Loeb & Herman, S.C. ::: Family Law Update Archive

In early-May, the District IV Court of Appeals issued their opinion in Chen v. Warner, No. 03-0288 (Wis. Ct. App. May 6, 2004) (recommended for publication), affirming the order of Judge James M. Mason (Wood County Cir. Ct.), which declined to find the former wife's voluntary termination of her employment to be shirking for child support purposes.

Following an eighteen 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. Accordingly, 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. She estimated an annual return of $110,000 and put her estimated budget at $84,000. 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). Judge Mason concluded that John could afford child support and that Jane was not shirking. Judge Mason 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 majority opinion, authored by Judge 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. See, e.g., Rottscheit v. Dumler, 2003 WI 62, ¶21, 262 Wis. 2d 292, 664 N.W.2d 525; Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996); Kelly v. Hougham, 178 Wis. 2d 546, 555, 504 N.W.2d 440 (Ct. App. 1993). 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. That is, reducing income for the purpose of avoiding child support is one of many possible unreasonable reasons to reduce income. 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. Obviously, if child support avoidance is the only reason, the decision is unreasonable."

After setting forth the very high standard of review for each of the two prongs: voluntariness (question of fact - clearly erroneous standard) and reasonableness ("appropriate deference" to circuit court - defer to conclusion that reasonable court could reach based upon the record), the court puts forth the following statement which embodies the hands-off approach taken by a purportedly error-correcting court of appeals, much to the frustration of appellants: "Deferring to circuit court determinations in family law cases is the norm, and we see no reason to deviate in this instance."

As the voluntariness of Jane's decision was stipulated, the only matter of dispute was the reasonableness of that decision. More specifically, should the trial court have applied Jane's earning capacity in setting child support?

The court of appeals points out that Jane made two separate decisions: 1) the decision to quit her job in the first instance and 2) the decision not to accept part-time position outside of commuting distance following the stock market decline and thus, remain unemployed. However, the court concludes that the focus should be on the latter decision, as had Jane's investment plan been successful she would have never brought the motion and, furthermore, employment is available, just far outside of where she resides which would impact her ability to parent when the children were not with John. Thus, the appellate court narrowed the focus to "whether [Jane's] decision not to pursue available work that would take her away from the children every other week was reasonable."

After considering:

1) Jane's motives (good, though court holds that improper motives are not required to find shirking)

2) Whether her decision was reasonable because it was foreseeable at the time of the divorce (no record agreement, but knowledge of her interest in reducing hours does not make the decision more reasonable)

3) Whether Jane pursued opportunities (only opportunities alternating weeks far from home)

4) John's ability to pay child support (a slam dunk at $545k per year; rejects John's "race-to-resign" argument as disguised maintenance cannot be expected and record does not support a high percentage of "dual high-income divorced parents who want to, and are actually willing to, quit a career to become a full-time parent") and

5) the benefit to the children (among other things, Jane active in many of the children's activities), the court of appeals concludes that the trial court reached a proper conclusion based upon the record.

The dissenting opinion, authored by Judge Dykman, argues that a shirking analysis here is irrelevant because both parties could support the children without support from the other, yet the majorities' analysis, due to the fact the opinion will be published, will affect people of all means. Judge Dykman also argues that the appropriate standard of review should be de novo, as the determination of reasonableness is a question of law. He further argues that the appropriate analysis in this case should be:

"The decision to retire at an early age while obligated for child support is disfavored. Nonetheless, courts should accept that decision as long as the retiring parent has sufficient assets or income to meet the expected support obligation. The retiring parent will be required to use income and to liquidate his or her assets before requiring the non-retiring spouse to support the retiring spouse's unilateral decision to retire."

Full Opinion (PDF)

The Petitioner-Respondent Jane E. Chen was represented on appeal by: James K. Kurth (Wausau)

The Respondent-Appellant John J. Warner was represented on appeal by: Linda Roberson (Madison), Laurel A. Kent (Jefferson), Anthony J. Lucchesi (Madison)

The following cases are provided courtesy of Contributing Editor Laura W. Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. Please visit her website or drop her an e-mail.

In Johnson v. Calvert, 19 Cal. Rptr. 494 (Cal. 1993), the court held that a gestational mother who had been impregnated with a married couple’s gametes had no claim to parentage. In that case, the court stressed that genetic consanguinity was the keystone to a parentage claim. Now, 11 years later, the Court of Appeals has held that a woman who donated her eggs so that her same-sex partner could become pregnant via in vitro fertilization is not the mother of the resulting twins, and the woman who carried the twins, who had no genetic relationship to the children, was the only legal parent of the children. Key to the decision was that the egg donor signed an agreement specifically disclaiming and waiving any rights in or to any child that was conceived with her eggs.

California v. Newsom and City of San Francisco
California Supreme Court
May 25, 2004

The California Supreme Court appears likely to declare that San Francisco Mayor Gavin Newsom exceeded his authority by authorizing the city to marry same-sex couples.

