 

Filed 7/24/13 Him H. v. F.D. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



KIM H.,

         Appellant,                                                      E056897

v.                                                                       (Super.Ct.No. TED004838)

F.D.,                                                                    OPINION

         Respondent.




         APPEAL from the Superior Court of Riverside County. James T. Warren, Judge.

Affirmed in part and reversed in part with directions.

         Law Office of Gary Harrison and Gary Harrison for Appellant.

         Law Office of Angeloff, Angeloff & Levine and Michael J. Angeloff for

Respondent.




                                                             1
 


                                    I. INTRODUCTION

       Appellant, Kim H., appeals from a postjudgment order of the family court denying

her February 2, 2012, motion to modify a “below-guideline” child support order filed on

November 4, 2011, and entered into on September 2, 2011, pursuant to Kim’s stipulation

with respondent, F.D. Pursuant to the existing order, F.D. agreed to pay Kim $5,000 per

month for the support of their son, J.

       Kim first claims that the family court erred as a matter of law in refusing to issue a

statement of decision on its order denying her motion to increase F.D.’s $5,000 monthly

child support obligation. (Fam. Code, § 3654.)1 We reject this claim because no

statement of decision was required, as a matter of law.

       Kim further claims the family court abused its discretion in three respects: (1) in

refusing to increase the below-guideline support order based on F.D.’s “chronic failure to

pay” or past arrearage, which was satisfied in full shortly after the motion was filed; (2)

in refusing to order F.D. to make a “child support security deposit” of up to one year’s

child support payments, or $60,000 (§§ 4560-4561); and (3) in refusing to award her

attorney fees based on both needs and abilities (§ 2030) and for her action to enforce the

parties’ existing child support order (§ 3557).

       We find no abuse of discretion in the court’s refusal to modify the parties’

stipulated, below-guideline child support order. The parties previously agreed, and the

                                                  
            1 All further statutory references are to the Family Code unless otherwise
indicated.

                                               2
 
 


court found, that F.D.’s payment of $5,000 per month in child support to Kim was

sufficient to meet the reasonable needs of J., and Kim made no showing on her motion

that the needs of J. had changed or that the $5,000 sum was insufficient to meet J.’s

needs.

         We further conclude, however, the matter must be remanded so that the family

court may exercise its discretion to require F.D. to make a child support security deposit,

as appropriate. The record shows that the court erroneously did not believe that it had

discretion to order a child support security deposit in excess of $6,000, when in fact it had

discretion to order a deposit of up to one year’s child support payments, or $60,000.

(§ 4560-4561.) We also remand the matter for reconsideration of Kim’s motion for

attorney fees. (§§ 2030, 3557.) In all other respects, we affirm the challenged order.

                                   II. BACKGROUND

         J. was born in December 1999. In March 2000, Kim petitioned to establish F.D.’s

paternity of J. and for child support. Kim is a registered nurse, and F.D. is a physician

and surgeon. In January 2001, the parties entered into a “Stipulation for Judgment of

Paternity and Related Orders . . . ,” and an order was issued on the stipulation. Pursuant

to the January 2001 stipulation and order, F.D. acknowledged paternity and agreed to pay

Kim $3,000 per month in child support, plus $410 per month for his share of Kim’s

employment-related child care expenses, for a total of $3,410 per month.2



                                                  
            2 The order was made retroactive to December 1, 2000.


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       The January 2001 stipulation and order further provided that Kim would have sole

legal and physical custody of J. and F.D. would have “no contact” with the child. The

parties expressly agreed that the $3,410 monthly support obligation was in the best

interests of J. and was sufficient to meet his needs, even though it was “below

Guideline.” (§ 4055.) The parties also acknowledged that “this case is one in which the

child is an infant and [F.D.’s] income falls within the ‘extraordinarily high income payor’

standards . . . .” In January 2001, Kim was claiming that F.D.’s monthly income was

$73,267, while F.D. was claiming that his monthly income was $34,000. According to

her income and expense declaration, Kim’s net monthly disposable income was $3,552 in

September 2000.

       The January 2001 stipulation and order continued in effect and no further action

on it was taken by either party until January 2010, when J. was 10 years of age. At that

time, F.D. petitioned to modify the custody portion of the January 2001 stipulation and

order by placing J. in the care of Kim’s sister, Deborah F. F.D., who had not been in

contact with J. pursuant to the order, filed the petition at the behest of Deborah, who had

contacted him and informed him that J. was in “a dangerous situation” due to Kim’s

“severe alcoholism.”

