Little v. Little
| Decision Date | 21 May 1998 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 193 Ariz. 23,969 P.2d 188 |
| Parties | , 269 Ariz. Adv. Rep. 22 Lisa L. LITTLE, Petitioner-Appellee, v. Billy L. LITTLE, Jr., Respondent-Appellant. 97-0576. |
| Court | Arizona Court of Appeals |
¶1 Billy L. Little, Jr. (appellant) appeals from the trial court's refusal to find his pursuit of a law degree a substantial and continuing change of circumstances warranting a modification of child support. For the reasons discussed below, we reverse.
¶2 In November 1995, the marriage between the parties was dissolved. As a result, appellant was ordered to pay $1,186 per month for child support.
¶3 Appellant was employed by the Air Force, earning an annual salary of $48,000, plus benefits. He holds a Master's Degree in Business Administration. Appellant terminated his employment with the Air Force in August 1996, at which time he entered law school at Arizona State University. He earns a monthly reserve pay from the Air Force of $308. At the time of dissolution of marriage, Lisa L. Little (appellee) was a full-time student/caretaker. She is currently employed, earning $1,040 per month.
¶4 In August 1996, appellant filed a petition for order to show cause regarding child support modification. In the petition, appellant alleged a substantial and continuing change in circumstances in that his income was reduced because he had terminated his position with the Air Force and entered law school. In his petition, appellant requested a reduction in child support payments from $1,186 to $239 per month. A hearing on the order to show cause was held in superior court on May 2, 1997, before the Honorable M. Jean Hoag. At the hearing, when asked what appellant realistically thought he could pay per month for child support, he replied $500. By minute entry dated June 13, 1997, the court ruled that appellant failed to prove a substantial and continuing change of circumstances, and therefore denied the modification request. 1 The court stated:
Respondent unilaterally terminated his position with the Air Force. The reason noted for separation was "failure to accept regular appointment when confirmed by the Senate." 2 The reason he did so was to attend law school. Respondent could have continued employment with the military for whom he had worked for four-and-a-half years, but he conditioned his continued employment upon attendance at law school. This condition, as presented by Respondent, was rejected.
....
The testimony revealed that there are night schools Respondent could have attended to earn his chosen degree, but he declined to relocate to, for instance, California.
THE COURT FINDS Respondent's choice to leave his employment, which was suitable to his educational background, was voluntary. The Court further finds that Respondent did not consider the needs of his children prior to entering school which, predictably, resulted in no income to Respondent and therefore no support for his children from earned income. Wolcott v. Wolcott, 101 N.M. 665, 687 P.2d 100 (1984) 3 cited by Respondent, states that a parent should be permitted to "enhance his economic fortunes without penalty." There is no evidence that Respondent's decision was grounded in a desire to enhance his economic fortunes, which would then inure to the benefit of his children. Rather, it is the Court's opinion that Respondent's subjective intent was to further his own ambition. If this Court were to reduce or abate Respondent's child support obligation, it would be to the children's immediate detriment and their previously established needs. The Court finds Respondent's choice of terminating his previous employment voluntary and unreasonable.
¶5 On July 8, 1997, appellant filed motions to vacate and for a new trial, which the court denied. This timely appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 12-2101(B) (1994).
¶6 Whether the trial court erred in refusing to find that appellant's pursuit of a law degree was reasonable and constituted a substantial and continuing change of circumstances warranting modification of his child support obligations.
¶7 The decision whether changed circumstances exist to warrant modification of a child support award is within the sound discretion of the trial court and, absent abuse of that discretion, will not be disturbed on appeal. Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d 685, 687 (App.1994). An abuse of discretion exists when the record is devoid of competent evidence to support the decision. Platt v. Platt, 17 Ariz.App. 458, 459, 498 P.2d 532, 533 (1972) (citing Fought v. Fought, 94 Ariz. 187, 382 P.2d 667 (1963)).
