Abouhalkah v. Sharps

Court of Appeals of Indiana · 2003 · Family Law

Family LawChild SupportModification of Child SupportVoluntary Underemploymentchild support modificationsubstantial and continuing changed circumstancesvoluntary underemploymentpotential income

Facts

Father had previously been ordered to pay $174 per week in child support while employed as a chemist earning $46,000 per year. He left that employment after his hours increased, his compensation decreased, and his department was being relocated to Minnesota; he declined to relocate because doing so would place him far from his children. Father testified that he unsuccessfully sought comparable chemistry jobs within a one-hour radius of his home and then worked for his own company, earning $16,200 in 2001 and expecting $20,000 in 2002. He filed a petition to modify support, which the trial court denied after finding him voluntarily underemployed.

Issue

Did the trial court err in denying Father's petition to modify child support by treating him as voluntarily underemployed after he left a higher-paying job rather than relocate several hundred miles away from his children and unsuccessfully sought comparable local work?

Rule

A child support order may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. When deciding whether to impute potential income to a parent as voluntarily unemployed or underemployed, the court considers the parent's employment potential and probable earnings based on work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. Potential income may not be used to force a parent to work to full economic potential or base career decisions strictly on paycheck size, and a parent who leaves employment rather than move hundreds of miles away from his children is not voluntarily unemployed or underemployed on that basis alone.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Evan Mercer, who lives in Fort Wayne, Indiana, was paying child support based on his $82,000 salary as an engineer. His employer announced that his entire unit would move to Phoenix, Arizona, and Evan declined the transfer because it would place him far from his two children in Indiana; after months of searching, he could not find comparable local engineering work and took a $38,000 position with a small fabrication shop in South Bend.

If Evan petitions to reduce support based on his lower income, how should a court apply the doctrine from the majority opinion?

Explanation. The majority held that child support law cannot be used to force a parent to maximize earnings strictly by paycheck size. Where there is no evidence the parent left work to avoid support, the parent declined a distant relocation to remain near the children, and the parent unsuccessfully sought comparable local work, the parent is not voluntarily unemployed or underemployed on that basis alone. The proper approach is to assess actual circumstances and prevailing local opportunities rather than continue imputing the former higher income.