Kochan

Family Code section 4320 provides that the family law court “shall consider” the “earning capacity of each party” in ordering spousal support, but the decision whether to order support based on a party’s earning capacity rather than actual earnings is a matter within the court’s discretion. (See, e.g., In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 825 [ 130 Cal.Rptr.2d 1 ].) In the case before us today, the family law court entered a spousal support order based in part upon a finding that a spouse with a 40-year employment history with the California State University could earn more income by taking his retirement from the California Public Employees’ Retirement System (CalPERS), and returning to work with the university under its faculty early retirement program (FERP). In other words, the family law court ruled that the spouse’s support obligation would take into account his earning capacity imputed from a CalPERS/FERP retirement scenario, rather than on his actual income from long-held employment. We reverse.

FACTS

Background

Roman V. and Janice K. Kochan married in July 1982. 1 In November 2006, Janice left the family residence, and moved into her mother’s…