¶8 It appears the trial court placed great emphasis on the fact that appellant's decision to leave his employment was voluntary. Appellee cites Reeves v. Reeves, 146 Ariz. 471, 473, 706 P.2d 1238, 1240 (App.1985), for the proposition that a voluntary reduction of income may not provide a basis for a modification of support. The Reeves case involved the obligated spouse's voluntary early retirement. The court in that case found relevant "the ability or potential for one spouse to earn income in the labor market," concluding that "voluntary retirement does not affect one's ability to earn in the labor market." Id. Thus, the court determined that voluntary retirement does not provide a basis for modifying support obligations.
¶9 The issue presented here, involving a reduction in income due to a voluntary change in occupation or employment, is quite different than the early retirement issue. Arizona courts have not yet examined this issue. However, the Arizona Supreme Court, in its administration of the Arizona Child Support Guidelines (Guidelines), provides some direction. As noted by appellant, the Guidelines state it may be "inappropriate" for a court to attribute income when "[a] parent is engaged in reasonable career or occupational training to establish basic skills or reasonably calculated to enhance earning capacity." Ariz. Admin. Order No. 96-29, Arizona Child Support Guidelines § 4(e)(2) (1996). 4
¶10 The central question then is what constitutes "reasonable career or occupational training?" Arizona courts have not determined this issue. However, other jurisdictions have reached this issue, finding that voluntary changes in employment or occupation are reasonable if made in "good faith." See In re Marriage of Horn, 272 Ill.App.3d 472, 209 Ill.Dec. 130, 650 N.E.2d 1103, 1106 (1995); Wolcott, 735 P.2d at 327; Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn.1982); Schuler v. Schuler, 382 Mass. 366, 416 N.E.2d 197, 203 (1981); Fogel v. Fogel, 184 Neb. 425, 168 N.W.2d 275, 277 (1969); Thomas v. Thomas, 281 Ala. 397, 203 So.2d 118, 123 (1967); Lambert v. Lambert, 66 Wash.2d 503, 403 P.2d 664, 668 (1965); Nelson v. Nelson, 225 Or. 257, 357 P.2d 536, 538 (1960).
¶11 The Horn case involved the obligated spouse's participation in a labor strike as a basis for a reduction in his support payments. The court concluded that "[a] good-faith, voluntary change in employment which results in diminished financial ability may constitute a substantial change in circumstances justifying a reduction in child support payments." 209 Ill.Dec. 130, 650 N.E.2d at 1106. The court went on to explain that the test for determining good faith is "whether the change was prompted by a desire to evade financial responsibilities for supporting the children or to otherwise jeopardize their interests." Id. Thus, the voluntariness of the change of circumstances is but one factor to consider. The trial court must also consider the objectives underlying the change. Thomas, 203 So.2d at 123 ().
¶12 Other courts have held that modification of support is appropriate when the obligated spouse terminates his employment to further his education. Coons v. Wilder, 93 Ill.App.3d 127, 48 Ill.Dec. 512, 416 N.E.2d 785, 790-91 (1981); Graham v. Graham, 21 Ill.App.3d 1032, 316 N.E.2d 143, 146 (1974); Martinec v. Martinec, 17 Ill.App.3d 402, 308 N.E.2d 161, 161 (1974). Strikingly similar to this case is an Illinois case involving a father's request for a reduction in child support due in part to his enrollment in law school. Wilder, 48 Ill.Dec. 512, 416 N.E.2d at 790. The Wilder court stated, "[i]t is well established that a voluntary change in occupation or employment made in good faith may constitute a material change in circumstances sufficient to warrant modification of a child support order." Id. The court further announced that "[t]he change in circumstances must ... be fortuitous in nature and not the result of deliberate action or conduct of the party seeking the reduction." Id., 48 Ill.Dec. 512, 416 N.E.2d at 791. Thus, the obligated parent should be allowed to enhance economic fortunes without penalty, so long as his employment or educational decisions are undertaken in good faith and not deliberately designed to avoid responsibility of his dependents. Id.
¶13 We agree with the Supreme Court of Oregon that:
[T]he refusal to recognize a change in occupation or employment as a basis for modification would force the defendant to be frozen in his present employment unless he would accept the prospect of financial hardship. We do not believe that it would be sound policy to place such a restraint upon him. Admittedly he has a duty to support his children, and the decree which is sought to be modified expresses that duty in a fixed amount. But the amount is not fixed immutably in the decree; it is subject to modification if circumstances fairly warrant modification.
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