The parties were married for approximately 29 years when Wife moved out of the marital residence and filed for divorce. Amongst other requests, Wife sought spousal maintenance.
At the time the petition was filed, Wife was unemployed. During the litigation she obtained a job that paid her approximately $12,000 per year. She enrolled in additional education related to her career field.
When Wife filed for divorce, Husband earned approximately $65,000 per year. Several months into the litigation, he quit that job and relocated to Washington. He accepted a new job earning $15 per hour.
At trial, Husband defended his choices to relocate to Washington and, more specifically, accept a significantly reduced salary. Essentially, he testified that he relocated because Wife accused him of violating an order of protection and he wanted to avoid further legal issues. He chose Washington because it was where a woman with whom he previously had a relationship lived and he hoped to resume that relationship. He also testified that he knew his employer would not transfer him to Washington but that other transfer opportunities existed.
The family court found that Husband was voluntarily underemployed and used his previous income to calculate spousal maintenance. It awarded $1000 per month to Wife for a period of ten years.
After the court denied Husband’s request for a new trial, Husband appealed. Husband argued that family court incorrectly attributed income to him and wrongly determined that he was voluntarily underemployed.
A balancing test for income attribution
Husband argued that the court should not have attributed income because he attempted to find comparable employment in good faith prior to accepting the lower paying job.
Without much context, the Court of Appeals rejected this argument and reasoned that “good faith” was the not appropriate test for courts when considering underemployment. Instead, they looked at another case, Little v. Little, where the Arizona Supreme Court considered a similar question of how a parent’s underemployment should be treated in child support cases.
The Little opinion concluded that the “good faith test” was inherently flawed and that courts should consider and balance various factors instead. Before the Pullen opinion, this test had not been applied to spousal maintenance in any published opinion in Arizona. But the Court of Appeals noted that other jurisdictions had treated child support and spousal maintenance similarly in cases involving voluntary reduction of income.
The Court of Appeals then considered a law review article that proposed five specific factors to be balanced:
“(1) The reasons asserted by the party whose conduct is at issue; (2) The impact upon the obligee of considering the actual earnings of the obligor; (3) When the obligee’s conduct is at issue, the impact upon the obligor of considering the actual earnings of the obligee and thereby reducing the obligor’s financial contribution to the support order at issue; (4) Whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) The timing of the action in question in relation to the entering of a decree or the execution of a written agreement between the parties.”
The term “obligor” refers to the person who would owe the support obligation while “obligee” refers to the recipient of the support obligation.
The Court of Appeals decided that these factors were consistent with the Arizona Supreme Court’s reasoning in Little and analyzed how each factor applied to this case. Ultimately, it concluded that this balancing test supported the family court’s decision to use Husband’s previous income to calculate spousal maintenance.
Conclusion
In cases involving spousal maintenance or child support, family courts commonly attribute income to litigants who are unemployed or underemployed. So much so that sometimes it can even extend to situations where unemployment or underemployment is not truly voluntary. Because there is so much discretion involved, it is really important to present the strongest case possible. Appellate courts do not reweigh evidence and so many cases are lost with insufficient or poorly presented evidence.