COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER
14, 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. 95-1264-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
In re
the Marriage of:
AUDREY
ANN (BRICKO) YENTER,
Petitioner-Respondent,
v.
ANDREW
KENNETH BRICKO,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Marathon County: MICHAEL W. HOOVER, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Andrew Bricko appeals an order
denying his motion to modify child support.[1] The divorce judgment incorporated a
stipulation that Bricko pay $439 per month child support. He requested a modification to require him
to pay 17% of his income. The trial
court found that Bricko had not established a substantial change of circumstances
from the time of the initial divorce judgment.
Because the record supports the trial court's finding, we affirm the
order.
Six
months before the divorce judgment, Bricko voluntarily quit his job at Marion
Plywood to start his own sawmill business.
He stipulated to pay $439 per month child support. That amount represented 17% of his income at
Marion Plywood. At the time he entered
the stipulation and the divorce judgment was granted, Bricko had no income.
The
record supports the trial court's finding that Bricko did not establish a
substantial change in circumstances. At
the time Bricko agreed to pay $439, he knew he was entering into a new business
venture. Bricko presented no evidence
that the business is not doing as well as he anticipated at the time he entered
the stipulation. Bricko's agreement to
pay $439 per month when he had no income showed that changes in his financial
circumstances relating to the start-up of the new business were anticipated at the
time of the initial divorce judgment.
The stipulation represented 17% of his earning capacity at that
time. Bricko presented no evidence that
his earning capacity changed. The
principles of res judicata preclude relitigation of the amount of support when
the factual situation has not materially changed. See Besaw v. Besaw, 89 Wis.2d 509, 520, 279
N.W.2d 192, 197 (1979).
Bricko
argues that § 767.32(b)(4), Stats.,
creates a rebuttable presumption of a substantial change in circumstances
because he established a difference between the amount of child support ordered
by the court and the amount he would have had to pay based on the percentage
standards. That presumption applies
when the court did not use the percentage standards in determining the initial
child support payments. Bricko's argument
fails for two reasons. First, although
the initial judgment did not recite that it was based on the percentage
standard, the amount ordered constituted 17% of Bricko's previous wages. Therefore, it appears that the percentage
standards were used in determining the initial amount. Second, the presumption of changed
circumstances has been rebutted by evidence showing that Bricko's business,
working hours and conditions, and the marketability of his product were the
same or better compared to the time the stipulation was entered.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.