivision (b)(5) (statutory section
citations that follow are to the Family Code), warranting an “adjustment downward from
[the] guideline in the amount of $340/mo.”
At an August 2021 hearing, counsel for Mother argued the trial court had erred by
“deviat[ing] from guidelines support” and by failing adequately to provide “the reasons
that the amount of support is consistent with the child’s best interest.”
On the merits, counsel for mother argued that a pleading counsel had filed earlier
with the trial court “set forth a number of reasons” that courts “throughout the United
States . . . have held that we do not look at” adoption assistance payments for special
needs children “as income. We do not look at it as a reason to deviate from
guidelines. . . . This is a federal benefit . . . of [T.L.], who is a special needs child . . . .”
“I believe that the Arizona court under Hamblen [v. Hamblen (Ariz.Ct.App. 2002) 203
Ariz. 342] . . . got this . . . the most correct in terms of how to apply the adoption”
assistance payments, counsel for Mother argued.
Counsel for Father argued the monthly adoption assistance payments be
“allocat[ed] . . . somewhere in the formula,” as the “guideline calculation is an incredibly
large, complex formula that accounts for everything.”
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The trial court said that it “want[ed] to go through [the] points and authorities”
filed by Mother’s counsel. First, the trial court agreed with counsel for Mother that “the
reasons for deviation need to be outlined on the record,” and that—at least in part because
there was no court reporter at an earlier hearing—the trial court would “review the order
that was made and make an order that is clear for purposes of the record.”
Next, the trial court explained that it “did not consider” the adoption assistance
payment “as income.” The trial court explained this was “demonstrated by” the child
support calculation “that was attached to” court minutes, which “did not factor” the
adoption assistance payments “into the number that was produced by the guideline
calculation.”
As for counsel’s argument that “the [c]ourt should not offset the non-custodial
parent’s support obligation by the amount of the adoption subsidy,” the trial court
observed that Father made an “initial request . . . to offset the entire amount against the
child support obligation,” and that the trial court “declined to do that and . . . [was] not
going to do that.” (Italics added.) But because (a) “adoption assistance is intended to
compensate the parents of the child for such things as child care and unreimbursed
medical expenses,” and because (b) Father “is responsible for those expenses in addition
to the guideline child support, [the trial court] th[ought] that some consideration need[ed]
to be taken in that regard.” (Italics added.)
Accordingly, the trial court explained, it was vacating its previous order and
adopting a new order to “credit . . . the amount of one-third of the needs,” which was
“$346.”
Seeking to understand the trial court’s ruling, Mother’s counsel asked if the trial
court was “allocating $346 of [T.L.’s] subsidy towards [F]ather’s obligation [of] the one-
half the amount of child-care.” The trial court initially replied that Mother’s counsel’s
understanding was “not correct,” but then said: “Although on further reflection that
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actually seems the more appropriate way to frame the order. So thank you for that input,
[c]ounsel.”
Mother’s counsel replied: “[W]e . . . take issue with any deviation whatsoever. . . .
Because we do believe very, very strongly that the . . . subsidy is not to be deviated
from.” A bit later, after asserting that Father was in “arrears” on child support payments
and that there was “reason to believe that [Father’s] income ha[d] substantially
increased,” Mother’s counsel expressed “vehement objection to any kind of deviation
from [the] guideline in a situation where we have a child with significant special needs.”
The trial court responded: “[T]he [c]ourt is limited by the materials in the record.
As such I am finding a basis under [Family Code section] 4057(b)(5) to make a deviation
in the amount of one-third of [T.L.’s] adoption subsidy, which is $346. Other than that I
will impose guidelines support.”
Mother’s counsel sought further clarification: “I just want to make sure that we
are clear. So you are deviating from guideline support versus deviating from the—” The
trial court interjected: “I misspoke. I apologize. . . . One-third of the amount of [T.L.’s]
adoption subsidy will be credited against [T.L.’s] child care and/or medical costs
unreimbursed by insurance because [F]ather is still liable for 50 percent of those costs.”
Later, the trial court explained that, when “utilizing the figures” provided by the
parties, “the amount of guideline support that return[ed] for [T.L.] [was] $636 per
month,” and the guideline support amount for A.L. was “$363 per month.” The trial
court made those amounts “retroactive to the date of filing of the petition” in July 2020.
In January 2022, and consistent with its statements at the August 2021 hearing, the
trial court filed “findings and order after hearing” on a Judicial Council form, ordering
Father to: (1) make monthly payments of $363 for A.L. and $636 for T.L.; (2) pay half
of employment-related child-care costs; and (3) pay half of reasonable uninsured
healthcare costs for the children. The form order further states that “[t]otal child support
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per month” is “$999,” and that Father is to “receive a $346 per month credit against his
50% share of [T.L.’s] child care or un-insured medical expenses.”
