California uses a computer formula to calculate child support. The formula takes into account each parent’s income, the number of children involved, and the percentage of time each parent has with the child or children.
The income is usually based on what the parent actually earns, but divorce courts have authority to impute income to a parent, that is, to enter a number into the computer reflecting not what the parent actually earns but what the parent could be earning. Usually, the parent who wants the court to impute income to the other parent has to prove that the other parent has the ability to do a certain type of work and that there are opportunities, i.e., job openings, in that area. This can be done with newspaper ads or downloads from web sites that post job openings. It does not need to be shown, however, that the parent would have actually obtained one of the advertised openings had an application been submitted.
In a normal situation, the court will not look at the reason why the person for whom imputation is being sought is not working or is underemployed but will concentrate only on the two factors mentioned above. But there are exceptions. One of them case is the case of In re Marriage of McHugh, a California Court of Appeal case published the day before Thanksgiving. In McHugh, the three justices upheld the decision of a lower court that imputed income to a father who had been fired after it was discovered he was diverting clients to his father’s company, which was in the same line of work.
Interestingly, the employer gave the dad a second change by saying he could keep his job if he disclosed the full scope of his misdeeds and paid restitution to the company. But the father said he could not do that and so he was fired.
In court, where the mother was trying to get an increase in child support, the father made the argument that the mother had failed to prove that he could get his old job back and therefore she had failed to prove that there was an opening in an area where he had experience. But the trial court and the appeals court said that the fact the father had been offered a second chance by his employer was evidence that he could get his job back. The justices further stated that while the mother had the burden of showing what the father could do and that there were openings, the father bore “the burden to show he or she could not secure the job despite reasonable efforts”. This is because of “`”the commonsense proposition that you can lead someone to a want ad but you can’t make them apply for the job . . . . Readers need only use a little imagination to think of all the ways that a parent with both ability to do a job and the opportunity to get it could subtly sabotage a job application or interview”`”.
In reaching its decision, the justices recognized that in many cases the reason for a person’s unemployment is irrelevant. For example, a person who is laid off because of economic circumstances will not have income imputed unless the other side proves that there are openings in that field. There was even once a case where a person was fired for committing sexual harassment, but since that act involved simply bad judgment and the individual was not trying to get fired, the court did not impute him the income he was earning before he was fired.
The McHugh court distinguished this case because the father had actually asked his boss back in 2009 for ways to lower his income so he would not have to pay as much support. The trial judge found that the misconduct was not only intentional but was designed to avoid responsibility for a child support order already in effect.
Because of all of this, the father’s income was imputed at $24,159.00, the amount he was earning in 2009 when the trial court made its first support order. This resulted in an $800.00 increase in the father’s child support obligation.
The father’s last gasp argument was that the wife failed to show “he had the current opportunity to earn the same income” that he did back in 2009. But the appeals court responded that “Under section 4058 [of the Family Code], a trial court has discretion to impute income based on a job the parent previously held depending on the circumstances under which the parent quit or otherwise left that job”. The court further added, “Charles did not simply exercise poor judgment on a collateral matter that resulted in his termination; rather, he engaged in misconduct with the intent to avoid his child support obligations and refused to accept Amcor’s reasonable conditions that would have allowed him to keep his well-paying job despite his malfeasance”.
The problem with a case like this is that now that the father has burned his bridges, one has to question whether, at this very time, he could get a job that pays anywhere near the $24,159.00 he was making before. It may be his fault that he put himself in this predicament, but he also has a child support obligation that, at least on the surface, he has no way of satisfying.
On the other hand, there is a lot we do not know. Perhaps the court was mindful of the fact that Charles was diverting business to his father. Perhaps the old man was kicking those funds back to Charles. Given the arrangement that the two of them had, it does not appear that Charles is going to starve. And although judges and justices are not supposed to speculate on matters for which there is no evidence, nobody can control what they are privately thinking.
The bottom line is that these were really bad facts for Charles and he lost.
Because McHugh has been certified for publication, it is binding precedent on courts facing similar facts. This is the case even though the McHugh decision arose out of Orange County, because decisions of the California Court of Appeal are binding on all trial courts throughout California, including San Diego.
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