Kelly v. Hougham

EICH, C.J.

(dissenting). I would affirm the trial court's response to Hougham's decision to return to school to pursue postgraduate studies.

*562First, I do not think the fact that the dollar amount of child support is now determined by application of percentage-of-gross-income guidelines, rather than "from scratch" by the trial court, impedes or negates the court's discretionary authority to provide for a temporarily reduced support payment in order to accommodate a payor in Hougham's position, deferring the arrearages to a later date.

Second, as we said in In re R.L.M., 143 Wis. 2d 849, 852-53, 422 N.W.2d 890, 892 (Ct. App. 1988), the court need not find that the payor is "shirking" in order to enter such an order. It may be true, as was suggested in that Hougham's decision to return to school may enhance his earning capacity in the future, but the fact remains that because his decision has voluntarily reduced his income, it has deprived his children of the level of support to which they had been found entitled by the court. And if, at the end of his current stint of schooling, he will have, as the majority posits, accrued child support arrearages of $14,000, it seems to me that that is the quid pro quo of his decision to pursue a postgraduate degree while his minor children still require his financial support.

Unlike the majority, I see nothing "excessive" about such a result, nor do I share the judges' view that the order will "substantially impair Hougham's opportunity to freely pursue his choice of occupation." Majority op. at 555. Hougham's first choice was to father two children. The obligations imposed on him by that decision will not cease or diminish while he continues his education, nor will the needs of his children. To me, the trial court, exercising the considerable discretionary powers it possesses in matters of child support, fashioned a reasonable accommodation of Hougham's *563wishes and his children's needs and I would not disturb it.

Finally, I agree that Hougham's imputed income from his Milwaukee duplex must be offset by the expenses of owning and maintaining the property and I would, like the majority, remand for recalculation of that figure.