Eggers

Family Code section 4058, subdivision (b), which addresses annual gross income of parents for child support purposes, provides, “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.” Here the employment of father, appellant Thomas M. Eggers, was terminated by his employer for misconduct. Father, who was subject to support orders, sought modification of the orders based on a change of circumstances. The trial court denied his request and imputed income to father based on his earnings from his former employment, thereby equating the conduct that led to his loss of employment to a voluntary or intentional reduction in income.

Imputation of income is not automatic upon loss of employment due to misconduct. Father had the burden of proof to show he did not have the ability or opportunity to work, but the trial court did not reach those issues. We reverse the order and remand the matter to the trial court to conduct a new hearing and determine whether income should be imputed to father under Family Code section 4058, subdivision (b), and, if so, the amount of such income…