In re the Marriage of CHRISTIAN and VAUGHN de GUIGNE. CHRISTIAN de GUIGNE, Appellant, v.
VAUGHN de GUIGNE, Respondent.
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
97 Cal. App. 4th 1353; 119 Cal. Rptr. 2d 430;
April 30, 2002, Decided
Rehearing Denied May 24, 2002.
PRIOR HISTORY: Superior Court of San Mateo County. Super. Ct. No. F046396. Donald B. King,
Temporary Judge. **
** Pursuant to California Constitution, article VI, section 21.
COUNSEL: Fancher & Wickland, Paige Leslie Wickland; Norris & Rossi and Lana L. Norris for
Hersh Family Law Practice, Jill Hersh and Jenny Wald for Respondent.
JUDGES: Opinion by Corrigan, J., with McGuiness, P. J., and Parrilli, J., concurring.
OPINION BY: Corrigan
Here we hold the trial court did not abuse its discretion in setting child and spousal support amounts
that exceed appellant's total monthly income. Substantial evidence supports the conclusion that
appellant's extensive property holdings and the existence of special circumstances permit a deviation
from codified support guidelines.Appellant contends that the trial court exceeded its authority by
effectively forcing him to sell his ancestral home and other inherited separate property to perpetuate
an excessive level of marital spending. Appellant asserts that the trial court also erred in ordering
him to make additional support payments for certain housing and educational expenses.
We modify the judgment as to the additional payments ordered, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Christian and Vaughn de Guigne were married in 1984, when Christian was 47 years old and Vaughn
was 30. n1 They have two children: Allison, born in 1985, and Eleanor, born in 1989. The couple
separated in November 1996. n1 Because the parties share a common surname we use their given
names to avoid confusion.Christian was born into wealth and social prominence. His family home is a
16,000-square-foot Hillsborough mansion built by his grandfather in 1918. The residence is
surrounded by 471/2 acres of land containing hiking trails, streams, wildlife, and gardens, in a setting
of extraordinary quiet and privacy. The house has multiple bedrooms, 11 bathrooms, a ballroom,
pavilion, formal dining room, library, and swimming pool. It contains valuable artwork, jewelry,
furnishings and other items of personal property collected by Christian's parents and grandparents.
When Christian and Vaughn met in the early 1980's, Christian was not employed and had not
worked since 1972. He relied on income from securities and family trusts. From 1964 to 1984, he
lived in a Telegraph Hill house purchased with money from his father. Vaughn was also born in
Hillsborough in very comfortable circumstances. However, due to her parents' divorce, Vaughn's
standard of living was reduced when she was a teenager. Although she had a master's degree in art
therapy when she met Christian, Vaughn was doing part-time volunteer work and was supported by a
stock portfolio established by her father.Christian inherited the Hillsborough property and its
contents. He and Vaughn moved into the mansion shortly before their marriage and lived there
together until Christian moved out in 1996. The family maintained an opulent lifestyle. The house
was staffed by two housekeepers, three gardeners, a laundress, chef, child care provider and a
part-time chauffeur. The de Guignes frequently took costly vacations, and maintained multiple club
memberships. The children attended private school and engaged in extracurricular activities
including horseback riding, tennis and piano lessons, various other sports activities, and overnight
camps. Vaughn purchased expensive clothing for herself and the girls, and incurred significant
monthly expenses for personal services such as hair care, makeup and massage.
According to Vaughn, Christian insisted on a lifestyle similar to that enjoyed by his parents and
expected Vaughn to emulate the very high standards of dress and fashion set by his mother.
Christian strenuously disputed this assertion and recounted unsuccessful attempts to curtail his
wife's spending. It is clear, however, that neither parent worked and the court found that annual
household expenses averaged $ 450,000, consistently exceeding Christian's annual income of $
240,000 from securities holdings and family trusts. Christian had sole control over the family
finances and consistently liquidated his separate property assets during the marriage. Between 1986
and 1997, Christian withdrew over $ 4 million from his securities account. He also sold an antique
knife collection for $ 425,000 and his Telegraph Hill house for $ 725,000. Some of the proceeds were
used to meet household expenses.The marriage generated no community property. Christian testified
that his separate property Hillsborough estate was worth $ 8.5 million. Vaughn's appraisal experts
placed the value at $ 25 million to $ 30 million if the house and land were sold as a unit. According to
expert testimony, the value of the home on seven and one-half acres would be $ 7.5 million to $ 10
million, and the remaining 40 acres would be worth $ 15 million or more. The real estate is by far
Christian's most significant asset. The corpus of Christian's primary family trust was valued at an
estimated $ 3.8 million at the time of trial, but these assets are not under Christian's control.
