COURT OF APPEALS

DECISION

DATED AND FILED

September 29, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP11 Cir. Ct. No. 2016FA778

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE MARRIAGE OF:

JILL C. FLANSBURG,

 PETITIONER-APPELLANT,

 V.

WILLIAM LEROY MENCEL, JR.,

 RESPONDENT-RESPONDENT,

STATE OF WISCONSIN,

 INTERESTED PARTY-RESPONDENT.

APPEAL from an order of the circuit court for Outagamie County: 

MITCHELL J. METROPULOS, Judge. Reversed. 

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2020AP11

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Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Jill Flansburg appeals an order reducing the 

monthly child support obligation owed by her former husband, William Mencel, Jr. 

Flansburg argues the circuit court erred by reducing Mencel’s child support 

obligation based upon a reduction in Mencel’s income. She contends that Mencel’s 

voluntary decision to reduce his income was unreasonable. We agree, and we 

therefore reverse the order reducing Mencel’s monthly child support obligation.

BACKGROUND

¶2 Mencel and Flansburg were married in November 1995 and divorced 

in August 2017. They have twin sons who were minors at the time of their divorce. 

As of that time, Mencel was employed as a truck driver at Frito-Lay earning about 

$80,000 per year. The parties stipulated that Mencel would pay Flansburg $1722.05

per month in child support. The parties also agreed that Mencel would have physical 

placement of the children every Monday and Thursday from 3:30 p.m. until 10:00 

p.m. and on certain holidays, and that Flansburg would have placement at all other 

times.

¶3 Mencel quit his job at Frito-Lay in March 2018. He then began 

working full time at Gold Cross Ambulance as an advanced EMT. He earned 

$49,769.26 from Gold Cross during 2018. On March 22, 2018, Mencel filed a 

motion to modify child support based on his change in employment and resultant 

reduction in income. He voluntarily withdrew that motion, however, on April 26, 

2018.
No. 2020AP11

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¶4 In addition to his employment at Gold Cross, Mencel also began 

working part time as a firefighter for the Village of Fox Crossing around Labor Day 

of 2018. He earned $4029.59 from that employment during 2018.

¶5 Mencel voluntarily left Gold Cross in April 2019 because Gold Cross 

was unwilling to modify his work schedule to accommodate his desire to attend

school to become a paramedic. Mencel then took a job as an advanced EMT for 

Waushara County, earning $11.16 per hour. That job allowed Mencel to work 

forty-eight-hour shifts on the weekends so that he could attend paramedic school 

during the week. Mencel began paramedic school in August 2019 and expected to 

finish in May 2020. Upon completion, he expected his compensation from 

Waushara County to increase to $15.69 per hour.

¶6 In April 2019, after leaving his job at Gold Cross, Mencel filed the

motion to modify child support that is at issue in this appeal. In an affidavit filed in 

support of his motion, Mencel asserted there had been a substantial change in 

circumstances since the entry of the parties’ divorce judgment because he had 

“switched [his] primary place of employment, resulting in a reduction of [his] 

wages.” A family court commissioner denied Mencel’s motion, concluding there 

was “no basis for a modification of child support” because Mencel’s “voluntary 

reduction in employment was not reasonable.” The family court commissioner 

stated Mencel’s “desire for a career change” was “not appropriate in light of his 

current obligation to support the minor children.”

¶7 Mencel filed a motion for de novo review of the family court 

commissioner’s decision. In support of that motion, he filed an updated financial 

disclosure statement indicating that his yearly income from Waushara County was 

approximately $29,000.
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¶8 A de novo hearing took place in October 2019. During the de novo 

hearing, Mencel testified he had left his job at Frito-Lay to increase his availability 

to have physical placement of his sons. He explained that his work schedule at 

Frito-Lay made it impossible for him to have overnight placement. He further 

testified that he “started trying to figure out a way to increase [his] availability” for 

physical placement around the holidays in 2017, and his attorney advised him “to 

try and find something ... that would increase [his] availability so [he] could come 

back and try to get more custody.”

¶9 Mencel also testified, however, that his change of employment from 

Frito-Lay to Gold Cross did not actually make him more available for physical 

placement because he was “working all the time.” And while Mencel testified that 

he would be in a better position to exercise physical placement after he completed

school in May 2020, it is undisputed that the parties’ sons will turn eighteen on 

October 1, 2020—approximately four months after Mencel completes school.

