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A Divorce Court May Impute Income to a Parent Where the Parent Voluntarily Divested Himself of Earning Capacity Required to Pay Child Support

Father’s Orange County divorce lawyer filed a Request for Orders with the court to reduce his child support obligations because he lost his job as a commissioned salesman and his current job paid significantly less than the previous job. Mother opposed father’s divorce lawyer’s request and requested that the divorce court increase father’s child support obligations arguing that he had been fired because he had diverted the employer’s customers to his father’s competing business. Further, father’s employer had given him the opportunity to keep his job if he fully disclosed his misconduct and paid the employer restitution. Father refused. The divorce court denied father’s motion and instead increased his child support obligations by imputing to father the income he had earned prior to being fired by the employer. The Orange County divorce court imputed a monthly income of $24,159 to father and ordered father to pay monthly child support of $2,047. Father’s Orange County divorce attorney appealed the order.

The Court of Appeal in Orange County found that (1) father had the ability and opportunity to keep his job, and (2) his termination was “a voluntary divestiture of resources required for child support obligations” and (3) imputing income to father was in the best interests of the child. Further, the Court explained that father had the burden to show that he lacked the ability and opportunity to keep his job and lacked the ability to continue earning the same income that was imputed to him. The Court of Appeal determined that father had failed to satisfy his burden and the Court upheld the Orange County divorce court’s order and increased the father’s child support obligation.

The parent seeking to impute income need only show that the other parent has the ability to perform the job and the job was available to the parent. The Court explained that the Orange County divorce court has discretion to set child support obligations based on a parent’s earning capacity instead of the parent’s actual income if the divorce court determines the parent has the ability and opportunity to earn a higher income and it is in the best interests of the child. Thus, the Court of Appeal upheld the Orange County divorce court’s decision to impute income to the father based on the amount he had previously earned prior to being fired from his job.

In re Marriage of McHugh (2014) 231 Cal. App. 4th 1238