       Several of Kim’s closest family members, including her sister Deborah, her four

adult daughters, and her mother submitted declarations in support of F.D.’s petition. The

family members expressed grave concern for J.’s welfare because Kim was drinking




                                             4
 
 


“extensively” again and was not taking proper care of J. F.D. also asked the court to

suspend his child support obligation pending Kim’s reunification with J.

       Deborah averred that, between 2004 and 2007, Kim and J. came to live near her

home in Oregon, “basically so that the entire family could oversee [Kim’s] efforts at

rehabilitation and could watch [J.] and protect him.” Deborah estimated that J. was in her

care and custody around 40 percent of the time during that three-year period, and again in

July 2008, December 2008, and January 2009. Deborah also cared for J. from May

through August 2009, while Kim attended the Betty Ford Clinic. But according to

Deborah and Kim’s adult daughters, that attempt at rehabilitation, Kim’s fifth, also failed

and Kim was “again severely drinking extensively.” Kim’s mother agreed that Kim had

been “in [and] out of rehab many times,” and that she and Deborah had “come down

from [Oregon] many times to rescue [J.].”

       According to Kim’s adult daughters, the living conditions J. had to endure while

living with Kim were “unacceptable and inhumane.” There were animal feces and urine

“all over the house” and “dishes molding in the sink.” There was little to no food in the

cupboard or refrigerator and J. was often left to “fend for himself.” J. rarely had clean

clothes or clothes that fit him, while Kim would spend her money on alcohol, clothing,

and jewelry for herself. Kim was evicted from several homes while living with J. J. also

missed school, and Kim would drive drunk with him in the car. Kim had been

hospitalized for “alcohol poisoning or a related issue” six times, including twice in

January 2010, and had “tried to kill herself numerous times by overdosing on prescription


                                             5
 
 


drugs while [J. was] in the home.” All four daughters described living under similar

conditions when they were minors, and they ultimately went to live with their father.

None of the daughters expressed any confidence that Kim would recover.

      In February 2010, Kim filed a response to the petition, denying its allegations and

claiming that Deborah was only seeking to usurp her $3,410 in child support income for

J. She claimed she had a five-day “slip” in January 2010 and was now “back on track”

with her recovery. She demanded the immediate return of J., whom she claimed Deborah

had “abducted” while he was staying with one of her daughters. Concurrently with her

response to F.D.’s petition to modify custody, Kim petitioned to modify the parties’

January 2001 “below guideline” child support order by having F.D. pay “guideline” child

support of $67,850 per month. She claimed that F.D. “grossed” over $8 million during

2009 from several medical entities he owned, while she earned only $8,878.56 during

2009 working as a registered nurse.

      At a January 27, 2010, hearing on F.D.’s petition to modify custody, the court

found that Kim had “ongoing acute alcoholism” and that F.D. had not been in J.’s life.

The court joined Deborah as a party to the case and temporarily awarded her sole

physical and legal custody of J. Kim was ordered not to consume alcohol at any time and

to undergo an alcohol assessment through the Betty Ford Center.

      On April 22, 2010, Deborah was appointed J.’s temporary guardian in a separate

proceeding in the probate court. On April 28, the family court temporarily suspended

F.D.’s child support obligation. In January 2011, the guardianship was terminated and J.


                                            6
 
 


was returned to Kim’s care. While J. was in Deborah’s care, the court deemed Kim’s

petition to increase F.D.’s child support obligation “temporarily moot.”

       At an April 4, 2011, hearing on Kim’s petition to increase F.D.’s child support

obligation, the court found that F.D. had an “extraordinarily high income.” The court

accepted Kim’s representation that F.D.’s income was $733,433 per month and that Kim

earned $4,553 per month. Accounting for additional variables, the court found that

“guideline support” was $52,834 per month, but also found that the guideline amount “far

exceed[ed]” the reasonable needs of J. The court based this finding on the parties’

January 2001 stipulation that $3,410 was sufficient to meet the reasonable needs of J. at

that time, even though F.D. was an extraordinarily high earner at that time.

