COURT OF APPEALS DECISION DATED AND FILED January 20, 2010 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
APPEAL
from an order of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Anthony C. Benvenuto has appealed from an order denying his motion for a reduction in child support for his two sons, and requiring him to pay $4015 in orthodontia expenses. We affirm the trial court’s order.
¶2 This court reviews a trial court order denying a motion to
modify child support under an erroneous exercise of discretion standard. Rottscheit v. Dumler, 2003 WI
62, ¶11, 262
¶3 Pursuant to a stipulation and order amending the parties’ judgment of divorce in 2002, Benvenuto was required to pay child support of $1000 per month. In seeking modification of that order, Benvenuto testified that although he had been employed as a truck driver with the same company for the past six years, his income had been reduced because of a bad economy.[2] He relied upon a pay stub indicating that his gross income as of September 14, 2008, was $29,193.30. He contended that this extrapolated to an expected annual income of $39,948.72 for 2008. Applying a child support percentage standard of 25%, Benvenuto contended that child support should be reduced to $832.25 per month.
¶4 A change in a party’s income may constitute a substantial
change in circumstances.
¶5 In this case, the trial court considered evidence that Benvenuto had gross earnings of $53,580 in 2006 and $49,218 in 2007. It accepted Benvenuto’s argument that extrapolating from his September 2008 pay stub would produce an income for 2008 of $39,948.[3] However, rather than accepting Benvenuto’s argument that his income should be deemed to be $39,948 for purposes of calculating child support, the trial court considered his income over the three-year period between 2006 and 2008, and arrived at an average annual income of $47,582. Because application of the 25% child support standard to this figure produced a monthly child support award of $991, the trial court concluded that no substantial change in circumstances had occurred justifying a modification of support.
¶6 Trial courts may consider
income history in determining income for child support purposes. Cf.
DeLaMatter,
151
¶7 Benvenuto’s challenge to the trial court’s order requiring him to pay $4015 for orthodontia expenses also fails. This sum represented one-half of the orthodontia expenses for his two sons. The trial court ordered him to pay it pursuant to a provision in section IV. B. of the parties’ marital settlement agreement (MSA), which states that the parties “shall split equally the liability for all hospital, medical, dental, and related expenses not covered by insurance for each of the minor children.”
¶8 Benvenuto contends that he should not be required to pay the
orthodontia fees because Reiser failed to request mediation after he objected
to the orthodontia treatment. However,
Benvenuto’s contention that mediation is required fails under the plain
language of the MSA, which provides in section I. D. that “[i]n the event any
disputes arise as to custody or physical placement, either party may request
the family court commissioner to refer the matter to the director of family court
counseling services for mediation.” This
section of the
¶9 Benvenuto also contends that the award must be set aside because no expert testimony was presented to establish that the orthodontia expenses were medically necessary. He contends that Reiser provided impermissible hearsay testimony when she testified that the children’s dentist recommended orthodontics based on the shape of one son’s palate and overcrowding in both children’s mouths. He also objects to Reiser’s testimony that she took the children to an orthodontist, who concurred with the dentist’s opinion.
¶10 The record indicates that Benvenuto objected to Reiser’s
testimony about the orthodontist’s opinion on hearsay grounds, and that the
trial court sustained his objection.
However, the lack of expert testimony provides no basis for reversing
the trial court’s award. As noted by the
trial court, the
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
statute governing revision of child support previously constituted Wis. Stat. § 767.32 (2003-04). It now constitutes Wis. Stat. § 767.59 (2007-08). All future references to the
[2] Benvenuto filed his motion to reduce child support after the respondent, Ramona A. Reiser, filed a motion to increase child support. Reiser’s motion was also denied.
[3] The trial court initially arrived at a figure of $42,168 when extrapolating from Benvenuto’s pay stub, but utilized Benvenuto’s figure of $39,948 when denying his motion for reconsideration.