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COURT OF APPEALS DECISION DATED AND RELEASED November
30, 1995 |
NOTICE |
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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. 95-0173
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN RE
THE MARRIAGE OF:
FAITH
OLSON,
Petitioner-Appellant,
v.
TERRY
OLSON,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Clark County: MICHAEL W. BRENNAN, Judge.
Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
PER
CURIAM. Faith Olson appeals from an order requiring her to pay
to Terry Olson twenty-five percent of her gross income or twenty-five percent
of gross income at minimum wage, whichever is greater, for the support of their
two minor children. She contends that
the trial court erroneously exercised its discretion by considering her earning
capacity, instead of her actual income, when setting the amount of child
support. Faith also argues that the
trial court erroneously exercised its discretion by failing to find that the
statutory percentage standard was unfair to her under § 767.32(2m), Stats.
We reject Faith's arguments and affirm.
Faith
and Terry Olson were married in 1980 in Withee, Wisconsin. They have two children, Selena Marie, born
June 17, 1981, and Angela Sue, born January 5, 1983. The couple divorced in 1986 and Faith was awarded primary physical
custody of the children. Terry was
ordered to pay child support. In 1989,
Faith and the children moved to Eau Claire, Wisconsin to reside with James
Newell. At the time of the move, Faith
was employed with the Clark County Health Care Center. She terminated that employment after the
move to Eau Claire and has not worked outside the home since. Faith and Mr. Newell have two children
together. These children are ages four
and two.
In
August of 1994, the parties stipulated that primary physical placement of Terry
and Faith's two minor children would be transferred to Terry and that the
parties would share legal custody.
Terry and Faith also agreed that Terry's child support obligation would
cease, but they could not agree on the amount of support that Faith would pay
to Terry. After a hearing, the trial
court ordered Faith to pay twenty-five percent of her gross income, or an
amount equal to twenty-five percent of a full-time minimum wage job, whichever
was greater. The trial court based its
determination on Faith's earning capacity, not on her actual current earnings
(which are zero).
The
establishment and revision of child support is committed to the discretion of
the trial court. See Edwards
v. Edwards, 97 Wis.2d 111, 116, 293 N.W.2d 160, 163 (1980). This court will affirm the trial court's
exercise of discretion where the decision reflects a "reasoning process
dependent on facts in, or reasonable inferences from, the record and a
conclusion based on proper legal standards." Abitz v. Abitz, 155 Wis.2d 161, 174, 455 N.W.2d
609, 615 (1990) (quoting Ashraf v. Ashraf, 134 Wis.2d 336,
340-41, 397 N.W.2d 128, 130 (Ct. App. 1986)).
When
a court determines child support based on a parent's earning capacity, instead
of actual earnings, it must consider the voluntariness of the actions that have
reduced the parent's ability to pay child support, and the reasonableness of
those actions in light of the parent's child support obligations. Smith v. Smith, 177 Wis.2d
128, 138, 501 N.W.2d 850, 854 (Ct. App. 1993).
Faith
argues that her decision to quit her job at the health care center was not
voluntary and was not unreasonable in light of the child support obligations
she had at that time. She contends that
the trial court applied an incorrect legal standard because it did not look at
the reasonableness of her decision to terminate her employment in light of her
support obligations as they existed in 1989.
Faith's position is that if the decision to quit her job in 1989 was
reasonable in light of the support obligations she had in 1989, then the court
cannot consider her earning capacity to determine her current support
obligation, regardless of whether it is reasonable for her to seek employment
under her current circumstances.
In
Smith, we held that a court may consider a parent's earning
capacity, as opposed to actual earnings, only if the decisions that have
reduced the parent's ability to pay child support were voluntary and
unreasonable in light of the parent's existing child support obligations. Id. at 138, 501 N.W.2d at
854. Faith's argument assumes that the
1989 decision to quit her employment reduces her current ability to pay child
support. But Faith does not argue that
she is unable to find work now because she quit working in 1989. Indeed, she testified that she does not want
to find employment now because she wants to remain at home with her two
youngest children. The decision that is
reducing Faith's ability to pay child support is her unwillingness to secure
employment now, not the fact that she quit her job in 1989. The trial court correctly considered the
reasonableness of her decision not to work now, rather than her decision not to
work in 1989.[1]
Faith's
desire to stay at home with her two younger children must be balanced with her
current obligation as a non-custodial parent to financially support her two
older children. The facts presented
here are nearly identical to those in Roberts v. Roberts, 173
Wis.2d 406, 496 N.W.2d 210 (Ct. App. 1992).
In Roberts, we upheld the trial court's determination to
base the child support obligation on the parent's earning capacity, rather than
actual earnings, where the parent had chosen to stay home to care for her
younger child. We recognized that a
parent with a support obligation has some leeway in choosing employment and may
pursue his or her best opportunities even though that might mean working for a
time for a lesser financial return. Id.
at 412, 496 N.W.2d at 213. But we noted
that this rule is subject to reasonableness commensurate with the parent's
obligation to his or her children. Id. "[The parent's] election to forego
employment for the benefit of her most recent child operates to the detriment
of her other children—whose needs for support are certainly no less." Id.
The
trial court had before it evidence concerning Faith's prior employment, limitations
on current employment opportunities, estimates on the cost of child care if she
were to work, the income of her younger children's father, the income of Terry
and his wife, and the parties' general economic circumstances. The trial court could reasonably decide that
Faith's support obligation to her older children outweighs her desire to remain
at home with her two younger children.
We conclude the court properly exercised its discretion in considering
Faith's earning capacity, rather than her actual income, in setting child
support.
Faith
also contends that the trial court erroneously exercised its discretion in
failing to find that the statutory percentage standard is unfair to her. Sections 767.32(2m) and 767.25(1m), Stats., allow the trial court to
deviate from the percentage standards established by the Wisconsin Department
of Health and Social Services only 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 to any of the parties. Kjelstrup
v. Kjelstrup, 181 Wis.2d 973, 975, 512 N.W.2d 264, 265 (Ct. App.
1994). Faith claims that the trial
court did not properly take into account the "extraordinary travel
expenses" she incurs in exercising her visitation rights,
§ 767.25(1m)(em), Stats.,
and the needs of other persons Faith is legally obligated to support,
§ 767.25(1m)(bz), that is, her two younger children.
The
trial court heard Faith's testimony on the expenses she incurred in traveling
to pick up her two older children to take them back to her home, which is 160
miles round trip. The court ordered
that transportation responsibilities be divided equally between Faith and
Terry. The court implicitly determined
that it was not unfair to Faith to pay child support based on the percentage
standard in addition to paying one-half of the transportation expenses. We cannot say this is an unreasonable
conclusion based on the record. Faith
did not present evidence that she will be unable to meet her own expenses,
assuming she obtains minimum wage employment as the court found she was able to
do.
The
trial court also heard Faith's testimony on daycare costs for her two younger
children if she works. This was the
only evidence on specific expenses for her younger children, although the trial
court was certainly aware of her obligation to support them. But there was also evidence that James
Newell, who has a legal obligation to support Faith's two younger children, has
an annual income of at least $60,000.
The court could reasonably conclude it was not unfair to Faith or to her
two younger children to apply the percentage standard.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.