Rodriguez v. Smit CA1/3

Filed 6/25/13 Rodriguez v. Smit CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

ROBERT D. RODRIGUEZ, Plaintiff and Appellant, A136186 v. MARGARETHA M. SMIT, (Contra Costa County Super. Ct. No. D10-00553) Defendant and Respondent.

Robert D. Rodriguez appeals an order for child support of his four-year-old daughter who lives with her mother, Margaretha Smit, in Nevada. He contends the court erred in determining the parents’ income and expenses when setting the amount of child support. We find no error and shall affirm the order.

STATEMENT OF FACTS1 Rodriguez and Smit are attorneys licensed to practice in California. In February 2010, Rodriquez, in propria persona, filed a petition to establish a parental relationship with a child born to Smit in January 2009. Smit retained counsel. The parties stipulated to paternity in September 2011 and, two months later, Smit filed a motion for child support. The court awarded temporary child support of $1,255 monthly and set a hearing date to determine ongoing support.

1 The record consists of a short appellant’s appendix and reporter’s transcript. Rodriguez alone filed a brief.

1

The parties submitted income and expense declarations in advance of the April 2012 hearing. Smit reported that she was laid off work at an Oakland law firm in January 2012 and was currently unemployed. She listed no income and monthly expenses of $5,562 for herself and three children. Rodriguez declared he was self-employed as an attorney with gross business income over the prior three months of $46,300. Rodriguez claimed business expenses of $43,651, leaving only $2,649 in net profit over the three- month period. Rodriquez estimated his average monthly income over the prior twelve months to be $2,650, with personal expenses for himself, his wife and a step-daughter exceeding his income. He did not provide a copy of his 2011 tax return, only a 2010 Schedule C detailing profit or loss from a business. That form showed high business expenses resulting in a loss. The parties’ declarations and economic situations were examined at the hearing. Smit testified that she moved to Reno, Nevada in February 2012 to permit easier visitation with her two older children whose father lives in Truckee, California and has shared custody. Smit sold her California house and bought a less expensive house in Nevada. She and her children were living on proceeds from the sale until she could pass the Nevada bar exam and secure employment as an attorney. Smit enrolled for the July 2012 bar exam and was preparing with a classroom study program she attended weekday mornings and self-study in the afternoons. Smit testified that she also intended to volunteer part-time with a family law organization while studying for the bar exam to network with local attorneys in hope of future employment. Smit wanted to put the parties’ child in day care to allow her time for study and volunteering in preparation for work. On cross-examination, Smit said she applied, without success, for several attorney positions after she was laid off. She expected to obtain employment after obtaining a license to practice law in Nevada. Rodriguez was cross-examined at length about his income and expense declaration, particularly his claimed business expenses. On a monthly basis, Rodriguez averaged $15,433 in revenue from his law practice with claimed expenses of $14,550. Among those expenses, Rodriguez declared business travel expenses of $2,445. He had