Smith v. Smith
In Smith v. Smith, 177 Wis. 2d 128, 501 N.W.2d 850 (Ct. App. 1993), the Court rejected the argument that a finding of shirking was necessary before a circuit court could base a support award on earning capacity.
The Court noted the reasoning in Van Offeren v. Van Offeren, that "even if the obligor's voluntary reduction in income is well intended, if the decision was unreasonable in light of the person's support or maintenance obligations, the court may base the child support obligation on the obligor's earning capacity rather than actual earnings." Id. at 136, 501 N.W.2d at 854.
The Court also stated that the circuit court's use of the word "shirking" was not dispositive because "it makes no difference to his child whether the court elects to call an obligor's failure to meet his child support obligations 'shirking' or gives it some other name," the result is to deprive the child of financial support. 177 Wis. 2d at 137-38, 501 N.W.2d at 854.
The Court concluded that a payor's earning capacity may be considered when the payor's reduction in income is voluntary and unreasonable. See id. at 138, 501 N.W.2d at 854.