Providing Legal Services For More Than 125 Years

Supreme Court Clarifies Voluntary Unemployment For Child Support Purposes

On Behalf of | Jan 6, 2014 | Divorce & Family

In the recent case of In re: Susan Spenard and David Spenard, decided October 17, 2014, the New Hampshire Supreme Court clarified the authority of a trial court to impute income to a party for the purposes of calculating child support.

By statute, a trial court may calculate child support using a higher gross income number than what the party reports on their financial affidavit if the court concludes that the party is voluntarily refusing to work to their full potential.

In Spenard, the mother was previously employed as an “entertainer” and earned up to $1,000 a night. She claims to have lost her job some time prior to the final divorce hearing due medical reasons. However, she could not provide medical records demonstrating that she was, in fact, disabled from working. She also continued to spend lavishly during this alleged period of unemployment.

At trial, the court imputed income to mother of $4,000 per month. The court did not, however, make an express finding that the mother was voluntarily under-employed. On appeal the New Hampshire Supreme Court upheld this order stating that even though there was no express finding of voluntary under-employment, enough facts were introduced at trial to support this finding and make it implicit in the Order. These facts include the mother’s inability to produce medical evidence showing that she was disabled from work, her level of education, and her prior earning history which was confirmed by both the husband’s testimony and the testimony of a private investigator.

Spenard stands for the proposition that when presented with sufficient evidence a trial court has great latitude in recalculating child support using imputed income when it finds that a party is not working to their current potential. In cases where such an issue arises, it is important to have enough supporting information, such as prior employment history, spending history, a vocational expert, and other facts which would lead the court to conclude that a party is both unwilling to work to what their full potential could be.

Spenard also stands for the proposition that a party’s oral assertion that they are disabled may not lead to a trial finding that the person is disabled from working and therefore avoid imputing income. In the Spenard case, the wife repeatedly argued that she was disabled, but could not produce medical records to support her claim largely she claimed because the husband did not provide health insurance coverage. The trial court and the New Hampshire Supreme Court were not swayed by this argument and therefore the divorce attorney should prepare to consult with a medical provider who can testify to the degree of the client’s impairment and/or retain a vocational expert to demonstrate that with this degree of impairment, the client’s current earnings will be unlikely to reach their prior earnings.

If you have any questions regarding child support, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].