¶10 In addition, it is undisputed that since leaving his job at Frito-Lay, 

Mencel has never filed a motion seeking to increase his physical placement of the 

children. Furthermore, Flansburg and the children moved to California during the 

spring of 2019. Mencel waived any objection to that move in a stipulation filed on 

March 8, 2019.1

¶11 The record also shows that in a letter to the circuit court dated 

February 25, 2019, the children’s guardian ad litem (GAL) observed that there had 

been “little to no contact between these children and their father over the course of 

 

1

 The parties also stipulated that after the children moved to California, they would have 

physical placement with Mencel for four consecutive weeks during the summer, as well as during 

their winter and spring breaks from school.
No. 2020AP11

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the post-divorce relationship.” The GAL opined that there was “effectively no 

relationship between Mr. Mencel and his sons,” and he also described their 

relationship as “nonexistent.”

¶12 Following the de novo hearing, the circuit court granted Mencel’s 

motion and reduced his child support obligation to $1180 per month. The court 

noted that although Flansburg argued Mencel’s “decision ... to switch career paths 

was both voluntary and unreasonable,” Mencel “maintain[ed] that when he made 

the decision ... he was doing so so he could free up more time to have placement 

with his kids.” The court stated Mencel “obviously” made a voluntary decision “to 

change career paths,” but whether that decision was reasonable was “up to ... 

interpretation.” The court continued:

Seems [to] the Court that given the age of the children the

most reasonable decision would be to stay with Frito-Lay, 

keep earning $80,000 per year. That being said, I can’t 

necessarily question Mr. Mencel’s motivation with regards 

to the time he made that decision to at least in part have more 

time with his children.

 ...

So I find his decision to change occupations was voluntarily 

made but under law I can’t necessarily find it was an 

unreasonable decision.

¶13 The circuit court then determined that it was appropriate to set 

Mencel’s monthly child support obligation based on the amount of income he 

anticipated earning after he completed his paramedic training in May 2020, rather 

than his actual income at the time of the hearing. The court explained, “I’m not 

going to give him the benefit of what he’s making now because I think he does need 

to realize that his decision was his decision and it was, I think, a poor decision. So 

I’m going to give him really a penalty for making that decision.” Flansburg now 

appeals, arguing the court erred by reducing Mencel’s child support obligation.
No. 2020AP11

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DISCUSSION

¶14 A circuit court may modify the amount of a party’s child support 

obligation “only upon a finding of a substantial change in circumstances.” WIS.

STAT. § 767.59(1f)(a) (2017-18). In support of his motion to modify child support, 

Mencel asserted that his change of employment and resultant decrease in income 

constituted a substantial change in circumstances. On appeal, Flansburg does not 

dispute that a substantial change in circumstances occurred. She argues, however, 

that the court should not have reduced Mencel’s child support obligation because 

his voluntary decision to reduce his income was “unreasonable in light of his 

obligations to his children for child support.”

¶15 When considering a motion to modify child support, a circuit court 

may use a parent’s earning capacity to calculate his or her child support obligation,

rather than the parent’s actual income, only if the court concludes the parent has 

been “shirking.” Chen v. Warner, 2005 WI 55, ¶20, 280 Wis. 2d 344, 695 N.W.2d 

758. To conclude that a parent is shirking, a court need not find that the parent

deliberately reduced his or her earnings to avoid support obligations or to gain an

advantage over the other party. Id. Instead, the court need only find that the parent’s 

decision to reduce or forgo income was both voluntary and unreasonable under the 

circumstances. Id.

¶16 In this case, Mencel’s child support obligation was originally set 

based on his income of $80,000 per year at Frito-Lay. Mencel moved to modify 

child support after he began working as an advanced EMT for Waushara County, 

where he earned approximately $29,000 per year. It is undisputed that Mencel

voluntarily decided to change careers and accept a job where he earned substantially 
No. 2020AP11

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less than his income at Frito-Lay. The issue is whether his decision to reduce his 

income was reasonable under the circumstances.

¶17 The reasonableness of a parent’s decision to forgo income presents a 

question of law that we review independently. Id., ¶¶41, 77. Nevertheless, because 

the reasonableness determination is closely intertwined with factual findings, we 

give appropriate deference to the circuit court’s decision, taking care not to usurp 

its role as fact finder. Id., ¶¶41, 43-44, 77. “The burden of showing reasonableness 

is on the party who reduces or forgoes income. That party has the burden of 

justifying his or her decision.” Chen v. Warner, 2004 WI App 112, ¶14, 274 

Wis. 2d 443, 683 N.W.2d 468, aff’d, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 

758; see also Kelly v. Hougham, 178 Wis. 2d 546, 556, 504 N.W.2d 440 (Ct. App.

1993) (stating a child support payor was required to “justify” his decision to forgo 

income “in light of his obligations to his children”).