       The court also pointed out that Kim “tacitly accepted” the reasonableness of the

$3,410 support obligation “until her second stint with the Betty Ford [C]enter, which

prompted the litigation regarding . . . [Deborah] . . . .” The court said: “I’m at a loss as

to how [J.]’s needs increased dramatically over the fact [Kim] went to Betty Ford. I get

the sense there’s a vindictive nature in this litigation, but, nonetheless, I do think at this

stage, without further evidence, that the needs of the child will be adequately met by the

below-guideline amount of $3,410.” The court accordingly ordered F.D. to pay child

support of $3,410 per month effective January 1, 2011, but set a further evidentiary

hearing to determine the current, reasonable needs of J. The court also reserved

jurisdiction to modify its $3,410 support order “back to January 1, 2011.” F.D. later




                                               7
 
 


stipulated, and the court found, that F.D. could pay any reasonable support obligation the

court ordered.

       On September 2, 2011, the date of the scheduled evidentiary hearing to determine

the reasonable needs of J., the parties resolved the matter by stipulation and order. The

parties agreed, and the court found, that F.D.’s payment to Kim of $5,000 per month was

sufficient to meet the “needs of [J.] . . . .” The term “needs” was defined to mean J.’s

“present and future needs” “throughout the duration” of his minority, and it was further

agreed and ordered that the $5,000 support obligation could “not be modified upwardly”

unless Kim presented evidence of “extraordinary health care costs.” Kim also agreed to

maintain private health insurance coverage for J. The $5,000 support obligation was

payable in equal shares on the first and fifteenth of the month, and was retroactive to

January 1, 2011. The court’s findings and order on the September 2, 2011, stipulation

were filed on November 4, 2011.

       Several days later, on November 14, 2011, Kim filed an order to show cause and

affidavit for contempt based on F.D.’s failure to pay her any support after August 2011,

pursuant to the parties’ November 4, 2011, stipulation and order. Kim acknowledged

receiving $3,400 per month from F.D. for the months of January through August 2011,

but F.D. did not pay her $5,000 for September, October, or November 2011. F.D. also

failed to pay her the $1,600 in monthly arrearages ($5,000 minus $3,400) for January

through August 2011 that he agreed to pay pursuant to the November 2011 stipulation

and order.


                                             8
 
 


       An order to show cause was set for hearing on January 24, 2012. F.D. did not

appear, and a bench warrant was issued and held until February 10, 2012. On February

10, F.D. paid Kim $45,318, consisting of all support due through February 2012, plus

interest and $750 in attorney fees.3 On the same date, the parties agreed that the

arrearage was satisfied, and the order to show cause (contempt citation) was dismissed

with prejudice.

       Meanwhile, on February 2, 2012, Kim filed the present motion to modify the

parties’ November 4, 2011, stipulation and order by increasing F.D.’s $5,000 below-

guideline support obligation “to guidelines . . . .” Kim argued that the restriction on

modification was “an impermissible restriction on the child’s right to seek support based

on changed circumstances.” She argued also that F.D.’s persistent failure to pay support

constituted changed circumstances, and rebutted any presumption that the $5,000 support

obligation was sufficient to meet the reasonable needs of J. She asked the court to take

judicial notice that “there were prior contempt citations” and that F.D. “paid the balance

demanded on the eve of the hearing, causing the matter to be dismissed.”

       In addition to increased “guideline” child support, Kim sought to secure F.D.’s

child support obligation with a money deposit (§ 4550) and an asset deposit (§ 4600).

She also sought attorney fees based on needs and ability (§ 2030),4 and other relief.

                                                  
            3 The $45,318 sum was paid in three checks from three separate medical entities,
namely, Southwest Trauma Associates, Inc., Temecula Valley Radiation Oncology
Medical Group, and Tamda Medical Management, LLC.

                                                                  [footnote continued on next page]
                                              9
 
 


            On June 6, 2012, Kim filed a supplemental declaration stating that F.D. paid her

$5,000 on March 15, 2012, but nothing on March 1, in violation of the November 4,

2011, stipulation and order requiring him to pay $2,500 on the first and fifteenth of each

month. Similarly, F.D. paid Kim $5,000 on April 11 and on May 18. Kim argued that

F.D.’s failure to pay on time or “in any predictable manner” showed he was “not entitled

to a guideline exception as a high earner” and further supported her claim that asset and

security deposits were necessary to secure the support obligation.

            A hearing on Kim’s motion to modify the November 4, 2011, stipulation and order

was held on June 13, 2012. At the conclusion of the hearing, the court denied Kim’s

February 2, 2012, motion in its entirety, and refused Kim’s request to issue a statement of

decision explaining its reasons for denying the motion.

