IMPUTING INCOME TO THE SPIRITUALLY MINDED
Laura Wish Morgan
On February 22, 2000, the Milwaukee (Wisconsin) Journal Sentinel reported in its on-line edition that John Andrew sent letters to the District Attorney's Office stating that he had become a Hare Krishna monk, was thus impoverished, and therefore would no longer be paying his child support obligation to his four daughters. "I have no way of making an income as a monk and so I will no longer be paying child support," he was quoted as saying. Assistant District Attorney Barbara Michaels said, "I've never had anyone say they're unable to pay because of religion. This is the first one." Nonetheless, she refused to dismiss the 16 charges of felony non-support filed against him, stating that he had voluntarily impoverished himself, and he was able to work and support his children.
While this may be a first in Wisconsin, this is not the first case where a support obligor has claimed that he or she no longer need pay child support because he or she has joined the religious life. In the majority of the cases, the court has held that income can be imputed to a support obligor who voluntarily impoverishes him or herself, and such imputation of income does not offend First Amendment principles.
In an early case to discuss this issue, Pencovic v. Pencovic, 45 Cal. 2d 97, 287 P.2d 501 (1955), the husband and wife were married in 1937 and divorced in 1944. The husband was ordered to pay child support for the parties two children. From 1945 to 1951, he made no payments of child support. In his defense to the wife's motions for contempt and modification, the husband claimed that after the divorce, he changed his name to Krishna Venta and founded a religious society called the WKFL Foundation (standing for Wisdom, Knowledge, Faith, and Love). The society members live in a commune, and none works outside the commune. Funds are obtained from new members who transfer all their property to the society, and the society provides "gifts" to the members depending on their needs. The trial court concluded, and the appellate court agreed, that a parent cannot evade support obligations by claiming a religious exemption:
By refusing for religious reasons to seek or accept gainful employment defendant may not evade [his child support] obligation. Although the guarantee of religious freedom under the First Amendment of the Constitution of the United States is binding on the states under the due process clause of the Fourteenth Amendment, the states may nevertheless regulate conduct for the protection of society, and insofar as regulations directed towards a proper end and are not discriminatory, they may indirectly affect religious activities without infringing the constitutional guarantee.... Certainly, there are few interests of greater importance to the state that the proper discharge by parents of their duties to their children, and the Constitution does not compel the subordination of the statutory duty of a parent to support his child to a rule of religious conduct prohibiting gainful employment.
287 P.2d at 504.
The statements by the court in Pencovic found resonance in McKeever v. McKeever, 36 Or. App. 19, 583 P.2d 30 (1978). In this case, the father resigned from his job in order to "take on a nonpaying promotional position with a Christian evangelical organization." The father claimed that because he had no income, the court erred in ordering him to pay child support, and that such an order violated his First Amendment rights to free exercise of religion. The court, relying on State v. Sprague, 25 Or. App. 621, 550 P.2d 769 (1976), dismissed this argument out of hand. The court in Sprague had held, "It is of compelling interest to the state that parents of children, when they are able, should be required by law under penalty of criminal sanctions to support their children, and that their actions in such regard should be governed by laws, regardless of their religious beliefs." 25 Or. App. at 628, 550 P.2d at 772.
The Michigan Court of Appeals took up the issue in Dunn v. Dunn, 105 Mich. App. 793, 307 N.W.2d 424 (1981). During the parties marriage, the husband became an ordained minister in the United Methodist Church. After the divorce, the husband became a member of the Order Ecumenical. As a member of this order, the husband took a vow of poverty and obedience. Members of the Order are given a place to live and a food allowance, and a stipend of the poverty level of the nation to which they are assigned. The Order also provides medical and dental insurance. The trial court found that the husband's actions constituted a willful disregard for the interest of his children, and ordered the husband to pay child support. The husband appealed.
This time, the court held that the trial court erred. "Plaintiff's interest in and association with the Order Ecumenical began long before his divorce from defendant and there is no hint in the record before us that plaintiff became involved in the Order merely to avoid his obligations of child support." 307 N.W.2d at 426. The concurring opinion, per Kallman, J., went further, and said that his case was not a child support case, it was a First Amendment case. A court cannot order a man to get a job and pay child support that will force him to leave his religious order, which he joined during the marriage, and renounce his religious vows.