Mother’s motion to augment the record on appeal, filed on April 6, 2022, is
granted.
DISCUSSION
I
Background Legal Principles
A. Appellate Presumptions
We presume the trial court’s order is correct and supported by substantial
evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Consistent with
this presumption, we draw all inferences in favor of the judgment unless the record
expressly contradicts them. (Ibid.) “The general rule is ‘ “that a trial court is presumed
to have been aware of and followed the applicable law. [Citations.]” [Citations.] This
rule derives in part from the presumption of Evidence Code section 664 “that official
duty has been regularly performed.” ’ ” (People v. Sullivan (2007) 151 Cal.App.4th 524,
549.)
B. Trial Court Discretion
“The facts and circumstances of the parties in each family law case are different,
which is why these cases are equitable proceedings in which the court must have the
ability to exercise discretion to achieve fairness and equity. It is for this reason that the
author of the child support statute, later in the same legislative session in which it was
adopted, ushered in another bill making clear ‘that it was not the intention of the
Legislature to eliminate family law judges’ traditional discretionary authority to adjust
child support orders in individual cases where fairness requires it.’ [Citation.] This
makes clear that the court, in child support cases, is not just supposed to punch numbers
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into a computer and award the parties the computer’s result without considering
circumstances in a particular case which would make that order unjust or inequitable.
[Citation.] Otherwise, there would be no need for a judge; all you would need would be a
computer.” (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043 (Fini).) Thus, a
trial court “in child support proceedings, to the extent permitted by the child support
statutes, must be permitted to exercise the broadest possible discretion in order to
achieve equity and fairness . . . .” (Id. at p. 1044, italics added; see Greiner v. Keller
(2019) 36 Cal.App.5th 332, 339 [agreeing with this proposition stated in Fini].)
C. Forfeiture
“ ‘For better or worse, California child support law now resembles determinate
sentencing in the criminal law: The actual calculation required of the trial judge has been
made so complicated [citation] that, to conserve judicial resources, any errors must be
brought to the trial court’s attention at the trial level while the [theoretical] error can still
be expeditiously corrected. [Citation.]’ ” (In re Marriage of Calcaterra & Badakhsh
(2005) 132 Cal.App.4th 28, 37.)
“We are not bound to develop appellants’ arguments for them. [Citation.] The
absence of cogent legal argument or citation to authority allows this court to treat the
contentions as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445,
1448; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be
supported by ‘argument and, if possible, by citation of authority’].)” (In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
D. Standard of Review
“[C]hild support awards are reviewed for abuse of discretion. [Citations.] We
observe, however, that the trial court has ‘a duty to exercise an informed and considered
discretion with respect to the [parent’s child] support obligation . . . .’ [Citation.]
Furthermore, ‘in reviewing child support orders we must also recognize that
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determination of a child support obligation is a highly regulated area of the law, and the
only discretion a trial court possesses is the discretion provided by statute or rule.
[Citations.]’ [Citation.] In short, the trial court’s discretion is not so broad that it ‘may
ignore or contravene the purposes of the law regarding . . . child support. [Citations.]’
[Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.)
“We are not called upon to determine whether we would have made [the
challenged] award, but whether any judge could reasonably have done so.” (In re
Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1366.) In other words, we ask
whether the “order exceeds the bounds of reason.” (Ibid.)
II
Child Support Statutes
A. Section 4053
“In implementing the statewide uniform guideline, the courts shall adhere to the
following principles: [¶] (a) A parent’s first and principal obligation is to support the
parent’s minor children according to the parent’s circumstances and station in life. [¶]
(b) Both parents are mutually responsible for the support of their children. [¶] (c) The
guideline takes into account each parent’s actual income and level of responsibility for
the children. [¶] (d) Each parent should pay for the support of the children according to
the parent’s ability. [¶] (e) The guideline seeks to place the interests of children as the
state’s top priority. [¶] (f) Children should share in the standard of living of both
parents. Child support may therefore appropriately improve the standard of living of the
custodial household to improve the lives of the children. [¶] (g) Child support orders in
cases in which both parents have high levels of responsibility for the children should
reflect the increased costs of raising the children in two homes and should minimize
significant disparities in the children’s living standards in the two homes. [¶] (h) The
financial needs of the children should be met through private financial resources as much
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as possible. [¶] (i) It is presumed that a parent having primary physical responsibility for
the children contributes a significant portion of available resources for the support of the
children. [¶] (j) The guideline seeks to encourage fair and efficient settlements of
conflicts between parents and seeks to minimize the need for litigation. [¶] (k) The
guideline is intended to be presumptively correct in all cases, and only under special
circumstances should child support orders fall below the child support mandated by the
guideline formula. [¶] (l) Child support orders shall ensure that children actually receive
fair, timely, and sufficient support reflecting the state’s high standard of living and high
costs of raising children compared to other states.” (§ 4053, italics added.)
