COURT OF APPEALS DECISION DATED AND FILED July 29, 2010 A. John Voelker Acting 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 No. |
2009AP2862 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT IV |
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In re the marriage of: Gretchen L. Wolfe-Ginter,
Petitioner-Respondent, v. Michael Donald Ginter,
Respondent-Appellant. |
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APPEAL
from an order of the circuit court for
Before Vergeront, Lundsten and Higginbotham, JJ.
Ά1 VERGERONT, J. Michael Ginter appeals the circuit courts post-judgment child support order. He contends the circuit court erroneously exercised its discretion in ordering him to pay 29% of his gross income in child support for his three children in lieu of applying the shared placement payer formula and requiring that he share the variable expenses for the children. He does not contest the use of a percentage of his gross income in lieu of assigning him a share in the variable expenses but, he contends, the court arrived at 29% without following the procedures set out in Wis. Stat. § 767.511(1n) (2007-08).[1] The result, he asserts, is an unreasonably high child support order. We agree the court erroneously exercised its discretion, and we therefore reverse and remand.
BACKGROUND
Ά2 The judgment of divorce between Michael and Gretchen Wolfe-Ginter was entered in August 2007. Pursuant to their marital settlement agreement, their three minor children were to be with Michael 43% of the time and with Gretchen 57% of the time. The parties agreed not to strictly follow the shared placement child support guidelines, under which Michael would have paid only $25 per month to Gretchen due to the disparity in their incomes and the amount of placement Michael had. Instead, he would pay no child support and the parties would share equally in identified variable expenses.
Ά3 Shortly thereafter, conflicts arose regarding the childrens activities and payment of the variable expenses. Both parties filed contempt motions. After several hearings, the circuit court found Michael, but not Gretchen, to be in contempt of court and ordered Michael to pay the outstanding amount to Gretchen minus the expenses the court credited to Michael.
Ά4 One month after the final contempt hearing, the parties returned to court for a post-divorce ruling on custody, placement, and child support. At the hearing, Gretchen and Michael stipulated to a new custody and placement arrangement whereby Gretchens placement would increase to 69% and Michaels would decrease to 31%. This necessitated a new child support order. The parties stipulated that the required procedure of exchanging bills and paying each other for half of the others variable expenses was not working and needed to be replaced. Gretchen had testified during the contempt hearings that the variable expenses for the year beginning August 2007 through July 2008 amounted to $3634.
Ά5 Gretchen asked the court not to apply the shared placement
standard under Wis. Admin. Code § DCF 150.04(2)
(Nov. 2009),[2]
which involves apportioning variable expenses.
Instead, Gretchen argued, the court should apply the standard under
§ DCF 150.03(1)(c) for non-shared placement parents (the straight percentage
standard) under
which a parent pays 29% of his or her gross income to the other parent for
support of three children and variable expenses are not apportioned. Under this arrangement, Gretchen proposed,
she would pay all of the childrens variable expenses, thereby eliminating the conflict over
their repayment. Gretchen argued that Rumpff
v. Rumpff, 2004 WI App 197, 276
Ά6 Michael argued that 29% of his gross income, about $1117 per month, would result in a significant overpayment by him. Instead, he proposed that the court should apply the shared placement standard and add to that an amount equal to his share of the variable expenses, paid on a monthly basis. With his income of approximately $46,000 and Gretchens income of approximately $85,000, that standard would require him to pay Gretchen $195 per month in child support. According to Michaels calculations, assigning him 31% of the annual variable expenses, which is the percentage the guardian ad litem recommended, would amount to an additional $85 per month.[3] Thus, Michael asserted, the total would be approximately $280 per monthfar less than the $1117 per month Gretchen proposed.
Ά7 Relying on Rumpff, the circuit court ordered Michael to pay Gretchen 29% of his gross monthly income, or $1117.66 per month, and ordered Gretchen to pay all of the variable expenses, except those incidental to Michaels placement. The court found that such an order should result in less conflict between these parties, as there will be no need for each to contact the other about expenses related to the children.
