(a)The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:
(1)Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, severance pay, veterans benefits that are not based on need, military allowances for housing and food, and spousal support actually received from a person not a party to the proceeding
to establish a child support order pursuant to this article.
(2)Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.
(3)In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.
(b)(1)(A)In a case when a parent’s annual gross income is unknown, the court shall consider the earning capacity of the parent.
(B)In a case when a parent’s annual gross income is known, the court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.
(2)When determining the earning capacity of the parent pursuant to this subdivision, the court shall consider the specific circumstances of the parent, to the extent known. Those circumstances include, but are not limited to, evidence of the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking
work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings levels in the local community, and other relevant background factors affecting the parent’s ability to earn.
(3)Notwithstanding any other law, the incarceration or involuntary institutionalization of a parent shall not be treated as voluntary unemployment in establishing or modifying support orders regardless of the nature of the offense. “Incarcerated or involuntarily institutionalized” has the same meaning as subdivision (e) of Section 4007.5.
(c)Annual gross income does not include any income derived from child support payments actually received,
and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.
(d)This section shall be operative September 1, 2024.
Notes of Decisions
Cited in
58
cases (
10 in the last 5 years), 1995–2026 · leading case:
Destein v. Destein, 91 Cal. App. 4th 1385 (Cal. Ct. App. 2001).
Destein v. Destein, 91 Cal. App. 4th 1385 (Cal. Ct. App. 2001).
· cites it 5× “) A crucial component for determining the amount of child support is, of course, each parent’s income. (Fam. Code, §§ 4055, 4059.”
Elsenheimer v. Elsenheimer, 22 Cal. Rptr. 3d 447 (Cal. Ct. App. 2004).
· cites it 5× “(Fam. Code, § 4058, subd. (a).) The statute provides “[t]he annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) .”
In Re Marriage of Bardzik, 165 Cal. App. 4th 1291 (Cal. Ct. App. 2008).
· cites it 2× “As noted above, the discretionary and best interest elements in *1313 Family Code section 4058, subdivision (b) certainly temper any such proposition.”
Mejia v. Reed, 74 P.3d 166 (Cal. 2003).
“Code, § 4055, subd. (a).) This figure is *671 generally based on actual earnings, although the trial court has discretion to consider earning capacity instead of actual income (Fam.”
Moss v. Superior Court, 950 P.2d 59 (Cal. 1998).
· cites it 2× “) Inasmuch as the Legislature has expressly authorized the court to consider earning capacity in making a child support order if doing so is in the best interests of the child (Fam. Code, § 4058, subd. (b)), there can be no question but that the Legislature intends that that…”
In Re Marriage of Hinman, 55 Cal. App. 4th 988 (Cal. Ct. App. 1997).
· cites it 2× “(Fam. Code, § 4058, subd. (b).) BACKGROUND With this appeal, we find Howard and Aisha Hinman before this court in their eighth case requesting our review of trial court orders arising from the 1990 dissolution of their marriage.”
Mendoza v. Ramos, 182 Cal. App. 4th 680 (Cal. Ct. App. 2010).
· cites it 2× “(Fam. Code, § 4058, subd. (b).) 2 “Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts,…”
Cnty. of San Diego v. S.P., 209 Cal. App. 4th 21 (Cal. Ct. App. 2012).
· cites it 3× “’s argument that SSI benefits cannot be considered income for purposes of determining her ability to pay legal fees in a dependency case. We reject the County’s contention as we find S.”
McHugh v. Orange Cnty. Dep't of Child Support Servs., 231 Cal. App. 4th 1238 (Cal. Ct. App. 2014).
“Family Code section 4058, subdivision (b), grants trial courts discretion to set child support based on a parent’s earning capacity rather than *1242 actual income if the court finds the parent has the ability and opportunity to earn income at the level to be imputed.”
Cnty. of Orange v. Smith, 34 Cal. Rptr. 3d 383 (Cal. Ct. App. 2005).
“” Family Code section 4058 provides in pertinent part: “(a) The annual gross income of each parent means income from whatever source derived, .”
State of Oregon v. Vargas, 83 Cal. Rptr. 2d 229 (Cal. Ct. App. 1999).
· cites it 3× “Discussion Child support orders are governed by the statewide uniform guideline found in Family Code sections 4050-4076.”
Shelley v. Kendall (In Re Shelley), 184 B.R. 356 (9th Cir. BAP 1995).
· cites it 3× “(2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.”
Cal. Family Code § 4058(a): 3 cases
Cal. Family Code § 4058(a)(2): 2 cases
Shelley v. Kendall (In Re Shelley), 184 B.R. 356 (9th Cir. BAP 1995).
“(2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.”
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