SIDEBAR ISSUES

INCOME CAN ONLY BE IMPUTED TO A PARENT IF IT IS IN THE BEST INTERESTS OF THE CHILDREN.

But no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children. By explicit statutory direction, the court's determination of earning capacity must be "consistent with the best interest of the children." (§ 4058, subd. (b). And see, e.g., In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th at pp. 1339, 1340; In re Marriage of Hinman, supra, 55 Cal.App.4th at p. 1000; In re Marriage of Catalano, supra, 204 Cal.App.3d at p. 555.) Cheriton at

In this case, the trial court made no express or implied finding that imputing earning capacity to Iris would be in the children's best interest. We find it difficult to imagine how the children's interests are served by doing so, since the imputation of earning capacity to Iris effectively reduces overall monetary support for the children. fn. 19 But we need not speculate on that question here, since the determination is properly left to the trial court on remand.

SPOUSAL SUPPORT:
A SUPPORTING PATY'S ASSETS MAY BE CONSIDERED.

Under the statute, a key factor is the supporting party's "ability to pay," which encompasses assets as well as income. (§ 4320, subd. (c); In re Marriage of Epstein (1979) 24 Cal.3d 76, 91, fn. 14; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159.) Thus, it is "proper for the court to look to assets controlled by husband, other than income, as a basis for the award [of spousal support]." (In re Marriage of Dick, supra, 15 Cal.App.4th at p. 160.) However, as one commentator has noted, "it remains highly unusual for a court to use assets more than income as a basis for determining [spousal] support." (2 Kirkland et al., Cal. Family Law: Practice and Procedure, supra, Spousal Support Orders, § 51.33[4], p. 51-27.) Cheriton at

After weighing the statutory factors, "the trial court may fix spousal support at an amount greater than, equal to or less than what the supported spouse may require to maintain the marital standard of living, in order to achieve a just and reasonable result under the facts and circumstances of the case." (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 475.)

Cherion at

X
X
X