Dondero NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. FAM-071155) Once again, we are presented with an appeal involving the dissolution of the marriage of Ester Adut and Joshua Sakov. It is a happening akin to the rites of Spring or the return of the swallows. Here, appellant Ester Adut, makes several arguments in this appeal.
Appellant contends there was an absence of evidence presented to the trial court to support the amount of income imputed to her and used to determine a modified child support order. The Attorney General, appearing pursuant to Family Code section 17406 to 'represent the public interest in establishing, modifying, and enforcing support obligations,' concedes on behalf of intervener and respondent that appellant's claim is clearly meritorious. While a trial court has authority to impute income to an unemployed parent, the calculation must be supported by substantial evidence. The case must be reversed and remanded for a proper evidentiary hearing allowing appellant to demonstrate her ability to earn income attributed to her. The ruling by the trial court commissioner was error and the prejudice requires us to reverse the order appealed. Because we reverse on this issue, we need not address the numerous other contentions raised by appellant.
See Family Code section 17400, subdivision (k), and section 17407. This is a most contentious case.
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Since 2008, issues in this case have been before us in 10 separate direct appeals and/or writ petitions. Judicial resources on remand would be wisely spent in resolving legal issues fully and carefully. STATEMENT OF FACTS Appellant and respondent Joshua Sakov became parents to triplets in 1996. In 2002, Sakov filed for dissolution of the marriage with appellant.
Appellant obtained custody of all three children and Sakov was directed to pay child support in the amount of $1,529 monthly in a January 10, 2007 order. Enforcement of the January 2007 order was assumed by the San Mateo County Department of Child Support Services (San Mateo DCSS). On March 2, 2010, San Mateo DCSS filed an order to show cause seeking to modify the January 2007 order. A hearing was calendared for May 4, 2010.
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Appellant's income and expense declaration was filed with the request, and it indicated Adut had been unemployed since August 2008. Appellant filed a subsequent declaration seeking financial support from Sakov for the cost to send all three children to summer camp (an estimated $4,550 per child), a proportional share of the tuition for private school for each child, and proportional share in the expense for field trips each child may attend. Respondent answered the request with a declaration arguing the January 2007 support order continue unchanged. He also filed his own income and expense declaration. The hearing on May 4, 2010, was transferred to a different judicial officer.
The matter was set for a 'long-cause' trial on September 14, 2010. Appellant attended the May 4 hearing and was ordered by the court to be present for the trial on September 14. The transcript of the May 4 proceeding does not indicate any objection by appellant to the transfer. On September 14, the department for the trial was unavailable. The matter was continued to October 26, 2010. Counsel for San Mateo DCSS was to issue notice to the parties of the continuance.
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Dondero NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. FAM-071155) Once again, we are presented with an appeal involving the dissolution of the marriage of Ester Adut and Joshua Sakov. It is a happening akin to the rites of Spring or the return of the swallows. Here, appellant Ester Adut, makes several arguments in this appeal.
Appellant contends there was an absence of evidence presented to the trial court to support the amount of income imputed to her and used to determine a modified child support order. The Attorney General, appearing pursuant to Family Code section 17406 to 'represent the public interest in establishing, modifying, and enforcing support obligations,' concedes on behalf of intervener and respondent that appellant's claim is clearly meritorious. While a trial court has authority to impute income to an unemployed parent, the calculation must be supported by substantial evidence. The case must be reversed and remanded for a proper evidentiary hearing allowing appellant to demonstrate her ability to earn income attributed to her. The ruling by the trial court commissioner was error and the prejudice requires us to reverse the order appealed. Because we reverse on this issue, we need not address the numerous other contentions raised by appellant.
See Family Code section 17400, subdivision (k), and section 17407. This is a most contentious case.
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Since 2008, issues in this case have been before us in 10 separate direct appeals and/or writ petitions. Judicial resources on remand would be wisely spent in resolving legal issues fully and carefully. STATEMENT OF FACTS Appellant and respondent Joshua Sakov became parents to triplets in 1996. In 2002, Sakov filed for dissolution of the marriage with appellant.
Appellant obtained custody of all three children and Sakov was directed to pay child support in the amount of $1,529 monthly in a January 10, 2007 order. Enforcement of the January 2007 order was assumed by the San Mateo County Department of Child Support Services (San Mateo DCSS). On March 2, 2010, San Mateo DCSS filed an order to show cause seeking to modify the January 2007 order. A hearing was calendared for May 4, 2010.
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Appellant's income and expense declaration was filed with the request, and it indicated Adut had been unemployed since August 2008. Appellant filed a subsequent declaration seeking financial support from Sakov for the cost to send all three children to summer camp (an estimated $4,550 per child), a proportional share of the tuition for private school for each child, and proportional share in the expense for field trips each child may attend. Respondent answered the request with a declaration arguing the January 2007 support order continue unchanged. He also filed his own income and expense declaration. The hearing on May 4, 2010, was transferred to a different judicial officer.
The matter was set for a 'long-cause' trial on September 14, 2010. Appellant attended the May 4 hearing and was ordered by the court to be present for the trial on September 14. The transcript of the May 4 proceeding does not indicate any objection by appellant to the transfer. On September 14, the department for the trial was unavailable. The matter was continued to October 26, 2010. Counsel for San Mateo DCSS was to issue notice to the parties of the continuance.