            When asked at the June 13, 2012, hearing why his client F.D. could not pay his

child support on time, counsel for F.D. responded that F.D. was an “extraordinarily busy

man.” Among other things, he was the “head of multiple surgical groups” and owned

“the local hospital.” In a responsive declaration, F.D. explained that he was in arrears on

his support obligation during 2011 and early 2012 because he had recently been sued for

fraud and had been “cut off from approximately $360,000 per month.” When he entered



                                                                                                                                                                 
[footnote continued from previous page]
         4 In requesting attorney fees,
                                    Kim did not file Judicial Council form FL-319,
which became mandatory on January 1, 2012. Instead, her attorney filed a declaration
regarding the amount of fees Kim incurred in filing the February 2, 2012, motion to
modify the November 4, 2011, stipulation and order for child support.

                                                                             10
 
 


into the stipulation, however, he was “fully able to make the payments” he agreed to

make.

                                     III. DISCUSSION

A. No Statement of Decision Was Required on the Order Denying Kim’s Request to

Modify the November 11, 2011, Child Support Order (§ 3654)

        Kim first claims the family court committed reversible error in refusing to issue a

statement of decision on its order denying her motion to modify the parties’ stipulation

and order for $5,000 in child support. She argues that, pursuant to section 3654, the court

was required to issue a statement of decision on its order denying her motion to modify

child support.5 Not so.

        Section 3654 provides that: “At the request of either party, an order modifying

terminating, or setting aside a support order shall include a statement of decision.”

(Italics added.) Kim claims the court violated the statute in refusing to issue a statement

of decision on its order denying her motion to modify the November, 4, 2011, child

support order.


                                                  
            5  Before the June 13, 2012, hearing on her motion to modify the November 4,
2011, stipulation and order, Kim filed a request for a statement of decision “[a]s to the
issues relating to her [m]otion to [m]odify child support only,” citing section 3654. F.D.
filed a written objection, stating: “If the court merely denies the requested relief . . . there
will not have been an order modifying, terminating, or setting aside a support order
[pursuant to section 3654].” At the conclusion of the June 13 hearing, Kim orally
renewed her request for a statement of decision. The court denied the request, stating:
“I’m denying your request for statement of decision. It’s not necessary on an order to
show cause, Mr. Harrison. That’s denied.”


                                              11
 
 


        Questions of statutory construction are reviewed de novo. (Apple, Inc. v. Superior

Court (2013) 56 Cal.4th 128, 135.) “‘“[O]ur fundamental task is ‘to ascertain the intent

of the lawmakers so as to effectuate the purpose of the statute.’”’ [Citation.]” (Ibid.;

Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) “We begin by examining the statutory

language, giving the words their usual and ordinary meaning. [Citation.] If there is no

ambiguity, then we presume the lawmakers meant what they said, and the plain meaning

of the language governs. [Citations.]” (Day v. City of Fontana (2001) 25 Cal.4th 268,

272.)

        There is no ambiguity in the language of section 3654. The statute plainly does

not require a statement of decision on an order denying a party’s motion to modify an

existing support order, but only an order “modifying, terminating, or setting aside a

support order.” (Cf. In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010-1011

[reversible error not to issue statement of decision on an order reducing spousal

support].) Thus, no statement of decision was required here.

        In support of her argument that Family Code section 3654 requires a statement of

decision on an order denying a petition to modify a child support order, Kim relies on

older case law applying Civil Code former section 4801, the predecessor to Family Code

section 3654. We are not persuaded.

        Civil Code former section 4801, as amended in 1976, made findings of fact and

conclusions of law mandatory upon the request of either party, and applied to orders

denying a motion to modify support. (In re Marriage of Davis (1983) 141 Cal.App.3d


                                             12
 
 


71, 76 [order denying increase in spousal support]; In re Marriage of Havens (1981) 125

Cal.App.3d 1012, 1015-1016 [order denying reduction in child support].) Civil Code

former section 4801 has long been repealed, however, and Family Code section 3654

provides in no uncertain terms that a statement of decision is required only on a motion

“modifying, terminating, or setting aside” a support order. (Fam. Code, § 3654.)

       Nor was any statement of decision required under Code of Civil Procedure section

632. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) The statute requires

a statement of decision to be rendered upon “the trial of a question of fact by the court.”

