Andersen and Andersen

A spouse seeking support bears the burden of showing that the earning capacity of the other spouse exceeds their actual income and can only be sustained by non-speculative evidence based on present earning capacity.

Husband appealed the trial court's decision awarding transitional and compensatory spousal and child support. Husband had a law practice in Washington that focused on commercial, construction and real estate litigation. During his early years as a solo practitioner, Husband was very financially successful and was making over $8,000 dollars a month. Subsequent to the economic recession that affected the area of South Western Washington, where his law practice was located, Husband's average monthly income decreased to $2,700. The trial court found Husband was "intentionally under working to manipulate the status" of his potential income, and further, that if he were to work harder, or diversify his practice, he could potentially make up to $8,000 a month. The trial court based the support calculation on the husband's $8,000 earning potential. Husband appealed. The Court found that the trial court erred in fixing the amount of transitional and compensatory support because the burden to prove Husband's earning potential fell on Wife, and should have been supported by non-speculative evidence of Husband's "present" earning capacity. Furthermore, evidence of an attenuated earning history was insufficient to support a potential earning capacity. Reversed and remanded, otherwise affirmed.