A Spouse’s Subjective Motivation for Reducing Available Income is Irrelevant to the Divorce Court’s Ability to Consider a Payor’s Earning Capacity in Determining Child Support

After the divorce, father and mother were awarded joint physical and legal child custody of their five children. The parties’ divorce lawyers filed seven separate appeals. Ultimately, father was awarded sole legal and child physical custody of all five children and was permitted to relocate with the children to Indiana. Mother was awarded supervised eight-hour visits with the children once every two months. Father’s divorce lawyer filed an order to show cause requesting child support for four minor children based on wife’s earning capacity. Father’s divorce lawyer showed financial hardship and that he had filed for bankruptcy. His divorce attorney requested the divorce court impute to mother $43,000 annually based on her earning capability because he believed mother had purposefully accepted a lower paying job in anticipation of the child and spousal support determination. Wife gave birth to three additional children and claimed she was unable to achieve her earning capacity because she had to care for the three infant children. The divorce court granted father’s request to impute income to mother because the court found mother had to contribute to the welfare of all of her children and not solely care of the three residing with her. The divorce court imputed $3,200 per month of income to mother and awarded father a monthly child support order of $1,248. Mother’s divorce lawyer appealed the order.

On appeal, the Court explained that a divorce court is not limited to imputing income only when there is a deliberate attempt to avoid support responsibilities. The Court explained a parent’s earning capacity versus their actual income may be considered in determining child support orders provided it is consistent with the best interests of the child. The Court held that the subjective motivation for reducing available income is irrelevant to the divorce court’s ability to consider a payor’s earning capacity. The Court explained that as long as a parent has the ability and opportunity to earn then a divorce court has the discretion to consider the earning capacity provided it is consistent with the best interest of the child. The Court determined that the divorce court did not abuse its discretion because mother had both an opportunity and capability to work. Thus, Che court upheld the divorce court’s decision to calculate child support obligations based on an imputed income to mother and ruled in favor of Husband’s divorce lawyers.

In re Marriage of Hinman (1997) 55 Cal.App.4th 988