Appellant: Rip Garcia
Appellee: Lana Garcia
( Goodman )
( Seminole County - Timothy L. Olsen )
AFFIRMED
Jerry L. Colclazier, COLCLAZIER & ASSOCIATES, Seminole, Oklahoma, For Plaintiff/Appellant
Rob L. Pyron, ROB L. PYRON LAW FIRM, Seminole, Oklahoma, For Defendant/Appellee
OPINION
Rip Garcia (Father) appeals the trial court's January 21, 2011, order denying his motion to modify his divorce decree and reduce his child support. Based on our review of the facts and applicable law, we affirm.
FACTS
On October 13, 2010, Father filed a motion to modify an August 8, 2008, divorce decree which granted him a divorce from Lana Garcia (Mother) and ordered him to pay $1,058.85 in monthly child support. After the entry of the decree, he lost his school administration job and filed a motion to reduce his monthly child support obligation.
Mother objected to the motion, alleging Father lost his job because of Father's own actions, i.e., he was forced to resign as a school principal or else face formal termination proceedings for failing to report to work for three days without explanation. Mother argued Father should not be relieved of his obligation to pay child support due to his own misdeeds or his voluntary decision to quit his job.
A hearing was held on December 28, 2010. Father testified, admitting to voluntarily resigning his position. However, he argued his decision to quit was not motivated by a desire to avoid his child support obligation. Rather, his decision to resign was based on an analysis of his future job prospects. He argued that, had he not resigned and instead participated in the formal termination hearings, his termination, which he believed to be a foregone conclusion, would be a serious obstacle to securing future employment in another school district. His resignation, on the other hand, together with an offer from the school superintendent to assist in placing him in another school district, offered him the best chance of securing future employment.
Father testified that he has been unsuccessful in finding a full-time school-related job since his resignation because most school districts hire in the summer preceding a new school year, not between semesters. He has found temporary work, sent out 35 resumes, and made numerous additional employment contacts in the three months since his resignation, resulting in one job interview. He has earned approximately $800.00. He has been unable to pay the marital debts assigned to him in the decree, has been sued to collect those debts, and is currently in arrears on both child support and support alimony. He has since remarried and has three stepchildren living with him. His current wife is employed and pays all the household expenses. Father asked his income be imputed to minimum wage and his support alimony obligation be terminated.
On cross-examination, Father admitted to being reprimanded twice by the school superintendent, once for inappropriate language and once for absenteeism. He admitted he bought a new car two months before he resigned, but has not sold the car because there is no equity in it, and his current wife has made approximately $1,500.00 in car payments. He has paid $50.00 in child support. He cannot collect unemployment because he resigned his position.
The trial court found Father's child support obligation was based on a monthly income of $5,021.00 earned as a school administrator, teacher, and coach for Allen Public Schools. He resigned his employment on September 15, 2010, a decision he testified was forced upon him in order to avoid a formal termination proceeding. The trial court found that based on Father's education, training, and work history, he should be able to find similar employment in the near future. After setting out the legal standards and burdens of proof, the trial court denied the motion.
The trial court stated:
"In the present case, [Father] did not meet the burden of proof to modify either child support or support alimony because his decrease in income is temporary, was due to the voluntary act of [Father] or caused by [Father], was not beyond his own control, and is not continuing. Further, based on his training, education and experience, his income is imputed to the amount he was earning prior to resignation."
A court minute memorializing these findings was filed December 30, 2010, and an order denying the motion was filed January 21, 2011, from which this appeal is taken.
STANDARD OF REVIEW
"Proceedings to modify child support are equitable in nature and we will affirm the district court unless the decision is against the clear weight of the evidence. See Merritt v. Merritt, 2003 OK 68, 7, 73 P.3d 878, 88182; Huchteman v. Huchteman, 1976 OK 174, 27, 557 P.2d 427, 430. "Modification of child support is within" the district court's discretion, and the court's judgment "will not be reversed on appeal unless it is against [the] clear weight of [the] evidence, or erroneous in [a] respect that causes injustice and reflects abuse of discretion." Huchteman, 1976 OK 174, 27, 557 P.2d at 430."
Guyton v. Guyton, 2011 OK CIV APP 92, 6, 262 P.3d 1145, 1148. A reviewing court may also apply equitable principles when reviewing modification of child support.
"[ ] Further, the amount of child support set by a trial court will not be modified or set aside on appeal unless the award is clearly against the weight of the evidence or is somehow unjust and inequitable. Lockhart v. Lockhart, 1996 OK CIV APP 56, 919 P.2d 454, 456."
