CA-4 affirms that a serviceman’s BAH and BAS are includable in the calculation of support

IN RE: the Marriage of SOLOMAN ROBERT and CAROL ADRIANNE STANTON, D056713

Affirming the decision of San Diego Superior Court Judge Patricia Garcia, the California Fourth Appellate District Court of Appeal held, November 24, 2010, that the military basic allowance for housing (BAH) and basic allowance for subsistence (BAS) were includable in a soldier’s gross income for the purposes of calculating child and spousal support obligations.

San Diego residents Soloman Stanton, active-duty Naval serviceman and his wife, Carol, were granted dissolution, effective March 2008. Spousal and Child support amounts were stipulated to in their Marital Settlement Agreement (MSA), but at a hearing September 1, 2009, Judge Garcia granted Soloman’s order to show cause (OSC) to set aside the MSA for equitable reasons, save for the termination of marital status. The Court issued temporary support orders, factoring in BAH and BAS.

On October 29, 2010, Soloman filed an OSC to reduce child support followed by a petition to modify spousal support on November 4. His main argument was that including BAH and BAS in his gross income violated the fedeal preemption doctrine as military allowances are exempt from federal taxes and not subject to garnishment for support arrears under federal law.

The Court denied Saloman’s OSC on December 3, stating,”[I]f it looks like income, it is income no matter how it’s paid to you. And this court has always considered BAH and BAS to be income.” Court also denied Salomon’s motion to modify child support.

On appeal, CA-4 affirmed Judge Garcia’s decision, holding that the federal preemption doctrine is inapplicable to California Support Law under the Rose doctrine:

“We have consistently recognized that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ … ‘On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that state law be pre-empted.’ … Before a state law governing domestic relations will be overridden, it ‘must do “major damage” to “clear and substantial” federal interests.’ ” (Rose v. Rose (1987) 481 U.S. 619, 625)

Saloman’s appeal was denied because he failed to cite any direct enactment showing Congress intended to disallow the inclusion of BAH and BAS in a party’s gross income for support calculation. The appellate Court further noted that CFC §4053, which lists the principles to be followed by the Court in setting a child support award, says guideline takes into account “actual” income, not “taxable” income.

Full transcript of the Court’s decision can be found here.