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In re Marriage of Julie A.

California Court of Appeals, Fourth District, Third Division

June 12, 2013

In re Marriage of JULIE A. and GREG A. FICKE.
v.
GREG A. FICKE, Respondent. JULIE A. FICKE, Appellant, v.

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08D006901 Ronald P. Kreber, Judge. Affirmed in part, reversed in part and remanded.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. McCall for Appellant.

Masson & Fatini and Richard E. Masson for Respondent.

OPINION

BEDSWORTH, J.

INTRODUCTION

In this dissolution action, the trial court awarded custody of a couple’s two teenage children to the mother 95 percent of the time. The court found the father makes $8, 088 a month, including $4, 112 net from two separate property rentals. The mother, by contrast, had an income of $251 a month from a start-up business. Ordinarily, in such circumstances, the father would pay much more than the $1, 368 a month in child support he was ordered to pay. The reduction in child support, however, was effected by imputing $13, 333 in monthly income to the mother. But the net support paid to the mother was then further reduced by the trial court’s order to award spousal support to the father from the mother. The trial court entered an order making the mother pay the father $700 in spousal support. The total net support for the mother ended up at $668 a month.

The mother has appealed from these orders. We hold:

(1) As to child support, the trial court abused its discretion in imputing income to the mother without an express finding supported by substantial evidence that the imputation would benefit the children. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301-302; In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1379-1380; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051, fn. 3.) We do not say, of course, that a court may never impute income to a “custodial” parent, but we do say, as does the Family Code itself, that if it does so, any imputation must be supported by substantial evidence that the imputation is in the children’s interest. (Fam. Code, § 4058, subd. (b).[1])

(2) As to spousal support, the trial court abused its discretion in making a spousal support award running from the mother under the particular circumstances of this case. The economic circumstances of the parties after the divorce did not support making the mother support the father. Specifically, the father has a hard money income of $8, 088 a month while the mother’s income is only $251 a month, and the father walked away from the divorce with somewhere around $1.7 million to $2 million in assets, while the mother wound up with assets of around $1 million. Independent of any imputation based on the mother’s “earning capacity” is the simple fact that the father is self-supporting and doesn’t need any additional help from the mother. The trial judge was duly impressed by the father’s ability to support himself, noting his excellent skills, good assets, good employment, good health, and good career.

Accordingly, we reverse both the child and spousal support orders and remand both the child and spousal support issues for further proceedings consistent with this opinion. However, we affirm two other aspects of the judgment challenged on appeal. Both involve calculations of community and separate interests in discrete items of property (specifically, one of the noncustodial parent’s two rental properties and the custodial parent’s severance pay). The judgment is supported by substantial evidence as to each of those items.

BACKGROUND

Julie and Greg Ficke were married in spring 1993, and they separated in midsummer 2008, so the marriage lasted just a little more than 15 years. During that time they had two children, a boy and a girl, who, by the time of the judgment in November 2011, were 17 and 16 respectively.

At the time of the marriage, Julie worked for Beckman Instruments as a product planning manager for capillary electrophoresis and liquid chromatography equipment (to 1994), later as a marketing director for a manufacturer of sterilizers for surgical equipment (1994 to 2004). She then took a job as vice-president of marketing for a manufacturer of dental implants and other dental products in Yorba Linda. During her tenure with the dental implant manufacturer (2004 to 2008) she succeeded in doubling the company’s total worldwide sales, and her final salary was about $200, 000 annually, plus bonuses – and those bonuses, at least in the heady years of the mid-aughts, could be very big indeed. Julie’s 2007 W-2 from the dental implant manufacturer showed total compensation of just over $729, 000. Even so, Julie was terminated in spring 2008. Her explanation to a vocational examiner was that a new CEO “came on board and wanted a male in the job.” She received a severance package of 12 months base salary ($201, 226), but was required, in return for the severance package, to sign an agreement giving up any civil rights claims she might have against the firm.

In the three months after her layoff, Julie conducted a job search which eventually yielded one offer: a marketing management job for a biotech company at $125, 000. She declined that job because, when the offer arrived, she had already started a pet healthcare membership insurance program modeled after a similar business run by her mother in Arizona, and because the job would require considerable travel and not allow her to be home evenings with the two children. At least the start-up pet insurance business would allow her to do that.

The evidence is uncontroverted that Julie has worked full time at her pet insurance business since its inception, “probably working very hard” as the trial judge put it. The business, however, has not yet made any money; Julie has been living off loans from her mother and past savings. Thus, at the time of trial, Julie’s hard money income was only $251 month. However, Greg presented evidence in the form of a vocational examination report that Julie was highly marketable and employable in the marketing end of various biotech industries, and could have (at least as of November 2010) found employment in marketing management in such industries at low, mid and high ranges of $120, 000, $155, 000, and $185, 000 a year, respectively.

Meanwhile, Greg worked as a real estate broker for a large realty company (Cushman & Wakefield) and successfully ran for the city council of Aliso Viejo. He also received income from two rental properties. One was a house in Los Angeles called by the parties “Monte Mar, ” the other a condo in Redwood City called “Boardwalk.” The judgment confirmed both Monte Mar and Boardwalk as Greg’s separate properties, but found there was a community interest in Boardwalk valued at $231, 500, because in 2003 community funds were used to pay off the remaining mortgage balance.

Greg’s total monthly income at the time of trial was found to be $8, 088. That $8, 088 consists of $483 from Greg’s pay as a city council member of the City of Aliso Viejo, a monthly net average of $3, 493 from Cushman and Wakefield, net rental income of $2, 701 from Monte Mar and net rental income of $1, 411 ...


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