Husband and Wife married in 1992. They had one child together. In 2009,
Husband filed for divorce; Wife responded and asked for child and spousal
support. During their marriage, Husband worked on commission for a company
averaging (at the time of divorce) about $24,000 per month. Wife did not
work. Based on Husband’s income, the trial court awarded Wife temporary
child support in the amount of $2227 per month and spousal support of
$4773 per month.
In 2010, Husband asked the court to reduce his support obligations because
his salary had been reduced. His company’s biggest client did not
renew its contract and his income declined substantially because of it.
In 2011, the court granted Husband’s request and lowered his child
support obligation to $1275 per month and spousal support to $2840 per month.
Later that same year, both Husband and Wife requested changes in support.
Husband wanted a decrease in support because his company fired him, and
Wife wanted the original support ordered reinstated.
During the hearing, a vice president of Husband’s former company
testified that Husband asked the VP to reassign him and divert some of
his compensation to reduce his income. The VP said that Husband told him
that he (Husband) was embroiled in a very bitter divorce and Husband wanted
to minimize his earnings. The VP agreed to reassign Husband to a lower
paying job, but refused to tamper with any compensation agreements. Husband
decided to retain his current jobs status. The VP also stated that Husband’s
sales began to drop, and when he investigated, the VP discovered that
Husband had diverted some of the company’s business to Husband’s
father’s competing business. Husband had also been improperly giving
credit for his sales to another sales person and splitting the commissions
with him. Because Husband had been a good employee, the company was willing
to give Husband a second chance at employment if he agreed to three things:
(1) Fully confess his misconduct; (2) pay the company restitution for
the costs of his misconduct; and (3) sign a last chance agreement. Husband
refused, and the company fired him.
The trial court found for Wife (regarding child support) stating that Husband’s
lack of income was by his own doing; that is, his unwillingness to work.
The court based Husband’s income for support purposes, not on his
current income, but on his prior income with his former company. Husband appealed.
The Appellate Court agreed with the trial court. Under Family Code Section
4058(b), a trial court can consider the earnings capacity of a parent
instead of actual income, consistent with the best interests of the child.
Earnings capacity includes the ability to perform a job and the opportunity
to work. Here, Husband had both the ability to perform the job for his
former company as well as the opportunity to do so. He declined to do
so. To grant the higher support was clearly in the best interests of the child.