EARNING CAPACITY AND SPOUSAL SUPPORT
THE USES AND ABUSES OF VOCATIONAL EVIDENCE IN DIVORCE CASES
2001 National Legal Research Group, Inc.

Background: Defining the Issue

In making an award of spousal support, a modern court must complete three basic tasks. First, it must determine the standard of living at which the support claimant is equitably entitled to live. Traditionally, this was the marital standard of living. E.g., Milner v. Milner, 288 N.J. Super. 209, 672 A.2d 206 (App. Div. 1996). Today, if the marriage is not long, the right to remain at the marital standard of living may last for only a limited period after the divorce, or there may be an indefinite right to live at a standard of living less than the marital standard but more than what the claimant could attain with his or her own income. Also, if the marriage was short, there may not be any right to an enhanced standard of living at all. The issues posed by this first step are largely questions of policy: Does a right to an enhanced standard of living exist and, if so, in what amount? The enhanced standard of living which the claimant is entitled to receive, if one exists on the facts, can be called the target standard of living; the goal of the spousal support process is to ensure that the support recipient reaches that standard.

Second, after measuring the dollar amount needed to support the target standard of living, the court must subtract from that amount the income of the spouse seeking support. If the spouse is working at full capacity, actual income is used. If the spouse is not working at full capacity, the court must consult the law on imputing income to determine the extent to which earning capacity can be used in lieu of actual earnings. There are some issues of policy at this stage, particularly in states which do not impute income to a spouse who is underemployed but acting in good faith. See generally Laura W. Morgan, Child Support Guidelines: Interpretation and Application 2.04[c][3] (Supp. 2002). But this second step presents mostly issues of fact: How much is this spouse actually earning, and how much is he or she reasonably capable of earning if working at full capacity. The difference between the target standard of living and the financial resources of the claimant is the claimant's need for support.

Third, after determining the extent of the claimant's need, the court must consider the extent to which the support payor can afford to meet that need. Since the amount of the target standard of living is based upon the marital standard of living, and the payor in most cases was able to afford the marital standard of living, one might think at first that the payor should normally be able to afford the same standard after the divorce. But it is an unfortunate fact of economics that it is more expensive to support two households at a given standard of living than to support one. In many cases, the payor will not be able to support both spouses at the marital standard of living. The third step therefore requires the court to allocate equitably the resulting loss in living standard to set support so that both spouses live as close to the marital standard of living as their combined incomes permit. Marital fault is particularly a factor at this stage; a spouse who caused the marital breakdown is often required to share a greater portion of the burden. Like the second stage, the third stage involves primarily an issue of fact: determining the actual earnings and the reasonable earning capacity of the support payor.

In this suggested three-step process, the policy and equity issues are concentrated into the first step: determining the standard of living at which the support claimant is entitled to live after the divorce. Once this step is completed, the process of translating the target standard of living into an actual support award is rather mechanical: The court simply subtracts the claimant's own earnings to obtain the claimant's net needs and then makes any additional subtraction required by the earnings of the payor.

Of course, a mechanical process is not necessarily an easy one. Tasks which are easy to describe are not always easy to accomplish on the facts. Determining actual earnings is not too difficult in most cases; income is well reported on paycheck stubs and tax returns. But actual income is sufficient only where the earning spouse is employed at full capacity. For a variety of reasons, both good and bad, many support recipients are underemployed, and the tendency of support payors to become underemployed shortly before the commencement of divorce proceedings is well recognized. When the court measures income for purposes of divorce, the hardest issue is adjusting the income of the underemployed spouse that is, the measurement of earning capacity.

The traditional approach to measuring earning capacity is to assume that the trial judge, like the Greek Oracle, knows all. As recently as 1989, a Maryland appellate court held:

A trial judge can determine without expert testimony whether a person can reasonably expect to achieve self-sufficiency or if the incomes of two persons will be grossly disparate. These concepts are not foreign to most persons and are within the ability of a fact finder to deduce.

Bricker v. Bricker, 78 Md. App. 570, 554 A.2d 444, 447 (1989).

The view expressed by the Bricker court makes support cases very easy to administer. Unfortunately, it suffers from one key defect: It is absolutely and fundamentally wrong. Whether a person with a given set of credentials is employable and, if so, determining the salary which he or she is capable of earning is not an issue of law. It is an issue of fact, the answer to which depends upon the supply of and demand for different types of labor in different geographic areas. Nothing in the experience or job description of trial judges gives them any automatic expertise in these areas. Trial judges do many things, and measuring earning capacity is only a very small part of their job description. Conversely, other types of people for example, operators of employment agencies, or even those who operate businesses in the relevant area have day-to-day familiarity with the supply and demand for labor.

Moreover, even if the court does have expertise in determining earning capacity, determining such capacity in any given case often involves extensive factual investigation. A review of job listings must often be conducted to determine what qualifications employers are seeking and what salaries they are paying. In addition, anyone who has ever sought employment knows that job listings are not always accurate indications of actual employability. Some employers advertise for their ideal but are forced to accept something less; other employers attach substantial importance to credentials or qualifications which they are reluctant to state publicly. Few employers, for example, would openly admit to a reluctance to hire older homemakers. Because of this fact, determining income capacity is a field which particularly requires experience and personal contacts factors which trial judges are not equipped to develop. See generally Milner v. Milner, 288 N.J. Super. 209, 672 A.2d 206 (App. Div. 1996) (trial court erred by finding wife employable at increased earnings in new career, without stating what that career might be and without any supporting evidence that a career change would increase her income).

