But Fourth District, Division One Also Rules that on Remand,Trial Court May Consider Whatever Impact the Attorney's Fees Have on Living Expenses and Resources.
The typical attorney's fees issue addressed by the courts in family law disputes is: who should pay attorney's fees, and how much? The next case involves an altogether different attorney's fees issue: did the trial court abuse its discretion by including in the father's income for purposes of guideline support attorney's fees that his tribe paid on his behalf? M.S. v. O.S., Case No. D053996 (4th Dist., Div. 1, August 7, 2009) (certified for publication).
The father is a member of the Sycuan Band of the Kumeyaay Nation. He was unemployed. However, he received $23,344 in monthly income from the tribe. His 2007 federal income tax form showed the tribe paid him a total of $319,776.21 that year, including $35,162.25 for legal fees. The father also received a three-bedroom, two-bath home on the reservation free of charge. The trial court noted that the mother was a teenager with no high school education who had given birth prematurely to twins, and imputed no income to her. In calculating the father's child support responsibilities, the trial court included the the $35,162.25 that the tribe paid directly to his lawyers.
In a 3-0 opinion authored by Justice McConnell, the Court of Appeal, held that the father had rebutted the presumption that his income was as stated in his federal income tax statement, to the extent the tax return amount included the attorney's fees benefit, and thus no benefit was to be included in the guideline amount for purposes of computing annual gross income and child support. See Family Code section 4058. However, on remand, the trial court was entitled to consider under Family Code section 4057 whatever impact attorney's fees have on living expenses and resources. Section 4057 allows for the rebuttal by admissible evidence of the presumptive correctness of the guideline support, because of various factors, including that guideline support "would be unjust or inappropriate due to special circumstances."
BONUS: What is the Sycuan Band of the Kumeyaay Nation, and how is the tribe able to pay O.S. $319,776.21 a year? We found a clue in the opinion which we corroborated by checking Wikipeida. The opinion states: "Here, O.S. is unemployed and he receives his entire income from the Sycuan tribe. He produced no evidence from the tribe or otherwise that there is any plight in the Indian gaming industry that may affecft future bonuses, either in frequency or amount." Check out Sycuancasino.com ("2000 Slots, 63 Tables & Great Food - Friendly & Close To San Diego.).
According to that ever useful and often reliable source, Wikipedia, "The Sycuan Band of the Kumeyaay Nation is a minor tribal band of Mission Indians hailing from around the El Cajon, California, area." The Wikipedia article further explains: "The Sycuan band opened a gambling facility on their reservation (located in the hills east of El Cajon, California) in 1983. As a direct evolution from that successful venture, they now run a profitable casino, as well as an off-reservation golf course (purchased from a previous owner) and hotel (new construction on the golf course site) . . . ." The tribe also purchased a well-known San Diego landmark, the U.S. Grant Hotel.
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