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Appeals court clarifies shirking test in support case

When determining whether a former spouse has shirked his or her duties in paying child support, on what case should courts rely?

The Court of Appeals recently answered this in its decision in Becker v. Becker, where it upheld a Milwaukee County court ruling that found an ex-husband’s decision to purchase a medical practice after his divorce “unreasonable” when he had to support an ex-wife and four kids.

Case history

Dr. Michael Becker and his now ex-wife, DeAnn, married in 1988, when he was just starting his medical career. Fifteen years and four minor children later, the Milwaukee-area cardiologist had an annual income of almost $558,000.

Due to his high income at the time of the couple’s divorce in 2003, Becker’s family support was set at 55 percent of the first $400,000 in income, 45 percent of the next $200,000, and 50 percent of anything over $600,000.

Within several years, however, Becker’s financial situation changed dramatically. After the divorce, Becker joined a larger practice that was later purchased by Aurora Medical Group. Not long after that, in September 2009, Becker was fired.

After Becker successfully sued his previous employer for wrongful termination and a proper severance package, he took part of the proceeds from his lawsuit and in June 2010 bought the medical practice of a recently deceased cardiologist in the Milwaukee area. At the time, Becker admitted it would take “two to five years” for the practice to become profitable, according to lower court testimony.

In fact, the new practice failed to make any profit for more than 30 months. Becker’s ex filed a motion in 2012 asking the court to find that her former husband had been “shirking” his responsibility to earn a reasonable income, given his position as a cardiologist. Her vocational expert, Timothy Riley, testified that Becker had not really looked outside Milwaukee County after he was fired in 2009. There were other possible jobs in Wisconsin or even out of state, he testified, that were seemingly never considered by Becker.

Becker argued that he had pursued every employment option after he was fired in 2009, but none of the three large group employers in Milwaukee County were reasonable options at the time.

Following a hearing on Oct. 24, 2012, Circuit Judge Marshall Murray found that Becker had shirked his responsibility to pay child support and was in contempt for failing to pay child support based upon imputed income. The court also ordered Becker to pay his ex-wife’s attorney’s fees, totaling more than $12,000, which stemmed from ongoing litigation over family and child support issues dating to early 2010.

On appeal

In his appeal, Becker contended that Murray had applied the wrong “shirking” test.

The first shirking test covers situations where a parent deliberately reduces earnings to avoid paying child support, according to counsel for Becker. The second test comes into play when a parent makes an affirmative choice to reduce earnings and this choice is “unreasonable” under the circumstances.

The trial court incorrectly applied the second shirking test when it should have applied the first test, Becker’s counsel argued. Applying the less stringent second shirking test was not supported by the facts and existing case law, according to Becker’s counsel, and should not be applied when a parent is involuntarily separated from his job.

Becker cited Wallen v. Wallen, 139 Wis. 2nd 217 (Ct. App. 1987), where a factory worker who had been married for 14 years and had two young children was fired from his job. He later took an entry-level position at Great America theme park while working about eight hours a day to build up his insurance practice. Although the trial court found that Wallen had deliberately undermined his income to reduce child support, the appellate court reversed.

“When a parents’ change in financial circumstances is initially nonvolitional, there must be positive evidence of his … bad faith in failing to recover financially,” the Wallen court explained,”… unless the trial court finds the parents’ explanation inherently improbable.”

Becker’s counsel suggested that because Becker was let go from Aurora Medical Group, his case was similar to Wallen and should have the same “shirking” test applied.

Defense counsel also pointed to the case of Van Offeren v. Van Offeren, 173 Wis. 2d 482 (Ct. App. 1992) as an example of a parent who truly had committed “shirking.” There, a recently divorced parent quit his job with S.C. Johnson and bought a video store. Both the trial and appellate courts found the parent’s decision to buy the store was unreasonable in part “because there was another more reasonable option available,” counsel said. Similarly, Becker’s counsel argued, the doctor had no other option but to purchase the practice.

But the appellate court found that Becker had indeed shirked his obligation to support his kids and upheld the trial court’s decision to find that he had “unreasonably “ bought the cardiology practice when he knew it could take years to become profitable.

According to the Court of Appeals, Becker’s legal arguments failed, in part, because there are not two “shirking” tests applied to cases where a parent has reduced income, for whatever reason. The only “shirking” test that is in effect in Wisconsin is stated in the 2005 case Chen v. Warner, 2005 WI 55, the court explained. In that case, the court confirmed “a circuit need find only that a party’s employment decision to reduce or forego income is voluntary and unreasonable under the circumstances.”

Although there may have been references to the need to show that a parent showed “deliberate” conduct in earlier decisions such as Wallen and Van Offeren, the more recently decided Chen clearly indicates that such a “deliberate” requirement is no longer a part of any “shirking” test in Wisconsin.

Therefore, applying the only shirking test as noted in Chen, the appellate court found the lower court had ample basis to find Becker’s decision to buy the practice “voluntary and unreasonable.”

The appellate court was unconvinced by Becker’s plea that no other options were available to him after he was fired in 2009. Becker had not applied for positions outside of Milwaukee County or even out of state, according to the court. His choice to purchase a financially challenged cardiology practice was unreasonable given the increasing cost of operating such a practice and declining Medicare reimbursements.

The court also noted that during the nearly four years Becker was paying no support, from January 2010 through January 2014, he was paying $10,000 per year for country club dues, traveling to conventions and bought interests in two unprofitable local businesses.

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