In California divorce cases, the person without custody of the children (assuming there are children) usually has to pay child support. And if the difference in income between the parents or the spouses is significant, the high earner has to pay spousal support, commonly referred to as alimony. But what happens if a person isn’t working, or is working but not making as much money as the other side thinks should be the case?
For a long time California family law judges have relied on Family Code section 4505 as a basis for making a person look for a job. Section 4504 states that a court “may require a parent who alleges that the parent’s default in a child or family support order is due to the parent’s unemployment to submit to the appropriate child support enforcement agency or any other entity designated by the court, including, but not limited to, the court itself, each two weeks, or at a frequency deemed appropriate by the court, a list of at least five different places the parent has applied for employment”.
But wait a moment. If you read the words of this statute carefully, you will note that it only talks about child support, not spousal support (alimony). Further, it appears the section requires the person being ordered to look for work to be behind in her or his support payments when the “seek work” or “job contacts” order is made.
But in a recent unpublished case, the California Court of Appeal ruled that another part of the Family Code, section 2010, allows for job contacts in any type of support case, be it child support or spousal support. Section 2010 says, in relevant part, “[i]n a proceeding for dissolution of marriage, . . . the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning” the “support of either party”.
Accordingly, in this case, called Marriage of Childers, the justices approved of a judge’s decision to make the ex-husband “prove that you’ve sought five different types of employment or five job interviews every week, and bring that proof in with you each time you come to court until you get new employment”.
The judge actually lowered the amount of support that the former husband had to pay as he had claimed that he had been laid off. This resulted in an obligation of $500.00 a month, rather than an earlier obligation of $700.00 a month. In fact, the spousal support order at the time of the actual judgment had been $1,600.00 a month. At that time, the husband was making $90,000.00 a year. Though his income had decreased since the original judgment in 2001, the now ex-husband had obtained a real estate license as well as architectural training. The former wife, meanwhile, was working at the same job at a non-profit food program and was also working two side jobs. The total of all of this work generated the former wife only about $2,435.00 a month.
Given these facts, it is not surprising that when the ex-husband appealed, he lost. Indeed, all three justices sided with the wife. As stated above, this was an unpublished decision by the Court of Appeal. That means lawyers cannot talk about this case in a future hearing before a judge or even in papers that they file before the hearing for the judge to read. And the judge herself or himself cannot talk about this case in explaining the reasoning behind a decision.
But unpublished cases are still public record, and people are free to gossip about them, or even talk about them in blogs! And the Childers case explains how to argue to a judge that he or she may make someone look for a job, even if spousal support (alimony) is the only type of support at issue. In other words, the argument would be that the judge has the authority to make a “seek work” order by relying on Family Code section 2010, not Family Code section 4505.
The fact that the case was not certified for publication is not surprising. Most appeals cases in California do not get to be officially published. That’s because the justices do not want people to rely on cases that have unique facts.
Having said all of this, I note that a job contact order is not the solution that makes the world perfect. If a person is determined to go down with the ship, so to speak, he or she can seek jobs that are hard to get or just present herself or himself as a bad applicant. If the person comes back to court without a job, that may actually prove to the judge that the person is not lazy but instead is unable to find a job given her or his age, background, etc. Judges do have the power to “impute” income to support obligors, which means to base a support obligation on the income that the judge thinks the obligor could make. But there has to be evidence for whatever income the judge chooses to assign to someone who is not working, and if job contacts aren’t doing the job, the other side may need to bring in an expert or present help wanted ads to prove that the person has the ability to do certain jobs and that there are job openings in that field.
Finally, for the person who is unwilling to work or is depressed and cannot get going, a job contact order is a double edged sword. It might be the proverbial firecracker to get that person moving, but having to look for jobs in a regimented way can be humiliating, depending on the type of person at issue.
In San Diego County, job contact orders are made less frequently when a person is working but not earning as much as the other side would like. A person working full-time at some acceptable rate usually doesn’t have to take time out during the day to look for a better job unless it is obvious that based on the education that the person has or the experience, it is clear that he or she could be earning more.
But for someone who isn’t working at all, yet is healthy and appears to have skills, a job contacts order is not that unusual.