Tuesday, January 3, 2012

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Court of Appeal Allows Pornography Addict Who Lost High Income to Seek Child Support Modification

By SHERRI M. OKAMOTO, Staff Writer

The Fourth District Court of Appeal has ruled that an Orange County man who lost his job and suffered other significant financial problems, related in part to his addiction to pornography, may seek modification of his child support obligations.

Div. Three, in an unpublished decision Thursday, said that the trial court abused its discretion in denying James E. Lockington’s request to modify the support payments based on its finding that his financial hardships did not alter the amount needed to properly care for his daughters, and that the children were entitled to maintain the lifestyle they had previously enjoyed.

Justice Richard M. Aronson noted that Lockington had lost his income, short-sold his home to prevent a foreclosure, and moved in with his sister to avoid becoming homeless, and that his present support obligation had been calculated based on his prior monthly income of $13,476.

Aronson explained that “a request to modify child support must be evaluated on current circumstances, not the circumstances that existed during the marriage,” and that “child support must be based on the parents’ actual incomes and ability to pay, not a nonspecific amount the court believes is necessary to properly care for the children.”

Divorce in 2006

Lockington’s marriage to Tricia K. Lockington was dissolved in December 2006. The judgment awarded Tricia Lockington physical custody of the couple’s daughters, then aged six and eight, and ordered James Lockington to pay $2,074 per month in child support.

The order decreed that the parents were to share equally in the children’s healthcare, education, and daycare expenses, and that James Lockington was limited to eight hours of supervised visitation every other weekend while he sought treatment for a pornography addiction.

In April 2010, he filed an order to show cause asking the trial court to reduce his monthly child support payments because his income had significantly decreased and he had no other assets he could use to continue paying support

James Lockington explained that he had been working for a home building company in an executive management position at the time of the divorce, and he was terminated in April 2007. He has worked as a self-employed real estate development and construction management consultant since then.

During 2009 and 2010, Lockington said, he spent over $100,000 in attorney fees and treatment expenses to address his pornography addiction and the custody dispute that addiction spurred.

He also lost many of his clients, and by June 2010, he said his monthly income had plummeted to $300 .

Treatment Expenses

Lockington claimed the expenses relating to his treatment and the custody dispute, combined with the drop in his income, exhausted all of his financial resources. His sister, an attorney who assumed his representation before the superior court on a pro bono basis, filed a declaration confirming that Lockington had moved in with her in June 2010 and that she was paying his living expenses.

Tricia Lockington opposed her ex-husband’s request to reduce his child support obligations, arguing the children’s expenses remained the same and she should not have to find a second job to cover his share of the children’s expenses. She suggested he pursue employment at Starbucks, or Target, to pay his child support obligations.

In August 2010, Orange Superior Court Judge Ronald P. Kreber conducted a hearing on the modification request. Although Kreber accepted James Lockington’s testimony regarding his dire financial circumstances as true, the judge declined to lessen his child support obligations.

Kreber opined that “the priority has to be with the children,” and they “are entitled to the same lifestyle that they had before.”

He noted the parties “spent a ton of money on this case, and now we have no money for the children,” before concluding that “for me to say you don’t have to pay because you’re out of work, I’m just enabling you, and I don’t think that’s right.”

Aronson, in his decision for the appellate court, said that the “Family Code and the case law applying it authorize a trial court to modify a child support order based on a material change in circumstances occurring after the court entered the original support order.”

He emphasized that “the statutory formula calculates child support payments based on the parents’ incomes and the time each parent has primary physical responsibility for the children,” and “the cost of caring for the children is not a variable included in the statutory formula.”

Accordingly, Aronson said, a parent’s income must “dictate the amount of child support, not the cost of caring for the children.”

The justice added that he could “sympathize with Tricia’s plight in seeking to properly care for her children after James fell behind on his child support obligations,” but a “court cannot require James to pay an amount in child support he clearly has no ability to pay.”

Joined by Justices William W. Bedsworth and Kathleen O’Leary, Aronson directed the matter be remanded to the trial court to conduct a new hearing to consider evidence of both James and Tricia Lockington’s current incomes, and their respective earning capacities to determine the appropriate amount of support.

The case is Marriage of Lockington, G044066.