B. Section 4055
“The child support guideline is an algebraic formula set forth in section 4055” (In
re Marriage of Hein (2020) 52 Cal.App.5th 519, 527), the specifics of which are
unnecessary to detail here.
C. Section 4056
Section 4056, subdivision (a) requires the trial court to “state, in writing or on the
record, the following information whenever the court is ordering an amount for support
that differs from the statewide uniform guideline formula amount under this article: [¶]
(1) The amount of support that would have been ordered under the guideline formula. [¶]
(2) The reasons the amount of support ordered differs from the guideline formula amount.
[¶] (3) The reasons the amount of support ordered is consistent with the best interests of
the children.” (§ 4056, subd. (a), italics added.)
“The statutory findings are mandatory. The failure to make them precludes
effective appellate review and may constitute reversible error if the missing information
is not otherwise discernible from the record.” (In re Marriage of Hubner (2001)
94 Cal.App.4th 175, 183.)
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D. Section 4057
Section 4057, subdivision (a) provides: “The amount of child support established
by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct
amount of child support to be ordered.” Subdivision (b) of this section provides that this
“presumption . . . is a rebuttable presumption affecting the burden of proof and may be
rebutted by admissible evidence showing that application of the formula would be unjust
or inappropriate in the particular case, consistent with the principles set forth in Section
4053, because one or more of the following factors is found to be applicable by a
preponderance of the evidence, and the court states in writing or on the record the
information required in subdivision (a) of Section 4056.” (§ 4057, subd. (b).)
The fifth enumerated factor states: “Application of the formula would be unjust or
inappropriate due to special circumstances in the particular case. These special
circumstances include, but are not limited to, the following: [¶] (A) Cases in which the
parents have different time-sharing arrangements for different children. [¶] (B) Cases in
which both parents have substantially equal time-sharing of the children and one parent
has a much lower or higher percentage of income used for housing than the other parent.
[¶] (C) Cases in which the children have special medical or other needs that could
require child support that would be greater than the formula amount. [¶] (D) Cases in
which a child is found to have more than two parents.” (§ 4057, subd. (b)(5), italics
added.)
“Just because a circumstance is not mentioned in section 4057 [subdivision (b)(5)]
does not mean ipso facto that it does not merit reducing support from the guideline
amount.” (Wilson v. Shea (2001) 87 Cal.App.4th 887, 898.) “The ‘special
circumstances’ exception of section 4057, subdivision (b)(5) gives the trial court
‘considerable discretion to approach unique cases on an ad hoc basis.’ [Citations.] The
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trial court has ‘broad discretion’ to determine when special circumstances apply.
[Citation.]” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1049.)
E. Sections 4061 and 4062
“In addition to basic child support established by the guideline formula in section
4055, subdivision (a), a trial court must order certain other costs as additional support,
including childcare costs related to employment, training, or education” (Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 32, original italics omitted, italics added), and “reasonable
uninsured health care costs for the children.” (§ 4062, subd. (a)(1), (2).) “Among the
family law bench and bar, these are usually referred to as mandatory . . . add-ons.” (Fini,
supra, 26 Cal.App.4th at p. 1039.)
“The language as to mandatory add-ons for employment-related child care and
reasonable uninsured medical expenses in section 4062 is clearly qualified by the
language in section 4061” (Fini, supra, 26 Cal.App.4th at p. 1039), which provides that
“[t]the amounts in Section 4062 . . . shall be computed in accordance with the following:
[¶] (a) If there needs to be an apportionment of expenses pursuant to Section 4062, the
expenses shall be divided one-half to each parent, unless either parent requests a different
apportionment pursuant to subdivision (b) and presents documentation which
demonstrates that a different apportionment would be more appropriate. [¶] (b) If
requested by either parent, and the [trial] court determines it is appropriate to apportion
expenses under Section 4062 other than one-half to each parent, the apportionment shall
be as follows: [¶] (1) The basic child support obligation shall first be computed using
the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate
rebuttal factors in subdivision (b) of Section 4057.” (§ 4061, subds. (a), (b)(1).)
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III
Analysis
A. Required Findings
Mother argues on appeal that the trial court “deviated from the guideline without
making the required findings” under section 4056. Father did not file a respondent’s
brief.
Mother’s contention lacks merit, because section 4056 findings are required only
when the trial court “order[s] an amount for support that differs from the statewide
uniform guideline formula amount.” (§ 4056, subd. (a), italics added.) Here, the trial
court did not order an amount for support that differed from the guideline formula; as
Mother concedes, “the trial court accurately calculated the guideline” amount of $999 in
basic child support.
