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COURT OF APPEALS DECISION DATED AND RELEASED December 5, 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.
95-3513
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
MARY ELLYN DOERR,
Petitioner-Respondent,
v.
CHARLES A. DOERR,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Vernon County: MICHAEL J. ROSBOROUGH,
Judge. Affirmed.
Before Eich, C.J.,
Roggensack and Deininger, JJ.
ROGGENSACK,
J. Charles A. Doerr appeals a post-divorce order modifying the
physical placement schedule of his children and raising his child support
obligation from $725 to $950 per month.
Charles challenges the placement modification on due process grounds and
claims that the trial court erred by deviating from the HSS guidelines, without
stating its reasons on the record. He
also contests a related award of attorney fees to his ex-wife.
Because Charles has
shown us no authority for the due process right he claims was violated, and
because we conclude the trial court properly exercised its discretion, we
affirm the trial court's order for physical placement of the children. The child support guidelines are not
directly applicable to this placement arrangement, which combines primary
placement for one child with shared placements for two other children;
therefore, we find no erroneous exercise of discretion in the manner in which
the court established child support.
Finally, we affirm the award of attorney fees as a proper exercise of
the trial court's discretion.
BACKGROUND
Charles Doerr and Mary
Ellyn Doerr (n/k/a Mattison) were divorced on January 8, 1993. The parties then had four minor
children: Edward, Anna Jo, Reed,
and Georgia. The divorce judgment
awarded sole legal custody and primary physical placement of the children to
Mary Ellyn and, based on Charles' income of $30,000/year, ordered him to pay
$775[1]
per month in child support. The amount
changed to $725 per month when Edward reached his majority.
On
April 13, 1995, Charles moved the trial court to modify the parties' physical
placement schedule to reflect an informal agreement under which the three
youngest children had been alternating a week at a time with each parent. Charles also requested a modification of
child support and joint legal custody of the children. On May 8, 1995, Mary Ellyn moved the
court to find Charles in contempt for failure to pay maintenance. She also moved for an increase in
maintenance, appointment of a guardian ad litem, payment of the children's
uninsured medical and dental expenses, and an award of attorney fees.
The court appointed
Janet Jenkins as guardian ad litem for the children. It requested Jenkins to file a written report no later than June
30, 1995, in preparation for the August 28th evidentiary hearing on all
motions. In her initial report, Jenkins
recommended an equal placement schedule for Reed and Georgia, with some
flexible days at the children's discretion.
She recommended that Anna Jo determine her own placement. However, after the children read Jenkins'
report and spoke with her about it, Jenkins submitted a supplemental
report. It suggested that Georgia
feared her father, but did not explain why, and recommended Georgia be placed
primarily with her mother and spend one day a week and alternate weekends with
Charles. Jenkins still recommended
equal placement for Reed, and flexibility for Anna Jo, who was to spend
the upcoming school year as an exchange student in Spain.
At the evidentiary hearing,
Charles objected to Jenkins' supplemental report because it was untimely. He requested mediation, rather than going
forward with an evidentiary hearing on placement, and he asked the court to
turn the hearing into an informal pre-trial because he said he was not prepared
to counter Jenkins' supplemental report.
The court suggested
entering an interim order providing alternate weekend placement of Georgia with
Charles. Charles objected. Mary Ellyn opposed mediation because the
parties had been unsuccessful with it in the past. She said she was ready to proceed with the hearing,
notwithstanding the late report. She
suggested that each party could testify about the proposed schedule. However, neither party testified about
placement. Instead, the court ordered
mediation, and the hearing went forward on the financial issues. At its conclusion, the court adopted the
guardian ad litem's recommendation "as the order that will stay in effect
until something is presented to me that would suggest I should change it as a
result of this mediation or some further request for this hearing." The court denied Mary Ellyn's motions to
increase maintenance and to have Charles found in contempt. It granted Mary Ellyn's motion to have
Charles pay the children's medical and dental expenses for treatment he
initiates without Mary Ellyn's approval.
The court left open the issue of child support. The court was to be informed if mediation failed
and the parties believed another hearing was needed.
