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California divorce judges cannot Assume Earning Potential


In the newest published Court of Appeal case, affecting all divorce courts in California, including San Diego, a trial judge was reversed for ruling that a mother with a struggling business could make over $13,000.00 a month performing a different job.

In this case, the three appeals justices unanimously held that when it comes to child support in California, a judge may only assume that the parent with custody is capable of earning more if is in the “best interest of the children” to do so.  Based on that ruling, a $1,368.00 a month child support order for two minor children has been set aside and the trial judge will have to hold a new hearing on the matter. 

The appeals court, in the case entitled Marriage of Ficke, said that few known decisions by other appeals courts in California have allowed a trial judge to assume that the custodial parent could make more money.  When a trial judge does do this, it is called “imputation” of income.  The problem, as the appeals justices in the Ficke case noted, is that when a judge imputes income to a custodial parent, less money is available for the support of any minor children.  This is because in California, child support is calculated using a computer formula that looks at the income of the parent with custody as well as the parent who does not have custody.

In the Ficke case, the mother was making only around $251.00 a month in self-employment and had the children 95 percent of the time.  The father made $8,088.00 a month. 

In spite of these disparities, the trial judge also ordered the mother to pay to the father $700.00 a month in spousal support, even though she had the kids and he made more money — a lot more money.   But the Court of Appeal set aside the spousal support order as well.

Apparently, the trial judge felt that the mother should not have turned down a marketing management job that she had been offered at the rate of $125,000.00 a year.  The father also presented evidence from a vocational exam (i.e., an exam conducted in the form of an interview to find out how much someone can make) that the mother could make as much as $185,000.00 a year.

One of the reasons the mother had turned down the job was because it would have required “considerable travel and not allow her to be home evenings with the children”. 

California Court of Appeal decisions are usually binding on all courts in California, not just the court where the trial judge decided the case.

The post California divorce judges cannot Assume Earning Potential appeared first on Andy Cook Law.


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