Court’s Consideration of ‘Shirking’ is Exercise in Semantics

By Attorney Gregg Herman
June 9, 2004

Note to the Wisconsin Court of Appeals: If shirking is an “unfortunate term,” as you characterized it in your recent family law decision, Chen v. Warner, No. 03-0288 (Wis. Ct. App. May 6, 2004; Errata June 14, 2004) (recommended for publication), please stop using it!

In Chen, the District IV appellate court affirmed the Wood County Circuit Court, Judge James E. Mason presiding, which declined to find the former wife’s voluntary termination of her employment to be shirking for child support purposes.

Following an 18-year marriage, Dr. Jane Chen and Dr. John Warner divorced in 1999. They had three young children and agreed to joint legal custody and shared equal placement. Each party worked full time with Jane earning $236,000 and John earning $256,000 annually. The parties agreed to hold open child support.

Following the divorce, Jane sought and was unsuccessful in obtaining a part-time schedule in order to spend more time with the children. In May, 2000, at age 43, she quit her position. Undisputed testimony indicated that had she stayed in her position, she would have earned more than $410,000 in 2002. It was Jane’s intent to live off the investment income of her $1.1 million in savings, expecting an annual return of $110,000. When the market tanked in 2001, Jane earned only $32,000 in investment income and invaded principal to meet the shortfall. She again investigated securing part-time work but was unable to locate opportunities within the Marshfield area and she did not desire to work in areas beyond commuting distance.

In January 2002, Jane filed a motion requesting child support from John. At that time, John earned $472,000 per year with an additional $73,000 in retirement benefit contributions made by his employer. Jane testified that her budget was $7,000 per month and she requested $4,000 per month in child support (presumably the shortfall between her budget and investment income in 2001). The trial court declined to use Jane’s earning capacity and ordered John to pay the $4,000 per month Jane requested. John appealed.

The court of appeals affirmed. The majority opinion, written by Judge Paul Lundsten, defined shirking as: “an employment decision to reduce or forgo income that is both voluntary and unreasonable under the circumstances.” In a footnote immediately following that quotation, the court of appeals attempted to clarify the muddy (and various) shirking tests:

“We state the test as having two prongs even though some cases suggest there are two variations of shirking: those in which a parent voluntarily fails to earn to his or her full capacity with the purpose of avoiding child support and those in which a parent makes a voluntary and unreasonable decision regarding income. We clarify that cases involving a voluntary decision motivated by a desire to avoid child support comprise one type of case that fits under the general voluntary and unreasonableness standard…. If a circuit court finds that a parent’s decision to reduce income is motivated, even in part, to avoid child support, that finding supports the conclusion that the decision is unreasonable.” (Internal citations omitted)
After considering Jane’s motives, whether her decision was reasonable because it was foreseeable at the time of the divorce, whether she pursued opportunities, John’s ability to pay child support and the benefit to the children, the court of appeals concluded that the trial court reached a proper conclusion based upon the record.

As noted by Judge Dykman in his dissent, publication of this case is unfortunate as rarely do divorce cases involve two such highly compensated (or, in the case of Jane, capable of being highly compensated) parents. Yet, by publishing the decision, its holding applies to all cases.

More troubling is the continued use of the term “shirking” by court. Years ago, I suggested that the courts are moving away from that term, which connotes intent, and toward a broader view of comparing the reasonableness of the employment choice in light of the support obligations. (See Gregg Herman, “Without Intent: Developments in Defining Shirking,” Wisconsin Journal of Family Law, Vol. 13, No. 4, October, 1993.) In Chen, the court notes the semantic problem by stating: ” ‘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 employ some other term.”

Rather than compounding confusion, state the test as suggested above – one of reasonableness in light of the support obligation. This test recognizes that not all employment decisions are made to maximize dollars in one’s pocket. Rather, professional satisfaction, personal enjoyment and family obligations play substantial roles along with a myriad of other factors. At the same time, once a person has a support obligation, this is no longer a free country to make the same choices as before. Rather, the choice has to be measured in light of this obligation.

Would this test have made any difference in the Chen case? Probably not, as the court essentially applied this test, while doing so under the rubric of a shirking analysis. That is not to say that the result in this case is appropriate. The effect is that the mother gets essentially “rewarded” for not working, while the father gets essentially “punished” due to the mother’s voluntary election to not work. Our legal system is supposed to achieve the opposite result. As Judge Dykman put it in his dissent, “The result is an inquiry into the reasonableness of Dr. Chen’s actions without considering Dr. Warner’s desire not to be bound by Dr. Chen’s unilateral decision, and not to pay for Dr. Chen’s retirement.”

Whether one agrees with the majority decision or with the dissent, however, it is high time that the court of appeals adopts a consistent rationale for family law cases involving choice of income. And, this rationale should be based upon fairness and equity, not semantics.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.