As a Long Beach child support attorney, complex issues often arise in the determination of an appropriate child support award and monthly payment amount to be paid by a parent. An issue which frequently arises involves a parent who is willfully unemployed or underemployed by working part time or in a job below the skill level or employment experience of the parent for purposes of diminishing the amount of income available for child support. The court has wide discretion in determining a fair amount of child support in those cases and the services of a superior Long Beach child support attorney are required to ensure a proper result.
The basis of the court’s decision is set forth in California Family Code Section 4058 which states:
(a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:
(1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.
(2) Income from the proprietorship of a business such as gross receipts from the business reduced by expenditures required for the operation of the business.
(3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.
(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.
(c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.”
Section 4058(b) provides the basis for the court to determine the amount of income which should be assessed to a parent who refuses to work, who is intentionally or otherwise working part time when full-time employment is available or working in a job or position below that which is available based upon past education and work experience. This is known as the “doctrine of imputed income.” When the payor parent has the ability and opportunity to earn more than he or she is earning, but is unwilling to do so, the court may apply an earning-capacity standard to deter that party’s shirking of family support obligations. Marriage of Regnery, 214 Cal.App.3d 1367 (1989). A three-pronged test must be met before the trial court may utilize a parent’s earning capacity rather than actual income in computing child support. Earning capacity is composed of (1) the party’s ability to work including such factors as age, occupation, education, health and experience; (2) the willingness to work and good-faith efforts to secure employment; and (3) an opportunity to work which means available employers in the job market. Marriage of Padilla, 38 Cal.App.4th 1212, 1217-18 (1995).
The court has the authority to order an unemployed or underemployed parent to submit to a Vocational Examination by a licensed and certified expert to determine the employability and potential earning capacity of such a person. This is traditionally ordered in response to a motion requesting such an order. If the examiner finds the parent has a greater earning capacity and the court accepts the finding, that parent will be deemed to earn that amount of money which will be used as the parent’s income for the determination of an appropriate child support award. This is rather sophisticated, and it is important to retain a Long Beach child support attorney to represent you in this situation.
Please contact William D. Evans, Long Beach divorce attorney, to schedule a consultant to address your child support issues.