Husband and wife divorced in the mid 90's with one minor child. Husband was ordered to pay child support and childcare expenses ($140/mo later increased to $150).

In October 2004, the Orange County Department of Child Support Services (DCSS) filed a motion to increase father's child support obligations and determine arrearages. Father claimed that mother concealed child from him from 1995 to 2003 and prevented him from visiting. He also filed a motion to compel wife to produce documentation re: childcare expenses and argued that he should only be required to pay actual costs, rather than the $140/$150 per month he had been ordered to pay.

The trial court held that neither concealment nor overpayment of childcare expenses would affect his obligation to pay the ordered child support and increased the monthly amount to $1168. The Court of Appeals agreed. Past concealment is not a defense to payment of arrears for a child who is still a minor because the overdue support will still benefit the child. See Marriage of Comer. As to childcare expenses, the Legislature established a brite-line rule that child support vests and may not be adjusted up or down. Childcare costs count as additional child support and , thus, if a parent feels the amount is too high, he must seek prospective modification and cannot seek to adjust it later. (See Family Code, section 3692: a support order may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the support ordered to become excessive).

Note: Reiflerizing - lower court's discretion to decide postdissolution motions solely on the parties' declarations.

Case: Marriage of Tavares
Court: Superior Court of Orange County
Judge: Michael Leversen
Certified for Partial Publication Only

Labels: arrears, child support, childcare expenses, concealment of child

In a post-divorce proceeding, family law judge in Los Angeles County asked parties to select an evaluator to decide where their two children should go to school. The court also set a deadline for the evaluation and said that the fees would be split by the mother and father out of the proceedings from the sale of the family home.

Mother's lawyer suffered a series of family emergencies and waited almost two weeks before inquiring about the evaluation. Father's counsel indicated that the evaluator's fee would not exceed $2500. A couple of days later, the evaluator called mother's lawyer to see why mother hadn't tried to schedule her interview. Counsel claims he told her "a phone call would have shown [mother] cared about her child". After an exchange regarding how the scheduling should have been handled, mother's lawyer accused evaluator of being biased against mother. Evaluator unilaterally set appointment with mother and one of the children during a time that father had custody of the kids. Mother's counsel requested that the evaluator decide when Mother should pick up the kids so that mother could have time with kids prior to the evaluation to protect against undue influence or bias by the father.

The evaluator then faxed a proposed stipulation that had already been signed by the father. It failed to limit the purpose of the evaluation to school placement. It also indicated his fees were $3,000 initially, with an additional $300/hr. The evaluator then sent mother's lawyer a letter, with a copy to the trial court, stating that he would be evaluating school placement only for the older child and that the retainer of $3000 would be required prior to mother's interview. He also gave his version of the conversation he had with mother's lawyer. He also indicated that mother's lawyer had asked him to alter the current custody visitation order. The next business day, mother's attorney asked the evaluator to recuse himself because he made ex parte communications, had father sign a stipulation and submit to an interview before mother's counsel could review it and protect mother's interests, and failed to protect mother's interests by ordering her additional time with the children before the interview.

Mother appeared ex parte the next day, asking that the court remove the evaluator and vacate the order to pay his fees. The family law judge was disturbed that mother's counsel waited until Monday to ask evaluator recuse himself due to Friday's phone call and that mother's lawyer should have called the evaluator right away to schedule the interview. However, the court also found that the evaluator had made an improper ex parte communication and needed to be removed. Mother was ordered to pay evaluator's bill for time spent -- $2,400.

Mother then filed a motion to vacate the fee order and requested that an evidentiary evaluation be held to determine the basis of the fees and the reasonable value thereof. The Court denied the motion. Mother appeals.

The Court of Appeal found that the trial court abdicated its duty to fix the evaluator's fees under Evidence Code, section 730. First, the trial court did not even review the bill. Second, the court directed mother to take up any issues with the billing directly with the evaluator himself. This is in violation of the court's duty to determine reasonableness of fees. The issues was sent back to the family court judge to determine the reasonableness of the fees, whether he is entitled to anything due to the fact that he violated court rules, and whether mother should have to pay the entire amount. The court must also consider her ability to pay.

Case: Marriage of Tavares
Court: Los Angeles County

Labels: child custody, court-appointed evaluator, visitation