(concurring specially).
I agree with the majority’s conclusion that Paul Ben-Yehuda is voluntarily unemployed under Minn.Stat. § 518.551, subd. 5b(d) (2000). I write separately, however, to express my concern that the majority’s holding may be interpreted as creating an absolute rule that unduly limits the ability of child support obligors to improve then-condition, in both an economic and an intellectual sense, by going to school full time to obtain an undergraduate education. Without an education, obligors may find themselves trapped indefinitely in an employment situation that deprives them of the chance to realize their full potential. While I recognize the importance of ensuring that parents provide financial support for their children, I do not believe that this objective requires us to deny an entire class of individuals the opportunity to improve their education.
I believe that the answer to the question of whether a child support obligor who attends school full time is voluntarily unemployed should be based on the particular facts and circumstances of each case. In this case, there are a number of factors that, when taken in combination with the relatively long duration of Ben-Yehuda’s unemployment, lead me to the conclusion that his support obligation should be calculated based on his imputed income. First, there is the fact that Ben-Yehuda’s original child support obligation was set at a reduced level based on his representation to the district court that he would soon be leaving the country to take a job that paid less than what he was earning at the United States Postal Service (USPS). This career change never materialized and, as a result, Ben-Yehuda did not experience a decrease in earnings.
Second, even though Ben-Yehuda’s monthly support obligation was set at an amount less than that called for by the child support guidelines, he still failed to make the monthly child support payments required by the district court’s order. In my view, these facts strongly suggest that Ben-Yehuda’s current unemployment may be nothing more than an effort to avoid his child support obligation.
The third factor that influences my decision in this case is the lack of evidence on the issue of whether Ben-Yehuda’s undergraduate degree in computer science will lead to an increase in his income. The only evidence in the record on this point is Ben-Yehuda’s own statement in an affidavit. Standing alone, I believe that this evidence would not support a finding that Ben-Yehuda’s unemployment will ultimately lead to an increase in his income.
In sum, given the importance of education, I reject the notion that a child support obligor who stops working to obtain additional education is automatically voluntarily unemployed under section 518.551, subd. 5b(d).