Monday, November 3, 2008

Indiana Child Support Caselaw: Voluntary Underemployment

I think we are seeing a trend where the courts find more payors of child support as being voluntarily underemployed. On October 24, 2008, the Indiana Court of Appeals decided Ziegler v. Hunt (PDF format). The Court of Appeals found the father to be voluntarily underemployed for the following reasons:

Husband’s earnings history indicates that when he filed his 2005 dissolution petition, he was employed as a salesperson by Indiana Mills (“IMMI”), at a base salary of $55,000.00 plus bonus and commission. Shortly thereafter, he left IMMI and began working for Ontario Systems (“Ontario”), at a base salary of $55,000.00. Ontario terminated his employment in April 2007, and he became a self-employed wedding photographer. Between July and October 2007, he photographed at least twelve weddings at a price of approximately $1700.00 each. Tr. at 71. On September 10, 2007, he began a forty-hour per week job with Sallie Mae, earning approximately $8.50 per hour. By the end of October 2007, he had ceased operating his photography business.

Based on the foregoing, the trial court entered the following findings:
2. In the Spring of 2007, [Husband] become [sic] self-employed as a photographer. [Husband] testified that for a four month period he grossed income in of [sic] approximately $20,000.00. On a yearly basis, this income would approximate his previous earnings history. [Husband] voluntarily chose to discontinue his photography business, maintaining for his own personal use the business assets, which include two cameras and a GMC Suburban.
3. The Court finds that [Husband] is voluntarily underemployed and imputes his income to be $828.29 per week.

To the extent Husband argues that he needed to work at Sallie Mae to provide insurance benefits for his family, we note that the children’s insurance was provided through Wife’s policy at a cost to Husband of $37.00 per week. We recognize that there are “circumstances in which a parent is unemployed or underemployed for a legitimate purpose other than avoiding child support and in those circumstances, there are no grounds for imputing income.” Kondamuri, 852 N.E.2d at 950 (citation and quotation marks omitted). This is not one of those circumstances. The trial court acted within its discretion in finding that Husband was voluntarily underemployed.

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