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).