(Code Civ. Proc., § 632.) Courts have consistently construed the statute as not requiring

a statement of decision on a motion, even when the motion involves an evidentiary

hearing and the order on the motion is appealable. (Ibid.; Gruendl v. Oewel Partnership,

Inc. (1997) 55 Cal.App.4th 654, 660; In re Marriage of Simmons (1975) 49 Cal.App.3d

833, 836-837.) Still, courts have created exceptions to this rule for “‘special

proceedings’” or motions involving important or complex issues. (Gruendl v. Oewel

Partnership, Inc., supra, at p. 660; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294

[noting exception for special proceedings involving custody of children].)

       Kim does not argue that the order denying her motion to increase F.D.’s child

support obligation qualifies as a special proceeding, such that a statement of decision was

required under Code of Civil Procedure section 632. Thus she has forfeited any claim

that a statement of decision was required under Code of Civil Procedure section 632. (In

re Marriage of Askmo, supra, 85 Cal.App.4th at p. 1040.) In any event, the order


                                             13
 
 


denying Kim’s modification petition did not involve a “special proceeding” because it did

not involve unusually complex issues. The order was based solely on the written

declarations and documents submitted by the parties, and no live testimony was taken at

the hearing. This court can readily review the evidence adduced on the motion without

the aid of a statement of decision. (Ibid.)6

B. The Court Did Not Abuse Its Discretion in Refusing to Increase F.D.’s “Below-

Guideline” Child Support Obligation, Because Kim Made No Showing That Any Increase

in Support Was Necessary to Meet the Reasonable Needs of J.

       Kim claims the family court abused its discretion in refusing to increase F.D.’s

$5,000 “below-guideline” child support obligation. We find no abuse of discretion in the

court’s denial of this portion of Kim’s motion, given that Kim made no showing that any

increase in the $5,000 sum was necessary to meet the reasonable needs of J.

       “[S]ection 4055 sets forth a statewide uniform guideline for determining the

appropriate amount of child support.” (In re Marriage of Hubner (2001) 94 Cal.App.4th

175, 183, fn. omitted.) The amount of child support determined pursuant to the

guideline’s algebraic formula is “presumptively correct in all cases, and only under




                                                  
            6 Compare Gruendl v. Oewel Partnership, Inc., supra, 55 Cal.App.4th at pages
660 and 661 (statement of decision required under Code Civ. Proc., § 632 on order
amending judgment to add judgment debtor on alter ego theory) with In re Marriage of
Baltins (1989) 212 Cal.App.3d 66, 79 (no statement of decision required on order
granting motion to set aside judgment on grounds of duress and extrinsic fraud or
mistake).

                                               14
 
 


special circumstances should child support orders fall below the child support mandated

by the guideline formula.” (§ 4053, subd. (k); see §§ 4052, 4057, subd. (a).)

       One special circumstance arises when the guideline amount would be unjust or

inappropriate because “[t]he parent being ordered to pay child support has an

extraordinarily high income and the amount determined under the formula would exceed

the needs of the children.” (§ 4057, subd. (b)(3).) Another special circumstance arises

when “[t]he parties have stipulated to a different amount of child support under

subdivision (a) of Section 4065.”7 (§ 4057, subd. (b)(1).) Each of these special

circumstances are applicable here.

       The parties stipulated to a below-guideline child support order pursuant to section

4065, subdivision (a) when they entered into the November 4, 2011, stipulation and order

to increase F.D.’s monthly support obligation from $3,410 to $5,000. That stipulation

and order resolved Kim’s earlier, February 2010 motion to modify the parties’ January

2001 stipulation and order for $3,410 in support. In May 2010, as part of a series of

continuing evidentiary hearings on Kim’s February 2010 motion, the court found that

F.D. was an extraordinarily high earner (§ 4057, subd. (b)(3)), and that the amount of

                                                  
            7 Section 4065, subdivision (a) provides that the court “shall not approve a
stipulated agreement for child support below the guideline formula amount unless the
parties declare all of the following: [¶] (1) They are fully informed of their rights
concerning child support. [¶] (2) The order is being agreed to without coercion or
duress. [¶] (3) The agreement is in the best interests of the children involved. [¶] (4)
The needs of the children will be adequately met by the stipulated amount.” In the
November 4, 2011, stipulation and order, the parties essentially made these required
declarations.

                                            15
 
 


guideline support would be $52,834 per month (§ 4055). At that time, the court pointed

out that the only question to be resolved was the amount of support necessary to meet the

reasonable needs of J. Then, on September 2, 2011, the parties entered into what became

the November 4, 2011, stipulation and order that F.D. would pay Kim $5,000 per month

in child support, and agreed that this amount was sufficient to meet J.’s needs for the

duration of his minority, barring extraordinary medical expenses.