¶18 When assessing the reasonableness of a parent’s employment decision 

in Chen, our supreme court stated that a divorced parent may voluntarily terminate 

his or her employment “but may not do so if the conduct inures to the detriment of 

child support.” Chen, 280 Wis. 2d 344, ¶46. Stated differently, “[t]here is a limit 

to the unemployment or underemployment of a parent when the other parent ‘is 

presented the bill for the financial consequences.’” Id. (footnote omitted). Thus, 

when considering whether a parent’s voluntary decision to reduce his or her income 

was reasonable, we must “balance[] the needs of the parents and the needs of the 

child (both financial and otherwise, like child care) and the ability of both parents 

to pay child support.” Id., ¶25.

¶19 Here, Mencel has failed to meet his burden to show that, as of the time 

he moved to modify child support, it was reasonable for him to remain employed at 
No. 2020AP11

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a job where he earned only about $29,000 per year, which was far less than his 

previous income of $80,000 per year. The parties concentrate their arguments on 

whether it was reasonable for Mencel to leave his job at Frito-Lay. Mencel testified 

he left that job so that he would be more available to have physical placement of the 

parties’ sons. The circuit court stated it could not “necessarily question 

Mr. Mencel’s motivation with regards to the time he made that decision to at least 

in part have more time with his children.”

¶20 The issue for purposes of this of appeal, however, is not whether it 

was reasonable for Mencel to leave his job at Frito-Lay in the first instance. Instead, 

the issue is whether, at the time he moved to modify child support, it was reasonable 

for him to continue working at a job where he received significantly less pay than 

he earned at the time his support obligation was established. We conclude it was 

not.

¶21 While Mencel may have been motivated to leave his job at Frito-Lay 

by a desire to increase his availability to exercise physical placement, the record that 

existed at the time of his motion hearing shows that he made no real effort to 

increase his physical placement after leaving that employment. Notably, Mencel

never filed a motion to increase his physical placement of the children at any point 

after leaving Frito-Lay. In addition, Mencel testified that after he left Frito-Lay, he 

was “working all the time” and thus was not actually more available to exercise 

placement.

¶22 Furthermore, although Mencel testified he would be in a better 

position to exercise physical placement after he completed paramedic school in 

May 2020, the parties’ sons will turn eighteen on October 1, 2020—only about four 

months after Mencel expected to complete his schooling. In any event, the children 
No. 2020AP11

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moved to California with Flansburg during the spring of 2019. Mencel waived any 

objection to that move, and he did so one month before he moved to modify child 

support. Consequently, at the time he filed his motion, Mencel was aware that, 

regardless of his availability to exercise placement, there was no real prospect of 

significantly increasing his physical placement of the children.

¶23 Finally, the record shows that Mencel had little to no relationship with 

the children at the time he moved to reduce his child support obligation. In 

February 2019, the children’s GAL described Mencel’s relationship with them as 

“nonexistent” and noted there had been “little to no contact” between Mencel and 

the children “over the course of the post-divorce relationship.”

¶24 The record therefore shows that after leaving his job at Frito-Lay, 

Mencel: (1) made no effort to increase his physical placement of the children; 

(2) would not actually have been more available to exercise physical placement until 

about four months before the children turned eighteen; (3) did not oppose the 

children’s move to California; and (4) had little or no relationship with the children 

following the parties’ divorce. Under these circumstances, although, as the circuit 

court found, it may initially have been reasonable for Mencel to leave his job at 

Frito-Lay to increase his availability to exercise physical placement of the children, 

it is clear that motivation no longer existed at the time he moved to modify child 

support. As such, we cannot conclude that, as of that time, it was reasonable for 

Mencel to remain in a job where he earned only $29,000 per year, as compared to 

his prior income of $80,000 per year.

¶25 Moreover, as noted above, when assessing the reasonableness of a 

parent’s employment decision, we must balance the parents’ needs, the children’s

needs, and the ability of both parents to pay child support. Chen, 280 
No. 2020AP11

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Wis. 2d 344, ¶25. In support of his motion to modify child support, Mencel 

provided no evidence showing that his reduced support obligation would meet the 

children’s needs, nor any evidence about Flansburg’s ability to provide for the 

children. Thus, Mencel not only failed to justify his decision in light of his claimed 

desire to increase his availability for physical placement, but he also failed to show 

that any decreased support would meet the children’s or Flansburg’s needs. 

Accordingly, the only factor for us to balance against Mencel’s loss of income is his 

stated motivation for changing his employment, which we have already determined 

no longer existed at the time he moved to modify child support.

¶26 Because Mencel’s decision to reduce his income was both voluntary 

and unreasonable, we agree with Flansburg that Mencel was “shirking” at the time 

he moved to modify child support. As a result, Mencel’s child support obligation 

should have been based on his earning capacity of $80,000 per year, rather than on 

his actual income at the time he filed his motion (as Mencel requested) or on his 

anticipated income upon finishing paramedic school (as the circuit court ordered). 

We therefore reverse the court’s order granting Mencel’s motion to modify child 

support.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. (2017-18).