Vaughn's securities account was worth $ 260,000 at the time of trial.
The issues of child and spousal support were tried before a retired judge sitting pro tempore by
stipulation of the parties. Vaughn sought an award of child and spousal support in excess of $ 32,000
per month, in addition to the costs of housing and household help which she contemplated would be
added to Christian's support obligation once her permanent residence was determined. Applying
statutory guidelines to his annual trust and securities income of $ 240,000, Christian requested an
order for child support of $ 4,844 per month and monthly spousal support of $ 6,706. In addition, he
expressed a willingness to pay for the children's tuition and other education expenses. Subject to
certain conditions, he proposed that Vaughn and the children remain in the Hillsborough residence,
with reduced household staff. On his income and expense declaration, Christian listed his own
monthly living expenses as $ 13,313. This sum included $ 1,470 for dues in six private clubs.
The trial court ordered Christian to pay $ 15,000 per month in child support and $ 12,500 per month
in spousal support beginning when Vaughn obtained rental housing. The court also required
Christian to pay all the children's private school tuition and tutoring expenses, and to pay Vaughn a
lump sum of $ 30,000 to cover rental deposits and furniture purchases. A judgment of dissolution in
accordance with these terms was entered in May 2000, and this timely appeal followed.
Vaughn challenges our jurisdiction to hear Christian's appeal under Code of Civil Procedure section
904.1. According to Vaughn, the judgment is neither final nor appealable because it includes a
provision specifying that Vaughn's prospective move into rental housing might constitute a changed
circumstance warranting modification of support. Initially, the trial court expressed reluctance to set
permanent support terms without knowing what Vaughn and the children's actual expenses would be.
The modification provision incorporated in the final judgment addresses this uncertainty.
(1) Inclusion of this language does not render the judgment nonappealable. The judgment created
enforceable rights and obligations modifiable as provided by statute. Any support judgment may be
modified in light of changed circumstances. (See Fam. Code, § 3651.) n2 In any event, even
temporary support orders are appealable. ( In re Marriage of Skelley (1976) 18 Cal. 3d 365, 367-368
[134 Cal. Rptr. 197, 556 P.2d 297].) The judgment in this case was final in form and substance, and
thus appealable. n2 Unless otherwise indicated all further statutory references are to the Family
II. Child Support
Statutory guidelines regulate the determination of child support in California. (See §§ 4050-4203; In
re Marriage of Fini (1994) 26 Cal. App. 4th 1033, 1040 [31 Cal. Rptr. 2d 749].) The guideline amount
of child support, calculated by applying a mathematical formula to the relative incomes of the
parents, is presumptively correct. (See §§ 4055, 4057, subd. (a).) That presumption may be rebutted
by "admissible evidence showing that application of the formula would be unjust or inappropriate in
the particular case, consistent with the principles set forth in Section 4053 . . . ." (§ 4057, subd. (b).)
Section 4053 makes clear that the court's paramount concern in adhering to or departing from the
guideline amount must be the interests of the children: "(a) A parent's first and principal obligation
is to support his or her minor children according to the parent's circumstances and station in life[;]
[P] (b) Both parents are mutually responsible for the support of their children[;] [P] . . . [P] (d) Each
parent should pay for the support of the children according to his or her ability[;] [P] (e) The
guideline seeks to place the interests of children as the state's top priority[;] [P] (f) Children should
share in the standard of living of both parents. Child support may therefore appropriately improve
the standard of living of the custodial household to improve the lives of the children. . . ."
Here, the court awarded child support in an amount three times greater than the guideline provides,
citing section 4057, subdivision (b)(5) as the basis for this departure. That provision permits a
deviation from the guideline if the court finds that "[a]pplication of the formula would be unjust or
inappropriate due to the special circumstances of the particular case." The question, then, is whether
special circumstances support the deviation here.The court found that a $ 4,844 per monthly child
support award would subvert the overriding principle behind the support guideline. It would not serve
the interests of the de Guigne children, which must remain paramount. Those interests were best
protected, the court found, by shielding the children as much as possible from a drastic reduction in
their standard of living. The order was not intended to maintain the family's former standard. The
court explicitly found that $ 27,500 per month in basic support would necessitate a substantial
reduction in the standard of living for both parents and for their children. Christian disputes that the
order would result in a decreased standard of living for Vaughn and the girls. However, his
comparison between the support award and historical spending patterns overlooks the significant
rental expenses that Vaughn will incur when she leaves the Hillsborough residence.
