Rock v. CabralRock v. Cabral
Lead Opinion
In computing child support in accordance with the provisions of
“ ‘Income’ means either of the following:
“(a) For a parent who is employed to full capacity, the gross income of the parent;
“(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent, and any potential income of the parent.” (Emphasis added.)
“‘Potential income’ means * * * for a parent that the court determines is voluntarily unemployed or voluntarily underemployed:
“(a) The income that the court determines the parent would have earned if fully employed as determined from the parent’s employment potential and probable earnings based on the parent’s recent work history, the parent’s occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent residesf.]”
Thus, in calculating and awarding child support, a trial court must consider the “potential income” as well as the gross income of a parent the court determines to be voluntarily unemployed or underemployed. The “potential income” to be imputed to such parent for purposes of calculating his or her support obligation is to be determined based upon the amount the parent would have earned if he or she had been “fully employed.”
Appellant contends that the trial court erred in finding that she was “voluntarily underemployed” within the meaning of
The language of
Appellant also argues that the trial court erred in imputing $14,000 of potential income to appellant since that amount represents nearly twice as much money as appellant has ever earned on an annual basis in any profession. However, the amount of potential income to be imputed to a child support obligor who is found to be voluntarily unemployed or voluntarily underemployed is a matter to be determined by the trial court in applying the provisions of
For the foregoing reasons, we hold that the question whether a parent is voluntarily underemployed within the meaning of
As a final matter, we note that the referee and the trial court, in admirable fashion, calculated appellant’s support obligation using a child support computation worksheet similar to the
For the reasons stated herein, the judgment of the court of appeals is affirmed.
Judgment affirmed.
Notes
. Black’s Law Dictionary (6 Ed.1990) 1575, defines “voluntarily” as follows: “Done by design or intention, intentional, proposed, intended, or not accidental. Intentionally and without coercion.”
Concurrence in Part
concurring in part and dissenting in part.
I concur in the syllabus announced by the majority, but I dissent from the result that is reached by its application to the facts of this case. I would find that the trial court abused its discretion in determining that appellant was “voluntarily underemployed.”
As stated by the majority, the question of whether a parent is voluntarily underemployed is a question of fact for the trial court and absent an abuse of the court’s discretion, such factual determination will not be disturbed on appeal. It is clear to me that the facts of this case do not support a finding of voluntary underemployment.
The dates of various events in this case are extremely significant to the determination of the case. At the time the marriage was dissolved in 1989, appellant retained sole custody' of the parties’ two children. One year later, the younger child, Margaret, expressed a desire to live with her father. In October 1990, custody of Margaret was awarded to appellee. When appellee moved for change of custody, he sought child support payments from appellant.
Crucial to a determination of this case is the fact that appellant started her weaving business sometime prior to the change in custody. She earned approximately $7,000 in 1989 as an accounting intern and received her accounting degree in 1990. Her weaving business showed a small profit in 1989 and a loss in 1990.
Apparently the trial court completely ignored the fact that appellant started her weaving business before she was awarded an accounting degree and before Margaret’s custody change. The trial court also seemed to gloss over the fact that although appellant earned money in the accounting field, it was through an
The majority notes that the referee found appellant’s claim that she obtained an accounting degree to help her run her business lacked credibility. Such determination appears arbitrary considering the facts and circumstances of this case. Because appellant was engaged in the weaving business prior to receiving an accounting degree, I would find appellant’s stated reason for obtaining an accounting degree very reasonable and completely plausible. Further, all that is relevant to this case is that appellant has a degree in accounting and was self-employed. To impute an income of $14,000 to appellant, who never earned that amount of money, is totally unreasonable.
Moreover, it should be noted that this is not a case involving a modification of child support. This is a case of change of custody with a new child support order. As she was not previously paying child support, there is no financial baseline for appellant in this case. In determining child support obligations, the court should take appellant as it found her at the time of Margaret’s custody change, i.e., as a self-employed artist.
I am amazed that the majority allowed the somewhat condescending attitude expressed by the trial court to pass unchallenged. In particular, the trial court found that appellant had a degree in accounting and stated: “If she chooses to indulge in a weaving business, that is her choice * * Chooses to “indulge”? I must ask if the trial court would have used the same tone had appellant chosen to join the Peace Corps instead of operating a weaving business. In my mind, the result reached in this case is as ludicrous as imputing the income of an orthopedic surgeon to Albert Schweitzer.
I find that the result reached in this case is an outrageous misapplication of