A CHANGE OF CIRCUMSTANCES MAY JUSTIFY A REDUCTION OF CHILD AND SPOUSAL SUPPORT; and BEWARE TO THE SPOUSE WHO CHOOSES TO BE UNDEREMPLOYED OR UNEMPLOYED

In Marriage of Mosley, a case decided in late Summer, 2008, the appellate court overturned a significantly unfair trial court ruling which refused the former husband a reduction in his child and spousal support because of the possiblity that the former husband might get a year-end bonus that could increase his income to or past the level of his pre-divorce income.

Both dad and mom were attorneys: dad was a real estate attorney, and mom was a stay-at-home mom for the parties' five children, although she had been an editor of law review at law school and she had previously worked for a prestigious law firm, Latham and Watkins.

Following the downturn of the real estate market, dad was laid off from his job at the real estate law firm. He took a position as house attorney for a homebuilder at a base salary substantially lower than his former income at the real estate firm, but with the possibility of a substantial discretionary bonus based on his performance and the performance of the homebuilder in this "down" market.

Dad sought a reduction in child and spousal support based on his change of circumstances. Also, since the trial court had given mom a "GAVRON" warning (a warning that she should make reasonable efforts to become self-supporting), Dad asked the trial court to impute income to mom. The trial court refused any of the relief that Dad sought. Dad appealed.

The MOSLEY case reads like a bar exam question, rich in the discussion of important authorities, including Marriage of OSTLER and SMITH, Marriage of RIDDLE, Marriage of ROSEVEAR, Marriage of GAVRON, Marriage of La BASS and MUNSIE, and Family Code Sections 4060, 4064 and 4320(l), among other authorities.

The appellate Court reversed the trial court, finding that the trial court's exercise of discretion exceeded the bounds of reason.

No future bonus was guaranteed by the homebuilder.

In a case where there might be income exceeding base salary, the trial court should structure a support order in two parts - base support (based on dad's base salary), and additional support comprising a percentage of any of dad's income over the figure upon which base support was calculated.

Mom does not have the right to divest herself of her earning ability at the expense of the minor children. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income -- otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the children, causing the entire burden of supporting the children to fall upon the employed parent.

Also, the court must consider the stated (by the legislature) goal that supported spouses ultimately become self-supporting.

This writer notes that dad did not voluntarily quit his job at the real estate law firm. He was laid off due to the economic downturn caused at least in part by the collapse of the subprime lending industry. He took a job with potential, but no guarantee.

This writer also notes that Mom felt "entitled" to support, but even though she was educated as, and had held a job with a presigious law firm as an attorney, she never read the portion of the Judgment which provided the GAVRON order warning her to seek to become self-supporting.

In Marriage of LaBASS and MUNSIE, cited in the MOSLEY case, the mom was a college professor who chose to work only part time so that she could devote more time to the minor children. In that case, as in MOSLEY, the appellate court held that income could be imputed to an unemployed or underemployed parent - the minor children are entitled to be supported by BOTH parents.

This case comprises an important precedent regarding change of economic circumstances in these trying times, as well as imputation of income to a voluntarily underemployed or unemployed former spouse.

Written by Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices, whose website may be found at www.conviser.net