(2) Our review is limited to determining whether the court's factual determinations are supported by
substantial evidence and whether the court acted reasonably in exercising its discretion. ( McGinley
v. Herman (1996) 50 Cal. App. 4th 936, 940-941 [57 Cal. Rptr. 2d 921].) We do not substitute our
judgment for that of the trial court, but confine ourselves to determining whether any judge could
have reasonably made the challenged order. ( In re Marriage of Aylesworth (1980) 106 Cal. App. 3d
869, 876 [165 Cal. Rptr. 389].) We answer these questions in the context of Christian's multifaceted
attack. He argues that the court erred in concluding that special circumstances exist here; that a
court may deviate from the guidelines only when it identifies specific and quantifiable unmet needs;
and that the court lacked jurisdiction over his separate property.
B. Special Circumstances
(3a) The parties cite no published decision either authorizing or forbidding reliance on special
circumstances as a basis for an award exceeding guideline amounts. Section 4057 (b) provides that
any deviation from the guidelines must be consistent with the principles in section 4053, which
designates interests of the children as a top priority and provides that parents should support their
children at a level commensurate with their ability. These principles seem primarily to mitigate
against downward deviation.Further, section 4057 does not catalogue all of the special circumstances
in which the formula amount would be inappropriate. The words "including, but not limited to"
reflect the Legislature's intent to give courts broad discretion to determine when such circumstances
apply. According to the bill's author, 1993 legislative amendments putting section 4057 in its present
form were designed to clarify that courts retain their "traditional discretionary authority" to adjust
child support orders according to the circumstances of each case. (Letter from Sen. Gary Hart, appen.
to Court of Appeal's decision in In re Marriage of Fini, supra, 26 Cal. App. 4th at pp. 1045-1046.)
According to Christian, marital overspending is not a special circumstance warranting application of
section 4057. For this proposition, he relies primarily on In re Marriage of C. (1997) 57 Cal. App. 4th
1100 [67 Cal. Rptr. 2d 508] (Marriage of C.), In re Marriage of Simpson (1992) 4 Cal. 4th 225 [14 Cal.
Rptr. 2d 411, 841 P.2d 931] (Simpson), and In re Marriage of Smith (1990) 225 Cal. App. 3d 469 [274
Cal. Rptr. 911] (Smith). In Marriage of C., the husband argued a guideline support award would
result in a substantial reduction in his standard of living. The appellate court rejected his claim that
this reduction was a special circumstance justifying a downward departure from the guideline
amount. Observing that child support almost inevitably reduces the payor's standard of living, the
court found that recognizing such an exception would undermine the presumption that guideline
amounts are appropriate by inviting "inquiry in numerous cases as to whether the particular
reduction in living standard constitutes an 'injustice.' " ( Marriage of C., supra, at p. 1107.)
Marriage of C. does not assist Christian. The court there was not faced with the question of how
guideline support would impact the children's standard of living, but instead with how payment would
affect the supporting parent. In fact, the Marriage of C. court stressed that the statutory scheme
seeks to mitigate the financial impact of divorce on the children, not the parents. ( Marriage of C.,
supra, 57 Cal. App. 4th at pp. 1106, 1107, fn. 3.) Christian's suggestion that a drastic reduction in the
children's lifestyle can never constitute a special circumstance flies in the face of this statutory
priority. n3 n3 The parties also cite Johnson v. Superior Court (1998) 66 Cal. App. 4th 68 [77 Cal.
Rptr. 2d 624], Estevez v. Superior Court (1994) 22 Cal. App. 4th 423 [27 Cal. Rptr. 2d 470] and White
v. Marciano (1987) 190 Cal. App. 3d 1026 [235 Cal. Rptr. 779] for conflicting propositions. These cases
concern the discoverability of detailed lifestyle information about the payor spouse, and are germane
only insofar as they confirm that the supporting parent's ability to pay, not his or her postseparation
standard of living, is of paramount import in determining reasonable child support.Christian's
reliance on Simpson and Smith is likewise misplaced as both are readily distinguishable. Each
involved a couple that lived on the income produced by the husband's salary. In order to support the
couples' chosen lifestyle the husbands worked extraordinary hours. The wives maintained that,
following dissolution, their support levels should reflect the marital standard. Both couples lived
beyond their means, in the sense that they depended upon the income derived from a salary and that
exceptionally burdensome work schedules were required to generate the salary needed. Both the
Simpson and Smith courts concluded that a lifestyle supported in such a fashion was unreasonable.