On September 26, 1995,
Charles wrote a letter asking the court to schedule another hearing on
placement, reiterating his objections to the court's order of August 28,
1995. On November 2, 1995, the court
issued a final order on placement and child support, stating that "there
is no purpose to a further hearing unless either party has some additional
evidence to present, which would persuade the court that some other order would
be in the best interests of the children." Neither party responded to the court's invitation. The court noted that the HSS guidelines were
not readily applicable to the facts of the case because of the combined forms
of placement it was ordering. It set
child support at $950 per month, based on 25% of Charles' gross income, which
had increased by 53% to $46,000. The
court also awarded Mary Ellyn $2,000 in attorney fees. Charles appeals the denial of a second
hearing on placement, the amount of child support and the award of attorney
fees.
Scope
of Review.
We review the trial
court's placement decision and child support award under the erroneous exercise
of discretion standard. Wiederholt
v. Fischer, 169 Wis.2d 524, 530, 485 N.W.2d 442, 444 (Ct. App. 1992); Abitz
v. Abitz, 155 Wis.2d 161, 174, 455 N.W.2d 609, 614 (1990). An award of attorney fees is also within the
trial court's discretion, and will not be altered on appeal unless the trial
court erroneously exercises its discretion.
Bisone v. Bisone, 165 Wis.2d 114, 123-24, 477 N.W.2d 59,
62 (Ct. App. 1991). The trial court
properly exercises its discretion when it states its reasons and bases its
decision on law and the facts in the record.
Luciani v. Montemurro-Luciani, 199 Wis.2d 280, 294, 544
N.W.2d 561, 566 (1996).
Evidentiary
Hearing on Placement.
Divorce in Wisconsin is
purely statutory, and is governed by the provisions of ch. 767, Stats.
Pettygrove v. Pettygrove, 132 Wis.2d 456, 462, 393 N.W.2d
116, 119 (Ct. App. 1986). Charles
claims that the trial court's placement order must be set aside because he was
denied the opportunity to be heard on the placement issue; and therefore, his
due process rights were violated.
Charles cites no authority for his assertion that he has a
constitutional right to a hearing on a post-divorce motion to change custody
and placement. His argument is
supported only by general statements drawn from property law cases, which are
not applicable in a divorce context.
This court may choose not to consider undeveloped arguments and
arguments unsupported by references to relevant legal authority. State v. Pettit, 171 Wis.2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
We do so in this case.
Moreover, the record
does not support Charles' assertion that a hearing was denied. Charles was afforded an opportunity to be
heard on placement at the evidentiary hearing held on August 28, 1995, but he
wanted mediation, which the court ordered.
The August hearing was not, as Charles contends, simply a pre-trial
hearing. The court received the
placement report; the judge spoke with the children in chambers and it did not
restrict Charles from presenting evidence.
It also heard testimony on financial matters. Charles expressed numerous objections to the guardian ad litem's
supplemental report. The court made
clear that it planned to enter a placement order that day.
The trial court did
leave open the possibility of an additional hearing on placement. But holding another hearing was conditioned
on the parties presenting to the court something other than the parties' statements
which were already on record. Mediation
was unsuccessful and Charles' subsequent letter requesting a hearing only
reiterated what he had already said in court.
In its November 1995
placement order, the trial court again invited the parties to bring new
information relevant to placement to its attention. Charles did not respond.
Because Georgia's placement was primarily with Mary Ellyn in the court's
1993 order, it was Charles' burden to prove there had been a substantial change
in circumstances warranting the change in placement he was requesting, and that
the proposed modification was in Georgia's best interests. Wiederholt, 169 Wis.2d at 530,
485 N.W.2d at 444; § 767.325(1)(b), Stats. He failed to show the court that he wished
to present additional information relevant to those determinations, despite
repeated invitations from the court that he come forward to do so. Therefore, we conclude the trial court did
not erroneously exercise its discretion in basing its placement decision on the
information before it.
Child
Support.
A trial court may modify
a child support order upon a showing that there has been a substantial or
material change in the circumstances.
Section 767.32(1) Stats.; Burger v. Burger, 144 Wis.2d
514, 523, 424 N.W.2d 691, 695 (1988).
An evidentiary hearing is necessary to determine if changes in
circumstances have occurred since the last order. Long v. Wasielewski, 147 Wis.2d 57, 61, 432 N.W.2d
615, 616 (Ct. App. 1988).
The Department of Health
and Social Services percentage guidelines apply to revisions of child
support. Section 767.32(2), Stats.; Wis. Adm. Code HSS 80.01(2).
