<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by suzyblck:
I am single mother of 4 children share joint custody with ex
At time of divorce he was ordered support in the amount of $75, because he was unemployed,
For the last year he has worked a good job and has provided health insurance for the kids and caught up on all of the back support for the last 4 years, and he pays 200 a month, problem....the court sent papers that his support amount is up for review now that he is gainfully employed ,
I know that the children should be getting a lot more, and that we have trouble every month making ends meet, even with my full time job, he has threatened to quit his job and all support and insurance if I pursue this, and he will, he has quit jobs before to spite me, so my question is, what are my rights and do I risk it and lose everything,and my kids wind up with nothing.<HR></BLOCKQUOTE>
My response:
The following is California law. However, your State's law should be similar, because men try to get away with this kind of crap all the time, and all over the country - - not just in your State.
Apparently, when he's quit his job in the past because of issues of child support, no one has challenged him. Well, guess what?
Now, you have the ammunition to fight him and win ! The next time he quits a job or takes a lesser paying job which is below his abilities, he'll be "shooting himself in the foot" because you're going to give your ex-husband YOUR ammunition so he can shoot himself. Why? Read below . . . it gets better the further you read.
Ability to pay determination: Any child support award must of course be commensurate with each parent's "ability" to pay (hence, the statutory formula computes child support based on "net disposable income". [See Ca Fam Sec.4053(d)--courts shall adhere to principle that "(e)ach parent should pay for the support of the children according to his or her ability"]
Ordinarily, "ability to pay" is a reflection of all income available to the parents "from whatever source"--obviously, employment earnings, and also such less obvious sources as dividends and rents, pension benefits paid and income-producing property. [See Ca Fam Sec.4058(a), defining "annual gross income" for statutory formula purposes]
Actual earnings not necessarily determinative--use of "earning capacity" standard: Though ordinarily the focal issue, actual income is not the absolute yardstick for measuring ability to pay. Both Ca Fam Sec.4050 et seq. and a long line of case law recognize that, under certain circumstances, ability to pay may be judged by a parent's earning capacity:
Issue historically approached under "Philbin rule" (bad faith avoidance of support obligations): Historically, California courts limited consideration of a parent's earning capacity (in lieu of actual income) to the narrow situation where the record demonstrated the parent was deliberately shirking family financial responsibilities by intentionally suppressing income or refusing to accept or seek gainful employment (so-called "Philbin rule"). [Philbin v. Philbin (1971) 19 Cal.App.3d 115, 119, 121, 96 Cal.Rptr. 408, 411-412; Marriage of Williams (1984) 155 Cal.App.3d 57, 62, 202 Cal.Rptr. 10, 14; see Marriage of Simpson (1992) 4 Cal.4th 225, 232, 14 Cal.Rptr.2d 411, 415]
Thus, following the Philbin approach, so long as consistent with the obligor's age, health, skills, etc. and employment opportunities, support could properly be set on the basis of what the obligor was "realistically capable" of earning where he or she:
· Willfully refuses to seek or accept gainful employment. [Pencovic v. Pencovic (1955) 45 Cal.2d 97, 287 P.2d 501, 504; Webber v. Webber (1948) 33 Cal.2d 153, 199 P.2d 934, 939; and see Marriage of Chala (1979) 92 Cal.App.3d 996, 999, 155 Cal.Rptr. 605, 606--support based on fact H (although age 62 and unemployed) could be gainfully employed in son's business]
For example, the court properly applied the earning capacity standard in fixing H's child (and spousal) support obligation where he voluntarily quit his well-paying senior cost accountant job and stopped paying pendente lite support without reasonable justification. Evidence that he had paid no support, confined his jobseeking to a narrow field, and refused to accept proffered employment consistent with his skills and training supported the court's implied finding he was deliberately avoiding his family financial responsibilities. [Marriage of Regnery (1989) 214 Cal.App.3d 1367, 263 Cal.Rptr. 243]
· Deliberately refuses to apply himself or herself to a business. [Clark v. Clark (1961) 193 Cal.App.2d 565, 14 Cal.Rptr. 419]
· Intentionally depresses income to an artificial level. [Elliott v. Elliott (1958) 162 Cal.App.2d 350, 328 P.2d 291, 296; Marriage of Barnert (1978) 85 Cal.App.3d 413, 427, 149 Cal.Rptr. 616, 625 (H's deliberate attempt to show diminished income in medical practice)]
· Deliberately shifts to a lower-paying job for the primary purpose of attempting to escape liability under temporary support orders and minimize "permanent" support obligations. [Marriage of Simpson (1992) 4 Cal.4th 225, 234, 14 Cal.Rptr.2d 411, 416; see also Meagher v. Meagher (1961) 190 Cal.App.2d 62, 11 Cal.Rptr. 650, 651-652--obligor voluntarily quit employment with family business to take job paying 75% less]
H had voluntarily quit his well-paying job as a senior cost accountant, stopped paying pendente lite support, confined his jobseeking to a narrow field, and refused employment offered to him consistent with his abilities. The record clearly demonstrated H could have gone to work if he wanted to, and that his suppressed income was a sham employed to avoid paying support to his family. [Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1373-1376, 263 Cal.Rptr. 243, 245-248]
So, he can quit his jobs all he wants. The court should, with your "ammunition," make him pay child and spousal support commensurate with his "ABILITY" to earn. And, if he quits his job, he'll still have to pay BIG TIME !!
This time, don't just "roll over" and cry. You take the bull by the horns, and GO GET HIM, AND MAKE HIM PAY !! He'll think 3 times before he quits another job, again.
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited April 30, 2000).]
