Special Circumstances in Child Support Cases Involving an Extraordinarily
Actor Jon Cryer, one of the stars of the series "Two and a Half Men",
was recently rebuffed by the Second Appellate District in his attempt
to avoid ongoing and relatively meagre child support obligations to his
former Wife ("Sarah") after Los Angeles County removed the party's
child from her custody and initiated dependency proceedings. He was also
ordered to pay significant fees to Sarah's attorneys for her expenses
in defending the action. In a tightly reasoned series of rulings, Superior
Court Judge Amy Pellman correctly navigated the California Family Code
provisions relating to "presumptively correct" child support
without the aid of reliable earlier precedent and resisted taking a reactive
stance in response to Sarah's difficulties - or favoring Mr. Cryer
unduly - by keeping her eye on maintaining financial equilibrium for both
parties, and most importantly for the sake of the involved minor child.
She was upheld in all respects on appeal and we now have some important
new judicial pronouncements to guide us in apply Family Code section 4053
FC section 4057
that relate to "special circumstances" and deviating from "guideline
I really think this case is notable as an illustration of how a forward
thinking and thorough jurist - Judge Pellman - can see beyond the difficulties
that people sometimes encounter in their parenting lives in an effort
to maintain equanimity for the family triad.
IRMO Cryer (8/29/11) 198 Cal.App.4th 1039
Jon and Sarah were married, producing a son together, and later divorced.
Sarah subsequently had a second child by a different marriage, which also
ended. Although Mom had primary physical custody of the child with Jon
for which she received "substantial" child support of $10,000
each month and a 65 % "timeshare", she began to suffer some
difficulties that first resulted in Jon's ex parte application to
modify the prior agreed upon orders to sole custody in his favor in May,
2009. Jon alleged that she had left his child unsupervised. The family
law court denied that ex parte request but admonished Sarah not to leave
her children unsupervised. Later that same month CPS became involved when
her younger child suffered an injury at Sarah's home. A dependency
proceeding was filed against her by the Department of Children and Family
Services, which resulted in each child being placed with their respective
fathers. There is no commentary in the decision about whether the fathers
are working together to preserve and protect the sibling bonding.
When a dependency proceeding is filed by child protective services there
are strict rules governing procedure that are generally designed to move
the proceeding quickly towards determining whether jurisdiction properly
exists, in order to ensure that the public policy favoring reunification
with the problem parent is honored. However, Sarah's dependency proceeding
moved extraordinarily slowly. In the meantime Jon battled her in Judge
Pellman's courtroom. In addition, she was also likely defending against
the claims of her second husband over custody of the younger child. We
don't know what the exact alleged facts are over the circumstances
giving rise to the dependency proceeding, but it is obvious that Sarah
had her hands full with "two and a half men" - two former husbands
and a young child.
Once his son was placed into his custody, Jon filed an application to
modify the $10,000 in monthly support to zero since, after all, the child
had temporarily been placed with him. Did he hope this might be the killing
stroke (coup de grace) that would bring Mom to her knees, forever? There
are litigants who feel that if they seize upon the other party's moment
of weakness they will remain in power for the remainder of a child's
minority, and a lawyer might reasonably advise this tactic under the aegis
of "zealous representation". Jon's extreme request was his
first mistake. When people want it all they are sometimes sorely disappointed.
Mother argued that $10,000/month was no burden to Jon because that amount
was only 3 percent of his income at the time. She urged that the outcome
of the dependency proceeding was uncertain, temporary, and subject to
change and that without a steady child support order she would have no
money to pay her mortgage, car payments, or any other bills. She pointed
out that such a result could never serve the child's best interests.
This is where an outstanding trial judge makes all the difference, because
superficially Jon's contentions were reasonable.
Prior to the hearing the parties exchanged income and expense declarations.
Jon's "stated income" was alleged as $327,000 monthly when
averaged over three years, he held $7 million in liquid assets, and monthly
expenses of $29,000. By the way, if people want to go public about their
affairs, litigation is the right choice. Sarah had "negligible"
assets and overhead expenses of $10,000 monthly, not including attorney fees.
A "guideline" child support order using the "Dissomaster"
based upon mother's reduced timeshare would have resulted in her favor
of a modified amount of $1,141/month. Sarah argued she would lose everything
if that was her only income.
The matter was heard on November 2, 2009. Judge Pellman declined to reduce
Jon's child support to zero, even though Sarah had little custodial
time under the pending dependency court orders, but she did reduce it
significantly from $10,000 to $8,000 monthly. The trial court noted that
since Sarah's custody arrangement could be modified by the dependency
court in short order (which was expected to be the situation) and DCFS
could liberalize Mom's visitation schedule at any time, and therefore
found that the minor's best interest was best served if the boy could
return to the same home that he had shared with his mother prior to the
proceedings, and further that it was important for both the mother and
child that she have the ability to have regular and consistent contact
with him. She ordered the father to pay $20,000 in attorney fees to Sarah's
Jon was not satisfied with this ruling. He immediately filed a motion
for reconsideration together with a separate Order to Show Cause seeking
an accounting of how all child support funds he'd paid had been used,
alternatively requesting that these funds be placed into a trust account
for the 'direct benefit' of his son. Evidently he believed that
paying a mortgage, and having a car, only benefited Sarah and not the
boy. Judge Pellman denied his requests (after making some technical corrections
to her orders) and awarded that Sarah receive another $5,000 in attorney
fees, which was likely only a portion of what she actually incurred.
