Wednesday, December 2, 2009

THE BURDEN OF PROOF IN IMPUTATION OF EARNING CAPACITY IN CHILD OR SPOUSAL SUPPORT CASES

DONALD F. CONVISER, Certified Family Specialist, owner of WARNER CENTER LAW OFFICES in the WARNER CENTER area of the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County, offers this article relating to the burden of proof on imputation of earning capacity in child or spousal support cases.

Imputation of earning capacity is the Court's way of treating a party as earning a living pursuant to the introduction of evidence of ability to earn and opportunity to earn [even though that party may not be earning a living and that he/she might not be able to land a job], for the purpose of considering imputed income in determining chid support or spousal support.

When a party in a child support or spousal support case is unemployed or underemployed, that factor can have a significant influence on the Court in its determination of Guideline support.

Without more, the Court is likely to treat an unemployed party as having zero ($0) income and utilize that figure in its Guideline support calculations. If the unemployed party is the supported party, zero income would ordinarily result in a high support figure - unless income is imputed to that party.

If the unemployed party's Income and Expense Declaration reflects that he/she is receiving unemployment [or if the other party provides evidence of such fact], the Court will ordinarily utilize those unemployment benefits in its Guideline Support calculations, but it may be possible, as addressed hereinafter, for income to be imputed to that party.

It would be prudent for the employed party to seek to have income imputed to the unemployed or underemployed party. If the employed party is the supporting party, imputation of income to the unemployed or underemployed party would result in lower support. If the employed party is the supported party, imputation of income to the unemployed or underemployed party would result in higher support.

Initially, imputation of income was a 3-prong test, under the holding of Marriage of REGNERY (1989) 214 Cal.App.3d 1367, the three prongs being 1) ability to work, 2) willingness to work, and 3) opportunity to work.

In Marriage of PADILLA (1995) 38 Cal.App.4th 1212, the Court did away with the willingness to work prong, stating "Statutory commands and the inherent responsibility parents owe their children lead us to conclude the bad faith rule, as applied to child support, can no longer be supported. Once persons become parents, their desires for self-realization, self-fulfullment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens' needs. If they decide they wish to lead a simpler life, change professions or start a business, they may do so, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs fo their children."

So long as a parent has an earning capacity, i.e., the ability and opportunity to earn income, the trial court may attribute income.

In Marriage of LABASS & MUNSEE (1997) 56 Cal.App.4th 1331, the Court rejected the supported party's argument that "for policy reasons, women who have primary custody of the children should never be subject to the income imputation of Family Code Section 4058(b). In Marriage of HINMAN (1997) 55 Cal.App.4th 988, the court refused to adopt "a per se rule prohibiting the imputation of income to parents who refrain from employment to care for preschool-age children." The 2-pronged test now is simply ability and opportunity to work.

In Marriage of BARDZIK (2008) 165 Cal.App.4th 1291, the Court held that the moving party (whether payor or payee) in an imputation of income case has the burden of proof on the issues of ability and opportunity to work. To meet the burden of proof, evidence must be adduced as to both prongs of the test.

Evidence of ability to work could comprise the unemployed or underemployed party's resume, documents reflecting past earnings, letters of commendation, a vocational evaluation, either party' testimony, responses to specially-drafted discovery, a deposition, etc.

Evidence of opportunity to work could comprise wanted ads [as were used in Marriage of LABASS & MUNSIE, supra - to demonstrate that "opportunities to bargain existed", an interesting way of circumventing the hearsay rule], testimony from a principal at an employment agency, witness testimony, letters from prior employers, pay scales of available jobs, etc.

In BARDZIK, the Court of appeal stressed that it is not the moving party's burden to prove that the other party can actually get a job - only that he/she has the ability and that work is available, for income to be imputed to the other party. The Court stated: "This rule is grounded in the common sense proposition that you can lead someone to a want ad but you can't make them apply for the job."

If you are involved in a child support (or spousal support) matter where one party is unemployed or underemployed, you would be wise to engage the services of a competent Certified Family Law Specialist to advise and assist you in seeking the best possible result.

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