Trial Courts may consider earnings capacity of a parent when calculating child support. The most recent case on this issue involved the divorce of Aisha and Howard Hinman. The Hinmans are apparently regulars at the Court of Appeal, First Appellate District. This latest case was their eighth request for review of their divorce court orders.

Back in April of 1990, based upon an agreement of the parties, judgment was entered awarding Aisha and Howard joint physical legal custody of their five children who were to continue residing in the family home with Howard. Because of continuing controversies between the parties, the orders were modified on various occasions. The most recent order in that regard, granted sole legal and physical custody of the children to Howard and allowed Howard to relocate with the children to Indiana. Aisha was awarded supervised visits with the children in Indiana.

A year an a half after the custody order, Howard filed an order to show cause requesting child support based upon Aisha's earnings capacity. Howard requested the court impute income to Aisha based upon her earnings capacity. To support his request, he prepared a declaration stating that she was earning, $44,000.00 annually while employed with Kemper Insurance before the dissolution and $38,400.00 most recently with California Casualty. Aisha made this job change because of pending spousal and child support proceedings.

Howard also supported his request with previous income and expense declarations submitted by her to the trial court. Aisha's resume indicating her bachelor degree in computer science, significant employment experience in the computer field and letters from two employment agencies indicating her potential earnings of between $35,000.00 and $50,000.00 annually. Various letters from Aisha's previous employers showed satisfaction with her work.

Aisha opposed the request for child support, stating that she had not worked in over four years and had three children all under the age of three years old for whom she cared for exclusively. Despite Howards assertions to the contrary, she remarked that she would be unable to work at any of the jobs she has held in the past at that time.The trial court granted Howard's request, stating:

"She can't just quit work and create a new family and then use that as an excuse to escape her responsibility to these other children. She is a very bright woman. I have seen her testify numerous times, and she is very educated... So I am going to impute some income to her..."

Aisha Appealed contending that the trial court could not impute income to her unless she were deliberately avoiding financial family responsibilities. The Appellate Court stated that while prior law in this area seemed to support Aisha that the law was significantly changed, first with the AGNOS Child Support Standards Act of 1994.

Currently Family Code, Section 5058(b) states:

"The Court may, in it's discretion, consider the earning capacity in lieu of the parents income, consistent with the best interest of the children."

The Appellate Court found in reviewing cases an emerging consensus that the only limitations against imputing income to an unemployed or underemployed parent in fact has no earnings capacity or relying on earnings capacity would not be consistent with the children's best interest. Bad faith is not a condition precedent to imputation of income in setting the amount of child support. So therefore, the subjective motivation for reducing available income is irrelevant to the Courts ability to consider the earnings capacity of the parent. The Court when exercising its discretion amy consider arguments concerning the parents actions in light of all relevant circumstances.

As to those three other children, the court stated:

"We are not unmindful that imputation of income to an unemployed spouse may place a significant burden on that spouse or those with whom the spouse creates a new family which includes very young children. We also note again that Aisha had five children in her marriage to Howard, all of whom are in Howard's custody and most of whom are minors...We are in agreement that a child support obligation must be taken into account whenever the obligor wishes to pursue a different lifestyle of endeavor... child... support is an overhead which must be paid first before any other expenses... a payor does not have the right to divest himself (or herself) of his or (her) earning ability at the expense of... minor children."