This case presents a different paradigm. Here the de Guignes did not support themselves by working.
Christian held a variety of assets, some of which produced income and some of which were sold to
generate liquid capital. Christian financed the family's lifestyle in this fashion throughout the
marriage, generating well over $ 4 million. By the time of the dissolution non-real-estate sources had
been substantially depleted. The trial court concluded that throughout the marriage, Christian had
chosen to live on money beyond that generated by investments. Thus, it was inappropriate that
Christian's support obligation be based on that investment income alone, while he sheltered and
benefited from substantial assets that produced no income. Rather, the court found it more
consistent with the statutory principles of child support for the court to consider all of Christian's
assets in determining his earning capacity.In evaluating the court's decision, In re Marriage of
Destein (2001) 91 Cal. App. 4th 1385 [111 Cal. Rptr. 2d 487] (Destein) is instructive. It is factually
similar, albeit on a lesser scale than that encountered here. During their marriage, the Desteins
enjoyed a "lavish" lifestyle, living in a $ 1.2 million home, employing a full-time housekeeper and
spending an average of $ 14,500 monthly. The husband was not gainfully employed during the
marriage, relying for living expenses on his "substantial wealth and property." In his income and
expense declaration, the husband listed over $ 6 million in stocks, bonds, retirement accounts and
real estate. He listed monthly expenses of $ 14,488 with an annual income of $ 65,555. An accountant
testified that the husband's yearly income should be deemed to be $ 328,066, based on income as a
Lloyd's of London principal, vineyard rental income, IRA and other investments and real estate
valued at $ 2.5 million. The realty figure excluded the value of the family home. The real estate
income value was arrived at by figuring the amount to be realized from sale and assuming that the
amount was invested at a 6 percent annual return.The trial court based its child support award, in
part, on earning capacity attributed to the husband's real estate holdings. In upholding the award the
appellate court noted that section 4058 expressly authorizes the court to attribute income even if
there is no evidence that a supporting parent has taken steps to reduce his or her income. (Destein,
supra, 91 Cal. App. 4th at p. 1392.) It agreed with the holding of In re Marriage of Dacumos (1999) 76
Cal. App. 4th 150 [90 Cal. Rptr. 2d 159] that the earning capacity doctrine embraces the ability to
earn from capital as well as labor. It also observed that the only limitation on a court's discretion to
apply the earning capacity doctrine to investment assets is the best interest of the child. (Destein,
supra, at p. 1394, citing § 4058, subd. (b).) It embraced the observation of the Dacumos court that:
"Just as a parent cannot shirk his parental obligations by reducing his earning capacity through
unemployment or underemployment, he cannot shirk the obligation to support his child by
underutilizing income-producing assets." Here, as in Destein, the trial court reasonably considered
assets beyond Christian's securities and trust income in evaluating his overall earning capacity.
(Dacumos, supra, at p. 155.)The recent case of In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269
[111 Cal. Rptr. 2d 755] follows the same approach. In Cheriton, although the father owned over $ 45
million worth of stock and stock options, the trial court refused to consider those holdings when
determining appropriate child support. The Cheriton court concluded the refusal was erroneous. In
excluding those assets the court allowed the father to avoid his obligation to provide support
commensurate with his ability and station in life. The resulting support order thus offended the
policies underlying the support guideline.
Disparity in Living Arrangements
The trial court found that application of the formula would compel the children to reside in rental
housing while Christian continued to live in his separate property mansion and enjoy the use of $ 25
million to $ 40 million in non-income-producing assets. Christian attacks the court's conclusion that
these facts constitute a special circumstance. According to Christian, such circumstances are not
special because an imbalance between the separate property assets of the spouses at the end of a
marriage is not unusual, nor is it uncommon for one spouse to live in rental housing while the other
lives in a separate property home. Christian's characterization of the operative facts, however,
glosses over the huge quantitative disparity that lies at the heart of the trial court's decision.
The Hillsborough property is not a typical residence. It rests on substantial acreage situated in one of
the most exclusive and desirable locations in the Bay Area. According to credible expert testimony,
selling 40 acres of the property and investing the proceeds could yield sufficient income to shield the
children from the full financial impact of the divorce, yet allow Christian to retain his ancestral home
on seven and one-half acres of land. In contrast, if the trial court closed its eyes to this potential
source of income, and ordered $ 4,844 per month in child support, the type of housing and lifestyle
available to the children would be vastly different than that available to their father. We cannot say
that the trial court abused its discretion in considering these imbalances as special circumstances. n4
n4 Christian contends that Vaughn cannot complain about being forced into lesser housing because
he proposed that the children remain in the Hillsborough home. However, as the trial court found,
the conditions attached to Christian's proposal, including reduced household help and limitations on
Vaughn's ability to refurbish and use the property, made this alternative unworkable.