Three months later Jon filed supplemental authorities prior to a review
hearing that had been set, arguing that the dependency proceedings had
still not be resolved and that Sarah's visitations had not been "liberalized"
as the Court had anticipated. Further, he argued that Sarah wasn't
looking for a job and that she was the one benefitting from the child
support payments and therefore the Court should stay child support until
such time as Sarah's timeshare was increased by the dependency court.
This would have had the effect of "starving" Sarah out and really
speaks volumes to the level of resentment that Jon was exhibiting - made ever more poignant for us by reflecting upon the degree of privilege
from the extraordinary earnings that he enjoys. Again, a trial and appellate
court would be reasonable in questioning his motives based upon all the
economic circumstances, and in protecting the disadvantaged party consistent
with the law. Which is exactly what happened in both courts. As a further
expression of his overreaching (or that of his lawyers), Jon filed a new
income and expense showing $474,861 in monthly earnings that averaged
his income over the prior three years. While it is true that there is
no fixed rule in what span of time courts review in determining income,
still they are required to look to relevant evidence. Often times the
prior 12 months provides this yardstick.
Sarah's counsel rejoined that Jon's income over the past 12 months
was $791,666/month. Sarah was apparently the tick on the back of the elephant.
In addition, Sarah's visitation had been liberalized to include
home visits. Sarah argued it would be nice for the boy to have a home where
these visitations could occur. Also, she had monthly expenses of $13,271
and no income beyond CS.
On May 10, 2010, Judge Pellman ruled that no changed circumstances existed
from the time of her earlier orders to modify support further. There still
was no "exit order" from the dependency court. The proceedings
had not resolved. Moreover, the finding was unavoidable that Sarah would
lose her home without support monies to pay the mortgage. The judge ordered
Jon to pay another $40,000 in fees to Sarah's attorney.
Departures From Guideline
Family Code section 4057(b)
is an important provision that cuts both ways in terms of adhering to
or departing from "guideline" support. That section states that
the amount of child support that is presumed under our state-wide formula
may be rebutted by showing that the amounts otherwise rendered by the
guideline "would be unjust or inappropriate in [a] particular case."
Increasingly attorneys for prime time parents are directing trial Courts
to this section to support their claims that when custody is cut-off with
the other parent, or severely restricted, that support should be zeroed
out. For instance, the argument is frequently made, and sometimes accepted,
that where the low earner parent has a
timeshare that would otherwise result in some child support to them based
upon the parties' respective incomes, that the
timeshare parent should not receive child support because the prime time
parent bears the substantial bulk of the financial burden. The problem
with this analysis is that child related expenses for living accommodations
are a fixed expense.
Marriage of Cryer
implicitly recognizes this reality, and Judge Pellman apprehended the
Jon apparently made this argument - he told the appellate court that Judge
Pellman had abused her discretion because "he had nearly total responsibility
for the child." Indeed, Justice Boren agreed that "under normal
circumstances, such a deviation from guideline support would be an abuse
of discretion." But given Jon's income, these were not normal
circumstances but not necessarily for the reasons that Jon urged. "The
trial court was faced with a pending and uncertain dependency case over
which it had no control...." "The trial court also faced the
strong possibility that visitation and custody arrangements could change
quickly,..." "Furthermore, while one parent enjoyed an extraordinarily
high income and could easily afford to pay monthlyl child support of $8,000
or $10,000, the other parent had essentially no income, and would be unable
to maintain a household of the sort to which the child was accustomed
absent substantial support." Therefore, Judge Pellman did not abuse
The Court noted that although the child support formula, "a complicated
algebraic" equation, is often referred to as "guideline"
the term is "misleading. Instead, the formula yields "presumptively
correct" numbers in all cases which may be rebutted by the particular
circumstances of the parties and of the children. In this case the guideline
presumption was rebutted consistent with the state policies that:
- Placing the interests of child has been legislatively declared to be the
state's top priorty
- A "parent's first and principal obligation is to support his or
her minor children according to the parent's circumstances and station in life
- Each parent should pay for the support of children according to his or
- "Children should share in the standard of living of both parents and
child support may therefore appropriately improve the standard of living
of the custodial household to improve the lives of the children."
Here "an order that resulted in [the] child's spending time with
his father in an opulent abode and time with his mother in a low-rent
apartment would have conflicted with principles of Family Code section
Moreover, while the father "may have found the situation unfair, the
primary focus must remain on the child's wellbeing, not the parents'
feelings" about money. The revised $8,000/month child support order
was only from 1 to 2 1/2 percent of Jon's mnothly income. Judge Pellman's
order therefore also served to minimize the harm that might inure to the
parties' son had each parent merely supplying living conditions based
upon their respective incomes, without help from the other. Finally, the
appellate court dismissed Jon's argument that he should not be obligated
to pay $8,000 month where the mother's Income and Expense declaration
showed that she only paid $4,999 in monthly housing relating expenses.
The trial Court had discretion to look the broad view of the parties circumstances
and was not required to fix a number based upon any one element of their
total expense package.
Irmo Cryer is also an important case for ordering attorney's fees to
financially weaker parties. Jon argued that the initial award of $20,000
was more than the mother's attorney had asked for in her moving declaration,
but Mom's attorney made an oral request for a greater suma that the
hearing based upon fees that had increased since the moving declaration
had been filed, and her papers had noted that further fees would be incurred.
Next Jon argued that he had won a motion for reconsideration that made
him a prevailing party, and that he should not therefore been required
to pay Mom's fees. Not so said the appellate court, "[b]ecause
of the importance of ensuring that the parties both have the ability to
present their cases effectively, attorney fees may be awarded against
a prevailing party in family law proceedings."
I have had the great good fortune to have met Judge Pellman, and applaud
her efforts and her well reasoned trial court decision!
Author: Thurman Arnold