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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 14, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2063-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
SHANNON G. POIRIER,
Petitioner-Appellant,
v.
PAULA M. POIRIER,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Chippewa County:
THOMAS J. SAZAMA, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Shannon Poirier appeals an order modifying the amount
of child support Paula Poirier must pay but denying Shannon's request that the
court use Paula's earning capacity rather than her actual earnings to determine
the support obligation.[1] Because the trial court properly exercised
its discretion, we affirm the order.
In the divorce judgment,
Shannon was awarded custody of the four children and Paula was ordered to pay
him twenty-five percent of her gross income as child support. Each of the parties was granted the tax
deduction for two children. After the
divorce, Paula enrolled in the Chippewa Valley Technical College and has
completed nine credits toward her goal of receiving a degree as a
paralegal. Following medical problems
and a traffic accident injury, and concerned that her job was in jeopardy
because of downsizing, Paula left her fulltime job to take a halftime
position. She did not take any
additional courses the next semester.
Shannon then requested a modification of the child support order,
arguing that Paula's choice to voluntarily reduce her income without taking
additional courses establishes that she is "shirking" and the trial
court should calculate her support obligation based on her earning capacity
rather than her actual earnings. The
trial court raised the percentage Paula must pay from twenty-five percent to
thirty-one percent, awarded Shannon all four tax deductions, but declined to
find that she was shirking.
Modification of child
support rests within the sound discretion of the circuit court and will not be
overturned on appeal unless the court has misused its discretion. Jacquart v. Jacquart, 183
Wis.2d 372, 381, 515 N.W.2d 539, 542 (Ct. App. 1994). Because the exercise of discretion is so essential to the trial
court's functioning, we generally look for reasons to sustain discretionary
determinations. Schneller v. St.
Mary's Hosp., 155 Wis.2d 365, 374, 455 N.W.2d 250, 254 (Ct. App.
1990). Whether specific facts
constitute shirking is a question of law, but this court gives weight to the
trial court's decision because the question of reasonableness is intertwined
with factual findings. Van Offern
v. Van Offern, 173 Wis.2d 482, 492, 496 N.W.2d 660, 663 (Ct. App.
1982).
The trial court
reasonably concluded that Paula's reduction of income did not constitute shirking. Shirking is established when the obligor
intentionally avoids the duty to support or unreasonably diminishes his or her
income in light of the support obligation.
Id. The law
recognizes the right of an obligor to make career decisions which, in some
instances, will diminish the income available to meet the obligor's support
duty. Id. A prudent career decision over the long-term
may temporarily adversely affect the obligor's income. Id. Here, there is no evidence that Paula seeks to intentionally
avoid her support obligations. The only
question, therefore, is whether she unreasonably diminished her income in light
of the support obligations. The trial
court properly determined that Paula's career choice was not unreasonable under
the circumstances. Paula's concern over
the stability of her fulltime job makes it reasonable for her to retrain
herself for the purpose of finding more stable employment. A temporary reduction in income during this
retraining period can be a reasonable career choice.
Shannon complains that
Paula was not enrolled in school at the time of the hearing. In light of her recent medical problems,
some hiatus in her education is not unreasonable. The trial court has continuing jurisdiction in child support
matters and, if Paula does not undertake her educational program within a
reasonable time with a sufficient concentration of credits, the court may
conclude at some future date that her reduction to parttime employment was
unreasonable. Paula does not have the
luxury of pursuing private interests secure in the knowledge that Shannon will
provide for the children's needs. See
Sellers v. Sellers, 201 Wis.2d 578, 588, 549 N.W.2d 481 485
(1996). However, she does have the
right to diligently pursue educational advancement with a reasonable
expectation that it will produce long-term economic stability.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.