The clear modern trend is to require that computations of earning capacity be supported by admissible evidence. "[F]igures for earning capacity cannot be drawn from thin air; they must have some tangible evidentiary foundation." In re Marriage of Cohn, 65 Cal. App. 4th 923, 76 Cal. Rptr. 2d 866, 872 (1998).

The best evidence of earning capacity is expert testimony from a witness who has reviewed credentials and job listings, and has the necessary personal contacts a vocational expert. While vocational experts have not been traditionally required, their use has always been permitted. Bricker ultimately adhered to the traditional position, but it took a significant step away from the traditional rule by encouraging the use of experts:

That is not to say that it is inappropriate to have an expert in a situation such as this. Evidence of the degree to which an economically dependent spouse can or cannot reach self-sufficiency could not only be helpful, it could be preferable.

554 A.2d at 447.

In the past five to ten years, the use of vocational experts in support cases has increased exponentially. In fact, the increased use of vocational experts probably has been the single greatest change in spousal support law over the past ten to fifteen years. Whether formally or informally, most courts are beginning to understand that trial judges are not equipped to make accurate measurements of earning capacity without supporting evidence. Earning capacity is rapidly joining valuation and medical condition as an issue where the trial court's job is to resolve the testimony of competing experts and not to make its own completely independent determination.

This article will discuss the growing body of nationwide case law on the uses and abuses of testimony from vocational experts. Like all expert testimony, vocational testimony is never controlling as a matter of law. The trial court has discretion to accept the testimony of any vocational expert. E.g., Robinson v. Robinson, 135 Idaho 451, 35 P.3d 268 (2001). It can even find that none of the vocational testimony is credible, and rely on nonexpert testimony. E.g., Pagano v. Pagano, 665 So. 2d 370 (Fla. Dist. Ct. App. 1996); Halliday v. Boland, 813 S.W.2d 34 (Mo. Ct. App. 1991). But the courts have held that some types of experts and some types of testimony are so weak that they cannot be credited as a matter of law. In addition, while the trial court may choose to believe any credible expert testimony, the cases are starting to show that some types of testimony are particularly likely to be found credible or not credible on the facts. Familiarity with case law on this issue can therefore materially improve the manner in which vocational testimony is presented to the court, resulting in a higher chance that the testimony will be deemed credible.

The primary focus of this article is the process of proving earning capacity for purposes of spousal support. Nevertheless, child support cases are included in this article to the extent that they are applicable in the spousal support context. It is generally safe to say that the process of proving earning capacity is the same for both purposes, but the courts are more likely to find that at least some amount of earning capacity exists when child support is at issue.

This article is one which the author has contemplated writing at various points within the past five years. The great obstacle, however, has been the difficulty in finding appellate case law addressing vocational testimony. Some of this difficulty is the result of poor organization within the indexing systems, but most of the difficulty comes from the fact that widespread use of vocational experts is a very recent development. The growing body of case law has now reached the point where helpful conclusions can be drawn. In order to draw these conclusions, however, the present article will rely somewhat more on unpublished cases than most Divorce Litigation articles. This reliance is required by the relative lack of published opinions addressing the subject.

Relevance

At the outset, it is important to understand the situations in which vocational expert testimony is relevant. If such testimony is not relevant, vocational testimony will never be controlling, no matter how credible the expert.

As a general rule, vocational testimony is relevant whenever the court is permitted to look at earning capacity. Vocational testimony is therefore a tool for meeting a party's factual burden on one specific legal issue: the question of imputed income.

If the law determines for policy reasons that income will not be imputed in a particular situation, vocational testimony will not be relevant. For example, many states for policy reasons do not require that the custodial parent work while the children are young. When this policy decision is made, vocational testimony has no credibility:

Mr. Reuter's vocational expert testified that Mrs. Reuter was presently qualified for a variety of nursing jobs with pay in the range of $35,000 to $45,000 per year. With a modest amount of retraining and recertification, Mrs. Reuter would also be qualified for the many available jobs that require clinical experience, at a salary of $36,000 per year. But the issue, as framed by the trial court, is whether Mrs. Reuter is required to act contrary to the best interests of her child in order to be self-supporting.

Reuter v. Reuter, 102 Md. App. 212, 649 A.2d 24, 33 (1994) (court's emphasis); see also Adelman v. Adelman, 878 S.W.2d 871 (Mo. Ct. App. 1994) (where children had special health needs which required wife's presence in the home, trial court properly rejected testimony of husband's vocational expert).

Regardless of how much the custodial parent could earn if he or she did work, earning capacity is irrelevant if the law permits the custodial parent to remain in the home.

Spouses seeking support sometimes claim that vocational testimony is irrelevant after a long marriage because the dependent spouse in such a marriage is not required to work. This claim generally fails because courts are very reluctant to hold that any spouse has absolutely no duty to work:

Linda essentially urges that in marriages of long duration, requiring a spouse to become self-supporting is onerous and punitive. She claims . . . that the trial court could not terminate spousal support because the record did not clearly indicate that she had or would have the ability to meet her financial needs. We are not convinced.

In re Marriage of Liem, 2002 WL 399525, at *10 (Cal. Ct. App. 2002). Liem is an unpublished opinion which cannot be cited in California, but its holding is representative of many other decisions nationwide. E.g., Torian v. Torian, 38 Va. App. 167, 562 S.E.2d 355 (2002) (rejecting an argument that limited-term support cannot be awarded after long marriages). To take just one example, if the wife in a forty-year marriage were a physician with a substantial income and a thriving practice, of course there would be some duty to work. Modern policy is that the duty to work applies to everyone.