C. Justifying Increases over Guideline Amount
(4) Christian contends that, even if special circumstances exist, the court abused its discretion by
failing to tie the elevated child support levels to specific unmet needs of the children. According to
Christian, the statute contemplates that "the court begins with guideline support and increases it
only with reference to specific unusual needs." Although we agree that a court cannot arbitrarily
impose an above-guideline support amount, we decline to read into the statute a requirement that
each dollar above guideline must in all cases be earmarked for a specific purpose. The only statutory
requirement when a court departs from the guidelines is that specified in section 4056, subdivision
(a). That provision calls for specific articulations either in writing or on the record of the guideline
amount, the reasons for a deviation and how the deviation is consistent with the children's best
interest. the trial court identifies a child's unusual need as a special circumstance under section 4057,
subdivision (b)(5)(C), the increase allowed should, of course, be limited to covering the expense
involved. This was not such a case. Here, the court was not focusing on specific unmet needs, but was
attempting to mitigate an overall decline in the children's standard of living. The $ 15,000 child
support awarded was rationally related to the children's predissolution standard of living and
expenses, and to Christian's ability to pay. Substantial evidence supports the court's factual findings.
D. Reliance on Separate Property
(3b) Christian argues that the court's order improperly requires him to pay support from his separate
property. His argument misses the mark for two reasons. First, this marriage produced no
community property. Any order would be satisfied from Christian's separate property, just as that
property supported the family during the marriage. The fact that no community property came from
the marriage does not relieve Christian of his support obligation.
Second, Christian urges that the court "has no jurisdiction" over his separate property. He cites the
proper rule in the wrong context. During a dissolution proceeding, the court must make any number
of decisions. Among these are division of community property and determination of postdissolution
child and spousal support. In dividing the marital estate, the court's authority is limited. The court
has jurisdiction to divide community property and to confirm separate property to each spouse. ( In
re Marriage of Braud (1996) 45 Cal. App. 4th 797, 810 [53 Cal. Rptr. 2d 179].) While the court can
confirm one spouse's separate property, it cannot award that property to the other, nor can it require
a spouse to give or sell his or her own separate property to equalize a community property division. (
In re Marriage of Buford (1984) 155 Cal. App. 3d 74, 78 [202 Cal. Rptr. 20].) Once community
property has been divided and separate property confirmed, the dissolved marriage gives rise to two
separate estates, each belonging to a newly single parent. Prospectively, all support will be paid from
the supporting parent's separate property, whether that property comes from premarital holdings, a
division of community property, salary or other income earned after the dissolution.
(3c) Christian urges that his daughters should live on a much reduced level based solely on the
income his investments and trusts generate. His argument overlooks several key facts. The reduced
lifestyle is very different from the one he consistently chose to provide for his children throughout
their life. He never elected to support his family based on his investment income alone. He will be
able to retain a property worth millions of dollars and continue to live in an exceptionally comfortable
setting as a result. The trial court's order does not force Christian to work exhausting hours, or any
hours at all. Instead he is required to continue supporting his family at a level approaching the one
he established and maintained over many years, to the extent his circumstances make possible. He
may choose to meet this obligation in a variety of ways. Among his options are working, continuing
to alienate assets or converting some holdings to produce income.Section 4053 gives a court great
latitude in applying its principles to individual cases. In outlining relevant considerations, the
Legislature did not limit the guidelines simply to parental income from salary, return on investment,
or from any other particular source. Rather, it adopted the broader concepts of station in life, ability
to pay, and standards of living.The court considered Christian's circumstances and station in life, his
ability to pay support, the best interests of his children and the degree to which his daughters will
share in his own standard of living. The special circumstance operative here is not just that the de
Guignes lived opulently during the marriage, but also that Christian has the ability to continue to
support his children at quite a comfortable level consistent with his station in life. The court
concluded it would not be in the children's best interest to have their lives changed so radically while
their father sheltered, and continued to enjoy, a substantial asset that produced no income.
We are not called upon to determine whether we would have made such an award, but whether any
judge could reasonably have done so. Based on this record we cannot conclude the order exceeds the
bounds of reason. (Smith, supra, 225 Cal. App. 3d at pp. 479-480.)
