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COURT OF APPEALS DECISION DATED AND RELEASED JULY 2, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3356-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In re the Marriage of:
JANICE SIMMONS,
Petitioner-Respondent,
v.
ALLEN SIMMONS,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
GARY A. GERLACH, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. In June 1994, the trial court granted Janice and
Allen Simmons a divorce. In doing
so, the trial court accepted their stipulation by which Allen agreed to pay
child support according to the support guidelines promulgated by the Department
of Health and Social Services. One year
later, the trial court, at Janice's request, entered an order clarifying
Allen's child support responsibilities.
Allen appeals from the trial court's order, contending that the trial
court erred when it included Social Security Disability Income (SSDI) he was
receiving in its calculation of his gross monthly income available for child
support purposes. He further contends
that, even assuming that his SSDI benefits are includable in the calculation of
child support, the trial court erred when it failed to reduce his support
obligation by the amount of SSDI benefits being paid directly to Janice for the
benefit of their three minor children.
Pursuant to this court's order dated January 18, 1996, this case was
submitted to the court on the expedited appeals calendar. We conclude that Allen failed to raise
before the trial court the first issue he raises here. Consequently, he has waived our
consideration of this issue. We also
conclude that the trial court properly exercised its discretion in denying
Allen credit for the SSDI payments made directly to Janice for the children's
benefit. We therefore affirm.
The facts are largely
undisputed. Allen and Janice had four
children during their marriage. At the
time of the divorce, one of the children, Sacha, was an adult, and the remaining
children lived at home with their mother.
In regard to child
support, Allen and Janice stipulated that Allen would "pay child support
at the rate applicable under the Department of Health and Social Services
percentage standards." The
stipulation recognized that Allen was a disabled veteran of the Viet Nam war,
who was "unemployed, and possibly unemployable." Allen's income was comprised of veteran's
benefits and SSDI.
On June 9, 1994, Janice
and Allen appeared before the trial court pro se, and the trial
court accepted the stipulation and granted them a judgment of divorce. No written judgment was entered at that
time, however.
In June 1995, Janice
filed an affidavit with the trial court stating that, because she was confused
regarding the trial court's child support order, she had been unable to draft
the final findings of fact, conclusions of law and judgment of divorce for the
trial court's signature. Janice asked
the trial court to hold a hearing and clarify its orders.
At the hearing, there
was no dispute that Allen received $2,177 monthly in veteran's benefits. Of that amount, he paid $168 per month
directly to Sacha for her schooling.
Allen received $489 per month in SSDI benefits. Another $267 per month in SSDI benefits was
paid directly to Janice by the social security administration for the benefit
of the three minor children.
After hearing the
arguments of both parties, the trial court held that Allen should pay $724 per
month in child support. It reasoned
that Allen's gross income was $2,666—the sum of his $2,177 veteran's benefits
and his $489 SSDI payments. The trial
court reduced Allen's gross income by the $168 he was paying to Sacha,
resulting in $2,498 net income available for child support purposes. The trial court then multiplied that amount
by the DHSS percentage for three children—29%—to reach monthly child support
payments of $724.
On appeal, Allen
contends first that the trial court erred when it included his SSDI benefits in
its calculation of his income available for child support. Allen contends that, as a matter of
Wisconsin law, income from SSDI may not be included in the calculation of
income available for child-support purposes.
The record shows,
however, that Allen never presented this argument to the trial court. In fact, the record clearly shows that, in
making his argument to the trial court, Allen included the SSDI benefits in the
calculation of his income available for child support. He specifically argued that his child
support obligation should be $535 per month.
He calculated that amount by totalling his benefits,[1]
and reducing that amount by the $168 that he paid directly to Sacha. He then calculated 29% of the total amount,
for a child-support benefit of $802 per month.
He then reduced that amount by the $267 in SSDI benefits paid to
Janice. In her argument, Janice agreed
that Allen's SSDI benefits should be included in the calculation of Allen's
income available for child support. She
only argued against Allen receiving a credit for the $267 SSDI benefits being
paid directly to her for the children.
This court generally
does not review issues raised for the first time on appeal. Wirth v. Ehly, 93 Wis.2d 433,
443-44, 287 N.W.2d 140, 145-46 (1980).
Although this court has the authority to review issues raised for the
first time on appeal, see id., we decline to do so in this
instance.
We thus turn to the
second issue: whether Allen should
receive a credit against his child support obligation for the $267 being paid
directly to Janice for the children. We
review a trial court's award of child support for an erroneous exercise of
discretion. Van Offeren v. Van
Offeren, 173 Wis.2d 482, 492, 496 N.W.2d 660, 663 (Ct. App. 1992). We will sustain a trial court's
discretionary decisions if we find "that the trial court ... examined the
relevant facts, ... applied a proper standard of law, and ... using a demonstrated
rational process, reached a conclusion that a reasonable judge could
reach." State v.
Gudenschwager, 191 Wis.2d 431, 440, 529 N.W.2d 225, 229 (1995).
The record shows that
while the trial court never elaborated on its reasoning, its decision to deny
Allen credit for the SSDI payments to the children is supported by the record.[2] Allen contended that his child support
payment should be reduced by the $267 SSDI benefit paid directly to Janice for
the minor children. The trial court
denied the request, reasoning that the guidelines require child support to be
calculated based on gross income. It
reasoned that any amounts taken from the payments to which Allen was entitled
should reduce his income available for child support purposes. Thus, the trial court gave Allen credit for
the $168 benefit he paid directly to Sacha.
It denied Allen credit for the $267 being paid directly by SSDI to
Janice for the minor children, reasoning that the amount was not paid to Allen
and did not reduce his income. The
trial court's conclusion that Allen's child support obligation should not be
reduced for the SSDI payments made directly to his children, but to which he
had no independent entitlement was not an erroneous exercise of discretion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.