APPEAL from orders of the Superior Court of San Diego County, Patricia Garcia, Judge, and Randall W. Magnuson, Commissioner. Affirmed. (Super. Ct. No. D502323).
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
An issue of first impression in California is raised in this dissolution action: Does the federal preemption doctrine prohibit the inclusion of military allowances for housing and food in a party's gross income for purposes of calculating child and spousal support, since under federal law such allowances are not taxable or subject to wage garnishment? We conclude the doctrine is inapplicable, as under United States Supreme Court authority family law support matters are within the province of state law unless " 'Congress has "positively required by direct enactment" that state law be pre-empted.' " (Rose v. Rose (1987) 481 U.S. 619, 625 (Rose).) "Before a state law governing domestic relations will be overridden, it 'must do "major damage" to "clear and substantial" federal interests.' " (Ibid.) We join courts across the nation in holding such allowances are included in a party's gross income for purposes of support when state law encompasses them. We affirm orders denying Soloman Robert Stanton's requests for modification of awards of temporary child and spousal support to Carol Adrianne Stanton,*fn1 which are based in part on his military allowances.
The parties married in August 1993, and they have a teenage son. The parties separated in 2005 and in March 2007 Soloman filed for dissolution of the marriage. The dissolution was granted, effective March 2008.
The parties had signed a stipulated marital settlement agreement (MSA), which purported to settle all financial issues, including support. After a hearing on September 1, 2009, however, the court granted Soloman's order to show cause (OSC) to set aside the MSA for equitable reasons, with the exception of the termination of the parties' marital status. The court's order states: "To make sure that some support orders are in effect no later than September 2, 2009, the Court schedules a review hearing for September 8, 2009."
After a hearing on September 2, 2009, the court awarded Carol $1,415 per month in temporary child support. After a hearing on September 8, the court awarded Carol $1,600 in temporary spousal support.*fn3 Soloman did not appeal those orders.
Soloman is a member of the United States Navy. In calculating temporary support, the court included in his gross income nontaxable military allowances, a basic allowance for housing (BAH) and a basic allowance for subsistence (BAS).*fn4 Soloman's May 2009 pay stub shows he had monthly base pay of $3,995.40, BAH of $2,159, BAS of $323.87, and special duty pay of $300. Carol's income and expense declaration stated Soloman had stopped paying child and spousal support and she had just begun working. She also has a young daughter.
On October 29, 2009, Soloman filed an OSC for a reduction in child support, and on November 4, he filed a petition for a modification of spousal support. His August 2009 pay stub showed his monthly base pay had increased to $4,474.80, and his BAH had increased to $2,199. His BAS and special duty pay remained $323.78 and $300, respectively. Carol's updated income and expense declaration stated gross monthly income of $2,097 as a graduate research assistant.
In his memoranda of points and authorities, the only argument Soloman raised was that the court erred by including his BAH and BAS in his gross income. He argued the court violated the federal preemption doctrine since federal law exempts military allowances from the definition of income for federal tax purposes, and they are not subject to wage garnishment for support arrears. The memoranda also claimed his updated income and expense declaration showed changed circumstances, but he developed no argument on the matter.
After a hearing on December 3, 2009, the court denied Soloman's OSC regarding child support. The court explained, "[I]f it looks like income, it is income no matter how it's paid to you. And this court has always considered BAH and BAS to be income." After a hearing on December 23, the court denied Soloman's motion for modification of temporary spousal support. The court again set temporary spousal support at $1,600 per month.
I. Federal Preemption Is Proper Issue on Appeal
Preliminarily, we address the Department's comment at oral argument that we need not reach the federal preemption issue because it is a legal issue, and we may affirm the December 2009 orders on the sole ground Soloman presented no changed factual circumstance justifying a modification of support. Since the September 2009 support orders are based in part on his BAH and BAS, the ...