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MAY 6, 2005

::: Special Alert :::
Chen v. Warner

Today in a 5-2 decision, the Supreme Court of Wisconsin issued their opinion in Chen v. Warner, 2005 WI 55 (May 6, 2005), which affirmed the circuit court's conclusion that a physician-mother's post-judgment decision to quit her employment to stay home with the children (with which whom she had shared equal placement with the physician-father), was not shirking and, thus, entitled her to an increase in child support from her former spouse.

A detailed factual background can be ascertained in our summary of the court of appeals opinion in the June 2004 issue of FamLaw Update.

The majority opinion, authored by Chief Justice Abrahamson, establishes, as follows:

1. Definition of Shirking: "[A] party's employment decision to reduce or forego income [that] is voluntary and unreasonable under the circumstances." ¶20.

2. Determining Reasonableness: Reasonableness in the context of shirking requires a balancing of the financial (and non-financial) needs of the parents and child. ¶25. The majority supplies a laundry list, though explicitly non-exhaustive, of factors to be considered:

"[T]he number of children at home and their ages, maturity, health, and special needs; the availability of child care providers; the financial needs of the children; any detrimental effect on the child's support level if a parent is a full- or part-time at home child care provider; the age and mental and physical condition of the parents; the educational background, training, skills, prior employment, and wage earning history of each parent; the earning potential of the parent who forgoes employment outside the home and that parent's efforts to find and retain employment; the status of the job market; the assets and income of each parent and the available resources if a parent is an at-home full- or part-time child care provider; the hardship and burden on the parent employed outside the home caused by the other parent's decision to forgo employment; and any other factors bearing on the needs of the children and each parent's ability to fund child support." ¶50.

3. Standard of Appellate Review of Reasonableness in Shirking Cases: "[A]n appellate court should independently determine the issue of reasonableness, giving appropriate deference to the circuit court." ¶3.

•••

Justice Wilcox, in his dissenting opinion, posits that shirking is solely a financial determination, to be evaluated in light of each parent's "independent obligation to provide financial support for his or her children...[O]ne parent's voluntary decision to forego income should not be rendered reasonable merely because the other parent has the financial ability to make up the difference." ¶81.

Justice Butler, in a lengthy and stern dissent, decries the "under the circumstances" clause of the majority's shirking definition. He, like Justice Wilcox, believes that reasonableness solely focuses on the financial support obligation, not the panoply of factors articulated by the majority for consideration. To that end, Justice Butler concludes, the alleged shirking party bears the burden of providing the reasonableness of the income reduction commensurate with that person's obligation to support the child. ¶107-07.

Full Opinion (PDF)

The Respondent-Appellant-Petitioner John J. Warner was represented in the supreme court by: Linda Roberson (argued) and Holly J. Slota (Madison).

The Petitioner-Respondent Jane E. Chen was represented in the supreme court by: James Kurth (Wausau) and Kent A. Tess-Mattner (argued) (Brookfield).

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