Howard Cohn was the support obligor in the case. Howard, an attorney, worked in various capacities during his marriage to Patricia. The record discloses that Howard had earned, at the pinnacle of his career, $28,600.00 per month. In August of 1993, Howard's employer filed for bankruptcy and his income dried up. The Cohn's "financial world began to crumble -- ". Howard suffered stress related emotional problems which lead to a mental break down. While Howard was hospitalized, Patricia took the three children of the marriage and moved to Seattle. The marriage was dissolved in January of 1996.

Trial on the issues of child and spousal support was held in March of 1997 with Howard filing bankruptcy just prior to the trial. At trial Howard's testimony described in detail his efforts to find employment since his mental break down. Unable to find work, Howard moved to Los Angeles where he worked for a private lender, but earned no money. He returned to Sacramento and attempted to sell living trusts, but was unable to maintain that employment. Howard continued to seek other types of employment, with no success. In March of 1996, Howard set up his own law office, however, his expenses of running the office exceeded any fees he received. At the time of trial Howard planned to close his office, moved back to Sacramento and tried setting up an office there. Patricia testified that she did not know of any job offers Howard turned down or any employment opportunities he could have had, but did not pursue.

The Court's ruling was as follows:

Howard's income for 1995 was virtually nothing. Gross income for 1996 was approximately $8,000.00. Howard's mental and physical problems prevented him from earning any significant income between January and August of 1995. No child or spousal support was ordered. Between August of 1995 and August of 1996, the Court set (imputed) Howard's annual earnings capacity at $40,000.00 based upon his previous experience, education and professional background. From August 1996 until the time of trial in March of 1997, the Court imputed income to Howard of $80,000.00 per year. The Court also imputed income to Patricia based upon her earnings capacity. Using these assumptions, the Court applied the statewide guidelines by using the DissoMaster computer program and calculated Howard's child and spousal support. Howard appealed.

The Appellate Court reversed and returned the case to the trial court to decide the matter again.

"Earnings capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work, which means an employer who is willing to hire (In Re: Marriage of LaBass and Munsee (1997) 56 Cal. App. 4th 1431)."

The issue before the Appellate Court is whether or not evidence existed to support the Court's imputing income to Howard.

"Substantial evidence supports the first two elements necessary for imputation of income -- Howard had both the ability and willingness to work. The question on appeal is whether the trial court could have reasonable concluded Howard had the opportunity to work on the state of this record."

Opportunity simply means "an employer who is willing to hire." Therefore, a spouse who has ability and willingness to work or achieve a higher income can prevent imputation of income by establishing that no one was willing to hire them, despite reasonable efforts to find work.

The problem is more complex when the target is a professional or trade person capable of self employment. In that instance, the "employer who is willing to hire" standard is obviously too narrow and should be used only for salaried employees.

"Thus, a more appropriate definition of "opportunity to work" is the substantial likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income. Under this definition, we find substantial evidence of opportunity."

The Appellate Court was clear that the trial court was not bound to use Howard's actual earnings of $8,000.00 in light of the fact that he could have earned more working a minimum wage job. The Court could also impute at a higher amount with sufficient evidentiary support.

"The inquiry would be directed at what an attorney with Howard's background, age, qualifications and experience could be expected to earn in his first year as a full- time solo practitioner."

As the case was sent to trial court for re-decision, it offered further advice to the trial court as follows:

"If it turns out that he continued to generate extremely low income figures as a self employed attorney in Sacramento (as he did in Hayward) the inquire may need to refocus on such issues as whether Howard exercised reasonable diligence in developing his law practice or alternatively what employment opportunities were available in the non-legal field to someone with Howard's skills and experience."