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COURT OF APPEALS DECISION DATED AND RELEASED March 12, 1997 |
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. |
Nos. 95-2537
96-0009
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage
of:
MICHAEL R. LUTERBACH,
Petitioner-Appellant,
v.
DENISE M. LUTERBACH,
n/k/a DENISE M.
PATULSKI,
Respondent-Respondent.
APPEAL from orders of
the circuit court for Waukesha County:
CLAIR VOSS, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. In these consolidated appeals, Michael R. Luterbach
appeals from an August 1995 child support order and a December 1995 order
denying his motion to modify the August 1995 child support order. While we affirm the August 1995 order
setting child support, we reverse the December 1995 order because the trial
court had jurisdiction to entertain Luterbach's child support modification
motion during the pendency of Luterbach's appeal from the August 1995
order. Therefore, we remand to the
circuit court for a hearing on Luterbach's motion to modify child support.
The August 1995 child
support order was entered after hearings on Denise M. Patulski's motion to set
child support.[1] In setting child support, the court had to
determine the parties' respective incomes.
The court set Luterbach's income at $69,000 per year and Patulski's at
$15,000. Luterbach disputes these
determinations on appeal.
Postdivorce child
support issues are within the trial court's discretion. See Luna v. Luna, 183
Wis.2d 20, 25, 515 N.W.2d 480, 482 (Ct. App. 1994). We will uphold the trial court's discretionary decision if it
exhibits a rational reasoning process based on the facts in the record or
reasonable inferences therefrom and the correct application of the proper legal
standards to those facts. See Haugan
v. Haugan, 117 Wis.2d 200, 216, 343 N.W.2d 796, 804 (1984). We sustain the trial court's income
determinations.
Luterbach contends that
the trial court exhibited a bias in favor of mothers because its income
determination did not require Patulski to work full time and bear equal
responsibility for the support of the children. We disagree with Luterbach's characterization of the trial
court's decision. The court found that
Patulski, who had chosen not to work full time, was earning less than $10,000
per year working part time. The court
found that she could earn $20,000 per year working full time and attributed
that amount to her, less a $5000 day care expense which it believed Patulski
would incur if she actually worked full time.
Therefore, the court imputed $15,000 in income to Patulski for purposes
of determining child support under the shared-time payer formula. See
Wis. Adm. Code §§ HSS
80.02(25) and 80.04(2). It is apparent
from the trial court's decision that it expected Patulski to support the
children with full-time employment and for that reason attributed what it
believed to be the equivalent of a full-time income to her.
Luterbach also argues
that the trial court erroneously reduced Patulski's income from $20,000 to
$15,000 to reflect an unsubstantiated $5000 day care expense Patulski would
incur if she worked full time. He
complains that he was not given a similar child care expense credit even though
he works full time and has placement of the children for an equal amount of the
time.[2] While we agree that the trial court unevenly
approached the question of day care expenses in light of the parties' shared
placement of their children, we sustain the trial court's attribution of
$15,000 in annual income to Patulski on another ground. See Bence v. Spinato,
196 Wis.2d 398, 417, 538 N.W.2d 614, 620 (Ct. App. 1995).
As Patulski convincingly
argues in her respondent's brief, the trial court's attribution to her of
$20,000 per year income was inaccurate in light of the evidence adduced at
trial. At the time of the hearing,
Patulski was earning $7 per hour working 20 to 25 hours per week. Working full time at $7 per hour, Patulski
would earn $14,560 annually. Although
the trial court may have erred in granting Patulski a $5000 child care credit
for which there was no evidence at the hearing, we can sustain its attribution
of $15,000 per year to Patulski because this amount is consistent with what
Patulski could earn if she were working full time.
Luterbach challenges the
trial court's attribution of $69,000 income to him for child support
purposes. We conclude that the trial
court properly exercised its discretion in this regard as well. Evidence of Luterbach's weekly income for
the one-year period preceding the hearing[3]
showed a weekly salary at a level which previously yielded a $75,000 annual
income (as demonstrated by Luterbach's 1992 and 1993 tax returns). After the motion was filed, Luterbach's
payroll checks became fewer and farther between.[4] Luterbach testified that he did not believe
he should have to pay child support because the children spent an equal amount
of time with him and Patulski. The
court pegged Luterbach's income at $69,000 which "reflect[ed] a middle
ground of the $75,000 he has earned in the past with claims that he will earn
as low as $63,000" based on evidence presented at the hearing that
Luterbach's corporation was experiencing decreased revenue, resulting in less
income to Luterbach.
Although the trial court
did not explicitly find, there is evidence in the record from which the court
could have inferred that Luterbach was capable of earning more than the few
paychecks he received subsequent to service of the motion to set child
support. Furthermore, the trial court,
as the arbiter of witness credibility and demeanor, see Village of
Big Bend v. Anderson, 103 Wis.2d 403, 410, 308 N.W.2d 887, 891 (Ct.
App. 1981), questioned Luterbach's testimony regarding his income and
characterized some of Luterbach's testimony as "evasive." Based on this record, we conclude that the
court properly exercised its discretion in setting child support based on
$69,000 in income attributable to Luterbach.
We turn to the trial
court's denial of Luterbach's September 1995 motion to modify the August 1995
child support order. The trial court
declined to entertain the motion on the ground that it lacked jurisdiction to
modify the August 1995 order once Luterbach filed his appeal. Luterbach's modification motion claimed a
substantial change in circumstances and estimated that his 1995 income was
going to be $17,000, well below the $69,000 attributed to him as a result of
the October and November 1994 child support hearings.
A trial court's ability
to act during the pendency of an appeal is governed by § 808.075, Stats.
The application of this statute to the facts of Luterbach's modification
motion presents a question of law which we review de novo. See Dep't of Revenue v. Sentry
Fin. Servs. Corp., 161 Wis.2d 902, 910, 469 N.W.2d 235, 238 (Ct. App.
1991). Section 808.075(4) provides that
the circuit court may revise a child support order during the pendency of an
appeal. See
§ 808.075(4)(d)4. Under
§ 767.32(1)(a), Stats.,[5]
child support may be modified if there has been a substantial change in
circumstances. Luterbach's motion
alleged a substantial change of circumstances and he so argued in attempting to
get a hearing on the motion. Patulski's
appellate argument does not persuade us that the trial court lacked
jurisdiction to consider Luterbach's motion.
Accordingly, we reverse the December 1995 order denying Luterbach's
motion to modify child support and remand for a hearing on that motion.
Because we affirm in
part and reverse in part, no costs are awarded to either party.[6]
By the Court.—Order
in appeal No. 95-2537 affirmed; order in appeal No. 96-0009 reversed and cause
remanded for proceedings consistent with this opinion.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Under the parties' 1991 judgment of divorce, Patulski's 1994 remarriage terminated Luterbach's family support obligation and required the entry of a child support order.
[2] In setting child support, the trial court found that the parties were in a shared-time placement arrangement within the meaning of Wis. Adm. Code §§ HSS 80.02(25) and 80.04(2).
[3] Patulski's child support motion was filed in July 1994. The hearings were held in October and November 1994. The child support order on appeal was issued in August 1995.
[4] The record indicates that for the calendar 1994 period preceding service of Patulski's motion, Luterbach received a salary of approximately $43,000 in weekly paychecks of $1442. From service of the motion in July 1994 until the time of the hearings in October and November 1994, Luterbach received only six $1442 paychecks.