## Facts

- Two physicians divorced after an 18-year marriage and had three minor children, with joint legal custody and equal physical placement.
- The divorce judgment imposed no child support on either parent but required the father to make monthly contributions to a children’s education fund.
- After the divorce, the mother left full-time physician employment to increase availability for child-related responsibilities (appointments, activities, school volunteering, and coordination with teachers).
- The mother’s employer did not permit part-time work; she relied on investment income after consulting a financial advisor.
- A stock-market decline reduced the mother’s investment income; she sought but could not obtain suitable part-time work within commuting distance consistent with her caregiving responsibilities.
- The father’s income increased substantially after the divorce; he also had significant assets, an employer-funded retirement account, and substantial discretionary monthly income.
- The circuit court modified the judgment, ordering the father to pay $4,000 per month in child support and relieving him of the education-fund obligation (a net increase to him of about $2,800 per month).
- The father appealed, arguing the mother was “shirking” and that child support should be set using her earning capacity rather than her actual earnings.

## Issues

1. What is the proper appellate standard of review for a circuit court’s determination of “reasonableness” in a child-support shirking (earning-capacity) dispute?
2. Whether the mother’s decision to forgo outside employment and provide full-time at-home child care was unreasonable “shirking” requiring imputation of income.

## Decision

- The Wisconsin Supreme Court affirmed the court of appeals and the circuit court’s child support order.
- The court held that appellate courts should independently determine “reasonableness” in a shirking case while giving appropriate deference to the circuit court’s factual findings.
- The court held the circuit court did not err in finding the mother’s employment decision reasonable and not shirking.
- Because the mother was not shirking, the circuit court properly used her actual income rather than an imputed earning capacity when setting child support.

## Legal Principles

- In determining child support, a court may use a parent’s earning capacity instead of actual earnings only if the parent is “shirking,” meaning the parent is voluntarily unemployed or underemployed in a manner that is unreasonable under the circumstances.
- The “reasonableness” determination in shirking cases is a mixed question: appellate courts review the legal conclusion of reasonableness independently, with deference to trial-court fact-finding and the trial court’s superior ability to assess family circumstances.
- A voluntary reduction in income is not automatically shirking; the inquiry centers on whether the employment choice is justified in light of support obligations and the children’s welfare.
- A parent’s child-care-driven choice to leave outside employment can be reasonable and therefore not a basis to impute a higher income, particularly when supported by good-faith planning and a lack of suitable alternative employment.

## Conclusion

The Wisconsin Supreme Court upheld a modified child support order requiring the father to pay $4,000 monthly, concluding that the mother’s decision to leave full-time employment to provide full-time care for the children was reasonable and therefore did not justify imputing income based on her prior earning capacity; the court also clarified that appellate review of reasonableness in shirking cases is independent but deferential to trial-level fact-finding.


Chen v. Warner, 695 N.W.2d 758 (Wis. 2005)