The $346 credit to Father concerned the mandatory add-ons under section 4062
that Father also was ordered to pay. That was an “apportion[ment] [of] expenses under
Section 4062 other than one-half to each parent,” pursuant to section 4061, subdivision
(b).
For the same reasons, suggestions in Mother’s appellate argument that the trial
court somehow improperly “deviate[d] downward from a guideline child support
calculation” is unavailing (though understandable, as the trial court itself initially
characterized its ruling as a “deviation”).
B. The Credit
Mother further argues that “the amount of one-third of T.L.’s . . . [a]doption
[s]ubsidy is not permissible under . . . section 4061.”
This contention is forfeited on appeal, as Mother did not raise it in the trial court.
(See In re Marriage of Calcaterra & Badakhsh, supra, 132 Cal.App.4th at p. 37.)
Mother objected to the trial court’s consideration of the adoption assistance payment, per
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se, in ordering a “credit” to Father; she did not object to the trial court’s calculation of the
amount of the credit.
This contention, as we will explain, is also forfeited due to the absence of cogent
legal argument by Mother (see In re Marriage of Falcone & Fyke, supra,
164 Cal.App.4th at p. 830).
Mother argues that, pursuant to section 4061, “[t]here are four initial requirements
which must be satisfied before a [trial] court apportions child support addons beyond one
half to each party,” which are: “ ‘If there [1] needs to be an apportionment of expenses
pursuant to Section 4062, [2] the expenses shall be divided one-half to each parent, [3]
unless either parent requests a different apportionment pursuant to subdivision (b) and [4]
presents documentation which demonstrates that a different apportionment would be
more appropriate.’ (§ 4061 (a).)”
Here, Mother argues, “the trial court only complied with the first two of these
requirements,” as “[3] . . . issuing a credit to [Father] of one-third of T.L.’s adoption
subsidy is unsupported as neither party made any request for an alternate apportionment
of the addons,” and “[4] [n]either party presented any documentation to demonstrate why
the addons should be apportioned in a different manner.”
We disagree. The trial court did not err in construing Father’s stated position vis-
à-vis the assistance payments as “requests [for] a different apportionment” of the
mandatory add-ons. (§ 4061, subd. (a).) In his briefing, Father argued the “adoption
assistance [payments]” should be “allocated” by the trial court in some fashion. And at
the August 2021 hearing, Father argued the assistance payments be “allocat[ed] . . .
somewhere in the formula,” as the “guideline calculation is an incredibly large, complex
formula that accounts for everything.”
And the trial court also did not err in determining that the written agreement
between Mother, Father, and the Yuba County Health & Human Services Department (a
copy of which Mother provided as an exhibit in support of her briefing concerning the
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monthly assistance payments) was “documentation which demonstrate[d] that a different
apportionment” of mandatory add-ons “would be more appropriate.” (§ 4061, subd. (a).)
Thus, the trial court complied with all four of section 4061, subdivision (a)’s
“initial requirements” that Mother identifies.
So the reason Mother’s argument—that “the amount of one-third of T.L.’s . . .
[a]doption [s]ubsidy is not permissible under . . . section 4061”—is forfeited due to the
absence of cogent legal argument is that Mother declines to “reach that analysis” in her
appellate briefing in light of her (mistaken) observation that the trial court erred regarding
the third and fourth “initial requirements.”
In any event, on the merits, we conclude the trial court did not abuse its discretion
in concluding that T.L.’s $1,000 monthly adoption assistance payment made it
“appropriate to apportion expenses under Section 4062 other than one-half to each
parent.” (§ 4061, subd. (b).) That ruling did not exceed the bounds of reason. (In re
Marriage of De Guigne, supra, 97 Cal.App.4th at p. 1366; cf. In re Marriage of Drake
(1997) 53 Cal.App.4th 1139, 1158 [“in suitable circumstances, the trial court may adjust
parental support obligations in light of a child’s independent income”].)
We observe that, while the trial court invoked section 4057, subdivision (b)(5)
(“special circumstances” warranting deviation from the guideline formula) when making
this determination, section 4061, subdivision (b) does not expressly limit a trial court’s
discretion in “determin[ing] it is appropriate to apportion” mandatory ad d-ons “other than
one-half to each parent” to the factors contemplated in section 4057.
C. Mother’s Other Arguments
Because we conclude the trial court did not err under California law, we need not
address Mother’s arguments (1) invoking out-of-state case law on the question
“[w]hether an [a]doption [s]ubsidy may be . . . considered/utilized . . . in crafting a
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supporting order,” (2) that the (non)error was prejudicial, and (3) regarding instructions
to the trial court on remand.
DISPOSITION
The judgment (order) is affirmed. Costs of appeal are awarded to respondent.
(Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J.
We concur:
MAURO, J.
KRAUSE, J.
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