Filed 8/7/14 Marriage of Parker and Carpenter CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re the Marriage of DARREN PARKER
and NATALIE CARPENTER.


DARREN PARKER,
          Appellant,                                                 A139315
v.
                                                                     (Marin County
NATALIE CARPENTER,                                                   Super. Ct. No. FL1105350)
          Respondent.


          Appellant Darren Parker appeals from an order in this dissolution action imputing
a minimum wage earning capacity to him for purposes of calculating child support. We
affirm.

                                                  BACKGROUND
          In 2011, Parker filed a petition to dissolve his marriage with respondent Natalie
Carpenter. The parties have one minor son. In 2012, pursuant to a stipulation regarding
certain issues, Carpenter was awarded sole physical custody of the minor with visitation
rights awarded to Parker. The stipulation did not include any provision for child support.
          In 2013, Parker filed a request for, inter alia, joint physical custody and child
support. He submitted an income and expense declaration stating he has worked as a
self-employed “craftsman, boat-builder” for over 20 years, with a current average


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monthly income of $750. Parker is an immigrant, who came to this country on a
temporary visa and then remained after its expiration. In a declaration accompanying his
motion Parker stated, “Because of my immigration status I am unable to be an employee
of an employer” but “I am optimistic that I will soon be able to begin making furniture to
sell and that I’ll be able to create a business that will support me and my son.” As
Carpenter’s monthly income was substantially higher than Parker’s, Parker requested she
pay him child support.
       Carpenter argued the trial court should impute to Parker income of $65 per hour
for at least 25 hours per week. In support of this imputed income, Carpenter submitted a
2011 income and expense declaration signed by Parker, which stated he worked 40 hours
per week and was paid $65 per hour. The 2011 declaration also listed Parker’s then-
current average monthly income as zero, stating he had worked for over a year on
Carpenter’s house without compensation.
       The trial court awarded Parker 15 percent physical custody of the minor. The
court imputed “a minimum wage earning capacity” to Parker that resulted in a guideline
child support payment of $54 per month from Carpenter to Parker. This appeal
followed.1

                                      DISCUSSION
       “California has implemented a ‘statewide uniform guideline’ for determining child
support according to a complex algebraic formula based on the parents’ incomes and
custodial time with the child. [Citation.]” (In re Marriage of Smith (2001) 90
Cal.App.4th 74, 80-81 (Smith).) Family Code section 4058, subdivision (b) “gives the
court the discretion, in applying the guideline formula, to impute income to a parent
based on his or her ‘earning capacity,’ in lieu of considering the parent’s actual income.”
(Smith, supra, at p. 81.) Earning capacity is composed of “ ‘the ability to work, including


1
  Although the appealed order issued prior to final judgment, “[a]n award pendente lite of
child support . . . is appealable independent of a final judgment. [Citations.]” (Alicia R.
v. Timothy M. (1994) 29 Cal.App.4th 1232, 1234, fn. 1.)


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such factors as age, occupation, skills, education, health, background, work experience
and qualifications,’ ” and “ ‘an opportunity to work which means an employer who is
willing to hire.’ ” (Id. at p. 82.) “ ‘If either element is not established, earning capacity
cannot be substituted for actual income.’ ” (Ibid.) Parker does not dispute that he has the
ability to work.
       The “opportunity to work” element is established if there is a “substantial
likelihood that a party could, with reasonable effort, apply his or her education, skills and
training to produce income.” (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 930.)
“To rely on earning capacity in lieu of actual income ‘[t]he dispositive question is
whether the evidence will sustain the inference that the party charged with support could,
with reasonable effort, obtain employment generating the postulated (higher) income.’
[Citation.]” (Ibid.) We review the trial court’s order imputing income for abuse of
discretion. (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.)
       Parker argues the trial court’s imputation of income was an abuse of discretion
because his immigration status precludes his opportunity to be employed at a minimum
wage or any wage. But Parker’s own evidence established that, at the time of the
hearing, he was working despite his immigration status, earning approximately $750 per
month. Moreover, he submitted no evidence that his immigration status prevents him
from increasing his income as a self-employed carpenter. To the contrary, Parker
submitted a declaration stating that circumstances other than his immigration status
reduced his income in recent years but he intends to start a furniture-making business to
increase his income. Thus, the evidence demonstrates that Parker’s immigration status
alone does not deprive him of the opportunity to work.2


2
  Although Parker cites to provisions of federal immigration law relating to the
employment of unauthorized aliens, he does not dispute that unauthorized aliens routinely
work in our state despite these laws. In addition, following our request for supplemental
briefing on the subject, he expressly waived any argument that the imputation of income
in this case is preempted by federal immigration law. Accordingly, we need not and do
not discuss this issue.


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       Parker also contends no evidence supports the trial court’s finding that he has the
opportunity to work more than he currently is working. We disagree. In an income and
expense declaration signed only 16 months before the challenged ruling, Parker estimated
his own earning capacity at $65 per hour, 40 hours per week. The trial court could
reasonably rely on this evidence to conclude Parker has the opportunity to work more
than he was working at the time of the ruling, such that he could be earning a modest
income equivalent to minimum wage employment. Parker’s citation to In re Marriage of
Bardzik (2008) 165 Cal.App.4th 1291, which held previously earned income cannot be
imputed solely on the ground that it was earned in the past, is inapposite, as the trial court
here did not impute to Parker a monthly income based on full-time work at $65 per hour.

                                       DISPOSITION
       The order is affirmed. Respondent shall recover her costs on appeal.




                                                  SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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