It might be observed, however, that the wife's argument in Liem (if accurately summarized by the court) was made somewhat inartfully. While everyone is required to work, everyone is not required to work anywhere. The law has traditionally expressed this point somewhat quaintly by asking whether the wife could find employment suitable to her "station in life." E.g., In re Marriage of Cepek, 230 Ill. App. 3d 1045, 596 N.E.2d 131, 134 (1992). This phrasing is not always used today, but the courts are nevertheless not inclined to impose upon an upper-middle-class wife after a 30-year marriage a duty to seek employment at a fast-food restaurant. Contrast Liem with the following holding from a Utah case:

We are not convinced that the inclusion of appellant's witness would have produced a different result in the court's calculation of alimony. Appellant indicates that his witness, a vocational expert, would have testified about Ms. Rehn's probable earnings as derived from her work history, occupational qualifications and earnings of those similarly situated in the community. However, after reviewing the court's findings, it is evident that it already had sufficient information regarding Ms. Rehn's historical earning capacity but found no issue of "unemployment or underemployment based on the historical roles" the parties assumed in the marriage. As such, we are not persuaded that such cumulative testimony from the witness would have been helpful in the court's award of alimony.

Rehn v. Rehn, 974 P.2d 306, 314-15 (Utah Ct. App. 1999). Judging from the language of the opinions, it appears that the wife in Rehn made a more fact-specific argument, focusing upon the parties' "historical roles" in the marriage (and, by implication, upon the wife's station in life and the types of employment she had held in the past) and not upon a broad assertion of no duty to work. The wife in Liem might have done better by arguing that she could not find appropriate employment on the facts, rather than that she did not have any duty to work at all.

There is some authority suggesting that vocational evidence might be less relevant when the issue is whether a spouse has made reasonable efforts to improve earning capacity after the divorce, rather than whether a spouse is employable at the time of the initial award. For example, in Halliday v. Boland, 813 S.W.2d 34 (Mo. Ct. App. 1991), the court affirmed a trial court decision giving no weight to vocational testimony in a postdivorce situation:

It is clear that the court did not believe that the hypothetical testimony of the expert was relevant because the decree did not require Ms. Halliday to maximize her potential or to obtain any particular training and experience.

Id. at 37. Yet earlier in its opinion, the court stated that the wife did have a duty to maximize her earnings:

The rule is that a former spouse receiving maintenance "is under a continuing duty to exert reasonable efforts to attain self-sufficiency and will not be permitted to benefit from inaction." Hicks v. Hicks, 798 S.W.2d 524, 527 (Mo.App.1990). Here, the record before the trial court sufficiently demonstrates that Ms. Halliday made such reasonable efforts by working full time, by periodically seeking new positions which promised either better experience or better pay, and by obtaining computer skills which she used in her current position.

Id. at 36. The husband's expert, "a psychologist with expertise in women's careers, . . . testified that Ms. Halliday did not assert reasonable efforts to seek training and experience and, had she done so, she could have substantially increased her earnings." Id. This testimony seems directly relevant to the question of whether the wife had indeed made reasonable efforts to attain self-sufficiency. The real holding of the case is probably that the trial court was allowed to believe the wife and disbelieve the expert, and the author would have no problem with such a holding. It seems a bit extreme, however, to suggest that the expert's testimony was irrelevant. It was almost certainly relevant; the problem was that it was not persuasive.

Need

Where earning capacity is relevant, vocational testimony can generally be considered. But it is not the only type of evidence which establishes earning capacity.

Immediate Past Earnings. Where a spouse has left employment in the immediate past, actual earnings in prior employment are powerful evidence of current earning capacity. Laura W. Morgan, Child Support Guidelines: Interpretation and Application 2.04[c][1] (Supp. 2002); Havener v. Havener, 700 So. 2d 533, 540 (La. Ct. App. 1997) ("[T]he wage earned prior to voluntary underemployment or unemployment is the best estimate of an obligated party's potential income").

Past actual earnings are not evidence of present earning capacity when a significant period of time has passed since the spouse left prior employment. For example, in Adelman v. Adelman, 878 S.W.2d 871 (Mo. Ct. App. 1994), the court held that the wife's prior employment ten years ago was not evidence of her current earning capacity:

[Husband's vocational evidence] fails to consider [that] wife is a custodial parent for three children and has been out of the job market for the past ten years. She testified she has not kept up with the current technology in the field since 1984. There is no evidence to support a finding [that] wife has present skills and qualifications for present employment as a radiological technician.

Wife testified she earned $8 an hour when last employed as a radiological technician in 1984. Nothing in the record supports a finding [that] she was qualified for any radiological technician positions currently available, or, that actual terms of employment would be compatible with custodial responsibilities.

Id. at 874. Past earnings are likewise not probative where the time period is shorter but substantial changes have occurred in the interim. See Boynton v. Boynton, 636 So. 2d 53, 56 (Fla. Dist. Ct. App. 1994) (where "husband's occupational circumstances changed involuntarily beginning June 1, 1992," prior earnings were not proof of earning capacity).

