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COURT OF APPEALS DECISION DATED AND RELEASED November 21, 1996 |
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. 96-0902-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
In re the Marriage of:
MARSHA LUBINSKI,
Petitioner-Respondent,
v.
ROBERT LUBINSKI,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER CURIAM.[1] Robert
Lubinski appeals from an order modifying child support. The issue is whether the trial court
erroneously exercised its discretion because it did not further reduce Robert's
support obligation. We conclude that
the trial court appropriately exercised its discretion in reducing support when
it found that Robert would become a shared-time payer, according to the
parties' anticipated placement schedule (projection), despite his failure to
conclusively establish the number of overnights he would have with his son,
Ryan. Therefore, we affirm.
The parties' divorce
judgment awarded Marsha primary placement of Ryan and awarded Robert
"reasonable and liberal" visitation.
Robert was paying $265 monthly child support, which was comparable to
seventeen percent of his gross income. See
Wis. Adm. Code § HSS
80.03(1)(a). The parties informally modified the placement schedule and
during the most recent year, Robert had Ryan for eighty-nine overnights. The parties have now agreed to a new
schedule in which they anticipate that Robert will have more overnights. This projection prompted Robert to move to
modify child support.
The trial court
concluded that the pattern of Ryan's increased placement with Robert
constituted a substantial change of circumstances. It found that Robert would meet the threshold of 109.5
overnights annually, or thirty percent of the year, changing his status to a
shared-time payer. See Wis. Adm. Code § HSS 80.02(25)
and (28). The trial court reduced
Robert's child support from seventeen percent to fourteen percent of his gross
income, comparable to having Ryan approximately thirty-six percent of the
year. See Wis. Adm. Code § HSS 80.04(2)(b).
It also reasoned that "if at the end of the year" Robert could
establish that he had Ryan "around
150 nights," then "another adjustment is appropriate."
The trial court has the
discretion to modify a child support award once the movant has established a
substantial or material change of circumstances. See Long v. Wasielewski, 147 Wis.2d 57, 60,
432 N.W.2d 615, 616 (Ct. App. 1988). No
one disputes that there is a pattern of increased placement with Robert which
constitutes a substantial change of circumstances.
Robert's criticism is
that the trial court refused to reduce support to reflect the most recent
placement projection. Although Robert
claims that he will have Ryan a minimum of forty-one percent of the year, the
trial court found that Robert had not conclusively established the precise
number of overnights he will have with Ryan over the thirty percent threshold.
The trial court
considered the most recent past, along with the parties' new projection, and
concluded that Robert will have Ryan a minimum of 109.5 overnights annually,
meeting the thirty percent threshold of Wis.
Adm. Code HSS § 80.02(28).
The trial court reduced support to reflect the pattern of Ryan's
increased placement with Robert. We
conclude that the trial court appropriately exercised its discretion in doing
so. Accord Schneller v.
St. Mary's Hosp. Medical Ctr., 162 Wis.2d 296, 311-12, 470 N.W.2d 873,
879 (1991) (if the reviewing court can conclude that the trial court's finding
is implicit from its review of the record and the trial court's conclusion, to
order a remand only to convert an implicit finding to an explicit finding is a
waste of resources).
The trial court also
advised the parties that it would consider a five to ten percent increase in
placement with Robert as a substantial change of circumstances, warranting
further modification. Considering the
parties' intention to dramatically change placement arrangements, the trial
court's preference to await evidence of a pattern of consistently increased
placement with Robert before severely reducing support is an appropriate
exercise of discretion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.