COURT OF APPEALS DECISION DATED AND FILED October 27, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM.[1] Jami L. Carroll appeals an order determining property division, child support and physical placement issues. Jami argues: (1) the circuit court failed to order her ex-husband Brent Van Boxtel to pay 12% interest on the division of a retirement account not timely paid; (2) certain language in the divorce judgment did not constitute a child support order; and (3) the court considered improper factors and failed to consider proper statutory factors regarding placement. We disagree and affirm.
¶2 The parties were divorced on June 19, 1998. One minor child was born to the parties and, at the time of the final divorce hearing, the child was three years old. Hearings were held on October 22 and 24, 2008, concerning placement, child support arrears, current child support, and property division issues, among other things. Jami now appeals from the circuit court determinations.
¶3 Jami argues the circuit court was inconsistent in its decision with regard to the payment of interest.[2] The 1998 divorce judgment specifically provided for interest on the equalization payment. Because the equalization payment was not paid timely, the court subsequently ordered interest at 12% from the date of divorce. The divorce judgment also provided for a qualified domestic relations order (QDRO) to be prepared for the pension plan. Apparently, there was no follow-up on the QDRO. However, the record contains correspondence from the plan administrator dated July 18, 2008, stating:
[W]e feel there will be difficulties in determining the Alternate Payee’s benefit based upon the Assignment Date noted in the QDRO. Since 1998, there have been two record keepers for the Plan and the Plan was not daily valued until 1999; therefore the ability to retrieve the necessary account information along with investment earnings gains and losses would be difficult to obtain. We recommend that the QDRO be rewritten providing an assignment to the Alternate Payee in a flat dollar amount as of a current date.
This resulted in the court subsequently ordering a lump sum 401(k) payment to Jami of $4,524.41, representing one-half the 1998 value of the retirement account, with no interest from the date of divorce on the unpaid amount.
¶4 However, unlike the provisions regarding the equalization payment, there was no provision in the divorce judgment specifying 12% interest on the division of retirement accounts. Moreover, as the court correctly observed, Jami’s share of the 401(k) account would have been subject to market conditions and may have increased or decreased in value since the divorce judgment. The court therefore found interest would be “speculative.”
¶5 Jami cites Washington v.
¶6 Jami’s case law is inapposite. In
¶7 Jami next disputes language in the divorce judgment regarding child support. Jami was ordered to pay child support at 12.75% with no minimum until the child entered kindergarten. At that time, her obligation was ordered to be a minimum of $29 per week. Jami argues this “represents the Court’s finding of fact concerning future earning capacity, rather than a child support order.” Jami contends the court retroactively modified the child support order in violation of Wis. Stat. § 767.59(1m).
¶8 The language of the divorce judgment regarding child support provided as follows:
[C]hild support is set at 12.75% and no minimum amount is set. However, when [the child] enters kindergarten, the petitioner’s obligation to pay child support shall be a minimum of $29.00 per week. This is based upon the court’s feeling that the petitioner should be able to have at least a part time job earning $10.00 per hour.
We conclude the language,
“shall be a minimum of $29.00 per week,” constitutes an order. Jami was not working at the time of the final
divorce hearing, and the child support obligation once the child entered
kindergarten was a fixed minimum amount based on her potential income. Setting child support at a fixed minimum amount
is within the discretion of the court. See Doerr v. Doerr, 189
¶9 Finally, Jami argues the court considered improper factors and failed to consider proper statutory factors regarding placement. We disagree. The record clearly demonstrates the court considered the interaction and interrelationship of the child with his parents. The court also considered the amount and quality of time each parent spent with the child, and his adjustment to home, school and the community. The court considered the child’s developmental and educational needs, as well as the need to provide predictability and stability for him. Further, the court considered whether the parents would likely unreasonably interfere with the child’s continuing relationship with the other parent. See Wis. Stat. § 767.41(5)(am). The court’s decision, as a whole, examined the facts, incorporated appropriate factors and reached a reasoned and appropriate placement decision.
¶10 Jami insists the circuit court “added football as a factor when determining placement issues.” Jami notes the court found it significant she did not know the position her child played on his eighth grade football team. Jami characterizes this concern as “arguably a sexist way of evaluating the Appellant.”
¶11 We reject Jami’s improper characterization of the circuit court. Jami testified she had a “very close and loving” relationship with her son, but the court stated, “The common theme that I heard from him is you don’t have time for him.” The court also commented on Jami’s involvement with her son as follows:
[T]he issue today is what is in [the child’s] best interest ….
….
I think it was crystal clear during the testimony here, Ms. Carroll you’ve done basically nothing in terms of spending time and getting to know your son. You were asked on the witness stand what position he plays, and you were unable to know that in football. You may not think that impacts him. It sure does.
You were asked to name his teachers. You were able to name two teachers. You—I think you’ve had contact with his school one time …. You’re just too busy for him ….
Jami’s suggestion of sexism is disingenuous. The record demonstrates the circuit court was evaluating the parties’ knowledge of their son and their involvement in his life.
¶12 Jami also insists the circuit court inappropriately “became an active participant interrogating the Appellant and making, what Appellant believes, were inappropriate statements and observations before all the evidence had been presented to the Trial Court.” Jami contends the court “arguably abandoned its role as decision-maker when it directly questioned the Appellant about her son, daughter and her daughter’s significant other.”
¶13 Jami fails to provide citation to legal authority to support
her suggestion that a circuit court may not question witnesses during their
testimony. We will not consider
arguments unsupported by legal authority.
See Kruczek v. DWD, 2005 WI
App 12, ¶32, 278
¶14 We note the court prefaced its decision with the following comments:
[I]t can’t be more disappointing than to see what I’ve observed during the last two days in addition to, you know, the length of this file; the nature of the trial that went on seven, eight years ago; and the battle that the two of you just continue to do to each other.
….
I will represent to you that I think both of you have lied to me today and on Wednesday on very important issues.
¶15 Given the obvious lack of amicability between the parties, the
circuit court was given a difficult task.
In this regard, we cite a statement in a case written nearly four
decades ago: “Unfortunately, too many divorced parents ‘allow the
desire to nurture their personal animosities to overshadow the welfare of the
child ….’” Weichman v. Weichman, 50
By the Court.—Order affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Jami
utilizes the phrase “abused its discretion.”
The Wisconsin Supreme Court changed the terminology used in reviewing a
circuit court’s discretionary act from “abuse of discretion” to “erroneous
exercise of discretion” in 1992. State
v. Plymesser, 172
[3] Jami
argues “there is a delay of payment of more than 10 years from the final
hearing which results in an inequality in the property division if interest is
not ordered.” This argument is
undeveloped and we will not abandon our neutrality to develop the
argument. M.C.I., Inc. v. Elbin,
146
[4] The child entered kindergarten in September 2000. Between September 1, 2000 and May 17, 2007, Jami owed child support in the amount of $11,100.33. Brent’s motion to the circuit court did not seek a retroactive child support order. Rather, he sought to enforce the existing order by holding Jami in contempt for failing to make any child support payments since the divorce judgment, and also to revise the order from 12.75% to 17% in the future. Jami’s argument also fails to recognize that even if the circuit court would not have considered the minimum of $29 weekly, the obligation was set at 12.75% and the court would have calculated support based on that percentage. Jami’s position appears to indicate that she was not obligated to pay any support, which is clearly inconsistent with the divorce judgment.
[5] It
is also a cardinal rule of effective appellate advocacy to avoid disparaging
the lower court.