McQuoid v. Jorgensen

Opinion

POCHÉ, J. Appellant David McQuoid (hereafter husband) appeals from a judgment of dissolution ending his marriage to Margo Jorgensen (hereafter wife) and from the order directing him to pay child support of $500 per month for each of their two minor children, $500 per month in spousal support, and $2,000 of wife’s attorney fees. We affirm the judgment and the order.

[1357]As outlined in the statement of decision the parties were married for 14 years and have 2 young daughters. In 1978 wife, who is a registered nurse, ceased working. Shortly before trial of the dissolution she was hired as a nurse in a probationary position at a net salary of about $2,000 a month.

Husband is a self-employed consultant in the computer industry. The compensation and expense declaration he filed with the court gave his annual salary for the previous year as $54,000. He also stated, however, that in the first six months of the present year he had averaged a gross monthly income of only $3,500 per month. At trial husband was unable to provide any documentary evidence of his income after 1981. He testified that during the last six months he had spent substantial time making repairs on real property owned by the daughters, but containing three rental housing units one of which husband was occupying. The three units gross a total rent income of $1,225 per month.

From 1981 on neither husband nor wife filed tax returns. As of the time of trial wife had retained a tax attorney and was attempting to remedy her tax delinquencies which amount to $15,000. Husband had likewise received notification from the Internal Revenue Service that it would be pursuing the collection of his back taxes for the years 1980, 1981 and 1982 in a sum exceeding $100,000.

Discussion

Husband contends that the trial court erred in applying Civil Code section 4721.1 That section provides for determining the parental ability to pay mandatory minimum child support. It directs the trial court to ascertain “annual net disposable income of each parent” which is “computed by deducting from his or her annual gross income the actual amounts attributable only to . . . state and federal income taxes attributed to the parent. Federal and state income tax deductions shall bear an accurate relationship to the tax status of the parties . . . .” (§ 4721, subd. (a)(3)(A).) Husband argues that he was entitled to deduct from his gross income his tax liability, regardless of whether he pays those sums to the taxing authorities. In short he construes the language “taxes attributed to the parent” to mean tax liability as accrued regardless of whether the sums are in fact paid in taxes.