Thursday, November 30, 2017
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C.A. Invalidates Order to Man to Pay Ex-Wife, Child More Than He Makes
Abuse of Discretion Found Where Recipient of Spousal Support Has Higher Salary Than Former Husband, Her Expenses Exceed Income Only Because of Donations
By a MetNews Staff Writer
A judge who ordered a man to pay more each month in child and spousal support than he earns, expressing the hope he’ll be able to get a pay raise, has been reversed by the Sixth District Court of Appeal.
The judge, Harry J. Tobias of the San Benito Superior Court, suggested that the ex-husband, Dean Grover, dip into his retirement account in order to make the payments.
Former wife Carolyn Grover was drawing a higher salary than her ex-spouse and the only reason her expenses exceeded her income was that she was giving away $700 each month to charity, according to the opinion, which was filed Tuesday and was not certified for publication.
Lay-Off From IBM
The opinion recites that in a July 2, 2013 judgment of dissolution of marriage, Dean Grover was required to pay his ex-wife $1,600 each month in spousal support, as well as $1,000 a month for the care of an adult child with psychological problems; on May 20, 2016, he moved to terminate the support payments based on having been laid off from his job as a software engineer at IBM and his inability to find work, other than a part-time position at Costco, which pays $13 an hour; his take-home pay is $1,350 a month.
Tobias acknowledged that Dean Grover was “making a huge effort to obtain alternative employment or new employment or replacement employment.”
Dean Grover, who now lives in Utah, has a new wife; she has two minor children and she earns $2,890 per month; his monthly expenses, before making support payments, amount to $5,447.
Tobias lowered both spousal support and the child support payments to $800 per month, totaling $250 a month more than Dean Grover makes. The ex-husband appealed only the spousal support order.
Abuse of Discretion
Writing for the appeals court, Acting Presiding Justice Franklin D. Elia said that Tobias abused his discretion. He wrote:
“We may infer that the trial court impliedly found that Carolyn needs monthly spousal support of $800. That finding is not supported by substantial evidence. Carolyn makes $5,833 a month, which is $481.13 less than her monthly expenses of $6,314.13. But when her $700 in monthly charitable contributions are excluded from her expenses, there is no shortfall. The foregoing evidence does not support a finding of need for $800 in monthly spousal support.
“The implied finding of Dean’s ability to pay $800 per month in spousal support likewise lacks substantial evidentiary support. Together, Dean and his wife make $4,240 per month. Their expenses, including the $800 in monthly adult child support the court ordered, are $6,247, or $2,007 more than their gross monthly income.”
Earning Capacity
Elia noted that Tobias expressed the hope that Dean Grover would attain a salary boost. That, he said, seemingly “imputed a higher income to Dean based on his earning capacity, rather than…his actual income.”
However, basing the order on “earning capacity,” he pointed out, was inconsistent with Tobias’s finding that the ex-husnand was making a “huge effort” to find higher paying employment, but couldn’t.
This was not a case where a supporting former spouse was bypassing opportunities to gain employment with higher remuneration in order to skirt support obligations, the jurist said.
Invading Retirement Account
Elia also faulted Tobias’s proposal that Dean Grover invade his retirement account. That, he noted, would generate a tax obligation and early withdrawal penalties and is a step courts have required only in “extreme circumstances.”
Ordinarily, he observed, investment income, not principal, is used to satisfy support obligations.
“Substantial evidence does not support the implied finding that the circumstances of this case justify requiring Dean to invade his retirement account to pay spousal support to Carolyn, who makes significantly more than he does and whose expenses (excluding charitable contributions) do not exceed her income,” Elia declared.
The matter was remanded to the trial court for a redetermination.
The case is Marriage of Grover, H044040.
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