|
COURT OF APPEALS DECISION DATED AND RELEASED October
25, 1995 |
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. 94-2104
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In re
the Marriage of:
KIMBERLY
K. HOTZ,
Petitioner-Appellant,
v.
RUSSELL
L. HOTZ,
Respondent-Respondent.
APPEAL
from orders of the circuit court for Walworth County: JOHN R. RACE, Judge.
Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
PER
CURIAM. Kimberly K. Hotz appeals from
trial court orders denying her request for maintenance and requiring her to pay
child support from the date the court was moved to modify child support. We discern no misuse of the trial court's
discretion and affirm.
The
judgment of divorce was entered in March 1990.
At that time, the parties agreed to joint custody of their three minor
children with primary physical placement with Russell. At the time of their divorce, the parties
stipulated that Kimberly had a child support obligation. However, Russell agreed to waive Kimberly's
percentage standard child support obligation of 29% of gross income because
Kimberly was earning substantially less than he was.[1] The parties agreed to hold open maintenance
and review Kimberly's child support obligation only upon a change of
circumstances.
On
June 29, 1993, the Walworth County Child Support Enforcement Agency moved the
trial court to set child support payments for Kimberly. In September 1993, Kimberly filed a motion
seeking maintenance.
At
the end of proceedings on December 17, 1993, the trial court applied the
percentage standard and required Kimberly to pay 29% of her gross
income as child support. Proceedings
resumed on December 20 with testimony relating to maintenance. On January 24, 1994, the third hearing in
this matter, Kimberly's counsel acknowledged that child support had been set at
the December 17 hearing and that maintenance had been adjourned. Thereafter, he made the following statement:
The other thing we have agreed to is that we will
stipulate rather than tampering with the court's original ruling on child
support that [Kimberly] will pay 29 percent of her gross income via an income
assignment through her employer, which I believe leaves the only matter before
this court then for today is the issue of maintenance which we were trying last
time and had to adjourn.
The
parties then verified their understanding that Kimberly would have to pay
approximately $500 in child support each month. Kimberly then argued in favor of a maintenance award because this
child support obligation reduced her monthly disposable income to approximately
$812, less than the amount she had at the time of the divorce ($916) when the
parties agreed she was unable to pay child support. In a memorandum decision, the trial court denied maintenance to
Kimberly.
Kimberly
challenges the trial court's use of the percentage standard to establish her
child support obligation at 29% of her gross income. She contends that the standard is unfair because she is left with
less disposable income than at the date of divorce.
Child
support may be revised if there has been a substantial change in
circumstances. Section 767.32(1), Stats.
If thirty-three months have expired since entry of the last child
support order, there is a rebuttable presumption of a substantial change in
circumstances sufficient to justify a revision of child support. Section 767.32(1)(b)2. In this case, the last child support order
was the parties' March 1990 judgment of divorce. The court was asked to modify child support in June 1993. Therefore, there was a rebuttable
presumption in this case that a substantial change in circumstances had
occurred, warranting a revision in child support.
The
trial court is required to use the percentage standards established by the
Department of Health and Social Services in revising a child support
order. Section 767.32(2), Stats.
However, upon a party's request, the court may depart from the
percentage standard if "the court finds, by the greater weight of the
credible evidence, that the use of the percentage standard is unfair to the
child or any of the parties."
Section 767.32(2m).
Kimberly
argues that the percentage standard was unfair to her. We need not reach this issue because we
conclude that on January 24, 1994, Kimberly stipulated to the court's
December 17 child support ruling. A
party cannot maintain inconsistent positions in the trial court and on appeal. See Siegel v. Leer, Inc.,
156 Wis.2d 621, 628, 457 N.W.2d 533, 536 (Ct. App. 1990).
Even
if we were to address Kimberly's claim that the trial court erred in not
deviating from the percentage standard, we would conclude that Kimberly has not
shown that application of the standard was unfair. Three children need to be supported. Kimberly's income has increased since the date of the
divorce. At the time of the divorce,
her gross monthly income was $1204 ($916 net).
At the time of the hearings on child support and maintenance, Kimberly's
gross monthly income was $1721 ($1308 net).
Under these facts, it was not unfair to apply the percentage standard.
Kimberly
next argues that the trial court erred in entering the order setting her child
support obligation nunc pro tunc to June 29, 1993. Under § 767.32(1m), Stats., the trial court may make
revisions in child support effective as of the date notice of the action is
given to the party against whom the revision is sought. The child support modification motion was
filed on June 29, 1993. This is the
best evidence of the date Kimberly received notice of the motion.[2] The trial court did not err in making her
child support obligation retroactive to that date.
Finally,
Kimberly protests the trial court's refusal to award her maintenance. Whether to modify maintenance is within the
trial court's discretion. Poindexter
v. Poindexter, 142 Wis.2d 517, 531, 419 N.W.2d 223, 229 (1988). Maintenance may be modified only upon a
showing of a substantial change in the financial circumstances of the
parties. Gerrits v. Gerrits,
167 Wis.2d 429, 437, 482 N.W.2d 134, 138 (Ct. App. 1992). Although the trial court did not explicitly
undertake this analysis, we must uphold its discretionary decision to deny
maintenance because there are facts of record which would support the trial
court's decision had discretion been exercised on the basis of those
facts. Liddle v. Liddle,
140 Wis.2d 132, 150-51, 410 N.W.2d 196, 203‑04 (Ct. App. 1987).
The
parties' hold-open agreement regarding child support and maintenance was based
upon Kimberly's inability to pay child support on a monthly gross income of
$1204 ($916 net). Kimberly did not pay
child support for over three years. During
that time, she experienced a $500 increase in her gross monthly income. The trial court balanced the equities and
determined that Kimberly should dedicate that increase to supporting her
children. The trial court denied
Kimberly maintenance to avoid reducing the amount of parental funds available
to support the parties' three children.
The court reasoned that the benefit of maintenance to Kimberly was
outweighed by the necessity of supporting the parties' three children.[3] Under these circumstances, the trial court's
decision to dedicate the parents' income to supporting their children, rather
than each other, was a proper exercise of its discretion.
Additionally,
the parties' hold-open agreement contemplated reviewing Kimberly's child
support obligation upon a change of circumstances. It is undisputed that circumstances have changed for purposes of
child support—in addition to the presumption of a change in circumstances under
§ 767.32(1)(b)2, Stats.,
Kimberly's monthly income has increased.
However, for purposes of maintenance, Kimberly's net monthly disposable
income after paying child support ($898)[4]
has not changed appreciably since the date of the divorce ($916). Therefore, there was no substantial change
in circumstances warranting a maintenance award.
By
the Court.—Orders affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.