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M.S. v. O.S.

August 7, 2009


APPEAL from an order of the Superior Court of San Diego County, Maureen F. Hallahan, Judge. Reversed with directions. (Super. Ct. No. ED72626)

The opinion of the court was delivered by: McCONNELL, P. J.


In this paternity action, O.S. appeals an order requiring him to pay child support for his young twins. He contends the trial court abused its discretion by including in his income for purposes of guideline support twice-yearly bonuses he received from his Indian tribe, and attorney fees the tribe paid on his behalf. We agree with O.S. on the second issue, and reverse the order and remand the matter for further proceedings.

Additionally, for the court's guidance on remand, we hold it may properly include the bonuses in his gross income.


In November 2007 M.S. initiated this action to establish O.S. as the biological father of her unborn twins, and for an order requiring him to pay child support. M.S. gave birth to twins prematurely in January 2008, and genetic testing later confirmed that O.S. is their father.

M.S. submitted an income and expense declaration that claimed no income and $6,200 in monthly expenses. O.S. is a member of the Sycuan Band of the Kumeyaay Nation. He submitted income and expense declarations that stated he was unemployed and had $23,344 in monthly income from the tribe, including $16,400 in regular distributions and $6,944 in bonuses. It also claimed $12,012 in monthly expenses, including $3,092 in court-ordered child support. His 2007 federal income tax form showed the tribe paid him a total of $319,776.21 that year, including $196,800 in regular disbursements; $83,333.32 in bonuses; $4,428 for education and training; $52.64 for tribal life insurance; and $35,162.25 for legal fees. The tribe withheld $110,133.32 in federal income tax and he does not pay state income tax.

In February 2008 the court awarded M.S. $3,978 per month in temporary child support. It also ordered O.S. to pay $3,500 toward M.S.'s attorney fees. The court set the matter for a continued hearing and requested supplemental briefs from the parties.

A hearing was held on July 25, 2008. M.S. submitted an updated income and expense declaration, which claimed no income and $7,365 in monthly expenses. She argued that the entire amount stated on O.S.'s 2007 federal income tax statement should be included in his annual gross income, including the amounts for attorney fees and educational expenses. She stated that in responses to special interrogatories dated June 27, 2008, O.S. admitted the tribe had paid $20,727.24 in legal fees on his behalf thus far in 2008. M.S. also argued that O.S. received a three-bedroom, two-bath home on the reservation free of charge, and the value of that benefit should be considered additional income. She advised the court that O.S. had neither met the twins nor requested visitation.

O.S. advised the court that in 2008 he continued to receive $16,400 per month from the tribe in regular disbursements, which was reduced to $10,000 after taxes, and he had received a bonus in the gross amount of $41,666. O.S. conceded he had free housing on the reservation. He also, however, owned a condominium for which he claimed nearly $4,000 in monthly expenses. His attorney explained that O.S. was not currently renting the condominium because he "initially was afraid that if he rented it, the court would automatically count that as income, even though it ran at a negative number."

O.S., however, was "trying to rent it now."

O.S. opposed the inclusion of benefits in his income, such as free housing and the payment of attorney fees. He argued the court should deviate downward from guideline support, because guideline support exceeds the needs of the six-month-old twins, and it actually supports M.S. and her mother, who lived with M.S. rent free. He also argued the court should impute at least minimum wage income to M.S. He challenged the validity of M.S.'s claimed expenses.

The court took the matter under submission, and it announced its ruling at a hearing on August 26. The court imputed no income to M.S. noting she was a teenager with no high school education who had recently given birth prematurely to twins. The court did order her to apply for benefits from her own Indian tribe, and to notify O.S.'s counsel of her efforts.

The court also imputed no income to O.S. "at this time." The court determined he had deductible mortgage interest of $3,400 per month and property taxes of $357 per month, and court-ordered child support of $3,092 per month. The court included in O.S.'s income the bonuses he received from the tribe, and explained that although they were distributed in June and November they "should be calculated on an annualized basis, resulting in a monetary amount of $6,944 per month." The court also included in O.S.'s income the $35,162 the tribe paid for attorney fees he personally incurred in 2007, noting the tribe reported this income to the Internal Revenue Service as taxable income to O.S. The court ...

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