To use prior earnings as evidence of present earning capacity, must it be shown that employment is presently available? As discussed below, the general rule is that the immediate availability of employment must be proven. As an exception, however, evidence of availability is generally not required where the spouse left prior employment for a legally insufficient reason. E.g., Havener. The theory in these cases is that the spouse should have remained in the prior position, and use of earning capacity is akin to a penalty for wrongful departure. Where the departure from prior employment was not wrongful, evidence of immediate availability is generally required, even if the time period since loss of employment is relatively short. E.g., Badovick v. Badovick, 128 Ohio App. 3d 18, 713 N.E.2d 1066 (1998) (husband lost employment through no fault of his own); Srinivasan v. Srinivasan, 10 Va. 728, 396 S.E.2d 675 (1990) (wife who did not work during later years of the marriage).

Medical Conditions. One particular subset of the earning capacity cases is the situation in which employability is limited by health problems. In these cases, is the spouse at issue required to introduce testimony from a medical expert? The general rule is that a spouse need not produce an expert to corroborate testimony regarding symptoms:

Although we were unable to find a case on point, we note that this case is analogous to personal injury cases in which plaintiffs commonly testify to their injuries. In such cases, we have consistently held that a plaintiff need not produce expert medical testimony to prove damages.

Applying the above principle to the case at hand, we hold that the trial court erred in finding that expert medical testimony was necessary for Cheryl to prove her need for continued maintenance. In addition, we find that such testimony was unnecessary in light of the fact that Walter presented no evidence disputing Cheryl's testimony regarding her vision problems.

In re Marriage of Eller, 233 Ill. App. 3d 304, 599 N.E.2d 37, 38-39 (1992).

On the issue of her unemployability, Ms. Milam personally testified that she could not work due to fatigue, memory problems, inability to tolerate noise, crowds, and other related symptoms that she had experienced since she had surgery in 1984.

The trial court apparently chose to believe Ms. Milam. As a witness Ms. Milam was entitled to testify from her first-hand knowledge about what she was experiencing and what she was able to do. Although issues of proximate causation frequently require expert medical testimony "to a reasonable degree of medical certainty," there was no issue of proximate causation in this case. The factual issue was simply whether Ms. Milam was able to earn income to support herself[.]

Milam v. Milam, 1994 WL 579722, at **1-2 (Ohio Ct. App. 1994).

While expert opinion is not required to prove symptoms experienced by a spouse, such an opinion might of course make a symptom-based claim stronger. In addition, to the extent that the issue is whether a person with a given set of symptoms is or is not employable, the testimony of a vocational (as opposed to medical) expert might be required. The wife in Milam had no medical expert, but a vocational expert did testify on her behalf that a person with her symptoms was unemployable. A later case refused to apply Milam where the vocational testimony was absent:

We would also point out that in Milam, testimony was offered not just from the allegedly disabled spouse, but also from a vocational expert. In this context, we held that "an award of spousal support based on unemployability does not require an expert medical opinion when unemployability can be proven by the testimony of the spouse and a vocational expert who bases his opinion, in part, upon the spouse's subjective complaints concerning which she testified." 1994 WL 579722, *1. Thus, while a party could certainly testify subjectively about his or her inability to work, some other type of supporting testimony should normally be offered.

Scott v. Scott, 2002 WL 31105403, at *5 (Ohio Ct. App. 2002).

An ideal solution, where possible, is to find an expert with both medical and vocational qualifications:

Wife also endures numerous health problems which have [affected] and will continue to affect her ability to seek and maintain employment. Dr. Semrau, a clinical psychologist and vocational expert, testified that Wife's physical problems are extensive and will affect her emotions "as time continues." Dr. Semrau questioned whether Wife could sustain employment on a 40 hour a week basis, but stated that she could possibly sustain work for 20 to 32 hours a week if she were allowed rest periods and time for insulin injections. [We] conclude that her "need" [for alimony] has been established.

Loyd v. Loyd, 860 S.W.2d 409, 412-13 (Tenn. Ct. App. 1993). There is, of course, no guarantee that even the best medical expert will be credible; when there are conflicting competent experts, the result is hard to predict. See Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186, 1204 (1993) (trial court did not abuse its discretion by disbelieving wife's expert testimony regarding vision problems).

Note that the courts in Eller and Milam relied on testimony as to symptoms and not as to medical causes. Indeed, Milam expressly held that the wife's testimony on causation was insufficient but also held that this fact made no difference:

Although Mr. Milam correctly argues that the trial court was not permitted, on the evidence and testimony submitted here, to find that Ms. Milam specifically suffered from a medically diagnosed case of Chronic Fatigue Syndrome, the trial court did find that Ms. Milam will not be able to work "in the future due to her health problems."

Mr. Milam incorrectly asserts that the trial court based its award of spousal support upon a finding that Ms. Milam was suffering from Chronic Fatigue Syndrome. The trial court based its award of spousal support upon its finding that Ms. Milam was not able to work, regardless of the medical cause of that disability.

We note that a medical diagnosis is not only not necessary to support a finding that a spouse is not able to work, it is also not sufficient to support such a finding. For example, had Ms. Milam only proven her diagnosis of CFS, without showing that, as a result of that condition, she was unable to work, the trial court would not have had a factual basis for finding Ms. Milam to be unemployable. The medical cause of a person's disability is not an essential fact requiring proof when mere disability, regardless of cause, is asserted in an action for divorce or support.

1994 WL 579722, at *2.

Other courts agree that when a spouse argues that he or she suffers from a specific medical condition, or when claims are made regarding the likelihood that the condition will change in the future, expert medical testimony is generally required:

Second, while Mr. Draper has shown that he was placed on long-term disability at the time of the hearing, he presented no medical or vocational expert evidence to support his claim that his disability is permanent. If it is not, then his decision to seek early retirement is considered a voluntary reduction in income and cannot support a reduction in maintenance.