CourtTV Article

Department of Human Services ex rel. Flewelling v. Blaisdell
No. 2004 ME 62
Maine Supreme Court
May 7, 2004

A man who acknowledges paternity of an out-of-wedlock child when he is aware that the child may not be his and voluntarily forgoes genetic testing is liable for child support arrears that have accrued up to the point he discovers he is not the biological father of the child.

Full Opinion

Carvin v. Britain
No. 52151-9-I
Washington Court of Appeals
May 3, 2004

The former same-sex partner of a woman who conceived a child via artificial insemination during the parties’ relationship is the child’s de facto parent, entitled to sue for visitation and/or custody.

A monthly disability payment received by a dentist who retired because of osteoarthritis is marital property where the husband paid the premiums for the policy during the marriage with marital earnings.

In a torts case, the plaintiff-male asserted that defendant-female had been infected with a sexually- transmittable disease while they were dating; that she knew she was suffering with this communicable disease; and that she failed to reveal this to plaintiff, who was later forced to seek medical care and treatment. The trial court denied plaintiff discovery of defendant’s medical records, dismissed plaintiff’s complaint; and granted defendant counsel fees, noting, inter alia, that plaintiff’s own doctor indicated that his condition could have been caused by many different things, and that defendant’s records were privileged.

One day after getting married in Massachusetts, a lesbian couple filed a medical malpractice suit asking that one of the women receive damages because doctors failed to detect breast cancer in her spouse, The Associated Press reports.

The following is provided courtesy of Contributing Editor Christine Harness, Phd. Dr. Harness can be reached at (414) 961-3208:

The Journal of Family Psychology reported in a 2003 articles regarding a study providing direct evidence on the effects of relocation on children. The study divided college students into groups on the basis of their divorce parents’ move-away status, concluding that for most children, the ones whose parents moved were significantly disadvantaged. The study suggests that courts should give greater weight to the child’s separate interests in deciding removal cases.

To order a copy of this article contact the American Psychological Association's Journal of Family Psychology at (202) 336-5600.

Business Valuations

The following is provided by Contributing Editor Timothy P. Muehler, JD, CPA/ABV, CVA, Clifton Gunderson LLP, Certified Public Accountants. Tim can be contacted via e-mail

.Okerlund et al v. United States
United States Court of Appeals for the Federal Circuit
April 9, 2004

The case dealt with subsequent events and with the risk assessment associated with a stock redemption agreement in valuing shares gifted prior to death. It was determined that the Court of Federal Claims properly dealt with these issues, and affirmed their opinion.

Summary of Decision

The following is provided courtesy of Contributing Editor Kathleen Baird, a family law attorney and mediator in Wauwatosa, Wisconsin. She can be reached via e-mail.

To what extent do you experience the management of emotion - your own and that of the parties- as central to your work as a mediator? Many mediators avoid the expression of emotions in mediation because they lack the competency to deal with them and others resist dealing with emotions because they do not consider them essential to a resolution. Professor Paula Young, an ADR professor at the Appalachian School of Law, requires her students to read a book by Stone, Patton and Heen called Difficult Conversations; How to Discuss What Matters Most (Penguin Books 2000). Chapter Five discusses the importance of acknowledging emotions that arise and fuel conflict. Unexpressed feelings leak into the conversation through voice and body language, burst into the conversation in destructive ways and make it difficult to listen. Unexpressed emotions may make a mediation participant sarcastic, aggressive, impatient, unpredictable or defensive. Mediators could also benefit from reading Daniel Bowling and David Hoffman's new book called Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Jossey-Bass 2003). Four key emotional competencies of mediators are identified: self-awareness, self-management, social awareness and social skill. " Emotions are a very powerful mediating tool because conflict really is about emotions. As mediators we must work to feel comfortable with, not afraid of, emotions." Id. at 164. "Emotions in Mediation - Yours and Theirs: The Good News is they Matter", by Paula Young,

The Spring, 2004 edition of the Family Advocate, published by the ABA FLS, is a special issue dedicated to "The Custody Trial". Articles include:

For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate Web site.

The Winter, 2004 edition of the Family Law Quarterly contains a review of the year in family law, along with a case digest of Family Law in the Fifty States and its annual survey of periodical literature.

For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly Web site.

Atty. Kathy Baird (Mediation)
CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
Prof. Charles Kindregan, Suffolk University Law School
Dr. Christine Harness, Ph.D., Milwaukee (Mental Health)
Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
CPA Timothy P. Muehler, Clifton Gunderson LLP
Dr. Sanford Portnoy, Boston, MA (Mental Health)
CPA Everett Stone (Taxes and business valuations)
Scott J. Wildman, CPA/ABV, CVA of V/B Business Valuations, Inc.
Atty. William Brown (Employee Benefits)