Smith v. Smith

The statewide uniform guideline for determining child support permits the court, in lieu of using actual income, to impute income to a parent based on his or her earning capacity. Earning capacity, in turn, requires that the parent have both the ability and the opportunity to work. In State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123 [ 83 Cal.Rptr.2d 229 ], we held this same earning capacity test applies whether or not the parent is incarcerated, and thus the court may not impute income to an incarcerated parent who has no opportunity to work in prison and no other assets with which to pay support. We declined to create a blanket “incarcerated parent” exception to the statutory guideline. We are asked here to revisit Vargas and create a somewhat more narrow exception that would permit the court to consider, in addition to the parent’s ability and opportunity to work, the nature of the offense for which he or she is incarcerated. Again, we decline.

Since these three appeals all raise the same issue, we consider them together for purposes of oral argument and decision.

Facts and Proceedings

In re Marriage of Smith

Michael Steven and Debra D. Smith separated in 1997…