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Court Considers Role of Overtime Pay in Support Rulings : Law: Case involves man who worked up to 70 hours a week but cut back to 40. Judge ruled payment to ex-wife must be based on higher earnings.


SAN FRANCISCO — The pickle before the state Supreme Court on Wednesday was truly one for the times: Can a divorced husband be forced to work overtime to provide spousal and child support to his former wife?

Richard O. Simpson, 42, had held two and sometimes three jobs, working up to 70 hours a week as a television and theater stagehand to help his wife, Barbara J. Simpson, 39, complete college so she could become a teacher.

But after the couple separated in 1988 and began divorce proceedings, the husband, complaining of job stress and wishing more time with their 10-year-old daughter, cut back his hours to merely full time--40 a week. As a result, his annual pay fell to about $26,000--compared to the $60,000 to $70,000 he had made working overtime for three years.

In oral arguments Wednesday, the Supreme Court justices heard pleas on both sides of the central issue: Should support payments be based on earning ability or on actual earnings?

Previously, when the dispute went to trial, a Los Angeles judge found that Richard Simpson had made an "unjustified purposeful" reduction in his earnings and ordered the husband to begin paying $1,650 in monthly support, based on his earning capacity. A state appellate panel upheld the order, concluding that Simpson had acted in bad faith by reducing his earnings.

On Wednesday, a lawyer for Barbara Simpson urged the high court to uphold the support order as a means of protecting children and former spouses.

"More and more people are working longer hours and holding more than one job to keep the family afloat," said attorney Cheri A. Kadotani of Downey. "If bad faith is shown, (support) should be tied to earning capacity. . . . It serves the interests of children and the interests of justice."

On the other side, Encino attorney Michael J. Rand, representing Richard Simpson, said the fact that the husband had held two jobs while the couple was married should not "sentence" him to work overtime forever.

"Regardless of the supporting spouse's state of mind, he or she has the right to work a normal week," Rand said.

The case has emerged as the number of single parents has grown and the debate has intensified over the support obligations of divorcing spouses. According to the U.S. Census Bureau, single-parent households increased from 6.9 million in 1980 to 9.7 million in 1990.

In past decisions, California courts have sometimes allowed support payments to be based on earning capacity when there is a deliberate attempt to avoid family responsibilities.

But the message from the courts has been mixed. For example, a state appellate court held in 1988 that a husband who voluntarily took early retirement could not decrease support to his former wife. Earlier this month, another panel relieved a husband of his duty to pay spousal support after he quit his job to enter a monastery.

During Wednesday's hourlong hearing, the justices appeared hesitant to adopt broad standards that would require supporting spouses to work overtime. But they also seemed wary of permitting husbands and wives to unfairly punish former spouses by purposely reducing their earnings to lessen support payments.

Rand argued that Richard Simpson had not changed his occupation but merely chosen a less stressful job in the type of work he had performed for 17 years. "It's not like he is working as a painter when he could be a Supreme Court justice," Rand told the court.

Rand said further that the couple, while married, had agreed Simpson would work overtime only for the specific purpose of assisting the wife through school. "That goal was attained," said the attorney.

Kadotani contended, however, that Simpson should make payments based on his earning capacity because he had not acted in good faith. The attorney noted that Simpson had reduced his work hours just four days after a hearing in which he had been ordered to pay $1,210 monthly in temporary support.

A ruling by the high court is due within 90 days.

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