Draper v. Draper, 982 S.W.2d 289, 292 (Mo. Ct. App. 1998).

[The] trial court abused its discretion by solely relying on the testimony of appellee with regard to her medical condition and cost without any corroborating expert testimony.

Whorton v. Whorton, 651 So. 2d 985, 987 (La. Ct. App. 1995).

The Opposing Party. In the course of a marriage, the spouses normally acquire some amount of information regarding each other's employability. One decision held that the trial court erred by refusing to admit the other party's nonexpert opinion into evidence:

Husband also contends the trial court erroneously excluded portions of his testimony on wife's employment history and marketable skills. We agree. As set out above, wife's ability to earn an income was relevant. Any marketable skills and abilities wife demonstrated during the marriage, absent evidence she no longer possessed those skills or abilities, were probative of her earning capacity at the time of the hearing. Therefore, the trial court abused its discretion in excluding husband's testimony on wife's ability to quilt and smock and her successful operation of a horse training business.

Young v. Young, 2000 WL 343811, at *4 (Va. Ct. App. 2000).

Wife's testimony of her past education, her past work experience, her present training and job expectations was sufficient evidence for the trial court to conclude her financial condition would change upon completion of her training in September 2001.

Howsmon v. Howsmon, 77 S.W.3d 752, 756 (Mo. Ct. App. 2002).

Note, however, that testimony from the other spouse may not be especially persuasive where it does not meet the normal standard of specificity. See Hinton v. Smith, 725 So. 2d 1154, 1157 (Fla. Dist. Ct. App. 1998) (imputation of income not supported by husband's testimony that "[b]ased on the literature that I saw from St. Pete J.C., where she chose to go, there were many, many two-year degrees that would enable somebody to get anywhere from $30,000 to $40,000 a year"); McCord v. McCord, 1999 WL 1129733 (Va. Ct. App. 1999) (husband testified that wife "could work at a GS-5 or GS-6 level," but "he did not know the salary ranges or if opportunities were actually available," and he "presented no evidence regarding wife's specific skills or the value of those skills"; trial court did not err by refusing to impute income).

The Opposing Party's Expert. One of the best sources of vocational evidence is not the testimony of a party's own expert but, rather, the testimony of the expert on the other side of the case. If that expert makes damaging admissions on cross-examination, the admissions can be very probative:

The district court also ruled that "at this time [the wife] is unable to support herself through appropriate employment to make up any difference." The testimony from the husband's vocational rehabilitation counselor supports this finding. Thus, the record supports the district court's findings that maintenance was necessary in this case.

In re Marriage of Huff, 834 P.2d 244, 252 (Colo. 1992). The court described the husband's expert's testimony in a footnote:

The husband offered the testimony of a vocational rehabilitation counselor who had evaluated the wife. The counselor testified that the wife needed counseling and vocational training in order to reenter the labor market because she "has no experience or training right now . . . that she can use to gain access to competitive employment." The counselor concluded that the wife had the intellectual capacity to succeed in any program she decided to pursue and that, after counseling and training, the wife would be qualified to enter the labor market as a librarian, technical writer, or legal/medical secretary. On cross-examination, the counselor testified that currently there are more older workers in the labor market, but recognized that some employers still discriminate against older people. The wife did not offer a vocational expert to testify on her behalf.

Id. at 252 n.10.

Primary Source Materials. There is authority holding that actual job listings can be admitted into evidence as proof that employment is available:

Catherine complains the Los Angeles Times help wanted ads were inadmissible hearsay (Evid.Code, 1200) and should not have been relied upon by the trial court to establish that she could secure a teaching position. However, the court properly ruled the ads were admissible for the nonhearsay purpose of showing that offers to bargain existed. [Citation omitted.] Also, the ads corroborated Barry's opinion testimony regarding the availability of teaching positions.

In re Marriage of LaBass, 56 Cal. App. 4th 1331, 66 Cal. Rptr. 2d 393, 397-98 (1997). But there is also contrary authority:

The wife then entered into evidence the employment section of The Herald Statesman, a New York newspaper, for two different dates, July 7 and 14, 1996. These employment ads reflected five job offers for roofers with pay between $10 and $20 per hour. Several ads required experience and/or tools.

Relying on these ads, the trial court imputed income to the husband at $20 per hour for forty hours a week and then reduced that amount by 5% on the probability that there would be less work in the winter months. These conclusions are not supported by the record. There is nothing to indicate that any of these jobs are available to the husband, and if so, at what rate of pay. There is nothing to establish the husband's ability to be employed forty hours per week on a nearly year-round basis.

Iglesias v. Iglesias, 711 So. 2d 1316, 1317 (Fla. Dist. Ct. App. 1998).

There is value in both LaBass and Iglesias, but Iglesias is probably the more common situation. LaBass is entirely correct that job listings are not hearsay; they are being admitted for their existence and not their truth. Moreover, in many cases, job listings are source materials traditionally relied upon by vocational experts, and material relied upon by experts is often admissible even if it does constitute hearsay.

The problem with job listings is not hearsay but, rather, completeness and, ultimately, relevancy. To begin with, a job listing is worthless without evidence that the spouse in question meets the stated qualifications:

The only evidence about his job skills was that he could "weld a little," and that he had some training as a machinist. Although Wife demonstrated that there were jobs advertised in Joplin, Missouri paying $6.25 to $7 per hour (in one instance, $12 per hour), the evidence did not establish that he possessed the required qualifications for any of them.

Walker v. Walker, 936 S.W.2d 244, 248 (Mo. Ct. App. 1996).