However, the trial court does have discretion about whether to follow
the guidelines. Long, 147
Wis.2d at 63, 432 N.W.2d at 617.
The HSS guidelines
contain provisions for deviating from the percentage standard, and require the
court to state in writing or on the record the amount of support that would be
required by using the percentage standard, the amount by which the court's
order deviates from that amount, its reasons for finding that use of the
percentage standard is unfair to the child or the party, its reasons for the
amount of the modification and the basis for the modification. Section 767.25(1n), Stats.; Wis. Adm. Code
HSS 80.03(7)(b). However, HSS
80.03(7)(b) deals with placement allocations where one parent has primary
physical placement of all the children.
There are no specific guidelines that apply to a situation where two of
the three children have 50% placement with both parents and one child has very
limited time with the payer parent.[2]
The trial court
specifically discussed the relevant factors under § 767.32(1), Stats.
It determined (1) that Charles' gross annual income had increased by
53%, from $30,000 to $46,000, while Mary Ellyn's remained approximately what it
had been previously; (2) that all the other children had attended the same
private school which Georgia was then attending, and therefore, it was not
unreasonable for her to have the same educational benefits they had received;
(3) that while Anna Jo's expenses were difficult to measure since she
would be in Spain and would be taking money she herself had earned, both
parents would remain obligated to provide financial support to her as needed;
and (4) that Charles would be ordered equal placement of Reed, but would fall
below the guidelines' threshold for Georgia.
All of these findings were supported by the record. The court concluded that, under the totality
of the circumstances, it was fair to order the respondent to pay 25%[3]
of his gross income in child support.
Charles argues that the
trial court should have added all of the days that he had with each child[4],
divided that total by three to determine the average number of days he had
placement with the children, and used that figure to determine child support
under the shared-time formula. We
reject Charles' argument because there are at least two problems with his
proposal. First, Charles would have the
trial court subtract the $6,000 he pays Mary Ellyn in maintenance each year
from his gross income before calculating his child support. Maintenance is not excluded from gross
income of the payer, when child support is calculated. Wis.
Adm. Code HSS 80.02(13)(a).
Second, the guidelines do not require, or even suggest, that Georgia's
days with Charles should reduce his support obligation. We conclude that the trial court did not err
by not explaining the amount of support available under the guidelines and the
amount of its deviation because the guidelines are virtually impossible to
directly apply, given the hybrid type of placement arrangement used for these
children. The trial court's order, which
explained why attempting to conform to the guidelines would be unfair under
these facts, was a reasonable exercise of discretion.
Attorney Fees.
Attorney fees may be
awarded "upon a showing of ability to pay, need, and
reasonableness." Bisone,
165 Wis.2d at 124, 477 N.W.2d at 62.
The trial court considered all of these factors, stating:
From
the outset, there has been a serious imbalance in litigation resources in this
case. The respondent has used his
separate, substantial assets to litigate at will ¼. The petitioner has no funds from which to pay attorney
fees and the respondent has substantial funds for that purpose ¼. The
attorney fees incurred by the petitioner are fair, reasonable and necessary
under the circumstances.
We
conclude that the trial court properly exercised its discretion in accordance
with the correct legal standards and the facts of record. Therefore, we do not disturb the award.
CONCLUSION
Charles was afforded an
opportunity to be heard on his motion to modify placement. He chose mediation rather than presenting
evidence at the hearing. He was offered
a second hearing, if he had information in addition to that which the trial
court had already heard. He did not
pursue that opportunity. Thereafter,
the court made its placement decision based on the information it had before
it. We conclude that the trial court
properly exercised its discretion.
Additionally, the child support and attorney fee awards were appropriate
exercises of the court's discretion and we affirm both.
By the Court—Order
affirmed.
Recommended for
publication.
[2] The guidelines do define a shared-time payer, HSS 80.02(25), and show how to calculate support for that parent. Wis. Adm. Code HSS 80.04(2). However, Charles is a shared-time payer for Reed and perhaps for Anna Jo, but not for Georgia.
[3] Mary Ellyn had two children 50% of the time and one child full-time. Although the trial court did not explicitly add the two "50% children" to the one full-time child and get the equivalent of two full-time children, the trial court did apply the 25%, two-child guideline, to Charles' $46,000 of income, resulting in $950 per month as his child support obligation.