State, ex rel. Dept. of Human Services ex rel. Jones v. Baggett, 1999 OK 68, 3, 990 P.2d 235, 238.
ANALYSIS
Title 43 O.S. 1181(A)(1) (2011) states:
"Child support orders may be modified upon a material change in circumstances which includes, but is not limited to, an increase or decrease in the needs of the child, an increase or decrease in the income of the parents, changes in actual annualized child care expenses, changes in the cost of medical or dental insurance, or when one of the children in the child support order reaches the age of majority or otherwise ceases to be entitled to support pursuant to the support order."
The Oklahoma Supreme Court has held:
"Parents have a legal duty to support and educate their children and to prevent them from becoming public charges. Burrows v. Burrows, 1994 OK 129, 886 P.2d 984, 991. Maintenance of a minor child is an enforceable parental duty and it cannot be shifted as a burden upon the shoulders of others. Hart v. Hart, 177 Okla. 428, 60 P.2d 747 (1936). Further, a basic rule of equity jurisprudence is that equity will refuse to lend its aid to one seeking its active interposition who has been guilty of any unlawful or inequitable conduct in the matter with relation to which he seeks relief. McNeil v. Brogan, 201 Okla. 125, 202 P.2d 696 Third Syllabus (1949). In other words, he who would invoke the equitable powers of a court must come before the court in relation to the matter at issue with clean hands. Id. at 699.
"Specifically in relation to child support matters, it has been recognized that, when an able-bodied parent is voluntarily unemployed or underemployed, and, thus, has no income or a reduced income, it is proper to attribute to that individual for child support purposes either an actual monthly income based on the minimum wage or an income based on what the person could earn. See Asal v. Asal, 1998 OK CIV APP 54, 960 P.2d 849; Andersen v. Fellers, 1998 OK CIV APP 53, 960 P.2d 851, 853-854. Such recognition is nothing more than acknowledgment that equity will normally not favor reduction of a child support obligation where the parent 's financial condition is due to his/her fault, or voluntary wastage or dissipation of his/her talents and assets. Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051, 1053 (1983)."
Jones, id., 1999 OK 68, 22, 23, 990 P.2d 235, 244 (emphasis added).
Jones held that an incarcerated parent with no income should nevertheless be imputed as receiving at least minimum wage income, thus being obligated for some child support. The relevance of Jones to our analysis, however, is recognition of the principle that our courts will not reduce an obligor's child support where the obligor's loss of income is self-inflicted.1
Further, in Andersen v. Fellers, 1998 OK CIV APP 53, 960 P.2d 851, the Court of Civil Appeals affirmed the trial court's decision not to reduce the father's request for a reduction in child support when there was evidence in the record that the father, a self-employed business owner, purposely drew a smaller salary in order to reduce his income, and thus, his child support.
Here, Father admits to being reprimanded twice prior to his separation from employment, and further that those incidents, plus the excessive absenteeism, led to the decision placed before him: i.e., resign or be terminated. Father would have this Court direct the trial court to focus on the decision itself, rather than on Father's actions that led to that decision having to be made in the first place. Had Father been forced to resign because of circumstances outside of his control, our analysis would be different. However, the trial court made a finding of fact that Father's decision to resign his employment was "due to the voluntary act of [Father] or caused by [Father and] was not beyond his control . . . ." As the record supports this finding, the order is not against the weight of the evidence and is affirmed.
AFFIRMED.
RAPP, J., and THORNBRUGH, J., concur.
(FOOTNOTES):
1 Our analysis would be different in cases wherein the reduction of income was done in good faith. Where a mother quit her $50,000.00 a year job to educate her children at home, the Court in Stephen v. Stephen, 1997 OK 53, 937 P.2d 92, held it would be "unjust" to reduce the father's child support obligation by imputing $50,000.00 to the mother as income for child support purposes. Other jurisdictions recognize changing vocations or jobs, done in good faith, resulting in less income, may support a reduction in the support obligation because "An individual should be allowed to make good faith changes in his employment and his child should share in the financial inconvenience or hardship, just as the child would if the family had remained together." Rutledge v. Rutledge, 96 Mich.App. 621, 293 N.W.2d 651 (An attorney quit his legal-aid job to start a private practice, initially resulting in less income.) See, also, Mayo v. Crazovich, 621 So.2d 120, where the father left a job to begin a new business, albeit unsuccessfully. The court held the father was not voluntarily underemployed, and a reduction in child support was warranted.