**Unpublished**

Father is a resident of Mexico and won $24 million in the California lottery; he is paid in 26 annual payments. His daughter was born in June 2005.

In June 2005, DCSS (Department of Child Support Services) issued a summons and complaint against father for child support, seeking approximately $5,000 per month. His income and expense declaration indicated that the lottery payments were $54,000 per month. His mother, siblings, and nephews also lived with and off of him. His average expenses were $24,550, including $3000 for enterainment, $4,000 for charitable contributions and $5,000 for eating out. Mother had been receiving public assistance of $360 per month and had three other dependent children.

Father argued that he should not be required to support mother's other three children, that he has five dependents of his own, that mother tricked him into having the child and that the payments benefit the mother more than the child. He sought a reduction to $1,359/month.

Lower court made a child support order in June 2006 based on the guideline amount of $5,478 per month with annual increases to reflect the increase in lottery payment amounts. Father argues that the court abused its discretion in failing to deviate from the guideline based on his "extraordinarily high" income (See Family Code, section 4057(b)(3)) or, alternatively, by failing to apply equitable principles to reduce the payments.

The Court of Appeals upheld the lower court ruling. The guideline child support is presumptively correct pursuant to Family Code, section 4055 and 4057(a). The presumption can be rebutted by evidence showing that application of the guideline would be unjust or inappropriate. For example, where the parent has an extraordinarily high income, the amount would exceed the needs of the child.

Here, the unintended consequence that mother's other children will benefit from the payments is not enough to overcome the presumption; children should share in the standard of living regardless of whether it also improves the custodial household.

Case: DCSS v. Roldan-Lopez
Court: Santa Clara
NOT CITEABLE

Labels: child support, DCSS, extraordinarily high income

Dad is the defendant in a pending capital murder case. The jury found him guilty and recommended the death penalty; sentencing has not taken place.

At the time of the killings, father was subject to a child support order for his daughter who was born in 1988. After his arrest, he liquidated his assets to hire a criminal defense attorney who took most of the money as a retainer. Since he had stopped paying child support, DCSS (Department of Child Support Services) filed a motion to modify the support order in light of father's incarceration. The family law court modified the child support order basing the amount on the amount of interest that could have been earned on the proceeds of the liquidated assets, rather than on dad's income. It also ordered that the current amount due be paid from the criminal attorney's client trust account, as well as a security deposit to DCSS for future monthly payments for the two years before child reached majority.

Father argues on appeal that the amount ordered was too high or, in the alternative, that it violated his constitutional right to a criminal defense lawyer of his choice by diminishing the amount available for a retainer.

The Appellate Court found that the Constitution does not insulate a criminal defendant from third-party claims just because it would reduce his ability to afford his retained counsel; he is only entitled to choose counsel he can afford. Further, interest income is a proper source of child support under Family Code, section 4058, and the court can impute income under certain circumstances. Family Code, section 4012 allows a court to require a security deposit for future payments upon the showing of good cause; here, good cause existed because father was attempting to use all his money on his criminal defense.

Case: Brothers v. Kern

Labels: child support, DCSS, incarceration, jail