In Re the Marriage of Atencio

Judge JONES

concurring in part and dissenting in part.

I respectfully dissent from Part I(A) of the majority opinion.

I disagree with the father that he has no control over his drug addiction and that his underemployment was not voluntary.

I am aware of the cases on which the majority relies for the general proposition *723that, even though a person's use of drugs is voluntary, the consequences of that conduct are not voluntary, even when, as here, the person is aware that the loss of a job is a certain consequence. See In re Marriage of Johnson, 24 Kan.App.2d 631, 950 P.2d 267 (1997); see also Pennington v. Pennington, 2001 WL 277993 (Tenn.App. No. W2000-00568-COA-R3-CV, March 14, 2001); Pace v. Pace, 135 Idaho 749, 24 P.3d 66 (App.2001). Under these cases, income cannot be imputed for deliberate underemployment.

However, through examination of the supreme court's stance on the voluntariness of addiction, as well as the child support cases involving the analogous situation of reduction in income caused by incarceration, I conclude that income may be imputed under the circumstances of this case.

In Tacorante v. People, 624 P.2d 1324 (Colo.1981), the supreme court construed a statute that provides that a person is not criminally responsible for his or her conduct caused by intoxication that is not self-induced. The court held that consumption of heroin by an addict causes self-induced, not involuntary, intoxication, and therefore the inability to refrain from drug use, by itself, did not warrant an involuntary intoxication instruction. The court specifically noted that "[mJlere addiction is not sufficient to render the injection of heroin involuntary or unknowing," and that "carrying the appellant's argument to its logical conclusion results in an absurdity: a person so addicted to intoxicants that he [or shel is unable to refrain from their use could never be held responsible for his [or her] criminal conduct." Tacorante v. People, supra, 624 P.2d at 1827-28.

This language sends a clear message that in Colorado, addicts are not absolved of their responsibilities. In contrast, in In re Marriage of Johnson, supra, the Kansas appeals court began with the opposite premise that even though the father's use of drugs was voluntary, he did not intend any of the consequences of that voluntary conduct, such as his reduced ability to pay child support. See also Pace v. Pace, supra (mother was not motivated in her abuse of prescription medication by a desire to shed her parental responsibilities); Pennington v. Pennington, supra (voluntary underemployment must result from an intent on the part of the parent to reduce or terminate his or her income). Thus, the reasoning in these cases is inconsistent with the Colorado supreme court's intolerance for attempting to use addiction to shirk responsibilities.

The two incarceration cases decided in Colorado have been resolved in the same vein, in that an incarcerated parent was given no relief from his child support obligation. See People in Interest of A.R.D., 43 P.3d 632 (Colo.App.2001)(father's employment opportunities were likely limited as a result of his incarceration, but he had not presented any evidence of attempts to find more gainful employment, and therefore court found voluntary underemployment and imputed income, at approximately twice the amount of his actual income, based on father's education, licensure, and experience); In re Marriage of Hamilton, 857 P2d 542 (Colo. of child support denied on the basis that father's incarceration was not a substantial and continuing cireumstance affecting the support obligation, and incarceration, standing alone, did not justify abatement or modification of father's obligation; trial court -erred in finding that father's criminal conviction constituted voluntary underemployment, but only because the scant evidence presented at trial could not sustain that determination, and that error was not grounds for reversal, because the denial of modification was otherwise supported).

In contrast, in Pace v. Pace, supra, the failure to impute income to the addicted mother was based, in part, on an incarceration case in the same jurisdiction, which held that a parent should be relieved of the obligation to pay child support during incarceration. See Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct.App.1988). Thus, inasmuch as the incarceration cases are analogous to the drug cases for purposes of voluntary underemployment, A.R.D. and Hamilton provide further support for affirming the trial court's imputation of income in this case.

Here, through the father's own voluntary action and intentional conduct, he has divested himself of his ability to earn his previous *724income. The record reveals that through his misconduct he had more than sufficient notice of the probable consequences of his voluntary behavior. He is responsible for his reduced financial cireumstances, and his duty to provide for the needs of his children should not be abrogated simply because he chose to ingest drugs. See Abrams v. Connolly, 781 P.2d 651 (Colo.1989)(a child has a legal right to support from both parents); People ex rel. Cerda v. Walker, supra (both parents have a duty to support a child to the best of their abilities). I can discern no reason to offer addicts a reprieve from their child support obligations when we would not do the same for an obligor who voluntarily walks away from his job. See In re Marriage of McCord, 910 P.2d 85 (Colo.App.1995)(income from job imputed to father who quit job after winning lottery). Unlike the obligor who is unemployed or faced with a reduction in pay through no fault of his own, the addicted person has control over his actions and should be held liable for the consequences.

Furthermore, I note that other debts are not forgiven, short of bankruptcy, simply because drug addiction results in an inability to pay them. Thus, from a policy standpoint, I can conceive of no sound reason for relieving an addicted parent of his or her obligation of support, for the sole reason of addiction.

This is not to say that other factors may not be weighed in determining underemployment, such as an obligor's efforts to find alternative employment. Here, however, the father did not present evidence as to his efforts to obtain higher-paying employment. Accordingly, I would hold that the trial court did not err in finding the father voluntarily underemployed and imputing his previous income.

I concur in Part I(B) and (C), and in Part II of the majority opinion. Thus, I would affirm the judgment of the trial court.