One might be tempted to conclude that the difference between these cases is that in Pencovic and McKeever, the court imputed income to the support obligor because the decision to become impoverished came after the divorce, whereas in Dunn, the court declined to impute income because decision to become impoverished came before the divorce during the marriage. One would, however, be mistaken, because subsequent cases failed to draw this distinction.
In In re Marriage of Meegan, 11 Cal. App. 4th 156, 13 Cal. Rptr. 2d 799 (1992), the parties were divorced in 1988 after 30 years of marriage. At the time of the dissolution, the husband's net income was $56,400 per year. In 1991, the husband left his job, joined an order of the Catholic Church, and entered the Holy Trinity Monastery. The husband then filed a motion to reduce his spousal support, claiming he was impoverished. The trial court reduced his spousal support to zero, and the appellate court affirmed. The court held that since the husband had changed jobs in good faith and without the motive to deny his ex-wife support, he was not guilty of "shirking" and therefore the court would not impute income to him. This case clearly conflicts with Pencovic.
Another case that is difficult, if not impossible, to reconcile with the Pencovic/Dunn rule is Goldberger v. Goldberger, 96 Md. App. 313, 624 A.2d 1328 (1993). In this initial child support case, the father was a lifelong Orthodox Jewish Talmudic scholar who had never held an income-producing job. "It is undisputed that appellant had earned no actual income, as he had never worked at any income-producing vocation. Appellant planned his life to be a permanent Torah/Talmudic scholar. He was a student before he was married and before any of his children were born.... Throughout his life, appellant has been supported by others." 624 A.2d at 1332-33. Nonetheless, even though this man had never held a job, the court imputed income to him. "A parent who chooses a life of poverty before having children and makes a deliberate choice not to alter that status after having children is voluntarily impoverished.... The law requires that parent to alter his or her previously chosen lifestyle if necessary to enable the parent to meet his or her obligations." 624 A.2d at 1335.
After Goldberger, one must draw the conclusion that the voluntary decision to pursue a life of religious poverty, whether before or after marriage, will result in the imputation of income, except in California. More recent decisions support this conclusion.
In Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843 (1994), the husband belonged to the Northeast Kingdom Community Church. Members of the Church lead an ascetic, communal existence, eschewing all personal possessions and working for the benefit of the community. The Church forbids no-fault divorce and forbids members to support an estranged spouse or children who live outside the community. When the wife left the husband and took the children, the husband, consistent with his religious views, refused to support the wife or their children. The trial court concluded that although these beliefs were sincerely held by the husband, and were not recently acquired but had been practices by the husband throughout the marriage, the law nevertheless demanded that an otherwise able-bodies individual support his or children. "Matter of religious belief, as a matter of law, do not furnish an exemption from that ability to pay." 648 A.2d at 847. The appellate court affirmed. While the support obligation would, indeed, place a burden the husband's religious practices, the state's interest in seeing that children are adequately supported justified that burden.
In Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 652 N.E.2d 623 (1995), the court also imputed income. In this case, the father claimed a modification of his support obligation because he took early retirement from the U.S. Postal Service to become a religious missionary in Jamaica. The court held that the father's voluntary decision to leave a paying job warranted the imputation of income. "Because his was a voluntary career change, the father retains the ability to pay the ordered amount of child support, based on his potential rather than actual earning capacity." 38 Mass. App. Ct. at 736, 652 N.E.2d at 626.
Likewise, in Elsberry v. Elsberry, 967 P.2d 1004 (Alaska 1998), after the father failed to provide tax returns to the court, the court imputed income to him. The father claimed that he could not comply with an order to produce his tax returns because his religious beliefs prevented him from paying federal taxes; hence, he had no tax returns to produce. The appellate court disagreed with the father's contention that the trial court imputed income to him because of his religious beliefs. Rather, the trial court imputed income because he failed to produce any evidence of what his income was. Hence, the father's religious beliefs were inconsequential to his ability to support his children.
In sum, the cases decided since the advent of child support guidelines, which in all states authorize the court to consider not just actual income but potential earning capacity, clearly support the proposition that one cannot avoid a child support obligation on the basis of religious belief.