Commentary: Voluntarily leaving employment not shirking 'under the circumstances'.

• Author: Herman, Gregg

Byline: Gregg Herman

The Supreme Court of Wisconsin has issued its opinion in Chen v. Warner, 2005 WI 55 (May 6, 2005), affirming the circuit court's conclusion that a physician mother's decision to quit her job after the divorce to stay home with the children, with whom she had shared equal placement with the physician father, was not shirking. The decision affirmed an award of child support from her former spouse.

This is the first of two articles analyzing this important decision; this week, we look at the decision itself; next week, we'll examine its implications.

During their marriage, both parties were practicing physicians. The parties agreed to equally share equal placement time with the children. Since both had substantial incomes, child support was held open with the parties agreeing to equally share certain expenses for the children and the husband, due to his higher income, making a monthly deposit to a higher education fund.

Subsequently, the wife, Jane E. Chen, decided that she would prefer to spend more time with the children. She quit her medical job, figuring that she could live on the income from her investments. Unfortunately, the stock market decline caused her passive income to decrease substantially. Unable to find a part-time job in the area, she sought child support from her ex-husband, John J. Warner. The only change of circumstance was the self-inflicted one caused by the wife quitting her job.

The Wood County trial court, Judge James Mason presiding, found that the wife was not shirking and ordered the father to pay $4,000 per month in child support, but terminated the monthly deposit to the higher education fund. In a decision that was critiqued in this column, the Court of Appeals affirmed. Gregg Herman, "Court's Consideration of 'Shirking' is Exercise in Semantics," Wisconsin Law Journal, June 9, 2004. The high court granted review.

The majority opinion, authored by Chief Justice Shirley S. Abrahamson, defined shirking as "[A] party's employment decision to reduce or forego income [that] is voluntary and unreasonable under the circumstances." par. 20. The court then spent a fair amount of time discussing the appropriate standard of appellate review shirking cases, concluding that an appellate court should "independently determine the issue of reasonableness, giving appropriate deference to the circuit court." par. 3.

The majority then supplied a lengthy, though non-exhaustive, list of factors to be considered...