“Voluntarily Leaving Employment Not Shirking’ Under the Circumstances’ “

By Attorney Gregg Herman
May 25, 2005

The Supreme Court of Wisconsin has issued its opinion in Chen v. Warner, 2005 WI 55 (May 6, 2005), affirming the circuit court’s conclusion that a physician mother’s decision to quit her job after the divorce to stay home with the children, with which whom she had shared equal placement with the physician father, was not shirking. The decision affirmed an award of child support from her former spouse.

This is the first of two articles analyzing this highly important decision; this week, we look at the decision itself; next week, we’ll examine its implications.

During their marriage, both parties were practicing physicians. The parties agreed to equally share equal placement time with the children. Since both had substantial incomes, child support was held open with the parties agreeing to equally share certain expenses for the children and the husband, due to his higher income, making a monthly deposit to a higher education fund.

Subsequently, the wife, Jane E. Chen, decided that she would prefer to spend more time with the children. She quit her medical job, figuring that she could live on the income from her investments. Unfortunately, the stock market decline caused her passive income to decrease substantially. Unable to find a part-time job in the area, she sought child support from her ex-husband, John J. Warner. The only change of circumstance was the self-inflicted one caused by the wife quitting her job.

The Wood County trial court, Judge James Mason presiding, found that the wife was not shirking and ordered the father to pay $4,000 per month in child support, but terminated the monthly deposit to the higher education fund. In a decision that was critiqued in this column, the court of appeals affirmed. See Gregg Herman, “Court’s Consideration of ‘Shirking’ is Exercise in Semantics”, Wisconsin Law Journal, June 9, 2004. The high court granted review.

The majority opinion, authored by Chief Justice Shirley S. Abrahamson, defined shirking as “[A] party’s employment decision to reduce or forego income [that] is voluntary and unreasonable under the circumstances.” ¶20. The court then spent a fair amount of time discussing the appropriate standard of appellate review shirking cases, concluding that an appellate court should “independently determine the issue of reasonableness, giving appropriate deference to the circuit court.” ¶3.

The majority then supplied a lengthy, though non-exhaustive, list of factors to be considered. Included in these factors are the number of children, the availability of child care providers, the financial needs of the children, effect on the child’s support level, the 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. Then, similar to the catchall at the end of the list of statutory factors for maintenance and child support, the court may consider “any other factors bearing on the needs of the children and each parent’s ability to fund child support.” ¶50.

In applying these standards to the facts in the Chen case, the majority concluded that the trial court appropriately found that the wife was not shirking. The supreme court agreed that it was reasonable for the mother not to work outside the home and be a full-time child care provider, even though the husband had equal placement with the children but he continued to work full-time, as well.

Justice Jon Wilcox dissented. He opined 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 Louis Butler also dissented. He strongly disagreed with the “under the circumstances” clause of the majority’s shirking definition. He agreed with Justice Wilcox that reasonableness inquiry should focus solely on the financial support obligation, not the panoply of factors articulated by the majority. As a result, Justice Butler concluded that the alleged shirking party should bear the burden of proving the reasonableness of the income reduction commensurate with that person’s obligation to support the child.

The majority holding raises a number of potential disturbing scenarios. Shirking is a common issue in divorce cases and not a simple one. Will this case be read as a license for a stay-at-home parent to not seek employment, but rely on the other spouse to work and provide support? Worse, will it serve as a license to leave already existing, full-time, lucrative employment? Do we want our courts delving into the highly subjective factors that enter into employment choices or should they focus only on the objectivity of the financial impact? We will examine those questions in more detail in the next article.

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.