In the context of modification of child support, it is permissible for the trial court to consider a party's career change in determining the issue of voluntary and unreasonable underemployment. The trial court should consider the nature of changes in income, as well as the reasons for the changes.
The parties, former husband and wife, were both attorneys, and at the time of their divorce they entered into a settlement agreement whereby neither party would pay child support, but the father would pay for the child's education expenses. Two years later, the father was failing in his attempt to be a solo practitioner and was earning just over $ 10,000 a year. He then decided to become a teacher. The father sought a modification of the agreement due to his changed circumstances. The trial court refused to grant the modification, finding that the father had voluntarily become underemployed. The father appealed the judgment.
Did the trial court err in refusing to modify the agreement to provide a college education for the child?
The supreme court agreed with the trial court that the father's career change constituted voluntary underemployment, which did not necessarily justify a modification in child support, even if the career change was taken in good faith. Here the trial court established that the father took many steps, including closing his office and failing to keep regular business hours, that demonstrated his intent to downsize his practice. While the father repeatedly stated that he was simply a failure at law and was not capable of earning the average lawyer's salary, that claim was undermined by the fact that at one time he made over $ 53,000 a year. Thus, the trial court properly determined the father was voluntarily and unreasonably underemployed and that he was not working at his full capacity based upon his past earnings.