In RE MARRIAGE OF CHEN v. Warner

2004 WI App 112, 683 N.W.2d 468, 274 Wis. 2d 443, 2004 Wisc. App. LEXIS 396
CourtCourt of Appeals of Wisconsin
DecidedMay 6, 2004
Docket03-0288
StatusPublished
Cited by8 cases

This text of 2004 WI App 112 (In RE MARRIAGE OF CHEN v. Warner) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In RE MARRIAGE OF CHEN v. Warner, 2004 WI App 112, 683 N.W.2d 468, 274 Wis. 2d 443, 2004 Wisc. App. LEXIS 396 (Wis. Ct. App. 2004).

Opinions

LUNDSTEN, J.

¶ 1. This is a child support modification case in which one parent alleges that the other is "shirking." "Shirking" is an unfortunate term because it connotes improper behavior, but, under the case law, it encompasses behavior that is well motivated. However, we use the term to avoid confusion that might arise if we employed some other term.

[446]*446¶ 2. Dr. John Warner, the father, asserts that Dr. Jane Chen, the mother, is shirking because she voluntarily and unreasonably declined to return to work after first quitting employment as a medical doctor and then watching her investment income dwindle. Instead of returning to work, Dr. Chen, who had more than a year earlier quit work to devote time to parenting, sought an order for child support from the circuit court. Dr. Warner asserts that the circuit court erred when it determined that Dr. Chen was not shirking and used her actual income to determine child support. We affirm the circuit court.

J. Background

¶ 3. Dr. Jane Chen and Dr. John Warner have three daughters, born on October 11, 1991, April 22, 1993, and July 12,1995. In 1999, after an eighteen-year marriage, the parties divorced.

¶ 4. The parties entered into a marital settlement agreement, which was later incorporated into the judgment of divorce. The parties agreed to joint custody, equal physical placement, and no child support. At the time of the divorce in 1999, both parents were employed as medical doctors in Marshfield. Dr. Chen was earning $19,670 per month, which means an annual income of $236,040. Dr. Warner was earning $21,371 per month, which translates into an annual income of $256,452.1

¶ 5. Prior to and after the divorce, both parties worked full time. After persistent and unsuccessful efforts to obtain a part-time schedule so that she could spend more time parenting, Dr. Chen voluntarily quit in [447]*447May of 2000. By quitting, Dr. Chen gave up her substantial current income, contributions to her retirement plan, and job security. The undisputed testimony was that she was performing at a high level and was the administrator of a profitable department. If Dr. Chen had remained in her job, she would have made $410,175 in 2002.

¶ 6. At the time Dr. Chen quit in 2000, she was advised, based on market returns over the past fifty years, that she could expect approximately 10% per year income on her investments with a conservative investment plan. Since Dr. Chen had about 1.1 million dollars in savings, she hoped to earn about $110,000 per year. She estimated her budget at $7,000 per month or $84,000 per year.

¶ 7. Unfortunately, the stock market declined dramatically in 2001 and Dr. Chen's investment income likewise dropped dramatically. That year, her total income was $32,000. Thus, Dr. Chen began to invade her principal in order to meet expenses. At the same time, Dr. Chen investigated the possibility of returning to work part-time. She was unable to locate work in the Marshfield area, and she declined to pursue part-time work in communities beyond commuting distance.

¶ 8. In January of 2002, Dr. Chen filed a motion requesting that the divorce judgment be amended to order Dr. Warner to pay child support. At that time, Dr. Warner was earning $472,000 per year and his employer contributed an additional $73,000 per year to Warner's retirement plan. During an evidentiary hearing, Dr. Chen detailed her activities with the children. Those activities are set forth in detail in the discussion section below. Dr. Chen testified that her monthly budget was about $7,000. She asked the circuit court to order child support in the amount of $4,000 per month.

[448]*448¶ 9. The circuit court determined that Dr. Warner could afford to pay child support and that Dr. Chen was not shirking. The court declined to use Dr. Chen's earning capacity and ordered Dr. Warner to pay $4,000 per month in child support.

II. Discussion

¶ 10. The only issue on appeal is whether the circuit court erred when it declined to use Dr. Chen's earning capacity and instead used her actual income when determining whether and in what amount to order child support. Dr. Warner alleges "shirking." He asserts that Dr. Chen voluntarily and unreasonably chose to forgo employment and seek child support payments.

A. Standard of Review and Legal Principles Applicable to Shirking

¶ 11. Courts use earning capacity, rather than actual earnings, to determine child support and maintenance payments when the party in question is shirking. See Abitz v. Abitz, 155 Wis. 2d 161, 166, 455 N.W.2d 609 (1990). Shirking is an employment decision to reduce or forgo income that is both voluntary and unreasonable under the circumstances. Finley v. Finley, 2002 WI App 144, ¶ 15, 256 Wis. 2d 508, 648 N.W.2d 536; Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996).2

[449]*449¶ 12. The voluntariness of a decision to reduce or forgo income is a question of fact, and we do not disturb a finding of fact unless it is clearly erroneous. See Smith v. Smith, 177 Wis. 2d 128, 133, 501 N.W.2d 850 (Ct. App. 1993) (treating whether a parent voluntarily terminated his employment as factual question). A party asserting that his or her reduction in income was involuntary has the burden of proof on that topic. Id. at 134.

¶ 13. Turning to the reasonableness prong, we accord "appropriate deference" to circuit court determinations of the reasonableness of decisions to reduce or forgo income. In Van Offeren v. Van Offeren, 173 Wis. 2d 482, 496 N.W.2d 660 (Ct. App. 1992), we explained:

The issue in this case is whether [the child support payor] unreasonably terminated his employment at Johnson Wax. The legal standard of reasonableness presents a question of law. Ordinarily, an appellate court need not defer to the trial court's determination [450]*450of a question of law; however, because the trial court's legal conclusion as to reasonableness is so intertwined with the factual findings supporting that conclusion, an appellate court should give weight to the trial court's reasonableness conclusion. We therefore review the trial court's ruling as a question of law, but one to which we must pay appropriate deference.

Id. at 492-93 (citations omitted); accord Sellers, 201 Wis. 2d at 587. We interpret this standard of review to mean that if the circuit court reached a conclusion that a reasonable court could reach based on the record before the court, we will defer to that conclusion. Deferring to circuit court determinations in family law cases is the norm, and we see no reason to deviate in this instance. Further, we are unable to discern any other meaning from Van Offeren. Cf. Finley, 256 Wis. 2d 508, ¶¶ 13-15 (treating shirking decision as a discretionary determination).

¶ 14.

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Bluebook (online)
2004 WI App 112, 683 N.W.2d 468, 274 Wis. 2d 443, 2004 Wisc. App. LEXIS 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-chen-v-warner-wisctapp-2004.