A Parent Does Not Have the Right to Divest Themselves of their Earning Ability at the Expense of their Children or Former Spouse

After a dissolution proceeding, husband agreed to pay wife $378 per month, per child, for child support until each child reached the age of 18 and $682 per month in spousal support. At the time of the divorce, husband was earning $3,250 and wife was unemployed. Husband’s divorce lawyer filed a motion to modify his spousal and child support obligations based on the fact that he quit his employment as a pharmacist to enter medical school. The divorce court denied the father’s divorce attorney’s motion to reduce/suspend spousal and child support payments until the completion of his medical degree. The divorce court explained the husband did not have the right to divest himself of his earning ability at the expense of his former spouse and two minor children.

Husband’s divorce lawyer appealed the decision and argued that the divorce court may only consider his earning capacity instead of his actual earnings, if the divorce court finds that he made a deliberate attempt to avoid financial responsibilities by refusing to seek gainful employment. The Court explained that when considering the spouse’s ability to work, willingness to work, and opportunity to work, and finds that only willingness is absent, then the divorce court has the discretion to impute a spouse’s earning capacity as opposed to their actual income as a basis for determining a spousal and child support award. The appellate court further explained that imputing a spouse’s earning capacity is proper when the supporting spouse willfully refuses to seek gainful employment.

Further, the Court decided that a finding of good faith by the husband does not prevent a divorce court from imputing the husband’s earning capacity in determining the spousal and child support orders. The appellate court concluded that a divorce court is not limited to imputing income in cases where a deliberate attempt to avoid support responsibilities was made. Thus, the appellate court agreed with wife’s divorce lawyer, and refused to modify husband’s spousal and child support orders.

In re Marriage of llas (1993) 12 Cal. App. 4th 1630