Little v. Little
| Decision Date | 19 March 1999 |
| Docket Number | No. CV-98-0305-PR,CV-98-0305-PR |
| Citation | 193 Ariz. 518,975 P.2d 108 |
| Parties | , 292 Ariz. Adv. Rep. 8 In re the Marriage of Lisa L. LITTLE, Petitioner-Appellee, v. Billy L. LITTLE, Jr., Respondent-Appellant. /A. |
| Court | Arizona Supreme Court |
O P I N I O N
¶1 In this opinion, we consider the standard courts should apply in determining whether a non-custodial parent's voluntary decision to leave his or her employment to become a full-time student constitutes a sufficient change in circumstances to warrant a downward modification of the parent's child support obligation.
¶2 The parties divorced in November 1995. The court ordered appellant Billy L. Little, Jr., an Air Force lieutenant, to pay $1,186 per month for the support of his two young children. In August 1996, appellant resigned his commission in the Air Force, a position that paid $48,000 in yearly salary plus benefits, and chose to enroll as a full-time student at Arizona State University College of Law rather than to seek employment.
¶3 Upon leaving the Air Force, appellant petitioned the court to reduce his child support obligation to $239 per month. The trial court concluded that appellant had failed to prove a substantial and continuing change of circumstances in accordance with Arizona Revised Statutes (A.R.S.) §§ 25-327.A and 25-503.F, and denied his request for modification. The trial court specifically found that appellant voluntarily left his employment to further his own ambition; that he failed to consider the needs of his children when he made that decision; and that to reduce his child support obligation would be to his children's immediate detriment and their previously established needs. The trial court did reduce appellant's child support obligation to $972 per month on the ground that appellee Lisa L. Little had acquired a higher paying job. 1
¶4 The court of appeals, applying a good faith test to determine whether appellant acted reasonably in voluntarily leaving his employment, held that the trial court abused its discretion in finding that appellant's decision to terminate his employment and pursue a law degree was unreasonable. Because we hold that a court, rather than rely upon a good faith test, must balance a number of factors to determine whether to modify a child support order to reflect a substantial and continuing change of circumstances, we vacate the opinion of the court of appeals and affirm the decision of the trial court.
¶5 The decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of that discretion, will not be disturbed on appeal. See Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963). An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is "devoid of competent evidence to support" the decision. Id.
¶6 Arizona's law governing modification of child support orders, codified at A.R.S. §§ 25-327.A and 25-503.F, states that a court should modify a child support order only if a parent shows a substantial, continuing change of circumstances. Guidelines adopted by this court provide procedural guidance in applying the substantive law. See A.R.S. § 25-501.C; Appendix to A.R.S. § 25-320, Child Support Guidelines (Guidelines); see also In re Marriage of Pacific, 168 Ariz. 460, 815 P.2d 7 (App.1991) (). According to the Guidelines, when a parent is unemployed or working below his or her full earning potential, a trial court calculating the appropriate child support payment may impute income to that parent, up to full earning capacity, if the parent's earnings are reduced voluntarily and not for reasonable cause. See Guidelines 4.e. The Guidelines also state that the trial court may elect not to impute income to a parent if he or she is enrolled in reasonable occupational training that will establish basic skills or is reasonably calculated to enhance earning capacity. See Guidelines 4.e.2. Significantly, both the governing statute and the Guidelines recognize that a parent's child support obligation is paramount to all other financial obligations, and that a parent has a legal duty to support his or her biological and adopted children. See A.R.S. § 25-501.C; see also Guidelines 2.b, d.
¶7 Arizona's appellate courts have considered whether a court should modify a child support order to reflect a change in an obligor parent's employment in the contexts of incarceration, sale of a business, retirement, layoff, and strike. 2 We have not, however, considered the issue of what effect a parent's voluntary decision to forego employment and become a full-time student has upon that parent's obligation to pay child support.
¶8 A number of other jurisdictions have considered the issue that confronts us. Courts in sister jurisdictions have applied one of three tests to determine whether to modify a child support order when a parent voluntarily terminates his or her employment. See Lewis Becker, Spousal and Child Support and the "Voluntary Reduction of Income" Doctrine, 29 CONN. L. REV . 647, 658 (1997). The first of these tests, the good faith test, "considers the actual earnings of a party rather than his earning capacity, so long as" he or she acted in good faith and not "primarily for the purpose of avoiding a support obligation" when he or she terminated employment. Id. The second test, designated the strict rule test, "disregards any income reduction produced by voluntary conduct and ... looks at the earning capacity of a party in fashioning a support obligation." Id. The third test, referred to as the intermediate test, balances various factors to determine "whether to use actual income or earning capacity in making a support determination." Id. Each of the tests evidences its own strengths and weaknesses, and each reflects the public policy of its adopting jurisdiction.
¶9 Other jurisdictions have detected three fundamental flaws in the good faith test, which assigns the highest value to the obligor parent's individual freedom of choice. First, the test erroneously "assumes that a divorced or separated party to a support proceeding will continue to make decisions in the best overall interest of the family unit," when often, in fact, the party will not. Id. at 663. Second, the test fails to attach sufficient importance to a parent's existing obligation to support his or her children. See id. at 664. As one court explained, the good faith test allows a parent to be "free to retire, take a vow of poverty, write poetry, or hawk roses in an airport, if he or she sees fit," provided only that his or her motivation for acting is not to shirk a child support obligation. Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542, 546 (1992). Third, once the party seeking a downward modification provides a seemingly good faith reason for leaving employment, the burden of proof often shifts to the party opposing the reduction to then show that the reason given is merely a sham. Even if the burden of proof does not shift, the trial court is still left with the difficult task of evaluating a party's subjective motivation. See Becker, supra, at 664-65. While all those factors influence our decision to reject the good faith test, we regard the primary shortcoming of the good faith test as being its focus upon the parent's motivation for leaving employment rather than upon the parent's responsibility to his or her children and the effect of the parent's decision on the best interests of the children.
¶10 The strict rule test also contains a fatal flaw. This test is too inflexible because it considers only one factor, the parent's earning capacity, in determining whether to modify a child support order when a parent voluntarily leaves employment. See Becker, supra, at 668. We decline to adopt the strict rule test because it allows no consideration of the parent's individual freedom or of the economic benefits that can result to both parent and children from additional training or education.
¶11 We reject both these extreme approaches and instead adopt an intermediate balancing test that considers a number of factors, consistent with A.R.S. §§ 25-327.A, 25-503.F, 25-501.C, and the Guidelines.
¶12 Arizona law prescribes that "[t]he obligation to pay child support is primary and other financial obligations are secondary." A.R.S. § 25-501.C. Thus, the paramount factor a trial court must consider in determining whether a voluntary change in employment constitutes a substantial and continuing change in circumstances sufficient to justify a child support modification is the financial impact of the parent's decision on the child or children the support order protects. If a reduction in child support due to a non-custodial parent's voluntary decision to change his or her employment status places a child in financial peril, then the court generally should not permit a downward modification.
¶13 In many instances, the impact on the children will not be so severe as to place the children in peril. In those circumstances, courts must consider the overall reasonableness of a parent's voluntary decision to terminate employment and return to school. The answers to several questions will provide relevant information. The court should ask whether the parent's current educational level and physical capacity provide him or her with the ability to find suitable work in the marketplace. If so, the decision to leave employment is less reasonable. See Patterson v. Patterson, 102 Ariz. 410, 415, 432 P.2d 143, 148 (1967) (...
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