III. Spousal Support
(6) In challenging the court's $ 12,500 monthly spousal support award, Christian reiterates his
argument that marital expenditures cannot be used as a reference point because the family was
living beyond its means during the marriage.A family court has broad discretion to determine an
amount of spousal support that is "just and reasonable, based on the standard of living established
during the marriage." (§ 4330.) " 'A trial court's exercise of discretion will not be disturbed on appeal
unless, as a matter of law, an abuse of discretion is shown--i.e.,--where, considering all of the
relevant circumstances, the court has "exceeded the bounds of reason" or it can "fairly be said" that
no judge would reasonably make the same order under the same circumstances. [Citations.]' "
(Smith, supra, 225 Cal. App. 3d at pp. 479-480, quoting Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 1989) P 6:79, p. 6-96.14.) In Smith, a spousal support case on which
Christian relies, the Court of Appeal upheld the trial court's discretion to attach reduced significance
to a marital standard of living based on excessive work hours. (Smith, at pp. 493-495.) Smith does not
hold that a marital living standard attained by working extra hours or liquidating wealth can never be
a factor in setting spousal support.Here, Christian estimated that he would need approximately $
150,000 per year to live on if he moved back into his Hillsborough residence and reduced his
expenses. We cannot say that it was an abuse of discretion for the trial court to order the same level
of support for Vaughn, who will have to cover housing costs out of that amount.
IV. Additional Support
The trial court's support order included two additional elements that Christian contends are
unauthorized by statute: (1) a lump-sum award of $ 30,000 (comprised of $ 10,000 in child support
and $ 20,000 in spousal support) for payment of any required rental housing deposit, with the
remaining balance to be used for purchasing furniture; (2) a requirement that Christian pay 100
percent of the children's private school tuition and tutoring. We agree in large part with Christian's
contentions. (7) Regarding child support, a trial court has no discretion to fashion its own add-ons in
the absence of statutory authorization. ( Boutte v. Nears (1996) 50 Cal. App. 4th 162, 166 [57 Cal.
Rptr. 2d 655]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2001) P
6:293.5, p. 6-132 [§ 4062 add-on items are exclusive].) We find no statutory authorization for the
portion of the $ 30,000 rental deposit/furniture payment designated by the trial court as "child
support." (See §§ 4061-4062.) No such authorization is required, however, for that portion of the
payment designated as "spousal support." (See generally In re Marriage of Benjamins (1994) 26 Cal.
App. 4th 423, 430-431 [31 Cal. Rptr. 2d 313] [for the proposition that spousal support encompasses a
wide variety of payments for spouse's benefit].) (8) However, spousal support is limited to payments
for the supported spouse's future living expenses. ( In re Marriage of Garcia (1990) 224 Cal. App. 3d
885, 892 [274 Cal. Rptr. 194].) To the extent that rental deposits cover first and last month's rent or
refundable security deposits, Christian is entitled to a credit for these payments if Vaughn recovers
them in the form of a refund or rent credit.Section 4062 specifically authorizes as additional child
support "[c]osts related to the educational or other special needs of the children." However, section
4061 specifies that any amounts ordered to be paid under section 4062 must either (1) be apportioned
one-half to each parent; or (2) if either parent objects to such apportionment and the court finds it
appropriate, be divided in proportion to the parents' respective incomes adjusted as specified for child
and spousal support payments. (§ 4061, subds. (a), (b), (c), (d).) In this case, apportionment based on
the parties' adjusted incomes would have resulted in apportioning 100 percent of these costs to
Vaughn rather than to Christian. Accordingly, we agree with Christian that the order regarding
educational expenses is in error. It is plain from the judgment that the trial court would not have
exercised its discretion to order Vaughn to pay 100 percent of these expenses, and Christian made no
objection to paying at least some portion of these expenses. We therefore modify the judgment to
provide that Christian and Vaughn share equally in private school tuition and tutoring expenses.
We modify the judgment as follows: (1) appellant's obligation to make a lump-sum payment for
rental deposits and furniture is reduced to $ 20,000 in spousal support only, with appellant to receive
timely credit against his spousal support obligations for any portion of the lump-sum payment the
landlord returns or applies to cover rent; (2) the children's private school tuition and tutoring
expenses shall be paid equally by each parent. In all other respects, the judgment is affirmed. Each
party to bear its own costs on appeal.
McGuiness, P. J., and Parrilli, J., concurred.
A petition for a rehearing was denied May 24, 2002.
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