DaSilva v. DaSilva
119 Cal.App.4th 1030, 15 Cal. Rptr. 3d 59, 2004 Daily Journal DAR 7702 (2004)
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Rule of Law:
The calculation of a parent's timeshare percentage for child support purposes is based on the parent's respective periods of primary physical responsibility for the child, not merely on the hours of physical custody.
Facts:
- Jose and Sharon DaSilva were engaged in divorce proceedings involving a dispute over child support for their son, Justin.
- A key component of the child support calculation was the determination of each parent's timeshare percentage (H%).
- A significant amount of Justin's time was spent at school, away from both parents.
- Both Jose and Sharon shared the responsibility of transporting Justin to and from school.
- Jose was actively involved during school hours; he was listed on the school's emergency card, chaperoned school events, served as a field trip supervisor, and volunteered at the school.
Procedural Posture:
- Jose and Sharon DaSilva initiated divorce proceedings in the trial court, which resulted in a child support order.
- An initial appeal resulted in the appellate court remanding the case back to the trial court with instructions to make a factual finding to support its timeshare calculation.
- On remand, the trial court first calculated Jose's timeshare percentage as 42 percent.
- Several months later, the trial court, on its own motion, revised its calculation and reduced Jose's timeshare to 29.1 percent, based on its reading of a newly published appellate opinion.
- Jose (Appellant) appealed the trial court's revised ruling to the California Court of Appeal.
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Issue:
In calculating the timeshare percentage for child support, must a court base the calculation on the parents' respective periods of 'primary physical responsibility' rather than solely on the hours of 'physical custody'?
Opinions:
Majority - O'Leary, J.
No. In calculating the timeshare percentage for child support, a court must base the calculation on the parents' respective periods of 'primary physical responsibility' rather than solely on the hours of 'physical custody.' The statutory formula's 'H%' factor represents the approximate percentage of time a parent has primary physical responsibility for a child. Established case law, such as In re Marriage of Drake, confirms that this calculation is not limited to physical custody and can include time when the child is not physically with a parent, such as at school, provided that parent demonstrates they are primarily responsible for the child during that time. The trial court erred by misinterpreting this court's recent decision in In re Marriage of Rosen as changing this established rule. Rosen was a case where custody and responsibility were factually interchangeable and did not create a new legal standard limiting the calculation to physical custody hours.
Analysis:
This decision reaffirms and clarifies the established legal standard that calculating child support timeshare is a fact-intensive inquiry into parental responsibility, not a mechanical calculation of physical custody hours. It corrects a lower court's misinterpretation of recent precedent (Rosen), preventing the creation of a conflicting rule and ensuring consistency in family law. The case provides a clear multi-factor test for trial courts to use when apportioning responsibility for time a child spends in school or daycare. This impacts future litigation by emphasizing the need for parents to present specific evidence of their involvement and responsibility for their children during periods when the children are not in their direct physical care.
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