A father is ordered to pay child support based on 50+ hours of work, but loses split custody if he works 50+ hours.
A father is awarded split custody of his daughter and also is ordered to pay support based on his usual practice of working as much overtime as he is offered. However, the order goes on to stipulate that if works more than 50 hours, then instead of split custody that allows him to be with his daughter half the time, he only gets visitation every other weekend.
Faced with a hard decision, he has to quit his job when his employer refuses to let him decline working overtime. He finds a new job that allows him to work less than 50 hours, but the hourly wage is about 25% less than his former job.
His wife then sues him for contempt and he counters by seeking to reduce his support obligation based on his change in circumstances and on the fact his wife no longer works. At trial, the court determines that he is voluntarily underemployed since he quit one job for a lower paying job. He is ordered to pay support based on what he used to make, even though he would no longer have 50/50 split visitation if he had kept his old job.
On appeal, the higher court acknowledged that the judgment required the father “…to make an extremely difficult decision.” He had to either work over 50 hours to afford his support, or he had to work under 50 hours to keep his equal-time custody arrangement.
The higher court found that the judgment was “patently unfair” and reduced the father’s support to the proper amount based on his current income.
NO. 2013 CA 1347, Louisiana First Circuit