Yocum v. Pockett

A court may use a parent’s potential income instead of that parent’s actual income “(1) if one spouse contends that the other’s earning capacity exceeds his or her actual income as established at trial, the former bears the burden of establishing that fact and (2) the burden can be sustained only by reference to nonspeculative evidence of present earning capacity, and mere reliance on attenuated earning history is legally insufficient.” Andersen and Andersen, 258 Or App 568, 584, 310 P3d 1171 (2013).

In this domestic relations case, father appeals a judgment increasing his monthly child support. Father assigned error to the court's imputation of a potential personal income of $12,500. A court may use a parent’s potential income instead of that parent’s actual income “(1) if one spouse contends that the other’s earning capacity exceeds his or her actual income as established at trial, the former bears the burden of establishing that fact and (2) the burden can be sustained only by reference to nonspeculative evidence of present earning capacity, and mere reliance on attenuated earning history is legally insufficient.” Andersen and Andersen, 258 Or App 568, 584, 310 P3d 1171 (2013). The Court reasoned that evidence in the record supported the conclusion that father was capable of earning more than his current income. However, the evidence of his present earning capability was speculative because father’s skills were outdated, his recent experience was nonexistent, his previous part-time work took three years to find, he had not completed his PhD, and he had not been able to find more than part-time work in his field. Thus, the record lacked evidence sufficient to support the court’s attribution to father of an earning capacity of $12,500 per month. REVERSED AND REMANDED.