The Court of Special Appeals of Maryland held that a father’s unemployment was not voluntary, and that the trial court had consequently been wrong to impute additional income to the father for purposes of calculating child support. 

Michael and Kristi Stull were married in 1993 and are the parents of three children.  In 2001, Kristi filed suit for divorce in the Circuit Court for Montgomery County on the grounds of adultery. Kristi was awarded sole legal and physical custody of the minor children. Although Michael was unemployed at the time, Michael was found to have “voluntarily” impoverished himself, and was ordered to pay child support of $712 per month.  Michael appealed to the Court of Special Appeals, challenging, among other things, the finding of voluntary impoverishment.

 The evidence before the trial court was that Michael had worked as general manager for a Pizza Hut, and briefly part-time for Blockbuster. He had not worked for four months prior to the hearing.  Michael had been fired by Pizza Hut for falsifying documents.  His employment with Blockbuster was not continued after his probationary period.  He applied for, but was denied, unemployment compensation.  Although he had made only one employment application in the four months preceding the hearing, Michael testified that he planned to become a real estate agent.

 The trial judge found :

 “The defendant in this case has been unemployed since January. The reason for his unemployment apparently is within his own hands and his own doing, so to some degree the immaturity now has been compounded with actions that are less than appropriate and show some poor judgment. I didn't hear testimony as to any very strenuous efforts to get a job. I hope for his sake that he is very successful with Weichert. I would hope, too, that the people at Weichert are being candid with him in terms of the risk involved with real estate. This may be a very good market and I hope that he is able to do very well but it is a market that is peculiarly susceptible to demand and when the demand falls off so does the business.

. . . .

You caused your own discharge from work and the reason you are not eligible even for unemployment compensation is because of your conduct.”

 Accordingly, the trial judge found that Michael had voluntarily impoverished himself.  In calculating child support of $712 per month, the trial court imputed to Michael an income of $47,000, the amount he earned working full time for Pizza Hut and part-time for Blockbuster.  In fact, Michael had no income.

 Citing a 1992 case, the Court of Special Appeals defined voluntary impoverishment as follows: 

 "A person shall be considered 'voluntarily impoverished' whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate means."

 The Court pointed out that to determine if a parent is voluntarily impoverished, the trial court should consider many factors such as the parent’s current physical condition, the parent’s level of education, the timing of any change in employment or financial circumstances relative to the divorce proceedings, the relationship of the parties prior to the divorce proceedings; the parent’s efforts to find and retain employment and efforts to secure retraining if that is needed, whether the parent has ever withheld support,  the parent’s past work history, the area in which the parties live and the status of the job market there, and any other considerations presented by either party.

 The Court stated that the issue before it was whether Michael’s “current impoverishment is intentional, that is, by his own choice, of his own free will?”

 In finding that Michael’s unemployment was not voluntary, the Court of Special Appeals said:

 “. . . there is simply no evidence that [Michael’s] conduct, which led to his discharge, was committed with the intention of becoming unemployed or otherwise impoverished. With this factor removed from the equation, we are left with the [Michael’s] unemployment since January to the date of the hearing, approximately four months.  During that time, he was attempting to become a real estate agent.  This factor alone is insufficient to justify voluntarily impoverished.  Clearly, [Michael’s] intent that led to his being discharged was not to avoid child support but his cupidity.”

 The trial court’s finding that Michael voluntarily impoverished himself was reversed, the trial court’s child support order was stricken, and the trial court was ordered to conduct further proceedings in the case.

 Michael Stull v. Kristi Stull, Court of Special Appeals of Maryland, No. 878, September Term 2001, filed May 3, 2002.

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