       Her stipulation notwithstanding, Kim claims she was free to “renege” on the

November 4, 2011, stipulation, given that it was for a below-guideline amount of child

support. (§ 4065, subd. (d).) Section 4065, subdivision (d) states that when parties

stipulate to a below-guideline child support order, “no change of circumstances need be

demonstrated to obtain a modification of the child support order to the applicable

guideline level or above.” And as one court has observed, “the statute lets either party

‘“renege” on the stipulation at any time, and without “grounds,”’ if the stipulated award

is below the guideline amount . . . .” (In re Marriage of Laudeman (2001) 92

Cal.App.4th 1009, 1015.)8

       F.D. argues that Kim is bound by the November 4, 2011, stipulation and order

notwithstanding section 4065, subdivision (d), because the stipulation constitutes “an

agreed statement of fact” that $5,000 was sufficient to meet the reasonable needs of J.

F.D. relies on Parkhurst v. Parkhurst (1897) 118 Cal.18, where the court concluded that
                                                  
            8 As a general rule, the court will not modify a child support order unless there
has been a material change of circumstances since the order was made. (In re Marriage
of Stanton (2010) 190 Cal.App.4th 547, 553.)

                                              16
 
 


the wife was properly denied any increased child support given that she previously

agreed, and the evidence substantially showed, that the agreed-upon amount was

sufficient to meet the needs of the children. (Id. at p. 22.)

       We find no abuse of discretion in the family court’s refusal to increase F.D.’s child

support obligation from $5,000 to the guideline amount, or any other amount, simply

because Kim made no evidentiary showing that the $5,000 sum was insufficient to meet

the reasonable needs of J.

       In support of her February 2012 motion, Kim offered no evidence that J.’s

reasonable needs had changed since the parties entered into the November 4, 2011,

stipulation and order on September 2, 2011, or that $5,000 was insufficient to meet the

reasonable needs of J. at any time. Instead, Kim’s motion focused on F.D.’s

extraordinarily high income and his child support arrearages accrued during 2011 and

early 2012. The court could have reasonably concluded that the $5,000 sum was

sufficient to meet the reasonable needs of J., given that the parties themselves made that

agreement and the court previously made that finding. Although Kim was free to

“renege” on the parties’ November 4, 2011, stipulation without showing changed

circumstances (§ 4065, subd. (d); see In re Marriage of Laudeman, supra, 92

Cal.App.4th at p. 1015), she was not entitled to a guideline support order or any support

over the previously agreed-upon $5,000 sum absent a showing that the reasonable needs

of J. required it (Parkhurst v. Parkhurst, supra, 18 Cal. at pp. 22). Simply put, the court




                                              17
 
 


had no evidentiary basis for increasing the $5,000 child support obligation by any

amount.

       Kim additionally argues that F.D.’s “chronic failure to pay” his $5,000 child

support obligation during late 2011 and early 2012 constitutes “special circumstances”

justifying an increase in the $5,000 obligation. (§ 4057, subd. (b)(5) [court may deviate

from “formula” or guideline amount when “special circumstances in the particular case”

would make guideline amount unjust or inappropriate].) Whether the arrearage F.D.

accrued between late 2011 and early 2012 justified increasing his $5,000 support

obligation was within the sound discretion of the family court. (In re Marriage of Cryer

(2011) 198 Cal.App.4th 1039, 1049 [in awarding child support, court has “‘considerable

discretion’” under § 4057, subd. (b)(5) “‘to approach unique cases on an ad hoc basis’”

and make just and equitable orders].)

       Based on the entire record, the family court did not abuse its discretion in refusing

to increase F.D.’s $5,000 support obligation based on the 2011 to 2012 arrearage. F.D.

paid the arrearage in full, plus interest and attorney fees on February 10, 2012, only eight

days after Kim filed her motion to increase F.D.’s $5,000 support obligation, and F.D.

was current in his child support payments at the time of the June 13, 2012, hearing on

Kim’s motion. The record also shows that F.D. “dutifully paid” his $3,410 monthly

support obligation from at least as early as January 2001, when the stipulation and order

for that amount of child support was made, through August 2011. In sum, although F.D.




                                             18
 
 


was significantly in arrears as of February 10, 2011, he did not have a history of

habitually failing to pay or underpaying his child support obligation.

