Voecks v. Voecks, 92-0855

• Decision Date: 15 September 1992
• Docket Number: No. 92-0855,92-0855
• Citation: 491 N.W.2d 107,171 Wis.2d 184
• Parties: In re the Marriage of Cheryl K. VOECKS, Petitioner-Appellant, v. William E. VOECKS, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 107

491 N.W.2d 107

171 Wis.2d 184

In re the Marriage of Cheryl K. VOECKS, Petitioner-Appellant, v. William E. VOECKS, Respondent-Respondent.

No. 92-0855.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 1, 1992.

Opinion Released Sept. 15, 1992.

Opinion Filed Sept. 15, 1992.

On behalf of the petitioner-appellant, the cause was submitted on the brief of Traycee England, Asst. Corp. Counsel of Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Cheryl Voecks appeals an order reducing William Voecks' child support obligation from $55 per week to $25 per month based on a decrease in William's income due to his incarceration. Cheryl contends that the trial court abused its discretion by reducing William's child support obligation. She argues that because William was incarcerated as a result of his intentional criminal conduct, his confinement is not a change of circumstances necessary to empower the trial court to modify child support. Because we conclude that the court had the power to modify child support and the reduction was a proper exercise of judicial discretion, we affirm the order and amended judgment.

Cheryl and William were divorced in 1985. The divorce judgment gave Cheryl custody of their minor daughter and required William to pay $55 per week in child support. The judgment also created a $6,000 lien on the homestead in favor of the child. The amount of the lien represented William's equity in the homestead. At the time of the divorce, William owned a furniture store and reported earnings of $21,000. William later owned and operated an excavation business.

In August 1988, William was arrested as a party to the crime of cocaine delivery. During the thirteen months that he was placed on bond, he sold his excavation company's assets to defray living costs because he had no other income. William was convicted of being a party to cocaine delivery in September 1989, and sentenced to seven years at Oxford federal correctional institution. His parole eligibility date is April 12, 1996. William had $6,000 in debts and has no assets or other income.

Cheryl subsequently remarried, sold the homestead and moved to Connecticut with her husband and child. When the homestead was sold, $6,000 was placed in trust for the child. Cheryl's income is approximately $9,000 per year and her husband receives the salary of a professional engineer.

In September 1991, William requested a stay of the child support obligation and arrearage accrual until his release from prison. After a hearing, the trial court made the following findings: William earns $65 per month in prison including bonuses; he will be incarcerated until 1996, and his daughter will reach eighteen years of age in 1995; there is a $9,760 child support arrearage resulting from William's nonpayment while he was incarcerated until he filed his motion for reduction; William established a substantial change in circumstances due to his incarceration; and it is equitable under the circumstances to reduce William's child support obligation to $25 per month. The court ordered that William's child support obligation be reduced to $25 per month until William's release or the child's majority, whichever happens first.

Cheryl first challenges the court's authority to modify child support based upon William's incarceration and resultant decrease in income. Cheryl argues that William's income reduction was a voluntary, self-inflicted change in financial condition caused by his intentional criminal conduct. She urges us to analogize this case to the "shirking" cases, where the payor's ability to pay was decreased because the payor voluntarily failed to exercise his or her full capacity to earn. See Roellig v. Roellig, 146 Wis.2d 652, 658-59, 431 N.W.2d 759, 762 (Ct.App.1988).

In "shirking" cases, courts have refused to modify child support obligations based on the payor's actual earnings and instead look to the payor's earning capacity. Id. Cheryl concludes that because William's decreased income resulted from his voluntary criminal activity, he is not entitled to a reduction of his child support obligation. Cheryl also points to cases from other jurisdictions that hold incarceration is not a change in circumstances warranting modification of child support.

We conclude that the "shirking" cases are inapplicable. The "shirking" cases involve deliberate actions by the payor with the intent to reduce income to avoid paying child support. Although William's incarceration resulted from his deliberate criminal acts, there is no evidence that William engaged in the criminal conduct with the intent to reduce his income to avoid paying child support. While we do not wish to reward criminal conduct, we cannot conclude, as a matter of law, that criminal conduct must be treated as deliberate conduct designed to reduce income to avoid paying child support. Therefore, we conclude that even though incarceration results from intentional criminal conduct, it is a change in circumstances that gives a trial court competence to review a child support order. See Parker v. Parker, 152 Wis.2d 1, 4, 447 N.W.2d 64, 65 (Ct.App.1989). We also conclude that incarceration is a factor that the court may consider when determining whether it should exercise its discretion to...