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In Re Marriage of Jeffrey and andrea Barth. v. andrea Barth

October 22, 2012

IN RE MARRIAGE OF JEFFREY AND ANDREA BARTH. JEFFREY BARTH, APPELLANT,
v.
ANDREA BARTH, RESPONDENT; ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, INTERVENOR AND RESPONDENT.



Appeal from a judgment of the Superior Court of Orange County, James L. Waltz, Judge. (Super. Ct. No. 04D007613)

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

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

If ever there was a case where the adage "be careful what you wish for"*fn1 applied, this is surely it. Appellant Jeffrey Barth spent years resisting Andrea Barth's*fn2 attempt to litigate their divorce and child custody issues in Ohio, going as far as appealing to the Ohio Supreme Court. That court agreed with Jeffrey and concluded the Ohio courts lacked jurisdiction because Andrea had not lived in Ohio for six months immediately prior to filing her divorce action. (Barth v. Barth (Ohio 2007) 862 N.E.2d 496, 498.) Jeffrey finally achieved what he wanted -- the case was back in California. Ultimately, the trial court, pursuant to Family Code section 4009,*fn3 granted Andrea's request for child support retroactive to the date Jeffrey had originally filed his California divorce action, with credit given for the amounts Jeffrey paid under the now void Ohio order. The support Jeffrey was ordered to pay was significantly higher than the amount the Ohio trial court had ordered.

Jeffrey offers a number of arguments to support his claim that the trial court abused its discretion by awarding retroactive child support. He claims the court erroneously applied section 4009 retroactively, asserting, among other things, that doing so constituted an equal protection violation. Jeffrey also argues the court erred by imputing income to him after it concluded that he had done everything possible to hide and minimize his income in order to shrink his child support obligations. As we shall discuss below, Jeffrey's equal protection argument lacks merit, and he has failed to establish an abuse of discretion on any other point. We therefore affirm.

I

FACTS

Jeffrey and Andrea married in 1989 and had two children, born in October 1994 and October 1996.*fn4 Prior to 2004, the family lived in Westlake, Ohio, where Andrea was employed by a pharmaceutical company while Jeffrey worked as a certified public account (CPA). In February 2004, Jeffrey accepted a job working as director of internal audit for a manufacturing company in California. He moved to Orange County and rented a house while Andrea and the children remained behind for several months. In July, Andrea and the children arrived in California and joined Jeffrey. Approximately six weeks later, in August, Jeffrey admitted to extramarital affairs. Within two days, Andrea and the children returned to Ohio. On August 24, Andrea filed for dissolution in Ohio, while Jeffrey filed in Orange County on August 25.

Jeffrey also filed an order to show cause (OSC) seeking return of the children to California. Andrea appeared and opposed the motion. At or prior to the hearing on Jeffrey's OSC, the hearing officers conducted a discussion pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq.). The California case was stayed pending the Ohio proceedings.

Litigation proceeded in Ohio for the next 31 months. Jeffrey continued to object that the Ohio court lacked jurisdiction. In Jeffrey's motion to dismiss before the Ohio magistrate, he claimed Andrea's removal of the children from California back to Ohio was "misconduct." The magistrate found these allegations to be "brazen and not founded in the facts of the case." The magistrate also concluded that had Andrea known of Jeffrey's extramarital affairs, "she would not have surrendered her job, sold the marital home and moved her children to California . . . ." The magistrate denied Jeffrey's motion and concluded the Ohio courts had jurisdiction.

Early in 2005, Jeffrey moved to the Newport Coast area and rented a townhouse. He was promoted to vice-president of finance for a subsidiary of the employer for which he had moved to California. Jeffrey also began a regular pattern of travel between California and Ohio to spend time with the children. In February 2007, Jeffrey was terminated, receiving 20 weeks of additional salary and a pending bonus. He also received $187,500 as a partial settlement from a stock option program.

Afterward, Jeffrey commenced self-employment, setting up businesses in California and Ohio and maintaining residences in both states. In July 2007 he formed a California professional partnership known as Channels & Barth, LLP. In January 2008, Jeffrey formed JA Barth, LLC, a California company providing tax and accounting services. In Ohio, Jeffrey started two businesses: Audit Pro, LLC, providing audit and related services, and Ohio Tax Debt Solutions. Jeffrey traveled back and forth between California and Ohio for a number of reasons, including the ongoing Ohio family law case, his Ohio business interests, and spending time with the children. At some point, Jeffrey's mother purchased a house just a few doors away from Andrea, which was partially funded by Jeffrey. Jeffrey lived in that house when he was in Ohio.

In due course, the Ohio court made findings and entered child support orders. Child support was set at $1295 per month, retroactive to November 2004, later increased to $1600 per month. The Ohio support orders were never registered in California.

Jeffrey appealed and lost, but the case found its way to the Ohio Supreme Court, with Jeffrey again arguing the Ohio courts lacked jurisdiction. In March 2007, Jeffrey prevailed, as the court concluded the relevant Ohio statute created a strict test of residency. Jeffrey's purported fraud in inducing Andrea to California was therefore irrelevant because Andrea's 40-day stay in California terminated her previous residency, which began anew when she returned to Ohio. (Barth v. Barth, supra, 862 N.E.2d at pp. 499-500.) The judgment was reversed, and accordingly, the Ohio trial court dismissed Andrea's complaint and vacated any and all previous judgments and orders.

In April 2007, Jeffrey filed an OSC in Orange County, seeking to lift the stay and obtain child support orders. Commissioner Thomas Schulte did so, and made a number of inquiries. On June 8, Jeffrey sought Andrea's default, which was entered and from which she was later relieved. In August, Jeffrey applied for a fee waiver on the basis of a sworn affidavit claiming in forma pauperis, which the court granted.

That same month, Andrea filed an OSC to establish child support, and the court set a hearing for September. Andrea also issued subpoenas to obtain records from Jeffrey's former employer and his bank. Jeffrey, who was self-represented by this point, filed a motion to quash the subpoenas and sought a protective order. He also asked the court to reconsider its ruling setting aside Andrea's default. At a September hearing, Commissioner Schulte denied Jeffrey's motion, established a parenting plan and directed an evaluation under Evidence Code section 730. Jeffrey then filed a challenge against Commissioner Schulte under Code of Civil Procedure section 170.1, which was denied by the supervising judge.

In Jeffrey's response to Andrea's OSC, he cited to the Ohio proceedings, pointing out that Ohio never had subject matter jurisdiction, and all Ohio orders issued along the way were void from the beginning. Around this time, the Orange County local child support agency intervened, and for that reason, ...


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