Q. I have a question about proposing legislation to fill a loophole in
the Family Code section 4058 definition of gross income, as it relates
to net ERISA disability benefits. Under Family Code section 4058, gross
income includes disability benefits, (including net, untaxable benefits).
Under ERISA, if an insurer denies payment of disability benefits, the
insured must file a quasi-administrative appeal of the benefits denial
decision to overturn the denial. If that quasi-administrative appeal is
successful, benefits are reinstated, but the insured cannot recover attorney
fees expended to successfully prosecute the quasi-administrative appeal.
(If the quasi-administrative appeal fails, one may appeal that decision
in federal district court, obtaining attorney fees if successful.) Because
generally, ERISA preempts state law regarding insurance, one may not sue
the insurer for bad faith denial of ERISA disability benefits.
In my case, an insurer denied ERISA disability benefits, a decision I had
reversed on quasi-administrative appeal under ERISA. That appeal cost
me 45% of my net disability benefits, as a contingency fee. The family
court commissioner found that the contingency fee merely increased my
expenses, but the contingency fee did not reduce my gross income under
section 4058, in spite of the fact that I only received 55% of the benefit
I would otherwise have received. Because this result is inconsistent with
the definition of gross income under section 4058, subd. (a)(2), (in which
a business proprietor's income is defined as gross receipts minus
business expenses), inconsistent with appellate decisions defining gross
income as income that is actually received, and imposes a double burden
on those who lose disability benefits, requiring that child support be
paid from unreceived income, I would like to propose legislation to amend
the Family Code to fix this inconsistency. The proposal would merely define
section 4058 gross income as including disability benefits, less the attorney
fees and costs expended to obtain those benefits.
Do you think that such a change to the Family Code is warranted?
This is a penetrating question, a very specialized inquiry, and an unfortunate
story - thank you for taking the time to bring it to my attention. I do
wonder if I have all the facts, however, because it is also surprising.
My initial response is that the court must have erred, much as you point
out. You mention appellate court rulings that also suggest this - but
I understand the point that 'who can afford an appeal' and that
these matters are best resolved by providing clear direction to trial
courts to they don't make mistakes in the first place (assuming this
is indeed true under existing appellate decisions). LOL, eh? Have you
filed for Reconsideration?
It is also a question I've not thought about before, having never faced
the issue in my practice. I will have to give you what may be a shallow
response, although I plan to look into it and possibly improve this blog soon.
One solution would be the changes you propose, or perhaps there needs
to be some clarification in
Family Code section 4058 that "net benefits" should be charged to the recipient rather
than simply "receipts." This could then ignore the attorney
fee deduction language component, if legislators were troubled by that
remedy, but might open a larger can of worms without language that applied
it to disability benefits only. But I don't know if it is the best
answer, since letting people deduct attorney fees from income is a broad
and difficult task and could create interpretational problems and factual
Perhaps legislators might liker the vagueness of adding "net"
to "receipts," since trial courts could then evaluate it on
a case by case basis. I note that Family Code section 4058(a)(1) has "actually
received" language, except that it is within wording that relates
to spousal support income from a third party. If the "actually received"
language was applied to the overall subparagraph (section 4058(a)(1)),
this would resolve the problem. I would have to review the legislative
history of section 4058 to offer more.
Family Code section 4058(a)(2) gives trial courts discretion to deduct
an arguably similar class of write-offs or deductions from gross income
(i.e., "expenditures from the operation of a business") for
Family Code section 4059 speaks in terms of "net disposable income" and an amendment
there might be of use - but, 4058 is the biggie for trial courts dealing
with child support issues.
As to recommendations about what family law organizations might be available
to champion a legislative change, unfortunately other than AARP and your
local California assembly person, I have no intelligent recommendations
today. But I will endeavor to look into it. I am hoping in time that legislators
will in time read my blogs!
BTW, there may be further facts to your situation that influenced the outcome,
since it does seem hard to comprehend. For instance, do you have new-mate
income that the court considered in some fashion? Are family members paying
for any of your living or residence expenses and was this attributed to
you? Was other income imputed? I am assuming that you are tax exempt on
this disability income stream, and might the court put you in the support
calculator in the nontaxed income column?
A final note - if the time is not up, you might appeal this ruling. Appellate
decisions that create unfair results (i.e., refusing to charge you with
the net) are an alternate but expensive route to change inequities in
our system when they exist, since they are courts telling the legislature
- "if you want a different result, you change it."
Thurman W. Arnold, CFLS