New Appellate Cases Highlight the Value of a Vocational Expert
By Susan W. Miller, M.A. and Jean A. Brincko, M.A.
From the time Ulysses S. Grant was President of the United States in the mid 19th century, California courts have been using their power to impute income to supporting spouses and/or parents based on their ability to earn income rather than their actual income. (See Eidenmuller v. Eidenmuller (1869) 37 Cal. 364, 366). Over time, the courts began imputing income to the non-supporting spouses/parents as well, in light of Marriage of Regnery, (1989) 214 Cal.App.3d 1367 [263 Cal.Rptr. 243],Gavron, and other cases. Recent appellate cases such as the Marriage of Bardzik, Marriage of Mosley, and Marriage of Rolfes underscore a variety of issues involved in the imputation of income and highlight the reasons why a vocational expert is helpful in determining earning capacity.
The Regnery Rule
In 1989, to establish standards for imputing income, the courts adopted the "Regnery rule,” a three-part test which includes determination of: 1) ability to work, 2) willingness to work, and 3) opportunity to work; opportunity meaning there would be an employer willing to hire (Regnery, supra, 214 Cal.App.3d at p1367). Eventually, the courts recognized that the willingness to work should be taken for granted, so the Regnery test was reduced to only two factors, ability and opportunity to work. (E.g., In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1392 ["So long as a parent has an earning capacity, that is, the ability and the opportunity to earn income, the trial court may attribute income."].
The Regnery case also dealt with another aspect of the imputation of income, namely the burden of proof. The decision basically stated that if one parent seeks to modify an existing order so as to have income imputed to the other parent, the parent seeking imputation bears the burden of proof to show that the other parent has the ability and opportunity to earn.
The burden of proof for the imputation of income became further clarified in Bardzik. In this case, Mother had two teenage boys as well as younger children with her new husband. At the trial, Mother testified that because of the stress of her duties as a jailer in the maximum-security jail, she retired after 20 years on the job at age 43 to spend more time with her children.
Father requested that the trial court impute income to Mother based on her final salary as a deputy sheriff just prior to her retirement. In this case, Father needed to show ability and opportunity for Mother to earn. Father presented no evidence of Mother’s vocational abilities or of any opportunities she might have to generate income. Father did not, for example, show that Mother could even return to employment as a deputy sheriff. He did not show that there were opportunities for her to work in related fields, to earn money as a supervisor in a security company, or to work in some auxiliary capacity for her former employer.
Father did not provide the evidence necessary for imputation of earnings to Mother. For example, he did not present Mother’s resume, relevant want ads, opinion testimony from a professional job counselor/expert witness, or pay scales correlating ability and opportunity with the income to be imputed. Most importantly, Father did not ask Mother to undergo a vocational examination even though Mother's attorney told the trial court that Mother was willing to stipulate to having a vocational evaluation.
With a vocational examination report and the potential testimony of an expert witness, Father would have had a chance to meet his burden of proof to show that Mother had the ability and opportunity to earn. However, he did none of the things necessary to meet his burden of proof, and the appellate decision upheld the finding of the trial court, which declined to make an order imputing income to Mother.
Marriage of Mosley Cal. App. 43G037959 (Aug. 14, 2008)
While the appellate court said that the evidentiary facts in the Bardzik case made up a “thin consommé indeed,” the Mosley case was described to be “as thick as lentil stew.” While the Bardzik case simply focuses on Father’s inability to meet the burden of proof to show that the other parent had the ability and opportunity to earn, in the Moseley case, Father, the payor parent, provided both a vocational evaluation of Mother, the custodial parent, and the testimony of a vocational expert as to what Mother could earn.
Mother had been a big firm lawyer with impressive credentials. In 2002, she was given a Gavron Warning based on Family Code Section 4320, which states, “each party shall make reasonable good faith efforts to become self-supporting;” thus, she was obligated to make efforts to become self-supporting.
However, in Mosley, the trial court failed to impute income to Mother due to the lack of evidence that it would be in the children’s best interests for Mother to return to work, and the lack of evidence that an attorney position was actually available to Mother.
The appellate court reversed the decision of the trial court which had denied Father’s request to lower support obligations because of a change in his circumstances, where his base pay was significantly lower than it had been in the past. Further, the appellate court indicated that the change in circumstances here was not primarily Mother’s failure to seek employment despite the expectation that she do so. Rather, the change in circumstances was the change in Father’s employment and compensation and the fact that Mother failed to do her part to address that change by seeking employment.
While the best interest of children needs to be considered, (In re Marriage of Cheriton, supra, 92 Cal.App.4th 269.) in the Mosley case, the trial court denied Father’s request for Mother to return to work, stating that it would not be in the best interests of the children who were then ages 21, 19, 18, 15, and 13. The appellate court disagreed.
The appellate court stated that while Mother complained that the amount Father was paying in child and spousal support did not allow the children and her to live according to the marital standard of living, if Mother provided additional income, it would increase their standard of living and therefore the best interest of the children would be served. The Marriage of LaBass & Munsee indicated that both parents are equally responsible for the support of their children and “[e]ach parent should pay for the support of the children according to his or her ability.” (In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th 1331, 1337, 1340.) This case further clarified that when a parent chooses not to seek employment to the best of his or her ability, the court can impute income so that the entire burden for supporting children does not fall only on one parent.