Moreover, even where the spouse meets all of the posted qualifications for a job, that fact still does not show that the job is actually available. There are many cases in which a qualified spouse was turned down for an entire series of jobs. "[D]espite applying for all types of entry level attorney positions in a number of counties, Howard was unable to procure even one job offer." In re Marriage of Cohn, 65 Cal. App. 4th 923, 76 Cal. Rptr. 2d 866, 871 (1998). Some employers are deluged with a wealth of qualified candidates; other employers will reject an applicant for reasons (e.g., age, appearance) not stated in a formal job listing. Still other employers (e.g., public universities) have been known to list a position as a mere formality before hiring a person who has already been chosen.

None of these limitations means that job listings are entirely without value. But their relevance is clearly greatest when they are presented through the testimony of a vocational expert, who is familiar with both the qualifications of the spouse at issue and the many factors operating beneath the surface of any job listing. Where the spouse has made absolutely no effort to secure employment, which was close to the situation in LaBass, perhaps the failure to even investigate the job listings is sufficient to give the raw listings some weight. But where there is any significant evidence that the spouse has been turned down for advertised positions, raw listings without explanatory expert testimony should receive little or no weight.

Judicial Notice. For the reasons stated in the first section of this article, earning capacity is not a proper subject for judicial notice. It depends upon too many specific facts which are too far removed from the experience of ordinary persons in general or trial judges in particular.

The court may, however, be able to take notice of various facts which are relevant to earning capacity. See Burke v. Carter, 1997 WL 906041, at *2 (Del. Fam. Ct. 1997) ("[w]age and earnings surveys distributed by government agencies"); Lucy v. Lucy, 456 N.W.2d 539 (N.D. 1990) (farming conditions).

Minimum Wage. Even in the absence of evidence that specific positions are available, a few child support decisions permit a court to impute income at minimum wage. DeBoer v. DeBoer, 669 N.E.2d 415 (Ind. Ct. App. 1996). The theory behind these cases is that it is highly unlikely that any given person would be absolutely unemployable. The theory may well be limited to child support; there are currently no spousal support decisions accepting it.

Choosing the Expert

To present the most persuasive expert testimony, the trial attorney must choose (1) the best expert; (2) give the expert the right facts; and (3) make certain that the expert addresses the right issues.

The reported cases have not yet begun to discuss different types of vocational experts. It is clear that the universe of potential experts is not limited to those whose primary occupation is court testimony; the author is familiar with trial court cases in which valuable testimony has been given by such persons as managers of temporary employment agencies and administrators at local colleges. Any person with actual knowledge of available positions and training programs can be used as a vocational expert.

Familiarity with the Facts

In addition to selecting the right expert, the trial attorney must also make sure that the expert knows the facts. With expert testimony, as with computers, the quality of the output depends heavily on the quality of the input.

The disaster scenario from the standpoint of the spouse seeking to impute income occurs when the expert is obviously not familiar with the specific credentials of the other spouse. In Wheaton v. Wheaton, 1997 WL 117568 (Va. Ct. App. 1997), the husband introduced testimony from a health-care professional recruiter, who testified that the wife could work as a licensed professional nurse, earning between $26,000 and $37,900. But the expert also stated that she had never seen the wife's resume or interviewed her. Further, Austin testified that "the marketplace for nurses is fairly tight at this time" and that "[t]here are not a tremendous number of opportunities." The trial court refused to impute income, and the appellate court affirmed:

We find [that] the trial court did not abuse its discretion in refusing to impute income on the basis of this limited evidence. Austin provided generalizations about the nursing field, suggesting a broad salary range of $26,000 to $37,900, but had no specific knowledge of wife's qualifications for any particular position. At the time of the hearings on these matters, wife was forty years of age and although she had maintained her nursing license, she had not worked since 1987. No evidence was introduced of specific job openings, the requirements for such positions, their salaries, or the likelihood that wife would be hired for a particular nursing position.

Id. at *5.

It is important that the expert be made aware of any health limitations which might cause the employability of the spouse at issue to be different from the norm. For example, in G.V.W. v. L.M.W., 785 So. 2d 533 (Fla. Dist. Ct. App. 2001), the trial court was reversed for accepting the testimony of the wife's vocational expert. After reviewing wage studies and surveying area law firms, the expert had concluded that the husband was employable for $50,000 per year as an attorney. "On cross-examination, however, she admitted that her opinion did not take into account any physical or emotional limitations that the husband may suffer." Id. at 534-35. The husband's emotional limitations were significant, as the wife's own mental health expert admitted:

[The expert] concluded that the husband is "a very emotionally troubled man," who requires on-going therapy to help him deal with the pain of day-to-day stress. On cross-examination, the psychologist agreed that the husband is afraid of the responsibility of making money, considers himself ineffective in holding a job, has difficulty in impulse control, and has poor organizational skills. The psychologist agreed that all of these factors would interfere with the husband's ability to function as an attorney.

Id. at 535. Because the crucial question of mental health was not considered, the expert was not credible, and the trial court's decision was reversed. "The education of an individual may indicate the capacity to earn; however, it does not guarantee the ability to earn when that individual suffers from other limitations." Id.

The question of whether the law requires testimony from a medical expert as well as a vocational expert, where health concerns limit employability, is discussed at length earlier in this article.

