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COURT OF APPEALS DECISION DATED AND RELEASED July 30, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0835-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
SHAWN KRENKE, n/k/a
SHAWN VAN GOMPEL,
Petitioner-Respondent,
v.
TIMOTHY KRENKE,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Timothy Krenke appeals
an order finding him in contempt for being in arrears on his child support
obligation, requiring him to pay 17% of his income or $116 per week, whichever
is greater, as child support, and awarding his former wife, Shawn Van Gompel,
$500 as contribution toward her attorney fees in bringing the contempt action.[1] Timothy contends that the trial court erred
by: (1) utilizing his earning capacity rather than his actual earnings in
making the finding of contempt and in setting his child support obligation; (2)
setting his child support obligation at 17% of his gross income or $116 per
week, whichever is greater, effective retroactively to January 27, 1995; and
(3) awarding a contribution toward attorney fees without making proper findings
of Timothy's ability to pay and Shawn's need for contribution. We reject these arguments and affirm the
order.
Timothy and Shawn were
divorced in 1988. The divorce judgment
awarded Shawn sole legal custody and primary physical placement of the only
child born of the marriage. Timothy was
awarded alternate physical placement and ordered to pay 17% of his gross income
for child support.
Timothy had been
employed full time by Town & Country Electric as an electrician for
approximately eleven years. Timothy's
annual earnings totaled approximately $47,100 in 1991, $37,500 in 1992, $32,600
in 1993, and $34,800 in 1994. Timothy
experienced seasonal layoffs between five to twelve weeks during the winter
months for each of these years. Timothy
refused to accept job assignments that were available but required travel in
excess of sixty miles from his home office in Stevens Point because he claimed
accepting those job assignments interfered with his visitation rights. In January 1995, Timothy enrolled at the
University of Wisconsin—Marathon Center, pursuing a degree in biological
science and thereafter worked part-time.
Because Timothy had been
laid off in November 1994 and he started school full time in January 1995,
Timothy's child support payments suffered a substantial reduction. On May 1, 1995, Shawn filed an order to show
cause why Timothy should not be held in contempt of court for failing to make
child support payments. Shawn also
requested that the family court commissioner award an arrearage of $140 per
week from November 1994. After a
hearing, the family court commissioner declined to find Timothy in
contempt. Shawn sought de novo review
of the decision in the trial court.
After a hearing, the trial court rendered a written decision, finding
Timothy in contempt for shirking his child support obligation based on its
finding that Timothy unreasonably reduced his income by becoming a full-time
student.
Subsequently, the trial
court held a hearing based on the family court commissioner's order for a
minimum payment of $111 per week and to clarify its written decision. The trial court concluded that when Timothy
became a full-time student on January 27, 1995, he unreasonably reduced his
income and consequently his ability to make child support payments. The trial court therefore found Timothy in
contempt for shirking his child support obligation, ordered him to pay 17% of
his gross income or $116 per week, whichever is greater, effective January 27,
1995, and awarded Shawn $500 as contribution for her attorney fees. Timothy appeals the order.
Timothy first contends
that the trial court erred by using his earning capacity instead of actual
earnings in making the finding of contempt and in setting his child support
obligation. Timothy argues that the
trial court erred when it found that he was shirking. We disagree.
The trial court may
consider earning capacity when a spouse is shirking his or her child support
obligations. Van Offeren v. Van
Offeren, 173 Wis.2d 482, 496, 496 N.W.2d 660, 665 (Ct. App. 1992). Shirking does not require a finding that the
spouse deliberately reduced his or her earnings to avoid support obligations. Id. The trial court may find a spouse is shirking if it finds that
the employment decision was both voluntary and unreasonable under the
circumstances. Id. The employment decision may be
unreasonable even though it is well intended.
Id.
The issue whether a
spouse's employment decision is unreasonable presents a question of law. Id. at 492, 496 N.W.2d at
663. However, because the trial court's
legal conclusion is intertwined with factual findings supporting that
conclusion, we will give the trial court appropriate deference. Id. at 492-93, 496 N.W.2d at
663.
The trial court found
that Timothy was shirking his support obligation based on the following
findings: (1) Timothy had a well-paying position he voluntarily left to attend
school, (2) he limited his earnings by electing to work only within a specified
area, and (3) his earning capacity created by his schooling would not enable
him to earn as much as he was earning as an electrician. We agree with the trial court's
analysis.
Timothy is an
electrician who has enjoyed earnings ranging between $32,000 and $48,000 over
the past several years. While Timothy
contends that his income was declining due to a slowdown in work, there was sufficient
evidence that Timothy would have continued to enjoy substantially greater
earnings as an electrician had he not restricted his employment based upon the
distance necessary to travel to a job.
