The Divorce Court May Consider a Parent’s Ability to Earn in Determining Child Support Awards

After a divorce proceeding, wife moved to southern California with the two minor children. Husband continued to work full-time while wife decided to teach part-time at a local college and pursue a second postgraduate degree. Husband petitioned the divorce court to modify the child support order and to impute to wife the income of a full-time school teacher even though she was only working as a part-time lecturer at a community college. The divorce court approved husband’s divorce lawyer’s request.

Wife’s divorce attorney appealed the divorce court’s order on the grounds that (1) it failed to articulate reasons for departing from the guideline formula, (2) imputing income was unsupported by substantial evidence, (3) as a matter of policy, the divorce court shouldn’t impute income to the supported parent, and (4) the modification of child support would violate the parties’ marital settlement agreement. On appeal, the court found in favor of husband’s divorce lawyer.

Wife accepted a part-time teaching job that paid her $824 per month and began taking courses towards a second masters, in the fine arts. Husband earned $3,081 per month from his job as a full time science teacher. In addition, husband took a summer job that earned him an additional $3,500. The wife testified that she had no intent to gain full time employment despite available positions for a teacher with her qualifications. The divorce court imputed a gross income of $2,646 per month, to wife and lowered husband’s child support obligation from $567 to $342.

The Court of Appeal explained that the divorce court had not departed from the guideline formula, but instead merely exercised its ability to “substitute earning capacity for actual income in applying the guideline formula.” Further, the court explained that parents do not have a right to divest themselves of the ability to earn at the expense of their minor children. The court decided that wife, could not use her “schooling” to avoid her obligations to contribute financially to her children and that husband had sufficiently shown there were full-time teaching positions available. Finally, the court explained that the “only qualification for discretionary imputation of income is that it be consistent with the children’s best interest.” Thus, the court found in husband’s divorce attorney’s favor and imputed a higher level of income to wife.

In Re Marriage of Labass & Munsee (1997) 56. Cal. App. 4th 1331