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Oct 17 2014

Well Intentioned, Partially Employed Mother found to be Underemployed for Child Support Calculation

Last week the Wisconsin Court of Appeals upheld a Mantiwoc County Circuit Court finding in the case In re the marriage of Virnoche v. Virnoche. The judge, Mark Rohrer, found the mother Kristin Roekle was shirking her income opportunities and thus it was appropriate to impute her income.

Kristin and Anthony Virnoche divorced in 2007. In 2012, Kristin and Anthony stipulated to modify the placement schedule to equal placement of their children but could not agree on the amount of child support Anthony should pay

At the ensuing evidentiary hearing, Kristin testified that she has recently worked as a secretary for the Manitowoc Public School System. She also works three hours a week year-round as a YMCA fitness instructor, earning $8.36 an hour. Her 2012 combined income was $19,206.53.

Prior to that, for a few years after the divorce, Kristin also did payroll and end-of-month billing at Assist 2 Transport, a business her current husband owns.The $8,000 to $10,000 she earned in 2009 fell to $2,800 in 2010 when her job there ended.Since that time, she has helped out very occasionally without pay.Her income from the three sources was $28,713 in 2009 and $21,376 in 2010. Anthony did not object to Kristin taking the school secretary position because it worked out well for the children.

Shirking does not require a finding of a deliberate income reduction to avoid support obligations.Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996).The trial court “need find only that a party’s employment decision to reduce or forego income is voluntary and unreasonable under the circumstances.”Chen v. Warner, 2005 WI 55, ¶20, 280 Wis. 2d 344, 695 N.W.2d 758.

Using the parties’ actual 2012 incomes, the trial court calculated that Anthony would owe monthly child support of $832.69 under the Child Support Guidelines.It concluded, however, that Kristen’s failure to seek to replace her lost Assist 2 Transport income was voluntary, was unreasonable under the circumstances, thus constituting shirking, and so justified using her earning capacity.See Van Offeren v. Van Offeren, 173 Wis. 2d 482, 492, 496 N.W.2d 660 (Ct. App. 1992).The court used $25,040—the average of her 2009 and 2010 incomes—to recalculate child support. The new calculation cut Anthony’s monthly obligation to $742.

Even though the trial court accepted that Kristen’s position with the school district was beneficial to the children in a number ways, its decision that her overall employment decisions are unreasonable is sustainable.“Shirking can be found even when the party reducing his or her income acts with the best intentions.”Id.,Indeed, Anthony does not allege that Kristen acted with an improper motive. Kristen did not meet the burden of justifying the reasonableness of her decision.See Kelly v. Hougham, 178 Wis. 2d 546, 556, 504 N.W.2d 440 (Ct. App. 1993).

Second, the children’s financial welfare is not the sole concern.A court also must consider that the financial burdens of child care are apportioned fairly between the parents.Chen, 280 Wis. 2d 344, ¶47.There is a limit to one parent’s underemployment choice when the other is “presented the bill for the financial consequences” of it.Sellers, 201 Wis. 2d at 586.

The parties tried to analogize this case to and distinguish it from Chen, Sellers, and Van Offeren.Yet the Court of Appeals found that “no two fact situations are alike.”Chen, 280 Wis. 2d 344, ¶40.The trial court here carefully examined the facts, used the correct legal framework, and “reached a conclusion that a reasonable court could reach based on the record before [it].” Id., ¶35.Accordingly, the Court of Appeals gave its ruling appropriate deference.

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