Trial Court Did Not Err in Finding that Father was Voluntarily Underemployed, but Erred when Determining How Father’s Income Should be Imputed

Family Law Case Review

Case: Mark H. Miller, II v. Leigh Anne Miller
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not err in finding that Father was voluntarily underemployed, but the trial court erred when it determined the amount to which Father’s income should be imputed without evidence of prevailing job opportunities and earning levels in the community.

DICTA: When determining an income amount to which a parent should be imputed, this opinion suggests that the trial court is required to consider evidence of all four of the following factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. Failing to consider all four of these factors appears to be reversible error.

Mother and Father married in 1999 and had four children together. Mother had been the primary caregiver for the children, but she obtained full-time employment in late 2009, at the about the same time Father lost his job as an insurance agent. Thereafter, Father became the primary caregiver to the children. Mother and Father agreed that Father should return to school, so in 2010, he enrolled part-time at IUPUI.

In 2014, Mother filed a petition for dissolution. At the time of the parties’ 2016 final hearing, Father was still attending IUPUI part-time, but he was also working 15 hours per week which earned him $250/wk. The trial court found Father to be voluntarily underemployed, and imputed him to income of $600/wk for child support purposes. The trial court’s findings suggested the $600/wk amount was based upon Father’s income history as an insurance agent. Father appealed.

Father’s primary argument on appeal was that the finding of voluntary underemployment was erroneous because Father’s decision to return to college was made by agreement with Mother, and that Father should not be penalized for making the decision to return to school. The Court of Appeals rejected these arguments, focusing on the fact that, at the time Father returned to school part-time in 2010, he was also the children’s primary caregiver; since then, Father no longer had the caregiving responsibilities — yet Father continued to take classes on only a part-time basis. “A reasonable inference can be drawn that the time Father spent in his caretaking function is now available for other purposes, yet he is working only fifteen hours a week.”

However, the Court of Appeals agreed with Father that there was insufficient evidence to support the $600/wk amount to which the trial court imputed Father. Interestingly, the opinion suggests that evidence of a party’s abilities and income-earning history, without more, is inadequate on which to determine an imputation amount. Instead, the imputation amount should be determined from four factors: (1) the party’s work history; (2) the party’s abilities; (3) prevailing job opportunities, and (4) earnings levels in the community. The matter was remanded for a hearing on all four factors.

To view the text of this opinion in its entirety, click here: Mark H. Miller, II v. Leigh Anne Miller



James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

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