In these troubling economic times where job loss is unfortunately all too common, I have received numerous requests regarding modifying support orders, both spousal and child support, as well as inquiries regarding how to defend against such requests when the payor parent has lost a job and is now receiving unemployment, if that. It is the policy of the State of California that parents are mutually responsible for the support of their children and that guideline (basically a computer-generated dollar amount) child support seeks to place the interests of the children as the state’s top priority. Further, under the Family Law Code, parents should pay for the support of their children according to his or her ability.
However, what happens when there is a job loss, particularly in today’s job market where the ability to earn is somewhat more difficult due to market conditions and the competition to secure another job? These type of cases usually come down to who has the burden of proof. The case, Marriage of Bardzik, brings this point home. Under this case, Mom retired from a $7,300 a month job as a deputy sheriff at the age of 42 and collected $2,500 per month retirement benefits. Father asked that Mom be imputed income that she earned as a deputy sheriff. Mom and Dad both asked for child support since they both had custody of a child. A prior order awarded the parties 50-50 custody and a “zero” child support order. The Trial Court denied Father’s request to impute Mother’s former income to her and ordered that Father pay child support to Mom. On appeal the case was affirmed. The appellate court stated the problem was that Father had the burden to show that if you want to impute money to a person, you must show that person has the ability to work. It is not sufficient to say, as Father tried, that Mother used to earn $7,300 per month and voluntarily gave it up (more on this in a moment). As I said earlier, these cases sometimes come down to who has the burden of proof. In this case, it was Father. Why? Due to the “zero” child support order. There was no guideline child support order. Once a guideline support order is established, there is a burden to show a change of circumstance in order to change the guideline amount. Since there was a zero support order, no guideline amount, instead of Mother having to come in and show she has suffered a reduction in income and a lack of ability to earn and opportunity to earn, it was Father who had the burden to show that Mother had the ability and opportunity to earn. So what did Father need to meet his burden? Certainly more than a statement saying she could work. A resume, want ads for persons with similar qualities, witnesses such as job counselors or vocational evaluators would have helped his case.