Herrin v. Herrin, S10A0384

*All courts mentioned are at the state level.

• Father sought upward modification of child support obligation, but Court found no evidence that Mother was able to earn in excess of her then-current salary.
• To sustain an award of child support based upon a party’s earning capacity, there must be evidence that the party has the ability to earn an amount sufficient to pay the award of support; otherwise the award cannot stand.
• Here, Mother’s income and earning capacity had dramatically decreased in recent years due to, among other things, the economic downturn.
• Mother had an infant daughter, held a high school education, lived with her parents, and had no savings accounts or checking accounts. 
• Court held there was no evidence to support a finding that Mother was willfully underemployed or voluntarily suppressing her income to avoid child support payments.