An unpublished opinion out of San Diego County illustrates the checklist that a person who is paying child and or spousal support must satisfy before support will be reduced.
Amy and Alfredo were married from 1990 to 2004. The parties have two children together, a 15-year-old daughter and a 12-year-old son. At the time of the dissolution of the marriage, both parties were employed full time. Amy worked as a teacher and Alfredo was employed as a pilot. They settled their divorce case. Pursuant to the settlement Alfredo agreed to pay Amy $1,152 per month in spousal support and $1,450 per month in child support. The settlement included the so-called Gavron warning language. This language advised Amy that she had an obligation to become self-supporting within a reasonable period of time.
In June 2008, Amy was laid off from her teaching position due to budget issues. Amy began collecting unemployment benefits in the amount of approximately $1,800 per month.
In January 2009 the parties filed a new agreement with the court that modified support, in line with Amy’s status as unemployed and with lower income than she had when she was working as a teacher.
In January 2010 Alfredo filed a motion to have his child and spousal support obligations reduced. Even though she was still unemployed Alfredo argued that the court should impute $62,500 per year in income to her based on her ability to earn.
The trial court found that a change of circumstances existed such that the court could reexamine the spousal support and child support amounts to determine whether modification of either amount was warranted. After determining that Alfredo had failed to demonstrate what the marital standard of living had been during the marriage, the court concluded that no change in spousal support was warranted. With respect to child support, the court used the parties’ actual incomes to determine what amount of child support Alfredo was required to pay, and reduced Alfredo’s monthly child support payment from $3,000 to $2,617.
The Appellate Court affirms the trial court.
First the Appellate Court (“CA”) clarifies the change of circumstances that is required before a court may modify support. The CA said there was no adequate change of circumstances. Alfredo based his motion on Amy’s income going down. Reduction in her income would only be a change of circumstances supporting an increase in support, not a decrease. Thus no change of circumstances. Another way of saying it is that Alfredo cannot benefit from Amy losing her job.
Next the CA looks at child support and then spousal support. As we will see, the logic that the court applies is often the same. However the analysis must be performed twice. Once for the child support, and a second time for the spousal support. The reason being is because the ruling on child support affects the parent receiving the child support, and the children who are entitled to the support.
The CA holds that even if there had been a sufficient change of circumstances child support should not have been reduced at all; and that Alfredo has no basis for arguing that the $383 per month reduction that he did get from the trial court was inappropriate. At this point in the decision the CA gives us a good refresher regarding when income can be imputed.
We specifically reject Alfredo’s contention that the trial court should have imputed additional income to Amy and reduced his child support obligation even more, on the basis that Alfredo demonstrated that Amy had the ability and opportunity to find full-time employment as a teacher.
“If one parent seeks to modify an existing order so as to have income imputed to the other parent, the parent seeking imputation—that is, in that context, the parent seeking to overturn the status quo—bears the burden of proof of showing that the other parent has the ability and opportunity to earn that imputed income. [Citations.]” (In re Marriage of Bardzik, supra, 165 Cal.App.4th at p. 1294.) Alfredo contends that “the trial court was presented with hundreds of pieces of credible evidence that met appellant’s burden of showing respondent’s opportunity to earn an annual income of $62,484.00.” He argues that the trial court did not analyze the “mounds of evidence” and also failed to “distinguish any of the legal authority cited by [Alfredo],” and that the court’s order was generally “overrun with error in all respects.” In making this argument, Alfredo ignores the evidence that Amy presented that rebuts his evidence of the existence of opportunities that would allow Amy to earn what he claims she should be able to earn, and also ignores the plain language of the statute, which gives the trial court permissive discretion as to whether to impute income to a party (if it would be in the best interests of the children) when determining parental income for purposes of determining child support. (See Fam. Code, § 4058, subd. (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” (italics added)].)
The evidence supports the trial court’s decision not to impute income to Amy for purposes of determining child support. Contrary to Alfredo’s implied suggestions, based on evidence that Amy presented, the court could have reasonably concluded that Amy is not unemployed by choice. Amy presented evidence that she was laid off from her teaching job with the Fallbrook Unified School District for budgetary reasons approximately three years prior to the hearing. While Alfredo presented a number of advertisements for full-time teaching opportunities that appeared after Amy was laid off from her full-time position, Amy provided evidence that she has been applying for at least five jobs per week, but has been unable to secure a position. Although Alfredo is not required to demonstrate the existence of an employer who is willing to hire Amy, specifically (a point that Alfredo makes repeatedly in his briefing), this does not mean that the court could not consider evidence that Amy has been applying for full-time teachings jobs and has been unable to secure full-time employment.
What Alfredo fails to acknowledge is that regardless of how much evidence of “opportunities” for employment he presented, Amy countered that evidence with her own evidence demonstrating that she has been actively seeking employment and has not been able to find work. Amy also presented evidence that she is taking classes to become trained to be a special education teacher in the hope that this additional credential will make her a more attractive candidate to potential employers. Based on this evidence, the trial court could have reasonably concluded that Amy’s evidence demonstrates that she is not unemployed by choice, and that she has made reasonable efforts to attempt to secure full-time employment. In such circumstances, the court acted well within its discretion in declining to impute additional income to her for purposes of setting child support.
The CA also enlightens us on another significant point, that being the consequences to the children if income was imputed to Amy. The consequence would have been that the support Amy was receiving would be reduced, and she would then have less money to feed, shelter, and clothe the children.
Under these circumstances, the [trial] court could reasonably have concluded that if it were to impute income to Amy, despite her inability to find full-time employment at this juncture, and reduce Alfredo’s child support obligation, Amy would have difficulty providing for the children. In addition, there is substantial evidence from which the court could reasonably have concluded that this is not a case where one parent voluntarily gave up his or her employment, either to stay at home to care for the children or to start a new career for which he or she has no training, but rather, that Amy finds herself in a circumstance that is facing many teachers in this struggling economy—a dwindling number of teaching positions.
The fact that Alfredo may have provided sufficient evidence of Amy’s ability to work and opportunity to work (evidence that could have supported the trial court’s imputing income) did not require that the court impute income to Amy. Evidence of ability and opportunity is necessary to a court’s decision to impute income, but it is not sufficient to require that the court do so. Unless the court’s decision not to impute income to Amy can be shown to fall outside the bounds of reason, we have no basis for reversing that decision. Here, we simply cannot say that the trial court’s decision to use the parties’ actual incomes to calculate the guideline child support amount was unreasonable, particularly since Amy presented evidence that rebutted Alfredo’s evidence of the various opportunities for full-time teaching employment.
Following the same logic it laid out to rule against Alfredo on child support, the CA also ruled against him regarding imputation of income to reduce his spousal support obligation.
Although Alfredo presented evidence of Amy’s ability to work as a teacher and also presented evidence of the opportunity for Amy to work by way of advertisements of full-time teaching positions, as we have already discussed, Amy presented evidence that she has been trying to find full-time work but has not been hired. In these circumstances, where there is evidence to support a finding that Amy is not simply choosing to be voluntarily unemployed, we cannot conclude that the trial court abused its discretion in declining to impute income to Amy.
The take away from this case is that there is a significant burden of proof to meet if you want to reduce support. It is not enough to say “S/he can get a job.” This is a great opinion for reminding of us the work and detail required to get support reduced.
Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.
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