Woehl v. Woehl

2002 SD 6, 639 N.W.2d 188, 2002 S.D. LEXIS 9
CourtSouth Dakota Supreme Court
DecidedJanuary 16, 2002
DocketNone
StatusPublished
Cited by6 cases

This text of 2002 SD 6 (Woehl v. Woehl) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woehl v. Woehl, 2002 SD 6, 639 N.W.2d 188, 2002 S.D. LEXIS 9 (S.D. 2002).

Opinions

GORS, Acting Justice.

[¶ 1.] Donald Duane Woehl appeals from an order of support adopting the child support referee’s report, finding of fact, conclusions of law, and recommendations which base his child support upon his income from a job he was fired from. We affirm.

FACTS

[¶ 2.] Donald and Jacqueline divorced on February 11, 2000 after ten years of marriage and four children. Donald was ordered to pay $775 per month in child support. This amount was based upon his working 42.5 hours per week at $16 per hour and Jacqueline being at the imputed minimum wage level.

[¶ 3.] On October 13, 2000 Donald filed a petition for modification of child support. He alleged that circumstances had substantially changed because he was “fired from current position.” The separation report from his employer indicated that he had been released and discharged for insubordination and work quality.

[¶4.] Following a hearing the child support referee filed a detailed report. It reported that Donald had been separated from his position as a mechanic at a Chrysler dealer and now worked in his brother’s construction business earning $8 per hour. Donald “acknowledges that he was previously earning a higher income, although he states that he has not voluntarily reduced his income.” The report noted:

Upon Jackie’s cross examination of Donald, it was learned that the primary reason for Donald’s termination was that he apparently struck a girl friend named Chantelle, who was a co-worker at his place of employment.
[¶ 5.] The referee concluded that:
Donald Woehl’s position as a mechanic paid $2,773 per month, and has been reduced now to $1,387 per month working for his brother as a carpenter. Don’s outburst was a voluntary act, and the negative effects of that act should not be visited upon his children. His income is therefore calculated at $2,773, reduced by $314 in Circular E withholding, $212 Social Security and Medicare, and $139 in retirement at five percent, for a monthly net income of $2,108 imputed to him

The referee recommended that child support be modified to the sum of $774 effective November 1, 2000.

ISSUE

[¶ 6.] Did the trial court err in adopting the referee’s child support recom[190]*190mendation which calculated Donald’s income based on his income from a job he was fired from?

DISCUSSION

[¶ 7.] Donald was fired from a job as a mechanic that paid $16 per hour and provided $2773 in monthly income. He found employment at his brother’s construction firm for $8 per hour providing $1387 in monthly income. The trial court adopted the referee’s recommendation to calculate Donald’s child support obligation based upon his former, rather than current, income.

[¶ 8.] Deviation from the child support schedule is allowable based upon “[t]he voluntary act of either parent which reduces that parent’s income.” SDCL 25-7-6.10(8). Donald contends that his firing was involuntary. Consequently, he believes that his child support should have been based upon his current salary.

[¶ 9.] This Court has not addressed the issue of whether being fired from a job constitutes a voluntary act allowing deviation from the child support schedule. Other courts faced with the issue, however, have taken two differing approaches.

[¶ 10.] The Iowa Supreme Court considered the issue in In Re Marriage of Foley, 501 N.W.2d 497 (Iowa 1993). There, Kenneth, the father, had been fired for insubordination. The lower court concluded that the termination was a self-inflicted reduction in pay and used his former income to set child support. The Supreme Court noted that a party may not claim an inability to pay child support when that inability is self-inflicted or voluntary. In Kenneth’s case, however,

While Kenneth’s termination for insubordination may not be commendable, it does not qualify as a self-inflicted or voluntary reduction of income that would justify using his former salary in setting child support payments. We believe this scenario is similar to the situations in Boquette[ v. Boquette, 215 Iowa 990, 247 N.W. 255], Nicolls[ v. Nicolls, 211 Iowa 1193, 235 N.W. 288] and [In re Marriage of] Drury[, 475 N.W.2d 668]. While Kenneth was responsible for the loss of his job, we believe he did not intend to deprive the children of support or had a reckless disregard for their well-being. Rather, he acted imprudently and lost his employment but was diligent in obtaining a new job. Consequently, we conclude the trial court erred in its determination to adjust the child support payments upwards using his former salary.

Foley, 501 N.W.2d at 500. See Lee v. Lee, 459 N.W.2d 365 (Minn.App.1990)(no authority which permits equating willful misconduct with voluntary termination where there is no evidence that the misconduct was an attempt to induce termination and thereby avoid a child support obligation).

[¶ 11.] The Supreme Court of Virginia took a different approach in Edwards v. Lowry, 232 Va. 110, 348 S.E.2d 259 (1986). There, John Lowry sought to reduce his child support because he lost his job as a result of his admitted larceny from his employer, a hardware dealer. The Court noted that a party seeking a reduction in child support payments must show that his lack of ability to pay is not due to his own voluntary act or because of his neglect. The Court said that Lowry was attempting to shift to his “child the consequences of his own wrongdoing.” Edwards, 348 S.E.2d at 261.

In the case before us, it is undisputed that John Lowry’s diminution of income was the direct consequence of his voluntary, wrongful act. After receiving a direct warning from his employer following a previous theft, he was fired for stealing again. He failed to meet the [191]*191burden, required by the rule in Hammers[ v. Hammers, 216 Va. 30, 216 S.E.2d 201 of showing himself free of responsibility for his change in circumstances, and was not entitled to a reduction in support based upon the diminution of income caused by the loss of his job. (footnote omitted).

Id. See, In re Marriage of Imlay, 251 Ill.App.3d 138, 190 Ill.Dec. 539, 621 N.E.2d 992 (4 Dist.1993) (holding that a father’s reduction in income due to being fired was due to his deliberate conduct and was not merely a fortuitous occurrence.)

[¶ 12.] This Court has not addressed the precise issue presented here. We have, however, stressed that a parent’s duty to support his or her children is the paramount obligation of that parent, Kost v. Kost, 515 N.W.2d 209 (S.D.1994).

This Court has a long and consistent history requiring the parents to support their children. Children are “wards of the Court.” Houghton v. Houghton, 37 S.D. 184, 188, 157 N.W, 316, 317 (1916).

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Bluebook (online)
2002 SD 6, 639 N.W.2d 188, 2002 S.D. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woehl-v-woehl-sd-2002.