The statewide uniform child support guideline expressly gives trial courts discretion to impute earning capacity income to a parent in lieu of that parent’s actual income. Cal. Fam. Code §4058. Family Code Section 4058(b), in pertinent part, states,”(b) The Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”

Thus, whether earnings should be imputed to an unemployed parent is addressed to the trial court’s sound discretion.Marriage of Graham (2003) 109 Cal.App.4th 1321, 1326.

A trial court may consider earning capacity in determining spousal support, just as it may with child support. Marriage of Cheriton (2001) 92 Cal. App. 4th 269.

Subject to the child’s best interest, courts properly act within their discretion in imputing income from work to an unemployed parent where the parent: (a) has the ability to work (taking into account factors as age, occupation, skill, education, health, background, job experience, and qualifications), and has an opportunity to work, but lacks the willingness to work consistent with his or her ability and opportunity. Marriage of Smith (2001) 90 Cal.App.4th 74, 81-82;Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372-1373; Marriage of Eggers (2005) 131 Cal.App.4th 695, 699.

The “Regnery Rule” is essentially a judicial gloss on the words “earning capacity” as they appear in Family Code section 4058, subdivision (b). The Regnery court announced a three prong test before the capacity to earn standard may be applied. The three tests are: (1) ability to work; (2) willingness to work; and(3) opportunity to work which means an employer who is willing to hire. Marriage of Regnery (supra), 214 Cal.App.3d 1372-1373.

The authority to impute income based on earning capacity exists in some tension with the goal of uniform standards for families with similar circumstances and resources. Without evidence of ability or opportunity to earn the money, the power to impute income would easily devolve into a trial judge’s power to arbitrarily establish a support order at any given level, plucked from mid-air, just as long as it is over the level otherwise required by the payor parent’s actual taxable income.Marriage of Bardzik (2008) 165 Cal.App.4th 1292, 1302.

The court in Marriage of Smith held that for purposes of imputing income from employment, the opportunity work prong of the Regnery test has been defined as the substantial likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income. Id. at 108.

The basic rule regarding burden of proof is that the moving party who has the burden of showing a change of circumstances warranting modification. Marriage of Bardzik (supra) 165 Cal.App.4th at 1304. The burden of proof as to ability and opportunity to earn imputed income (or lack thereof) plays out differently depending on the status quo going into the modification proceeding. For example in the situation where the payor parent loses his or her job and seeks a reduction in court ordered support based on changed circumstances of lack of income, it will be the payor parent, as moving party, who bears the burden of showing a lack of ability and opportunity to earn income. Whereas that situation with another one relatively common in the published cases where the payor parent is the one seeking imputation of income to the custodial parent, based upon a recent decision of the custodial parent to quit work. In effect, in such cases the payor parent seeks an order lowering child support in light of a contribution only hypothetically made imputed to the custodial parent based on the custodial parent’s ability and opportunity to earn. Id. at 1305.

The court in Bardzik held that when a parent does have the burden of showing that the other parent has the ability and opportunity to earn at a given level, that burden does not include actually showing that the parent to whom the income would be imputed would have gotten a given job if he or she had applied. That court held that the rule is only common sense in that readers need only use a little imagination to think of all the ways that a parent with both ability to do a job and the opportunity to get it subtly sabotage a job application or interview. Id.

In Bardzik, after the parties divorced, mother filed a petition to modify child support. The father asked the court to impute income to the mother after she retired from the Orange County Sheriff’s department as a deputy. The trial court denied father’s request on the basis that he failed to meet his burden of proof and that the evidence was insufficient to impute income to mother.

~Elizabeth Briceno-Velsco, Esq.

Law Offices of Vincent W. Davis & Associates

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