In RE MARRIAGE OF CHEN v. Warner

JON P. WILCOX, J.

¶ 80. (dissenting). Although I agree with much of Justice Butler's dissent, I write separately to expand upon the deficiencies in the majority's shirking analysis. First, I do not believe that an ex-spouse's income is an appropriate consideration when determining whether the other parent is shirking. Cf. Majority op., ¶ 60. As noted by Justice Butler, the proper test for shirking is whether the parent's voluntary decision to reduce income is reasonable in light of that person's legal obligation to provide financial support to his or her children. Justice Butler's dissent, ¶¶ 106-08.

¶ 81. As each parent has an independent obligation to provide financial support for his or her children, see Rottscheit v. Dumler, 2003 WI 62, ¶ 31, 262 Wis. 2d 292, 664 N.W.2d 525, one parent's voluntary decision to forego income should not be rendered reasonable merely because the other parent has the financial ability to make up the difference. The focus of a shirking analysis is not on the other parent's earning capacity but on the reasonableness of the alleged shirker's decision in light of his or her obligation to financially support the children: "Shirking is established where the obligor intentionally avoids the duty to support or where the obligor unreasonably diminishes or terminates his or her income in light of the support obligation." Van Offeren v. Van Offeren, 173 Wis. 2d 482, 492, 496 N.W.2d 660 (Ct. App. 1992)(emphasis added). *381The decision to voluntarily forgo income is thus"subject to reasonableness commensurate with his [or her] obligations to his children ... .Id. at 495 (quoting Balaam v. Balaam, 52 Wis. 2d 20, 28, 187 N.W.2d 867 (1971)).

¶ 82. I also disagree with the majority that a parent's subjective belief as to what is in his or her children's best interest plays any role in determining the reasonableness of his or her decision to voluntarily forgo income. Cfi majority op., ¶ 56. The circuit court's decision as to the amount of child support owed represents the determination as to what level of financial support is in the children's best interest. Doerr v. Doerr, 189 Wis. 2d 112, 128-29, 525 N.W.2d 745 (Ct. App. 1994). Reasonableness of a decision to forgo income is determined "in light of the support obligation." Van Offeren, 173 Wis. 2d at 492 (emphasis added).

¶ 83. Moreover, while a decision to completely forgo income may be deemed reasonable if such a decision represents a long-term, prudent career move and is likely to substantially increase the parent's earning capacity, the fact that such a decision is not related to any desire to increase future earning capacity reflects its unreasonableness. Doerr, 189 Wis. 2d at 130-32; Van Offeren, 173 Wis. 2d at 498. As Justice Butler correctly indicates, Dr. Chen's decision to forego income in this case was not related to any desire to increase her earning capacity; indeed, she plans on returning to her previous line of work once her children are adults (by which time her legal obligation to financially support them will end). Justice Butler's dissent, ¶¶ 93-94.

¶ 84. That Dr. Chen desires to spend more time with her children is certainly laudable; however, her decision to be more involved in her children's lives should not relieve her of her legal obligation to finan-*382daily support them. Given that Dr. Chen's dedsion to forgo employment was not related to a desire to increase her earning capacity, I would conclude that her decision to "retire" early to spend more time with her children was reasonable so long as she was able to meet her child support obligations. While she initially was able to meet her legal obligation to financially support her children through investment income, that is no longer the case.1 Dr. Chen's decision to remain unemployed while unable or unwilling2 to independently fulfill her legal obligation to financially support her children and her attempt to force Dr. Warner to finance her early retirement are objectively unreasonable under the facts of this case.

¶ 85. Finally, I wish to emphasize that contrary to the majority's assertion, majority op., ¶ 49, concluding that Dr. Chen's decision to remain unemployed is unreasonable is not tantamount to adopting a rule disfavoring a parent's decision to stay at home with his or her children. Rather, it is merely a reaffirmation of the principle that divorced parents retain the freedom to pursue a career of their choosing, so long as that decision is reasonable in light of their legal obligation to financially support their children. Van Offeren, 173 Wis. 2d at 496-97. Dr. Chen has every right to stay at home *383with her children. However, the law should not force her former spouse to finance that decision if she is unable to meet her legal obligations to provide financial support for her children.

¶ 86. I would conclude that Dr. Chen's decision to remain unemployed in light of her decreased investment income and legal obligation to financially support her children constitutes shirking and would therefore reverse the decision of the court of appeals. Accordingly, I dissent.

See Sellers v. Sellers, 201 Wis. 2d 578, 588, 549 N.W.2d 481 (Ct. App. 1996)("Because Kelly was not required to maximize his earning capacity, he enjoyed the luxury of pursuing private interests without regard to compensation. That situation no longer exists.").

I agree with Judge Dykman that Dr. Chen's refusal to invade her $1,691,000 estate to support her children should be considered in assessing whether her decision to remain unemployed is reasonable. Chen v. Warner, 2004 WI App 112, ¶ 62, 274 Wis. 2d 443, 683 N.W.2d 468 (Dykman, J., dissenting).