       Nor did Kim establish a right to rescind the November 4, 2011, stipulation and

order based on fraud, as Kim further claims. (Civ. Code, § 1689.) Kim made no showing

that she agreed to the November 4, 2011, stipulation and order to increase F.D.’s monthly

support obligation from $3,410 to $5,000 based on any misrepresentation of material fact

on the part of F.D. F.D.’s initial failure to pay any support pursuant to the November 4,

2011, stipulation and order was not a misrepresentation of fact concerning his ability or

willingness to pay, given that he paid the arrearage in full by February 10, 2012.

       Lastly, Kim argues that the matter must be remanded so that the court can

establish the current level of guideline support and then determine anew whether the high

earner exception applies. Not so. Because Kim failed to establish any basis for

increasing F.D.’s $5,000 monthly support obligation, the court was not required to

determine the current level of guideline support or determine anew whether the

exceptionally high earner exception applied. (See In re Marriage of Hubner, supra, 94

Cal.App.4th at pp. 187-188; § 4056.)

C. Remand is Necessary for the Court to Consider Ordering a Child Support Security

Deposit (§ 4560 et seq.)

       A judgment or order issued pursuant to the Family Code, “may be enforced by the

court by execution, the appointment of a receiver, or contempt, or by any other order as

the court in its discretion determines from time to time to be necessary.” (§ 290.)


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Sections 4560 and 4561 authorize the court to create a “child support security deposit,”

by requiring the child support obligor to deposit up to one year’s child support payments

in an interest-bearing account in advance of the date the payments are due. (See In re

Marriage of Drake (1997) 53 Cal.App.4th 1139, 1165 [distinguishing separate

proceeding requiring obligor to make an asset deposit up to a maximum of $6,000 in

assets under § 4600 et seq.].) The child support obligor is entitled to reasonable notice

that a child support security deposit will be made, and an opportunity to file an

application to reduce or eliminate the deposit. (§ 4565, subd. (a).)

       In her February 2, 2012, motion to increase F.D.’s $5,000 monthly child support

obligation, Kim requested that the court order both a security deposit and an asset

deposit. Kim concedes that F.D.’s payment in full of the 2011 to 2012 arrearage was a

complete defense to her request for an asset deposit (§ 4612, subd. (a)), but she correctly

points out that the absence of an arrearage was not a defense to the creation of a child

support security deposit or money deposit, because section 4612 does not apply in the

context of child support security deposits, only asset deposits.

       Kim claims the court erred as a matter of law in denying her request for a child

support security deposit. She claims the court denied her request based on its mistaken

belief that the absence of any arrearage at the time of the June 13, 2012, hearing was a

complete defense to her claim for a child support security deposit. (§ 4612, subd. (a).)

Based on the transcript of the June 13, 2012, hearing, it appears that Kim is correct.




                                             20
 
 


       The transcript indicates that the court mistakenly believed that it had no discretion

to order a child support security deposit in excess of $6,000 (see § 4614), when in fact it

had discretion to order a child support security deposit of up to one year’s payments, or

$60,000 (§ 4560). Addressing counsel for F.D., the court asked: “I want to know what I

can to do make sure he [F.D.] pays on time. Why won’t he post $60,000, which is one

year’s worth of support, put it in a trust fund, she can draw on it every month on the 1st,

her $5,000?” In response, counsel for F.D. erroneously told the court: “That would

violate the terms of this whole law which says [$]6,000 is the most that you can ask to

have put in an account. These issues have already been litigated.” In response to

counsel’s statement, the court said: “The parties can always stipulate to put an amount

in.” This indicates that the court did not believe it had discretion to order F.D. to make a

$60,000 child support security deposit under section 4560, but instead had to rely on his

willingness to stipulate to create any child support security deposit in excess of $6,000.9

       Given that the family court evidently erroneously believed it had no discretion to

order F.D. to make a $60,000 child support security deposit (§§ 4560-4561), we remand

the matter with directions to the court to exercise its discretion to order a child support


                                                  
            9  Before this colloquy took place between the court and counsel for F.D., counsel
for Kim told the court that, according to Kim’s supplemental declaration, F.D. was not
making his $5,000 payments in equal shares of $2,500 on the first and fifteenth of the
month, as the November 4, 2011, stipulation and order required. Instead, he paid Kim
$5,000 around the middle of the months of March, April, May, and June 2012. Counsel
said: “He never paid anywhere near the [first] . . . [and] if you don’t even pay until the
18th, you’ve really missed two payments at that point.”


