Marriage of Sakov and Adut CA1/1

Filed 6/10/13 Marriage of Sakov and Adut CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of JOSHUA SAKOV and ESTER ADUT.

JOSHUA SAKOV, Respondent, v. ESTER ADUT, Appellant; A131936 SAN MATEO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, (San Mateo County Super. Ct. No. FAM-071155) Intervener and Respondent.

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.1 While a trial court has authority to impute income to an

1 See Family Code section 17400, subdivision (k), and section 17407.

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.2 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. 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.