COURT OF
APPEALS DECISION DATED AND
RELEASED JULY
31, 1996 |
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. 95-2662
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In re
the Marriage of:
DOLORES
DEMIR,
Petitioner-Respondent,
v.
AHMET
DEMIR,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Walworth County:
JAMES H. CARLSON, Judge. Affirmed in part; reversed in part and cause remanded with
directions.
ANDERSON,
P.J. Ahmet Demir appeals from an order finding him
in contempt and requiring him to pay Dolores Demir $61,975.05 in child support
arrearages. We conclude that the trial
court correctly determined that Ahmet was delinquent in his payments of child
support. We also conclude that Ahmet is
not entitled to credit for payments which benefitted his children, but
circumvented the original child support order.
Accordingly, we affirm in part and reverse in part the trial court.
Ahmet
and Dolores were divorced in Illinois in 1983, and Ahmet was ordered to pay
child support for their two children in the amount of $600 per month through
the Clerk of Courts of Cook County, Illinois.
From 1983 through 1996, Ahmet failed to make the support payments
through the clerk of courts; rather, he insists, he provided for his children
via an implied agreement made with Dolores.
After
the divorce, Dolores and the children moved to Delavan Lake, where Ahmet owned
a home. She and the children lived in
the home for approximately ten years and Ahmet made the mortgage and utility
payments. Ahmet occasionally purchased
groceries and vehicles for his family.
Although he made occasional direct payments to his wife and two children
“when they needed money,” he failed to make the $600 monthly child support
payment.
Dolores
filed a complaint with the Circuit Court of Walworth County based upon Ahmet's
nonpayment of child support as ordered by the divorce settlement. Ahmet responded that he owed nothing to
Dolores because Dolores and the children lived rent-free, without paying for
utilities, sanitation service, vehicles, occasional groceries and clothes
totaling more than $100,000. He
believed that a “new contract” existed between the parties to provide for child
support according to a means that was different than those articulated in the
Illinois child support order.
The
trial court held Ahmet in contempt for failing to pay child support. The court concluded that Ahmet owed the
following: $50,225.05 in arrearages,
$69,125.05 less $18,900 in credit for monies Ahmet previously paid; $10,250 due
under a note and mortgage made under part of the divorce judgment; and $1500 in
attorney's fees. The court granted
Ahmet thirty days to purge his contempt by paying Dolores the total sum of
$61,975.05. Ahmet appeals.
Chapter
767, Stats., provides the court
the law when interpreting a matter such as the one before this court. The application of a statute to a particular
set of facts is a question of law, which we review de novo. DOR v. Sentry Fin., 161 Wis.2d
902, 910, 469 N.W.2d 235, 238 (Ct. App. 1991).
It
is undisputed that at the time of trial, Ahmet was delinquent in his child
support payments, and we affirm the trial court on this point. However, we reverse the trial court's
decision to grant Ahmet credit in the amount of $18,900, for two reasons. First, § 767.32(1m), Stats., provides that “the court may not revise the amount of
child support, maintenance payments or family support payments due ¼ prior to the date
that notice of the action is given to the respondent, except to correct
previous errors in calculation.”
Second, in Douglas County Child Support Enforcement Unit v.
Fischer, 200 Wis.2d 807, 816, 547 N.W.2d 801, 805 (Ct. App. 1996), the
court ruled that payees can enforce the strict requirements of a child support
order even if the payees have accepted previous payments which were not paid
according to the original court order.
Dolores never agreed to Ahmet's alternative arrangement. Ahmet requested many times that Dolores send
some type of verification to the court in the hopes of changing the child
support arrangement, but she refused.
He verbally harassed Dolores and his children in order to change the order,
but they refused. Ahmet never sought
modification of the child support order through the courts.
Ahmet
testified that he lived at the Delavan house almost every weekend, holiday and
vacation in order to work on and improve the property. He also testified that he would have kept
the house for himself if Dolores did not live there with the children. Obviously, he would have paid the mortgage
and utility payments regardless of whether or not Dolores and the children
lived in the Delavan house.
Ahmet
profited greatly from the Delavan house, which Dolores and the children kept
clean and presentable, and is attempting to circumvent his child support
responsibilities by claiming that the mortgage and utility payments were
sufficient for credit against his arrearages.
We do not agree. His child support
payments were set to be paid to the Clerk of Courts in Cook County,
Illinois. If Ahmet wished to change the
original order, he could have sought a modification of the original order. He failed to even attempt making such
arrangements.
Douglas
County is clear. Payments must be made according to the
original court order. Douglas
County mandates a reversal of the trial court's decision to grant Ahmet
any credit in child support arrearages.
We conclude that Ahmet owes $80,875.05 ($69,125.05 + $10,250 + $1500) in
arrearages, and we direct the trial court to enforce a judgment in the amount
of $80,875.05 to be paid in a manner set forth by the trial court.
Costs
are denied to both parties.
By
the Court.—Order affirmed in
part; reversed in part and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.