                                              21
 
 


security deposit of up to $60,000, as the circumstances may warrant, upon remand. In

ordering any deposit, the court may exercise “the broadest possible discretion in order to

achieve equity and fairness,” subject to the applicable child support statutes. (In re

Marriage of Lusby (1998) 64 Cal.App.4th 459, 470-471.)

D. Attorney Fees (§§ 2030, 3557)

       Lastly, Kim claims the family court abused its discretion in refusing to award her

any portion of her requested $11,190 in attorney fees she incurred in prosecuting her

February 2, 2012, motion, to the extent the motion sought to enforce the parties’ existing

child support order, pursuant to section 3557, and to the extent she sought attorney fees

based on needs and abilities, pursuant to section 2030. We remand the matter for further

consideration of Kim’s fee requests.

       Section 3557 states, in pertinent part, that: “(a) Notwithstanding any other

provision of law, absent good cause to the contrary, the court, in order to ensure that each

party has access to legal representation to preserve each party’s rights, upon determining

(1) an award of attorney’s fees and cost under this section is appropriate, (2) there is a

disparity in access to funds to retain counsel, and (3) one party is able to pay for legal

representation for both parties, shall award reasonable attorney’s fees to any of the

following persons: [¶] (1) A custodial parent or other person to whom payments should

be made in any action to enforce any of the following: [¶] (A) An existing order for

child support. . . .”




                                              22
 
 


       Section 2030, subdivision (a)(2) provides, in part, that: “When a request for

attorney’s fees and costs is made, the court shall make findings on whether an award of

attorney’s fees and costs under this section is appropriate, whether there is a disparity in

access to funds to retain counsel, and whether one party is able to pay for legal

representation of both parties. If the findings demonstrate disparity in access and ability

to pay, the court shall make an order awarding attorney’s fees and costs.”

       Kim points out that she requested attorney fees “based on needs and abilities

[pursuant to section 2030] and also for the collection aspects of the case [pursuant to

section 3557].” The motion was left to the sound discretion of the court, and its order

denying the motion will not be disturbed on appeal unless, viewing the evidence in the

light most favorable to the order, no judge could have reasonably made the order. (In re

Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314-315.) The extent of the court’s

discretion is guided by the relevant statutes. (Ibid.)

       Kim claims the court erred to the extent it denied her request for attorney fees

based on her failure to file Judicial Council form FL-319 (Request for Attorney’s Fees

and Costs Attachment (Family Law)). In denying Kim’s motion, the court said: “There’s

no [FL-]319 filed. . . . so you can’t argue under [section] 2030 needs. Effective [January

1, 2012] it was necessary for you to file a family law form [FL-]319 to argue needs.” But

as Kim points out, the January 1, 2012, version of the form FL-319 states, in its bottom

left hand corner, that it was: “Approved for Optional Use.” Accordingly, it was not




                                             23
 
 


necessary for Kim to file form FL-319 in order to present a request based on the parties’

needs and abilities pursuant to section 2030.

       Given that Kim was not required to file form FL-319 and our conclusion that the

court did not understand that it had discretion to order F.D. to make a child support

security deposit of up to one year’s support payments, or $60,000 (§§ 4560-4561), we

remand the matter to the court to reconsider its denial of Kim’s request for fees incurred

to enforce the parties’ existing, November 4, 2011, stipulation and order for child support

(§ 3557) and for attorney fees based on the parties’ needs and abilities (§ 2030).10

                                    IV. DISPOSITION

       The matter is remanded to the family court for further consideration of its order

denying Kim’s request for a child support security deposit (§ 4560 et seq.) and for

attorney fees based on needs and abilities (§ 2030) and based on Kim’s February 2, 2012,

motion to enforce the parties’ existing child support order (§ 3557). In all other




                                                  
            10 We observe that Kim’s income and expense declaration (form FL-150) showed
she had zero income as of February 1, 2012, and $8,891 in monthly expenses, $8,000 of
which was “paid by others.” F.D., by contrast, did not have a recent income and expense
declaration on file given his status as an extraordinarily high income earner.

                                            24
 
 


respects, the order denying the relief requested in Kim’s February 2, 2012, motion is

affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              KING
                                                                                        J.


We concur:

McKINSTER
                Acting P. J.

MILLER
                          J.
 




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