Where the expert is aware of health problems, and takes those problems into account in rendering his or her opinion, the expert's testimony can be persuasive. See Dixon v. Dixon, 334 S.C. 222, 512 S.E.2d 539 (1999) (husband had heart and back problems, but had no active symptoms which limited his employability; wife's vocational expert's testimony was credible); cf. Milam v. Milam, 1994 WL 579722, at *2 (Ohio Ct. App. 1994) (earning capacity is not limited by proof that spouse suffers from medical condition, without proof that symptoms interfere with employment).

Addressing the Right Issues

Finally, the attorney should make certain that the expert addresses all of the necessary elements of earning capacity. This is the substantive core of the issue involved. To prove earning capacity, the expert must testify that specific positions are immediately available and that the spouse involved could be hired to fill them.

A few examples of persuasive testimony show how both elements work together:

Wife argues that the court's findings of fact are in error because "[t]he chances of someone hiring a fifty-nine year old woman who had not worked in thirty years as a seamstress, who hadn't sewed in fifteen years, is at best speculative." We disagree. The trial court heard testimony from husband's vocational expert Dr. Bernstein that current demand for seamstresses was good and that salaries ranged from seven to ten dollars per hour. He also testified there were positions for seamstresses to work in their own homes. Substantial evidence supported the trial court's finding of wife's ability to contribute in part toward her own support.

Hogan v. Hogan, 796 S.W.2d 400, 405 (Mo. Ct. App. 1990).

Dr. Kneipp performed a comprehensive vocational evaluation of Mrs. Perlberger. In Dr. Kneipp's opinion, Mrs. Perlberger was, on the basis of this evaluation and her educational background, immediately employable as a high school or university level French teacher. Dr. Kneipp cited as an example an open position for a French teacher at Germantown Academy in Fort Washington, Pennsylvania. That position paid approximately $31,500.00 per year. The trial court found this testimony credible.

Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186, 1204 (1993).

Conversely, to rebut vocational testimony persuasively, an equal degree of specificity is required:

[The husband's] expert testified that there were three full-time positions available in Fairfax County where the wife could earn approximately $30,000. The wife challenged his expert on whether the vacancies were in "cued speech," her specialized field, how many applications each position had, and what the competition was for each. Under these circumstances, the court properly held that the wife had not unreasonably refused employment for which she was qualified.

Foreman v. Ketchum, 1999 WL 1129731, at *5 (Va. Ct. App. 1999).

The common ground in the above cases is that the testimony was specific. The expert spoke in terms of particular job openings, available at the time of trial, which the spouse at issue would probably be hired to fill, offering specific salaries.

Where there is no evidence of any specific employment opportunities available, vocational testimony is grossly defective:

Defendant also did not present any evidence that there are other employment opportunities available to a person with plaintiff's education and work experience that would be likely to generate greater income than plaintiff is earning as a realtor. In fact, the only evidence presented on this point was the report of plaintiff's vocational expert, Samuel Goodman, which concluded that plaintiff's age, physical handicaps, and lack of readily transferable job skills, "make her a disadvantaged applicant for consideration as a worker."

Milner v. Milner, 288 N.J. Super. 209, 672 A.2d 206, 209 (App. Div. 1996) (footnote omitted).

One recurring issue in many of the cases is the question of future earning capacity. With the widespread use of time-limited support, see generally Brett R. Turner, Rehabilitative Alimony Reconsidered: The "Second Wave" of Spousal Support Reform, 10 Divorce Litigation 185, 205 (1998), the courts are now required to consider not only immediate earning capacity but also earning capacity in the foreseeable future. If a future increase is reasonably likely, the court should make a portion of the support time-limited in order to encourage the increase. But it is obviously important that this be done only where the increased earnings are reasonably possible. Id. at 205. The definition of a "reasonably" likely future increase lies very much in the eye of the beholder.

Some decisions are broadly willing to accept estimates of future employability:

[T]his record supports a five year rehabilitative award for the purpose of allowing the wife to rebuild her career in auto sales. See Kanouse v. Kanouse, 549 So.2d 1035 (Fla. 4th DCA 1989). The wife's vocational expert testified that it would take the wife five years to earn up to $35,000-$50,000 per year, and the trial court determined that she should go back to work. Thus, we find no abuse of discretion in the award of rehabilitative alimony.

McHugh v. McHugh, 702 So. 2d 639, 643-44 (Fla. Dist. Ct. App. 1997).

Most decisions, however, will consider future earning capacity only when there is definite evidence of a concrete plan of education or training which is likely to result in increased earnings. Again, a few examples of successful testimony show what is required:

Regarding an "educational need or plan of action" that must be evidenced from the record for an award of rehabilitative alimony [citation omitted], Cyndy presented herself for evaluation by the vocational rehabilitation specialist who testified on her behalf. Following his evaluation, which included a personal interview with Cyndy, taking her educational and work history, and submitting her to various vocational and personality-type testing, this expert concluded Cyndy's best course of action for reentering the work force would be to complete approximately six months of select computer courses at a vocational school and begin work in an entry-level position in the banking field. Cyndy had worked in banking before the parties moved to Sioux Falls in 1977 and her test scores in the vocational evaluation demonstrated a high interest and ability in this area. Her test scores also were high in the fields of business and sales. Although Cyndy did not express to this specialist any specific plans for employment or retraining during their interview, it was noted by the expert at trial that this is not unusual for a person who had not been career-minded during a long marriage and is presently going through a divorce. The vocational rehabilitation specialist testified he and Cyndy discussed assistance with her career development after the divorce.

Evans v. Evans, 559 N.W.2d 240, 248-49 (S.D. 1997). The expert concluded that the wife "would be able to earn $25,000 per year within three to five years," and this testimony was found to be credible.

