PUBLISHED OPINION
Case No.: 96-1136
Complete Title
of Case:
In re the Marriage of:
ANN M. ZUTZ,
n/k/a ANN M. PRESTON,
Petitioner-Respondent,
v.
GREGORY S. ZUTZ,
Respondent-Appellant.
Submitted on Briefs: December 26, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January 29, 1997
Opinion Filed: January 29, 1997
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Manitowoc
(If "Special", JUDGE: Fred H. Hazlewood
so indicate)
JUDGES: Snyder,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the respondent-appellant, the cause was submitted on the briefs of Gary
L. Bendix and Maja M. Roosjen of Savage, Gregorski, Webster,
Stangel, Bendix & Bruce, S.C. of Manitowoc.
Respondent
ATTORNEYSOn
behalf of the petitioner-respondent, the cause was submitted on the brief of Joseph
M. Pozorski, Jr. and Andrew J. Steimle of Kaminski, Pozorski
& Greig of Manitowoc.
|
COURT OF APPEALS DECISION DATED AND RELEASED January 29, 1997 |
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. 96-1136
STATE
OF WISCONSIN IN COURT OF
APPEALS
In re the Marriage of:
ANN M. ZUTZ,
n/k/a ANN M. PRESTON,
Petitioner-Respondent,
v.
GREGORY S. ZUTZ,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Manitowoc County:
FRED H. HAZLEWOOD, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Gregory S. Zutz appeals
from the family court's order denying his motion to modify his child support
obligation. Although the family court
found that a “substantial change in circumstances” had occurred since the
divorce, the court declined to modify child support because it determined that
doing so would be contrary to what Gregory and his former wife, Ann,
contemplated when they entered into their stipulated divorce agreement. Although Gregory argues that changes to
§ 767.32, Stats.,[1]
which occurred subsequent to the divorce, demand that his child support
payments now be calculated according to the percentage standards set by the
Department of Health and Social Services (DHSS), we conclude that the changes
only affected how the family court should determine if there has been a
substantial change in circumstances.
The statutory changes did not curtail the family court's discretionary
power to consider an existing agreement and not modify child support
arrangements when such a modification would be unfair to the child or one of
the parties. We affirm the family
court's order.
Gregory and Ann were
divorced in 1990. They have one child,
Meghann Marie, who is now thirteen years old.
Ann and Gregory share legal custody and physical placement of their
daughter according to the terms set out in their marital settlement
agreement. At the time of the divorce,
Gregory was employed as a sheet metal worker and had a gross monthly income of
approximately $2411; Ann was a dental assistant earning approximately $989 per
month. Because Gregory was earning a
greater income, they agreed that he would provide Ann with child support of
$224 per month.[2]
Since Gregory and Ann
entered into this agreement, however, each has experienced some changes in
circumstances. Ann remarried in
September 1993 and had twin daughters with her new husband in July 1994. Moreover, owing to her new child care
responsibilities, Ann has reduced her work hours. Ann's income has decreased to approximately $177 per month. The change in Gregory's life pertinent to
our analysis is that his monthly income has increased. His monthly income is now approximately
$2890, almost $500 more than it was at the time of the divorce.
The current proceedings
began in October 1995 when Gregory moved to amend the divorce judgment,
specifically seeking to modify his child support obligation. As grounds, Gregory relied on the statutory
rebuttable presumption that in cases where child support is a fixed payment
(not a percentage of income), the passage of thirty-three months is a
substantial change in circumstances “sufficient to justify a revision.” See § 767.32(1)(b) and (1)(b)2, Stats. Ann also filed a motion to
modify child support; she cited her substantial decrease in income.
After the family court
commissioner denied both motions, the matter was set for review in the family
court. The family court held an
evidentiary hearing where it heard testimony from Ann and Gregory regarding
their respective financial circumstances.
The family court then
proceeded to deny Ann and Gregory's respective motions. The court's analysis first involved a legal
conclusion regarding Gregory's claim that under § 767.32(1)(b)2 and (2), Stats., the passing of thirty-three
months mandated that the court recalculate the appropriate child support award
according to DHSS standards. The court
rejected this argument, concluding that it could not overlook Ann and Gregory's
prior agreement and that it still had to make a decision about whether to
modify child support.
Then, turning to the
merits, the family court made the following findings. The court found that each party experienced what it termed
“substantial changes.” Here, the court
noted that Ann's choice to stay at home with her new children had caused a
significant decrease in her income; moreover, it noted that Gregory had enjoyed
an increase in his income. Nonetheless,
the court also found that the needs of Ann and Gregory's daughter were still
being met. Based on these findings, the
court ultimately concluded that it would not upset Ann and Gregory's original
agreement regarding child support because the “substantial changes” that each
experienced had not resulted in a situation “unfair for either of the parents
or the child that would necessitate a change in the judgment ....” Gregory appealed.
The family court's
treatment of a motion to modify child support generally involves a question of
whether the court engaged in a proper exercise of discretion. See Burger v. Burger,
144 Wis.2d 514, 523, 424 N.W.2d 691, 695 (1988). We usually inquire if the court has considered the needs of the
child and the parents' ability to pay. See
id. at 523-24, 424 N.W.2d at 695.