DISCUSSION
Ά8 On appeal, Michael contends the circuit court erroneously exercised its discretion by ordering him to pay child support in a much higher amount than required by the applicable shared placement standard without following the statutory procedures for deviating. Gretchen maintains that the courts decision to deviate from the shared placement standard was reasonable and was supported by relevant factual findings, and that the court did not need to specifically state the information on the record as required by Wis. Stat. § 767.511(1n) because Michaels attorney had already done so during the hearing.
Ά9 The setting of child support is committed to the discretion
of the circuit court, and we affirm the circuit courts decision if it examined the relevant facts,
applied the correct standard of law and, using a demonstrated rational process,
reached a conclusion that a reasonable judge could reach. Randall v. Randall, 2000 WI App 98,
Ά7, 235
Ά10 We begin with a summary of the statutory framework. Except as provided in Wis. Stat. § 767.511(1m), the circuit court must
determine child support payments by using the standards established by the
Department of Children and Families.
§ 767.511(1j). These
standards include the straight percentage standard, under which the payer pays
29% of gross income for three children. Wis. Admin. Code § DCF 150.03(1)(c). There are, in addition, other standards for special
circumstances,
which reduce the amount of support required by the straight percentage standard.
§ DCF 150.04. One of the
special circumstances is shared placement. See
§ DCF 150.04(2). The special
circumstances standards, like the straight percentage standard, are included in
the presumptive standards that are to be applied under Wis. Stat. § 767.511(1j). See
Randall,
235
Ά11 A shared placement parent is one who has placement at least 25% of the time and is ordered by the court to assume the childs basic support costs in proportion to the time that the parent has placement of the child. Wis. Admin. Code § DCF 150.02(25m). Which parent pays support and in what amount is determined by a formula taking into account the parties incomes and amount of placement.[4] § DCF 150.04(2). In addition, the court is to assign responsibility for payment of the childrens variable expenses, which are defined in the regulation, in proportion to each parents share of physical placement, with due consideration to a disparity in the parents incomes. § DCF 150.04(2)(b)6.
Ά12 There is no dispute in this case that the presumptive standard applicable under Wis. Stat. § 767.511(1j) is that for shared placement. Gretchen does not dispute that under this standard Michael would be obligated to pay her $195 per month plus some share of the variable expenses.
Ά13 Wisconsin Stat. § 767.511(1m) allows the court to modify the child support payment determined under the presumptive standard upon request of either party, if, after considering the enumerated factors, the court finds that use of that standard is unfair to the child or to either party.[5] If the court makes such a finding, it shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the courts order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification. § 767.511(1n).
Ά14 Although Michael asserts that the circuit court erroneously exercised its discretion by not considering the factors under Wis. Stat. § 767.511(1m) in making its decision to deviate from the shared placement standard, he also states: The difficulties between the parties [regarding sharing the variable expenses] do constitute a sufficient factual basis for the Courts conclusion that it is unfair to follow the guidelines. (Emphasis in original.) We therefore do not understand Michael to be challenging the courts decision to deviate from the shared placement standard by ordering a monthly payment that includes his share of the variable expenses. Rather, we understand he is challenging the courts failure to follow the procedures required by § 767.511(1n) in deciding the amount he is to pay. That is the issue we address.
Ά15 The legislature has set forth a specific procedure that a court
must follow, set out in Wis. Stat. § 767.511(1n),
when it finds that use of the presumptive standard is unfair. This procedure requires the court, in
exercising its discretion, to acknowledge on the record the amount by which its
order deviates from the presumptive standard and explain the reasons why it is
necessary to deviate by that amount. The circuit courts articulation of
its reasoning process is essential in reaching a reasonable determination and
to aid this court in reviewing the discretionary decision. Luciani v. Montemurro-Luciani, 199
Ά16 Gretchen correctly acknowledges that, while the courts child-support
decision need not expressly reference all of the factors enumerated in Wis. Stat. § 767.511(1m), the
decision must identify, pursuant to § 767.511(1n), which relevant factors
played a role in the courts deviation from the presumptive standard.
although we have had three extended hearings this year concerning the payment of variable expenses and how that either worked or didnt work and certainly that is something that is not good for the parties, it just keeps the acrimony alive. And its not good for the children because they may miss out on certain activities in the long run.
