Can California Family Courts Impute Income to a Parent or Spouse in Calculating Support?
California courts have long asserted the power to impute income to supporting spouses and parents based on ability to earn income, as distinct from actual income. The first mention of the idea in the California reported decisions appeared at the very beginning of the Grant administration. (See Eidenmuller v. Eidenmuller (1869) 37 Cal. 364, 366).
Modernly, courts allow family law attorneys to apply standards and rules for imputing income to litigants. The reason behind the limitations California courts have placed on their own power to impute income lies in the simple fact that without evidence of ability or opportunity to earn, the power to impute income would easily devolve into a trial judge’s power to arbitrarily establish a support order at any given level, plucked from mid-air, just as long as it is over the level otherwise required by the payor’s actual, taxable income (See 3 Secrets to Proving Self-Employed Income for Child or Spousal Support in California – In re Marriage of Deluca & Hein).
The “Regnery rule” emerged from these self-imposed judicial limitations on imputation of income, and the rule is essentially a judicial gloss on the words “earning capacity” as they appear in Family Code Section 4058, subdivision (b). Citing from a digest of words and phrases and a workers’ compensation case, the Regnery court announced a “three-prong test before the capacity to earn standard may be applied.” The three tests are: “ability to work,” “willingness to work,” and “opportunity to work which means an employer who is willing to hire.” (In re Marriage of Regnery (1989) 214 Cal.App.3d 1367).
Family Code Section 4058(b) reads as follows:
The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.
Proving Ability, Willingness, and Opportunity to Work
The best way to present evidence of a spouse or parent’s ability, willingness, and opportunity to work is by serving a Request for Judicial Notice, pursuant to Evidence Code §453; Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1339 (trial court may take judicial notice of classified advertisements for job offers, which “want ads” may be admitted to establish available jobs in order to impute full-time income to an underemployed spouse). Pursuant to California Rules of Court, Rule 3.1306(c), a true and correct copy of the job opening must be attached to said Request.