COURT OF
APPEALS DECISION DATED AND
RELEASED October
17, 1996 |
NOTICE |
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. 96-0486-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
THOMAS
DALE BOTTOMLEY,
Petitioner-Appellant,
v.
LINDA
LEE BOTTOMLEY,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Grant County: JOHN R.
WAGNER, Judge. Affirmed in part and
reversed in part.
Before
Eich, C.J., Dykman, P.J., and Roggensack, J.
PER
CURIAM.[1] Thomas
Bottomley appeals from an order requiring him to pay Linda Bottomley child
support pursuant to their 1990 divorce judgment. Specifically, the circuit court ordered Thomas to pay Linda
$6,700 of a worker's compensation award, $10.50 per week for their minor
child's health insurance, a $673.50 reimbursement for past insurance costs
incurred by Linda, and $440 in attorney's fees. Thomas raises three issues:
(1) whether Iowa's lump sum worker's compensation award for
permanent partial disability is subject to payment for child support when he
lost no income as a result of the injury; (2) whether the divorce
settlement required him to pay Linda one-half of the cost for obtaining
additional health insurance through her employer when he was providing
insurance through his employer; and (3) whether Linda was entitled to
attorney's fees for bringing the action against him for a portion of the
worker's compensation award, child support arrearage, interest and health
insurance costs.
We
conclude that the lump sum worker's compensation award for permanent partial
disability was not intended to replace income and therefore does not qualify as
"gross income" under Wis. Adm.
Code § HSS 80.02(13)(b). We also
conclude that the divorce decree did not require Thomas to pay one-half of the
health insurance costs incurred by Linda when he was providing insurance
through his employer. We therefore
reverse those parts of the circuit court order. We cannot determine the extent to which Linda may have been
entitled to attorney's fees because Thomas failed to include as part of the
record the necessary affidavits regarding Linda's attorney's fees. We therefore affirm that part of the order.
BACKGROUND
Thomas
Bottomley and Linda Bottomley were divorced in August 1990. The divorce decree provided that each would
pay seventeen percent of their income as child support if their minor child was
placed with the other spouse.
In
June 1993, Thomas suffered a workplace injury at John Deere Dubuque Works. In March 1995, Thomas received $39,445.08 as
part of a worker's compensation claim for permanent partial disability of his
left upper extremity. Thomas did not
miss any work or lose any wages due to his injury, and his employer covered his
medical costs stemming from the injury.
In
August 1995, Linda filed an order to show cause, alleging that Thomas failed to
pay child support in full in 1993 and 1994 and failed to pay health insurance
costs for their minor child. She also
moved the court to award her seventeen percent of the worker's compensation
award as child support. After a hearing
in September 1995, Thomas conceded that he owed child support on his VA
benefits, but disputed whether he owed child support on his worker's compensation
award or one-half of the insurance costs incurred by Linda. The circuit court
granted Linda's motion and ordered Thomas to pay child support on the worker's
compensation, health insurance costs and attorney's fees. Thomas appeals.
WORKER'S
COMPENSATION AWARD
Thomas
argues that he should not be required to pay child support on the worker's
compensation award because the worker's compensation was not intended to
replace income. To determine whether
Thomas must pay child support, we must interpret an administrative regulation,
which is a question of law we review de novo. Richland County DSS v. DHSS, 183 Wis.2d 61, 66, 515
N.W.2d 272, 275 (Ct. App. 1994). To
determine intent, we examine the language of the regulation and look beyond it
only if the language is ambiguous. Greene
v. Farnsworth, 188 Wis.2d 365, 370, 525 N.W.2d 107, 109 (Ct. App.
1994).
The
1990 divorce decree stipulated that "each party be required to pay 17% of
their respective gross earnings toward the support of the child not permanently
physically placed with that party."
The income standard for child support is governed by Chapter 80
of the Wisconsin Administrative Code.[2] Wisconsin Administrative Code § HSS
80.02(13)(b) includes "[n]et proceeds resulting from worker's compensation
or other personal injury awards intended to replace income" in the
definition of gross income.[3] The phrase "intended to replace
income" modifies both "personal injury awards" and
"worker's compensation."
Otherwise, the word "other" would be superfluous. "It is a maxim of statutory
construction that a law should be so construed that no word or clause shall be
rendered surplusage." City
of Hartford v. Godfrey, 92 Wis.2d 815, 820, 286 N.W.2d 10, 13 (Ct. App.
1979). We see no reason why this rule
should not apply to administrative rules.
Therefore, worker's compensation qualifies as gross income only when it
is intended to replace income lost due to the underlying injury.
Thomas
received a worker's compensation award for the permanent partial disability of
his left upper extremity. He did not
miss any work or lose wages due to the injury or partial disability. This worker's compensation award is akin to
a personal injury award for pain and suffering. This kind or award, whether from a personal injury suit or
worker's compensation, is not available for child support under Wis. Adm. Code § HSS
80.02(13)(b). See Krebs v.
Krebs, 148 Wis.2d 51, 57-58, 435 N.W.2d 240, 243-44 (1989)
(compensation for pain and suffering is presumptively the sole property of the
individual).