Ά17 The court further explained its decision by finding that Gretchen
will have primary placement of the children, she will have impasse breaking authority with regard to decisions having to be made for the children and she will be the sole parent responsible for seeing that the children attend all medical/ dental/orthodontia/optical and counseling appointments; therefore, the Court finds that this is an appropriate case to deviate from the shared time payor formula and orders a straight 29% gross income child support payment .
Ά18 These passages show why the circuit court decided to deviate from the shared placement standard (which includes allocating variable expenses). They do not explain why the court ordered Michael to pay 29% of his gross income instead. Specifically, the court does not identify the amount of support the shared placement formula would require, the amount of the variable expenses, and an appropriate share to assign to Michael. This is necessary to identify the amount that would be required under the shared placement standard, as required by Wis. Stat. § 767.511(1n). The circuit court also did not identify the amount of the deviation, as required by the statute. By our calculations, the amount of deviation is approximately $828 per month (assuming Michael is assigned responsibility for 31% of the variable expenses).[6] While one can find and calculate these figures from the record even though the court has not done so, it is not possible to figure out from the record why the court decided such a substantial deviation is warranted. The courts order appears to result in Gretchen receiving $7430 more than the amount of annual variable costs to which she testified, in addition to the shared placement child support amount of $195 per month. This substantial increase cannot be explained by the need to reduce conflict between the parties over variable expenses. That need is addressed by ordering a fixed amount per month (whether an amount in dollars or a percent of gross income) as Michaels fair share of the variable expenses. The amount the court arrived at is what needs an explanation.
Ά19 In ordering Michael to pay 29% of his gross income in child
support, the circuit court relied on Rumpff, 276
Ά20 In this case, the circuit court did not articulate, and we do not find in the record, any evidence or rationale that reasonably supports the courts order of 29% of Michaels gross income. Because the circuit court did not follow the procedures required by Wis. Stat. § 767.511(1n) and arrived at a result that is not reasonably supported by the record, we conclude that the court erroneously exercised its discretion.
CONCLUSION
Ά21 Because the circuit court erroneously exercised its discretion in ordering Michael to pay 29% of his gross income, we reverse and remand. On remand the court shall determine the amount of child support Michael shall pay consistent with Wis. Stat. § 767.511(1n).
By the Court.Order reversed and cause remanded with directions.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise specified.
[2] All references to the Wisconsin Administrative Code are to the November 2009 version unless otherwise specified.
[3] As we explain in footnote 6, our calculation of 31% of the monthly variable expenses to which Gretchen testified is $94. This discrepancy is immaterial to our decision.
[4] After performing the calculations required by Wis. Admin. Code § DCF 150.04(2) to determine the child support obligations of shared placement parents, the parent with a greater child support obligation is the shared placement payer. That parent pays the lesser of the amount determined under the shared placement formula and the amount using the straight percentage standard in § DCF 150.03(1). § DCF 150.04(2)(b)5.
[5] Wisconsin Stat. § 767.511(1m) provides:
Deviation from standard; factors. Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
(a) The financial resources of the child.
(b) The financial resources of both parents.
(bj) Maintenance received by either party.
(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902(2).
(bz) The needs of any person, other than the child, whom either party is legally obligated to support.
(c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
(d) The desirability that the custodian remain in the home as a full-time parent.
(e) The cost of daycare if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
(ej) The award of substantial periods of physical placement to both parents.
(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.41.
(f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under s. 767.513.
(g) The childs educational needs.
(h) The tax consequences to each party.
(hm) The best interests of the child.
(hs) The earning capacity of each parent, based on each parents education, training and work experience and the availability of work in or near the parents community.
(i) Any other factors which the court in each case determines are relevant.
[6] As already noted, Gretchen does not contest that under the shared placement formula Michael would pay $195 per month. Assuming that 31% is a fair share of the variable expenses for Michael to pay, and accepting Gretchens testimony during the contempt hearings that the annual variable expenses were $3634 for the year beginning August 2007 through July 2008, Michaels share would be $1126.54 annually or $94 per month. Thus, under the shared placement standard, Michaels monthly obligation, including the variable expenses, would be approximately $289 per month.