In re Gott-Dinsmore and Dinsmore

“In the absence of evidence of ‘uncontroverted circumstances’ constraining actual income, reliance on evidence of the obligor’s work history, experience and skills, and past income is not necessarily speculative and can support a determination of earning capacity.” In re Cortese and Cortese, 260 Or App 291, 296-97 (2013).

Appellant appealed a trial court's order for him to pay, in addition to compensatory spousal support, ongoing monthly spousal support to wife after determining that his earning capacity was $230,000 per year, despite having been laid off from his position with Salesforce in October 2020. Appellant’s gross income for 2020 was $348,928, which included $67,378 in severance pay. Appellant assigned error to the trial court’s determination of his earning capacity, arguing that it misapplied the relevant case law “by relying solely on evidence of his past income to determine his present earning capacity.” “[I]n order for the court to make an award of support, there must be evidence of the obligor spouse’s future earning potential and ability to pay.” In re Hendgen and Hendgen, 242 Or App 242, 250 (2011). “[T]he record must contain ‘nonspeculative evidence of present earning capacity[.]” In re Andersen and Andersen, 258 Or App 568, 584 (2013) (emphasis in original). “In the absence of evidence of ‘uncontroverted circumstances’ constraining actual income, reliance on evidence of the obligor’s work history, experience and skills, and past income is not necessarily speculative and can support a determination of earning capacity.” In re Cortese and Cortese, 260 Or App 291, 296-97 (2013). The Court reasoned that, in addition to Appellant’s past income, the trial court also considered the rate at which his earnings progressively grew over time; the “high level of specialized knowledge and skill” he acquired during his “significant work experience”; the fact that there was no evidence “his skill set had become obsolete”; and the fact that there was “no evidence of an industry-wide downturn” in his “specialized industry,” nor evidence of any lack of job opportunities within that industry. The Court also stated that there was sufficient evidence in the record for the trial court to conclude that Appellant “was deliberately not working” at the time of the January 2021 proceeding. Thus, the Court held that the record supported the trial court’s “nonspeculative determination” of Appellant’s present earning capacity. Affirmed.