Despite Father’s Unemployment, Court Awards Support Based on Earning Capacity

Connecticut Superior Court

A Connecticut Superior Court again applied the principle of utilizing a party’s “earning capacity” – rather than actual earnings – to the modification of a support award in post-judgment matrimonial action. In this case the court awards support due to earning capacity. Earning capacity is not an amount that a person can “theoretically earn,” nor is it confined to actual income, but rather it is an amount which an individual “can realistically be expected to earn, considering his skills, age and health.” Weinstein v. Weinstein, 104 Conn.App. 482, 489, 934 A.2d 306 (2007), Elia v. Elia, 99 Conn. App. 829, 833, 916 A.2d 845 (2007).

Weismuller v. Weismuller

In the matter of Weismuller v. Weismuller, (New London J.D. at Norwich), the defendant husband, who represented himself at trial, sought a downward modification of his child support award on the basis that he had become unemployed since the judgment of dissolution.  The Court found that the defendant had previously earned approximately $170,000.00 per year as the chief judge of the Mashantucket Pequot Tribal Court.

Although the defendant was not reappointed when his term came to a close, the Court found his efforts at re-employment to be lacking despite the presentation of employment applications with various government agencies and tribal courts.  The Court instead found that Weismuller, who now sought a modification of his support obligations, failed to prove he had engaged in a good-faith, comprehensive, and meaningful search for employment.

With a thinly-veiled message to the defendant and unemployed individuals elsewhere in this State who seek to modify support orders on that basis, the Court wrote, “While the court understands and appreciates that a highly paid professional may take significant time to return to the workforce, the court concludes that this time is fast approaching.”

Individuals who seek to modify terms of a separation agreement and divorce judgment should first seek the assistance of a well-qualified, experienced family law practitioner.

Should you have questions regarding visitation matters, alimony, or cases involving the Department of Children and Families , contact managing partner Joseph C. Maya at the firms Westport office at 203-221-3100 or at JMaya@Mayalaw.com for a free consultation.