Child Support and Cash Gifts

February 23, 2023

This is a photo of a person sorting money.


In Haley v. Antunovich (2022) 76 Cal.App.5th 923, the father sought to modify a previously made child support order. He also asked the trial court to order the mother to seek employment – yes, you can do this – as she had not worked in 7 years. We often use a vocational evaluation to show the court that a non-working parent can work and how much he or she could earn, but I digress.

Instead of working, the mother was relying on the father’s monthly child support payment and a monthly gift of income from her father in the amount of $7,500. The trial court imposed a seek-work order explaining that “the policy of the State of California is that both parents should work and provide support for their minor child.” (Haley, supra, 76 Cal.App.5th at p.925.) The trial court found that a seek work order was in the best interest of the minor child as well. But how? How could it be in the best interest of the minor child for a stay at home mother to work? See the public policy of the State. The trial court reduced the monthly child support to $891. Mother appealed and lost. 

The Court of Appeal found substantial evidence to support the seek work order including the mother’s own testimony that her income was insufficient to adequately support the child and her own Income and Expense declaration showed a shortfall between what she was receiving in support and what she needed. (Haley, supra, 76 Cal.App.5th at p.928.) What is interesting is that she tried to argue that income should be imputed to the father or there should be an upward departure “from the statewide guideline for determining child support because she would otherwise be unable ‘to survive and to adequately care for [the child].’”(Ibid.)  Kudos to her counsel for the aggressive argument or lack of client control or both; but, this argument did not work. 

The mother had a Bachelor of Arts degree, had previously been employed, and she could work while their child was in pre-school. The Court of Appeal found that even a minimum wage job could close the gap she pointed out between her monthly expenses and income she indicated was necessary to care for the child and maintain the level of care and lifestyle to which he was accustomed. The Court of Appeal then held “[g]iven the evidence that [the mother’s] income was insufficient ‘to survive and to adequately care for’ the child and that she had both the ability and opportunity to work, we conclude the trial court did not abuse its discretion in determining a seek-work order was in the ‘best interest of the child.’” (Haley, supra, 76 Cal.App.5th at p.928-929.)

Now, to why I wrote this blog post. The mother was receiving $7,500 from her own father to support her monthly living expenses. See In re Marriage of Alter (2009) 171 Cal.App.4th 718 to understand why a regularly occurring gift of $7,500 could be treated as income to the mother. See In re Marriage of Williams (2014) 226 Cal.App.4th 1303 to understand how as a parent paying for your adult child’s monthly expenses you can stop the impact on calculation of support. In fact, check out my previous blog post on this topic:

The mother again tried an aggressive argument contending the trial court erred by failing to require evidence that her father’s reoccurring cash gifts would continue if she was employed. Basically, “okay trial court, you want me to find work. Fine, but my dad will stop paying me monthly support so the child support order should stay the same.”  At the trial court, father’s counsel argued “any income she earned from employment would be in addition to her ongoing gift income; by contrast, the mother’s counsel argued any income from employment would supplant the gifts, which ‘could drop away at any time.’ Absent evidence that [the mother’s] employment would trigger an end to the gifts, the court did not abuse its discretion in assuming the gifts would continue.” (Haley, supra, 76 Cal.App.5th at p.929.) So, should her father have testified that the gifts would stop once she was working? Would he be able to testify under penalty of perjury that the gifts would stop once she was working? $7500 a month would just stop? Really?

One must give her credit; but, it is obvious the Court of Appeal was not sympathetic to her arguments. She tried again with “there was no evidence of the impact the seek-work order would have on the child, nor ‘any evidence whatsoever that the child’s needs are not being met under the current circumstances.” (Haley, supra, 76 Cal.App.5th at p.929.) But, there was evidence. Her own testimony was used against her in that she testified a reduction in child support would leave her unable to survive. Further, she noted she had a shortfall between her income and monthly expenses. Also, she offered no evidence that since the child was enrolled in pre-school and spending over 40% of his time with his father she could not seek at least part-time work. Based on her own testimony, there was “substantial evidence that [the mother’s] current income was insufficient to adequately care for the child and no evidence that the seek-work order would have a detrimental effect on the child.” (Ibid.) Therefore, again, the seek-work order was affirmed on appeal and the parties were ordered to bear “their own costs on appeal.” (Ibid.)

What could the mother have done differently other than spending all of this money on litigation and losing? Get that part-time job. Work is not fun but when you walk into a courtroom with a female judge, female clerk and female bailiff who all likely have children it is really hard to argue that you can’t work because of child-care responsibilities. Arguing that your expenses exceed your income when you are not working may also be a bad idea. But what about the notion that the minor child should share in the standard of living of both parents? Doesn’t that count for something? Of course; in high earner situations it might, but not on the facts in this case and most cases where there is a ceiling of upper middle-class income. 

What could her father have done differently? Testified that he is cutting her off financially, but, again, could he really do that with the amount of money she required each month? Likely not. Should he have paid her to begin with? Probably not, but what parent is going to do that to their child? Adult or not. Maybe more parents should do that to their adult children? We can speculate for hours but the bottom line is, this case is great to illustrate how not to argue against a child support modification; and to further illustrate the impact frequent and continuous cash gifts have on support.

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