In Mosely, Father used vocational expert testimony to demonstrate that Mother had an approximate earning capacity of $95,000 per year to start, although it might take her 26 weeks to find a position as an attorney. The vocational expert also testified that Mother could earn $16 to $20 per hour as a paralegal. However, the trial court concluded that the imputation of income would be improper because there was no proof that Mother could actually secure an available job opening.
The appellate court reversed the findings of the trial court, saying that Father’s burden did not include the need to actually show that Mother would have gotten a given job if she had applied. Basically, the appellate court said that if there is the ability and the opportunity to work, earnings can be imputed, because a party could easily sabotage the process of actually securing a job.
Marriage of Rolfes Cal. App. B202066 (March 5, 2009)
In the Marriage of Rolfes, Wife appealed a post judgment order that reduced her spousal support award. The appellate court affirmed the trial court decision.
It should be noted that in this case, Wife has a Bachelor’s Degree in Mathematics and Psychology and a Master’s Degree in Psychology; and during the first 15 years of the marriage, she worked as a computer programmer. Wife was given a Gavron Warning and was told that the failure to make good faith efforts to seek employment may be one of the factors considered by the court as a basis for modifying or terminating support after December 1, 2006.
In 2000, wife began training for a career in the performing arts, and by 2007, she had a commercial agent and had performed in various roles on television. She had also appeared in a feature film. From January 2006 through June 2007, she earned $1,800. She also embarked on a career as a personal consultant/life coach, and expected to charge $60 to $95 per hour for her services. Although she was age 57, she believed that she was “highly marketable” in both of these career areas and that these careers represented her most significant potential income. She provided extensive documentation and testimony to this effect from talent agents, a vocational expert, and others.
Husband hired me to review documents that Wife and others had prepared about her passion and her progress in her chosen career as an actor. In those documents, she said she knew “with 100% certainty” that she would be successful as an actor and that she would make “excellent money.” It should be noted that I never met with Wife. She was asked to undergo a vocational examination, but would not stipulate to undergoing the examination, and the trial court denied the motion for the examination.
The appellate decision noted that Wife essentially ignored the Gavron Warning, which stated that her efforts to support herself must include, “finding employment in the field(s) in which she is qualified to work, whether or not she wants to work in that field, and failure to do so may result in the court imputing income at the level at which she could be employed.”
The court also noted, “a supported spouse cannot make unwise decisions, which have the effect of preventing him or her from becoming self-supporting and expect the supporting spouse to pick up the tab.” In this appellate decision, the court stressed that there was ample evidence, much of it provided by Wife herself, that she fully expected to find financial success in her careers as an actor and a life coach. My declaration provided backup evidence of earnings of actors and life coaches and contributed to the appellate court’s affirmation of the trial court’s decision to reduce Wife’s spousal support.
The cases cited in this article illustrate the value of enlisting the services of a vocational expert to help determine the ability and opportunity to earn and/or to help establish earning capacity.
In Bardzik, it was clear that the burden of imputing income to the non-supporting parent was not met, but could have been met by enlisting the services of a vocational expert to present evidence.
In Mosley, the issues were more complicated and included whether imputing earning capacity to a supported parent served the best interests of the children. Another interesting result of Moseley was the elimination of the burden for the supporting spouse/parent to prove that the supported spouse/parent would have actually secured jobs that were available; all that needs to be proven is the ability and opportunity for employment, evidence that is typically provided by a vocational expert.
In Rolfes, another issue was raised: whether a supported spouse can be permitted to make “unwise” decisions that prevent him or her from becoming self-supporting and expect the supporting spouse to pick up the tab. In this case, I was used as the expert to determine earning potential of Wife in her “unwise” chosen professions. An article I co-wrote based on the vocational issues in Rolfes entitled, “Even If Your Motion for a Vocational Examination Was Denied, A Vocational Expert May Still Be Helpful,” was published in the California State Bar Family Law News Issue I, 2008, Vol.30 No.1. In this article, I explained that Husband’s council sought my advice on how to proceed after the motion for the vocational examination was denied. Because Wife attested to her employability as an actor, I quoted this information extensively in my declaration. However, there is difficulty in establishing job availability for actors because acting jobs are not publicly advertised; and even as an expert, I could not demonstrate that there were jobs available. At trial, Wife and her council argued that because I did not show that jobs were available, I failed to establish that there was an opportunity for wife to work. However, the judge noted that Wife cannot have it both ways. She cannot simultaneously contend that acting work will lead to her being self supporting and in compliance with her Gavron Warning, while at the same time, asserting there are no jobs available for her as an actor. Therefore, the information contained in Wife’s own declaration proved to be sufficient to establish that she had the opportunity to work. As the judge noted in his decision, the question here was not whether Wife had the right to pursue her dream as an actor, but whether Husband had the obligation, in a post-judgment situation, to continue to support Wife, while she pursued her dream. In the judge’s decision, he sited In Re Marriage of Ilas (1993), where Husband quit a lucrative job as a pharmacist to attend medical school, because he had a life long dream of becoming a doctor. The Ilas court ruled that Mr. Ilas could pursue this dream, but not at the expense of his support obligations. In Rolfes, both the trial court judge and the appellate court sited the information I provided, demonstrating the value of using a vocational expert.