In addition, the course of study in which Timothy enrolled would take
approximately four years, during which he would be unable to make any
significant child support payments.
Although Timothy's exact income for 1995 was not entered into evidence,
Shawn testified that Timothy made no child support payments from February 14,
1995, to June 16, 1995. Because Timothy
was required to pay 17% of his earnings as child support, the inference that
Timothy had no earnings during this time supports the trial court's finding that
Timothy's income was substantially reduced.
Finally, the trial court recognized that Timothy's potential earnings as
a graduate would have commanded a salary less than what he enjoyed as an
electrician.
Considering that
Timothy's ultimate earnings would not be substantially greater than now enjoyed,
it would take a substantial amount of time to obtain his degree and find new
employment, and he would surrender substantial earnings by his university
enrollment, we agree with the trial court's conclusion that Timothy's decision
was unreasonable. A child support
obligation is meaningful both legally and morally. While a party should enjoy the ability to select a career path
that reflects his or her goals and desires, a party may not do so at the
expense of his child's subsistence and welfare. In this case, Timothy's course of study would be prolonged, his
ultimate earnings comparable to those now enjoyed, and his ability to make
meaningful child support payments dramatically reduced for several years. The fact that he is a skilled tradesman with
significant earning capacity may require that he postpone an alternate career
path until he has fully discharged or insured his child support obligation.
Timothy next contends
that the trial court erroneously exercised its discretion when it ordered him
to pay 17% of his gross income or $116 per week as child support effective
January 27, 1995. We will sustain the
trial court's exercise of discretion as long as it examined the relevant facts,
applied a proper standard of law and, using a demonstrated rational process,
reached a conclusion a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320
N.W.2d 175, 184 (1982).
In this case, the trial
court properly based its child support order on Timothy's earning
capacity. Because that capacity has
consistently run between $30,000 and $50,000 per year, the minimum payment of
$116 per week is a reasonable exercise of discretion. It represents less than 16% of his average income and
approximately 17% of a $35,500 per year salary. We see no erroneous exercise of discretion in the court entering
an order based upon 17% of the assumed earning capacity reflected by Timothy's
past earnings.
Timothy suggests that the retroactive
application of the support order was in effect a punitive sanction, not a
remedial sanction. We disagree. While the trial court may not retroactively
modify a child support obligation under § 767.32(1m), Stats., it can, under its remedial
contempt powers, impose a sanction of a money payment sufficient to compensate
a party for a loss suffered as a result of a contempt of court. Section 785.04(1)(a), Stats.
Once Timothy started school in January 1995, he was unavailable for
full-time employment and was shirking his support obligation. Therefore, setting the $116-per-week floor
effective January 27, 1995, was necessary to calculate the arrears based on
Timothy's earning capacity for the time he was in contempt for shirking his
support obligation. Thus, setting the
child support obligation floor as of January 27 was compensation for child
support lost due to Timothy's shirking of his obligation. This is a reasonable exercise of the trial
court's remedial contempt powers.
Finally, Timothy argues
that the trial court erred by ordering him to pay a $500 contribution toward
Shawn's attorney fees as costs for bringing the contempt action. Timothy argues that the trial court did not
make proper findings of his ability to pay or Shawn's need for a contribution
toward attorney fees. While these findings are necessary to award attorney fees
in a divorce proceeding, Kastelic v. Kastelic, 119 Wis.2d 280,
289, 350 N.W.2d 714, 719 (Ct. App. 1984), a different standard applies in
contempt proceedings. In contempt
proceedings, the trial court is permitted to impose a sanction of payment of a
sum of money sufficient to compensate a party for a loss suffered as a result
of a contempt of court. Section
785.04(1)(a), Stats. The cost of attorney fees in pursuing a
contempt action are recoverable under § 785.04(1)(a). Seymour v. Eau Claire, 112
Wis.2d 313, 320, 332 N.W.2d 821, 824 (Ct. App. 1983). When it awarded Shawn attorney fees, the trial court was fixing
the extent of Timothy's obligation for the contempt, not setting a purge
condition where ability to pay is a relevant consideration. Because there is no requirement that the
trial court make findings of need and ability to pay before exercising its
remedial contempt powers in fixing the extent of Timothy's obligation for the
contempt, we reject Timothy's argument.
In sum, we conclude
that: (1) the trial court did not err by concluding that Timothy's employment
status was unreasonable in light of his child support obligation; (2) the trial
court did not erroneously exercise its discretion by setting Timothy's child
support obligation at 17% of his gross income or $116 per week, whichever is
greater, effective January 27, 1995, and (3) the trial court was not required
to make findings of need and ability to pay before awarding attorney's fees for
bringing the contempt action. Therefore,
we affirm the order.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.