An Alaska decision lists the key elements of a future plan based upon education:

[A] spouse's educational plan is sufficient for the purpose of supporting a rehabilitative alimony award if the spouse identifies a career goal, a degree program aimed at realizing that goal, and a time frame during which the degree may be earned through reasonable diligence.

Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996).

The educational or training plan presented by the expert must account not only for the time necessary to obtain job skills but also for the time and effort necessary to secure real employment. In Srinivasan v. Srinivasan, 10 Va. 728, 396 S.E.2d 675 (1990), the wife was without doubt highly educated "an expert in oriental studies, concentrating in Indian art and religion, with a knowledge of the Sanskrit language." 396 S.E.2d at 679. She had been employed early in the marriage and had worked part-time for at least some of the last part of the marriage, but she was unemployed at the time of divorce. The trial court imputed to her $33,000 in annual earnings, based upon specific testimony to that effect from a vocational expert. On appeal, the court expressly agreed that the wife's earning capacity was $33,000 per year. Nevertheless, the court reversed the decision below:

Previously, however, we have held that the court, in setting support awards, must look to current circumstances and what the circumstances will be "within the immediate or reasonably foreseeable future," not to what may happen in the future. . . . Mrs. Srinivasan, at the time of divorce, was leading the lifestyle she was accustomed to during the marriage. We conclude that the evidence did not support a finding that she had unreasonably refused to accept employment as of the date of divorce and she was thus entitled to a reasonable time to secure employment. If, however, after a reasonable time she unreasonably refuses to seek or accept employment, the imputation of an amount of income would become justified.

Id. Thus, because the expert failed to give the wife "a reasonable time to secure employment," id., a decision accepting the vocational expert's testimony was reversed. See also Hinton v. Smith, 725 So. 2d 1154, 1157 (Fla. Dist. Ct. App. 1998) ("[T]he attainment of a degree alone does not guarantee employment or a particular salary and, thus, does not constitute sufficient evidence to support imputation").

Where the evidence does not show a fairly specific plan for improving earnings, the greater likelihood is that the court will not find any likely future increase:

A vocational expert . . . also testified that within three to five years she could potentially earn up to $35,000 per year as a building inspector, and he mentioned other higher paying jobs. Unfortunately, he did not have a set plan or an idea of the costs to attain a majority of these suggested positions. Ultimately, he admitted that without any additional education the wife could only earn approximately $8-10 per hour.

While the vocational expert testified that with education the wife could earn up to $35,000, the trial court obviously viewed that claim with skepticism, given her prior educational experience, her poor grades, and her below average intelligence. Moreover, the expert did not lay out any type of definite rehabilitative plan that would lead to the wife earning that kind of salary. Thus, the trial court did not abuse its discretion in awarding permanent rather than rehabilitative alimony to the wife under the facts of this case.

Moorehead v. Moorehead, 745 So. 2d 549, 551 (Fla. Dist. Ct. App. 1999).

The counselor concluded that the wife had the intellectual capacity to succeed in any program she decided to pursue and that, after counseling and training, the wife would be qualified to enter the labor market as a librarian, technical writer, or legal/medical secretary. On cross-examination, the counselor testified that currently there are more older workers in the labor market, but recognized that some employers still discriminate against older people.

In re Marriage of Huff, 834 P.2d 244, 252 (Colo. 1992); see also Francis v. Francis, 823 S.W.2d 36, 39 (Mo. Ct. App. 1991) ("[V]ocational evaluator testified that within three years wife could be retrained for a job which would pay $7.00 to $10.00 an hour," but "[t]here was no evidence wife had been formally assessed for purposes of developing a retraining plan"; trial court properly rejected evaluator's testimony).

Indeed, one court even went so far as to reject both parties' expert testimony regarding future increases:

Both parties hired vocational experts to assess Wife's employment opportunities. Both experts agreed Wife's best opportunity for employment was in the field of interior design. David Kutchback, Wife's expert, stated Wife's lack of a degree would impair her employability, but she could probably earn $20,000 or more in the open labor market. James England, Husband's expert, testified Wife could earn in the range of $30,000 to $40,000 in the open labor market and did not require a college degree.

Although Wife was working in interior design at the time the decree was entered, her income was not near either of these amounts.

[T]here was insufficient evidence in the record for the court to find, even if Wife were able to complete her degree, her financial prospects would be appreciably better in three years than they were on the date the decree was entered. Maintenance awards cannot be based on mere speculation as to the future financial condition of the spouse.

Carter v. Carter, 901 S.W.2d 906, 909-10 (Mo. Ct. App. 1995). Again, the key point is the failure of either expert to state any form of definite plan for increasing the wife's earnings.

Conclusion

The available case law has only begun to scratch the surface of the many issues posed by the widespread use of vocational experts. A useful comparison is the law on valuation of property. Like the law of earning capacity, the law of valuation generally leaves the really important decisions to the expert witnesses, but there is still a substantial body of law discussing what methods work best when, and what sorts of testimony are most likely to be accepted. See generally Brett R. Turner, Equitable Distribution of Property ch. 7 (2d ed. 1994 & Supp. 2002).

The cases discussed in this article are the courts' first attempts to provide for the law of earning capacity a foundation similar to what exists for the law of valuation. As the law develops, the foundation is likely to become more solid and specific. Given the undeveloped state of the law, this article is particularly likely to be updated in the future as a greater variety of issues are addressed by the courts. It will be interesting to see how the law changes as the courts continue to confront conflicts among different types of vocational evidence.

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