Miller v. Sugden

ROBB, Judge,

concurring in part, dissenting in part with opinion.

I concur in part with the majority. I agree with the majority (1) that Father’s termination from Eli Lilly was not due to intentional misconduct; (2) that Father is voluntarily underemployed; (3) that it is proper for the trial court to impute income to Father; and (4) that the trial court erred “when it imputed income to Father in the full amount of his Lilly salary at the *763rate of $1174 per week.” Slip op. at 8. However, I disagree with the majority’s conclusion that on remand the trial court should impute an income of $900 per week to Father.

The Child Support Guidelines provide that if a parent is voluntarily underemployed, the trial court must calculate child support by determining the parent’s potential income. Ind. Child Support Guideline 3(A)(3). Potential income should be determined upon the basis of “employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.” Id. One of the purposes for including potential income is to “discourage a parent from taking a lower paying job to avoid the payment of significant support....” Child Supp. G. 3, cmt. 2e. “The trial court enjoys broad discretion to impute income to a parent so that the parent cannot evade a support obligation.” In re Marriage of Lambert, 839 N.E.2d 708, 714 (Ind.Ct.App.2005). We have also stated that “child support orders cannot be used to force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks.” Scoleri v. Scoleri, 766 N.E.2d 1211, 1219 (Ind.Ct.App.2002).

The majority concludes that the trial court should impute an income of $900 per week to Father. This figure is based on the wage Father was paid while he worked as a chemist for a water company. Father testified that he secured this position through a temporary placement agency. Although it is not entirely clear whether the water company hired Father as only a temporary employee, if Father was a temporary employee, it is likely that he was not paid at the same rate that a regular employee would be paid at. Thus, the wage Father earned at the water company is likely not the most accurate reflection of the amount of money Father could be making.

The evidence introduced by Father suggests that his income should be imputed somewhere below $900. We have already determined that Father was fired from Eli Lilly due to his own misconduct. The circumstances surrounding his termination from Lilly, even though no criminal charges were filed, has surely impaired his employment potential, not just in the field of chemistry but in almost any potential area of employment.

Since being fired from Lilly, Father has applied for thirty-seven different jobs in a variety of areas including chemistry, teaching, fast food restaurants, and general retail stores. The trial court found that Father “has actively applied for employment ...” Brief of Appellant, Shawn C. Miller at tab A page 4. Based on the sheer number of jobs Father has applied for, it would appear that the job opportunities available to him might be limited.

The trial court also found that Father has remained “fairly consistent in paying a sizeable portion of his support obligation following the loss of his employment,” and that Father “has paid support with little or no means of income.” Id. This cuts in Father’s favor by indicating that he is not taking lower paying jobs to avoid making his child support payments.

Father has secured employment with Fed Ex working seventeen and one half hours per week earning $10.77 per hour. Although I believe Father can obtain full-time employment, even if he did so, at the rate of $10.77 per hour, he would not come close to making $900 per week. Therefore, I dissent from the majority’s conclusion that the trial court should impute an income of $900 per week to Father. On remand, I would suggest that Father’s income should be imputed somewhere below *764$900, but I would leave it up to the trial court to determine the exact figure.