A party cannot avoid child support obligations through voluntary unemployment or underemployment. If a party has made only “token” job hunting efforts with few results, has applied only for work within a preferred field, and has not considered or pursued other career options, the courts are inclined to base the party’s income not on the lower amount of current earnings, but rather upon the party’s earning potential.1

Analysis of voluntary unemployment or underemployment is generally a question of good faith. Good faith is a factual issue to be determined by the court. A parent whose change in circumstances is due to voluntary termination of employment may obtain reduction in child support payments by showing all of the following:

1. A change in circumstances occurred.
2. The voluntary change in circumstances is reasonable and justified.
3. The parent is in good faith and not attempting to avoid the child support obligation.
4. The change in employment will not deprive the child of continued reasonable financial support.2

In virtually every case in which a parent’s voluntary unemployment or underemployment is found to be in good faith, our courts have recognized extenuating circumstances beyond the parent’s control that influenced and necessitated the voluntary change of employment. Courts have generally allowed a reduction in child support where parents were returning to school with hopes of increasing their salary or leaving employment (and seeking other employment) due to a business’ financial difficulty or a strained working relationship or to start a new business. In almost every case, our courts noted that the unemployment or underemployment was a short-term sacrifice that could lead to a long-term benefit.

• 1Gould v. Gould, 28,996 (La. App. 2 Cir. 1/24/97), 687 So. 2d 685; see also Glover v. Glover, 28,493 (La. App. 2 Cir. 6/26/96), 677 So. 2d 659.
• 2La. R.S. 9:315.1(A).

The projection of an income for a voluntarily underemployed or unemployed individual is not applicable if:

• The party is unemployable.1
• The party is incapable of employment.2
• The unemployment exists without fault or neglect of the party.3
• The party is physically or mentally incapacitated.4
• The party is actually caring for a child of the parties under the age of 5.5

Note that the child must be a “child of the parties.” Other children do not exempt a parent from being considered voluntarily underemployed or unemployed.

• 1La. R.S. 9:315(C)(5)(b).
• 2Id.
• 3Id.
• 4La. R.S. 9:315.11(A)(1).
• 5Id.

In determining gross income for calculating support, one may look at a party’s actual gross income if the party is employed to full capacity or may look to potential income if the party is voluntarily unemployed or underemployed.1

If a party is voluntarily underemployed or unemployed, child support is calculated based on the party’s income earning potential, i.e., the amount of income a person is capable of earning based on career choice, education, and skill level.2  In voluntary unemployment or underemployment cases, our courts will usually use the wage earned by the party prior to voluntary underemployment or unemployment as the best estimate of the obligated party’s potential income. If that is not feasible, a court may also use the most recently published Louisiana Occupational Employment Wage Survey.3

The amount of the basic child support obligation obtained by use of the provisions for voluntary unemployment or underemployment cannot exceed that amount that the party paying child support would have owed had no determination of the payee’s income potential been made.4

In the absence of evidence of income earning potential, there is a rebuttable presumption that a party could earn income equal to the amount that could be earned for 32 hours per week of work at the prevailing minimum wage.5  It may seem frustrating to litigate a case for a minimum amount of income; however, small amounts may be essential to low-income clients.

These types of cases present themselves often. Remember that your standard of appeal is manifest error.6  Appellate courts do not want to get into the weeds of calculating income unless they must. Therefore, the more information you can get into the court record to prove your argument, the better.

• 1La. R.S. 9:315(C)(5)(a)–(b).
• 2La. R.S. 9:315.11(A)(1).
• 3See La. R.S. 9:315.1.1(B); see also La. R.S. 13:3712.1 (requiring a court to accept a copy of a self-authenticating report from the Department of Labor, or from any state or reporting agency, as prima facie proof of its contents).
• 4See La. R.S. 9:315.11(B).
• 5La. R.S. 9:315.11(A)(2).
• 6La. R.S. 9:315.17.

