In Re Marriage of Rocha

Opinion

HOLLENHORST, Acting P. J.

After Andria M. Rocha (wife) filed an order to show cause regarding an increase in child support payments from her former spouse, Alexandre A. Rocha (husband), the court ordered an increase and included as income that portion of husband’s student loan for law school above the cost of books and tuition. Husband appeals persuasively arguing that the student loan retains its loan status irrespective of the fact that the proceeds were in excess of the costs of books and tuition. Thus, we reverse.

Facts

The parties were married in 1989 and their marriage was dissolved in 1994. Two children were bom of that union. Husband entered law school and obtained loans to finance his tuition and for his living expenses while in

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school.

1

The difference between husband’s student loans and his actual school expenses, tuition and books, is about $9,000. The court found that the loans received in excess of actual school expenses are income for purposes of assessing child support despite the fact that this income is derived from loans.

2

Discussion

This case requires us for the first time to consider whether a student loan, later subject to repayment, falls within the meaning of Family Code section 4058.

3

It does not.

Section 4058 defines income for purposes of determining support. It provides: “(a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: [1D (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. [1D (2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business. [ID (3) In the discretion , of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. [10 (b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children. [ID (c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.”