Linda
argues that the award was linked to income or income producing capacity because
the award for permanent partial disability is calculated by using a worker's
weekly income. The fact that weekly
income is used as a mechanism to calculate an award for permanent partial
disability does not show that the worker's compensation is intended to replace
lost income. The use of
"weeks" to calculate worker's compensation awards is merely one way
of determining what is really a formula award.
The term "units" could as easily have been used.
INSURANCE COSTS
Thomas
next argues that he should not be ordered to pay Linda for providing health
insurance for their minor child through her employer because he is already
providing for insurance through his employer.
Thomas contends that the divorce judgment does not require him to pay
one-half of health insurance costs incurred by Linda once he is providing
insurance through full-time employment.
The interpretation of a divorce judgment is a question of law that we
decide de novo without deference to the trial court. See Levy v. Levy, 130
Wis.2d 523, 528-29, 388 N.W.2d 170, 172-73 (1986).
The
divorce judgment provides that:
until [Thomas] becomes fully employed, [Linda] will
cause to be placed on her health insurance policy the minor children. [Thomas] will share in any expenses incurred
by [Linda] for the cost of the health insurance premiums by paying 1/2 of the cost
incurred by the respondent for such coverage.
Both parties will be responsible to share equally any uncovered medical,
dental or optometric expenses incurred by the children for such needs.
The
judgment separately provides for the allocation of health insurance costs and
medical expenses not covered by insurance.
It provides only for the equal sharing of health insurance costs when
Thomas is unemployed and presumably not providing coverage. Otherwise, it specifies that uncovered
medical expenses, distinguished from ongoing health insurance coverage, be
shared equally. The judgment did not
require Thomas to continue paying insurance costs once he was employed and
providing insurance.
ATTORNEY'S FEES
Thomas
argues that Linda cannot recover attorney's fees because he was not required to
pay child support on the worker's compensation or the additional health
insurance costs and because he withheld the child support assignable to his VA
benefits in good faith and ultimately paid the arrearage with interest. An award of attorney's fees under § 785.04, Stats., is a discretionary act of the
trial court, and we review discretionary decisions only to determine whether
the trial court properly exercised its discretion. See State v. Pittman, 174 Wis.2d 255,
268-269, 496 N.W.2d 74, 79-80, cert. denied, 510 U.S. 845 (1993).
Thomas
refers to a bill for attorney's fees and asserts that most of the work of
Linda's attorney involved the worker's compensation issue. However, this bill has not been made part of
the appellate record. Generally, the
appellant has the duty to see that evidence material to the appeal is included
in the record. State v. Smith, 55 Wis.2d 451, 459, 198 N.W.2d
588, 593 (1972). The procedures for doing this are set out in § 809.15(2), Stats.
Assertions of fact that are not part of the record will not be
considered. Jenkins v. Sabourin,
104 Wis.2d 309, 313-14, 311 N.W.2d 600, 603 (1981).
The
circuit court noted that Thomas waited until Linda brought her motion to
concede that he owed $2,006.22 in child support. The circuit court found that it was necessary for Linda to hire
her attorney to bring the action before the court because no agreement could be
reached prior to the time set for the hearing.
The enforcement of a support obligation is accomplished through the use
of remedial contempt to secure compliance with the support order. State ex. rel. V.J.H. v. C.A.B.,
163 Wis.2d 833, 844, 472 N.W.2d 839, 843 (Ct. App. 1991).[4] Even though the worker's compensation award
is not available as child support and Linda is not entitled to the insurance
costs, she is entitled to attorney's fees for bringing the action to recover
the initial arrearage stemming from the VA benefits plus interest.
Thomas
argues that he negotiated with Linda regarding the child support assignable to
his VA benefits and that he should not be punished for such good faith
efforts. The award of attorney's fees
in this manner is discretionary and Thomas fails to establish how the circuit
court erroneously exercised its discretion.
Thomas cites no authority supporting a "good faith" defense to
the award of attorney's fees under § 785.04, Stats.,
which governs this action. Absent the
attorney's bill we have no basis to determine whether the allocation of $440 to
Linda in attorney's fees was a proper exercise of discretion in this case. Therefore, we affirm the award.
By
the Court.—Order affirmed in
part and reversed in part.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[2] This chapter was revised effective March 1,
1995. Neither party argues for
application of the previous version, which was in effect when the divorce was
finalized in 1990.
[3] The parties do not address whether worker's
compensation could fall under Wis. Adm.
Code § HSS 80.02(13)(i), which
includes in gross income "[a]ll other income, whether taxable or not,
except that gross income does not include public assistance or child support received
from previous marriages or from paternity adjudications." Accordingly, we limit our review to whether Wis. Adm. Code § HSS 80.02(13)(b)
includes the worker's compensation at issue in this case. Generally, we will not consider or decide
issues not specifically raised on appeal.
Waushara County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d
16, 19, cert. denied, 506 U.S. 894 (1992).
[4] Although the circuit court made no explicit
finding of contempt, we infer such a finding based on the court's order to pay
interest and attorney's fees. This
court may assume a finding not made on an issue if it appears from the record
to exist. Sohns v. Jensen,
11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960).