Voluntary unemployment and underemployment issues have been frequently litigated, so there is a substantial body of caselaw available.

In Mayo v. Crazovich, the obligor left his unstable cementing business to enter the upholstery business to improve his financial condition. The court determined that if a voluntary change of circumstances is reasonable, justified, and in good faith without the intent to avoid the child support obligation, the obligor will not be deemed to be voluntarily underemployed even if the new business fails to turn a profit despite the obligor’s diligent effort.1

In Saussy v. Saussy, the obligor was fired from his employment through no fault or neglect of his own. Thereafter, he obtained another job that paid significantly less than his prior employment. His failure to apply for jobs in which he could reach his previous earning potential was not deemed to be voluntary underemployment insofar as the loss of income was deemed temporary. Also, the father in this case testified and the court accepted his testimony that with the change of employment he had more time to spend with his children. The court stated that a father’s children benefit not only by the money he is able to earn, but also by the presence of his company, and nowhere does the law require that a parent work 60 to 70 hours per week to the detriment of his children’s right to his company.2

In Koch v. Koch, the father sought to reduce his child support obligation by alleging that he had a significant decrease in income. The court determined that he was voluntarily underemployed because he worked approximately 70 hours per week, without compensation, for a company of which he was a one-third owner. The court determined that he had made several voluntary choices regarding investments of assets that resulted in loss of income. He was not entitled to rely on his bad investment decisions to reduce his child support obligation.3

In Lewis v. Lewis, the court stated that losing a job due to a medical illness could not be defined as voluntary and explained that voluntary unemployment must be brought about by an obligor’s “own fault or neglect.”4

In Hutto v. Kneipp, the father, a pastor, left full-time employment and a part-time job to enter the ministry. The court determined that Rev. Kneipp was in bad faith, noting the time frame in which he resigned from his prior employment coincided with the child support award. The court determined that the obligor was voluntarily underemployed and that his income earning potential must be considered in calculating his child support obligation. The court also determined that it was appropriate to calculate Rev. Kneipp’s income based solely on his prior full-time position rather than both of his former positions because “he was not in the habit of holding a second job when he had a permanent full-time position in the past” and because the minor difference in the child support awards would not deprive the child of reasonable support.5

In Greene v. Greene, the court determined that the mother was voluntarily underemployed insofar as she had quit her job in an attorney’s office to take a lower paying job so that she could spend more time at home with her children, all of whom were over the age of five years. The court concluded that the mother’s higher rate of pay should be utilized in calculating the obligor’s child support.6  Consistent with Greene, the court in Toups v. Toups reasoned that a wife with a history of full-time employment, but who, at the time of trial, was only employed part-time by her current husband, could be imputed income at her current part-time salary plus minimum wages up to full-time.7

• 1621 So. 2d 120 (La. App. 2 Cir. 1993); see also Lauve v. Lauve, 2008-0076 (La. App. 4 Cir. 8/20/08), 6 So. 3d 184.
• 293-1303 (La. App. 3 Cir. 6/15/94), 638 So. 2d 711; see also Walden v. Walden, 2000-2911 (La. App. 1 Cir. 8/14/02), 835 So. 2d 513.
• 397-1600 (La. App. 4 Cir. 4/22/98), 714 So. 2d 63; see also State, Dep’t of Soc. Servs. v. Swords, 2008-0580 (La. App. 3 Cir. 11/5/08), 996 So. 2d 1267.
• 42018-0378 (La. App. 4 Cir. 10/3/18), 255 So. 3d 1216.
• 5627 So. 2d 802 (La. App. 2 Cir. 1993).
• 693-789 (La. App. 3 Cir. 3/2/94), 634 So. 2d 1286.
• 797-0620 (La. App. 1 Cir. 4/8/98), 708 So. 2d 849; see also Lewis v. Lewis, 616 So. 2d 744 (La. App. 1 Cir. 1993); Leonard v. Leonard, 615 So. 2d 909 (La. App. 1 Cir. 1993).