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COURT OF APPEALS DECISION DATED AND RELEASED December 14, 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. 95-1267-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
TERRY W. STULTS,
Petitioner-Appellant,
v.
SUSAN C. PORFILIO
f/k/a SUSAN C. STULTS,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER CURIAM. Terry Stults appeals from an order of the
circuit court modifying his divorce judgment from Susan Porfilio, f/k/a Susan
Stults. For the reasons set forth
below, we affirm.[1]
The parties were
divorced in 1983. At that time, no
support was ordered, as the parties were each assigned financial responsibility
for two of the four children of the marriage.
At the time, the children spent equal amounts of time with both parents,
but over time, the children came to reside mainly with Porfilio. Porfilio and Stults went into mediation in
1984, and again in 1987, and the result was an agreement that the children
would live mainly with Porfilio. Stults
was given visitation, and each party continued to be financially responsible
for two of the four children. Neither
party paid support.
In 1995, Porfilio
commenced this action, requesting that Stults be required to pay support. Porfilio testified that although Stults
continued to have financial responsibility for two of the children, the fact
that they were living with her meant that she paid a disproportionate amount of
their expenses. Other testimony at the
hearing indicated that Stults' income more than doubled since the time of the
original divorce judgment, and that the children's expenses (especially clothing
and medical care) had increased.
The circuit court found
as a matter of fact that the 1984 and 1987 agreements reached in mediation were
informal agreements, not approved by a judge or intended to be contracts. The circuit court also found a change in
circumstances, based primarily on the increase in Stults' income since the
original divorce decree. The court
ordered Stults to pay support for the minor children at the current child
support guidelines (Wis. Adm. Code
ch. HSS 80).
Stults reads Jacquart
v. Jacquart, 183 Wis.2d 372, 515 N.W.2d 539 (Ct. App. 1994), to hold
that if a father has been paying an essentially fair amount under a prior
agreement, then it is error for a circuit court to change the amount payable by
the father. Stults misreads Jacquart. In Jacquart, the parties had a
prior contractual agreement that the father would make payments in lieu of
child support and maintenance payments.
In the exercise of its discretion, the circuit court upheld the parties'
contractual arrangements over the mother's challenge. It reasoned that the mother was bound by the contract, and that
because the father was complying with the judgment of divorce and paying all
the children's needs, there was no reason to upset the contract. Id. at 386-87, 515 N.W.2d at
544. The Jacquart court
also noted that the father in that case was a high-end payor, and that the
circuit court had specifically found that the percentage guidelines might not
apply in such a situation. Id.
at 389 n.9, 515 N.W.2d at 545.
Stults' situation is not
on point with Jacquart.
As the circuit court correctly found, Stults and Porfilio have no
contract and Stults is not a high-end payor.
Further, even read generously, Jacquart does not stand for
the proposition that a circuit court cannot correctly exercise its discretion
and modify a divorce judgment. Rather,
"modification of child support rests within the sound discretion of the
family court and will not be overturned on appeal absent a misuse of the
court's discretion.... This discretion
is properly exercised when the court has considered the needs of the custodial
parent and children, and the ability of the noncustodial parent to
pay." Jacquart, 183
Wis.2d at 381, 515 N.W.2d at 542 (citation omitted).
No misuse of circuit
court discretion has been demonstrated here.
The court specifically found that there had been a substantial change in
circumstances, and correctly noted that Stults had not been paying within the
current DHSS guidelines. We therefore
affirm the order which has the effect of imposing DHSS guidelines in this
case.
By the Court.—Order
affirmed
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.