Our review of such discretionary decisions is confined to whether the
court examined the relevant facts, applied the proper legal standards and
reached a logical decision. See Luciani
v. Montemurro-Luciani, 199 Wis.2d 280, 294, 544 N.W.2d 561, 566 (1996).
However, we do not read
Gregory's appellate claim to question the family court's assessment of the
facts. Rather, Gregory presents the legal
question of whether the family court properly applied the statutory presumption
within § 767.32(1)(b)2, Stats.,
that was triggered because thirty-three months had passed since child support
was originally set. Gregory argues that
because this presumption applied, the family court was not permitted to even
consider Ann and Gregory's agreement and was instead required to examine their
relationship de novo, including the presumption that DHSS guidelines should be
used to calculate child support. See
§ 767.32(2); see also Luciani, 199 Wis.2d at 294-95, 544
N.W.2d at 566-67.
Gregory supports his
interpretation of the thirty-three month statutory presumption with citations
to the legislative history of the bill that created it. See 1993 Wis. Act 16, §§ 3627 and
3629. He argues that the
legislature, responding to federal law, enacted this thirty-three month
presumption because “child support orders which predated the enactment of the
percentage standard needed to be revised in conformance with [DHSS's] mandatory
standard.” He further explains that
before this presumption came into effect, the family court had been required to
use the DHSS standards only when formulating child support orders; thus, the
new law was designed to ensure that existing orders were brought into
conformity with the DHSS standards.
However, the manner in
which Gregory interprets this legislative history does not square with the
manner in which the legislature crafted this presumption. The section establishing the thirty-three month
presumption provides:
(b) In
any action under this section to revise a judgment or order with respect to an
amount of child support, any of the following shall constitute a rebuttable
presumption of a substantial change in circumstances sufficient to justify a
revision of the judgment or order:
....
2. ... the expiration of 33 months after the date of the entry of the
last child support order ....
Section
767.32(1), Stats. A “substantial change in circumstances,”
which this presumption establishes, is the prerequisite that a party must meet
to modify an existing child support order. See Burger, 144 Wis.2d at 523, 424 N.W.2d at
695. However, while the legislature
created this presumption, it did not modify § 767.32(2m), which permits
the family court, even when there exists a “substantial change in
circumstances,” to set aside the DHSS standards should their use be unfair to
the child or any of the parties. See
Kelly v. Hougham, 178 Wis.2d 546, 553-54, 504 N.W.2d 440, 443 (Ct.
App. 1993).
Thus, contrary to
Gregory's claim, the 1993 legislative changes did not curtail the discretion of
the family court to set aside the DHSS standards. The thirty-three month presumption that Gregory relies on did
only one thing: it set out a rule that
the elapse of thirty-three months gives a party a prima facie claim that child
support should be modified. Aside from
that, however, the family court maintains its discretionary authority to hear
evidence and evaluate if the DHSS standards should possibly not apply because
they would result in unfairness.
Here,
the family court recognized that Gregory had established a prima facie
claim. In fact, it asked whether he
“wish[ed] to add further muscle to [his] statutory case by testimony or not?” Although Gregory did not put in his own
case and relied on the evidence adduced through Ann's evidentiary presentation,
the family court partially agreed with his position and found that there was
“substantial change.”
Nonetheless, as we
outlined above, once the family court reached this conclusion, the thirty-three
month statutory presumption became irrelevant to the issue of whether child
support should be modified. And as we
also explained above, the family court found that there was no reason to set
aside Ann and Gregory's previous agreement, even though it was not in
accordance with DHSS standards, because the agreement was still serving the
needs of their child and was still fair to Ann and Gregory.
Indeed, we find a strong
analogy between this case and Jacquart v. Jacquart, 183 Wis.2d
372, 515 N.W.2d 539 (Ct. App. 1994).
There, the parties had likewise entered into a stipulated agreement
concerning the husband's child support payments to his former wife. Although the exact terms of the Jacquarts'
agreement were much more flexible than those in Ann and Gregory's, the family
court paid similar respect to the Jacquarts' agreement and refused to modify
support because it found that the existing agreement was accommodating the
changes in their circumstances. See id.
at 388-89, 515 N.W.2d at 545. Thus, the
family court's treatment of Ann and Gregory's agreement is in accordance with
the principle set out in Jacquart that the court may give weight
to existing agreements when making a determination of whether to modify child
support to meet DHSS standards.
Having concluded that
the family court, contrary to Gregory's claim, properly interpreted and applied
the thirty-three month statutory presumption within § 767.32(1)(b)2, Stats., the only remaining question is
whether the court properly exercised its discretion when it rejected Gregory's
motion to modify support. See Burger,
144 Wis.2d at 523, 424 N.W.2d at 695.
However, Gregory has not raised any claim that the family court erred in
its findings concerning his or Ann's economic situation or the needs of their
daughter. We therefore affirm the
family court's choice to maintain the existing child support order.
By the Court.—Order
affirmed.