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COURT OF APPEALS DECISION DATED AND FILED November 1, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Milwaukee
County: william sosnay, Judge.
Affirmed.
Before Fine, Curley and Kessler, JJ.
¶1 PER
CURIAM. Thomas McPhetridge appeals pro se from a
circuit court order affirming a child support lien against income property he
owns. McPhetridge argues that a child
support lien may not lie against income property awarded pursuant to an
underlying divorce judgment. Because the
lien is proper, we affirm.
¶2 The
following facts are undisputed.
McPhetridge and his former wife, Christine A. McPhetridge, n/k/a
Christine A. Owens, were divorced in 1997.
The parties had two minor children.
McPhetridge failed to make court ordered child support payments over a
number of years, resulting in an arrearage of over $5000 at the end of 2002.[1] His arrearage was entered in the child
support lien docket under Wis. Stat. § 49.854
(2003-04)[2]. Under the statute, a lien is created by
operation of law for the amount of unpaid support owed by a support payer
against all property owned by that payer so long as the amount exceeds the lien
docket threshold set by the Department of Workforce Development. The threshold as of December 2002 was $5000.
¶3 McPhetridge
contested his certification to the child support lien docket pursuant to Wis. Stat. § 49.854(3)(a). A hearing was held and a family court
commissioner determined that the State’s record of McPhetridge’s arrearages was
correct and that the lien certification was proper.
¶4 McPhetridge
moved the circuit court for de novo review, claiming the lien
certification statute impermissibly applied to a duplex residence awarded to
him by the divorce court in its division of marital property. After hearing the motion, the circuit court
ordered that the lien docket certification was proper. McPhetridge appeals.
¶5 The issue
presented is whether the circuit court properly applied the lien docket
certification statute to undisputed facts.
We decide such questions of law independently and without deference to
the decision of the lower court. See,
e.g., Kania v. Airborne Freight Corp., 99 Wis. 2d
746, 758, 300 N.W.2d 63 (1981).
¶6 The statute at stake, Wis. Stat. § 49.854(2)(a), provides as follows:
If a person obligated to pay support fails to pay any court-ordered amount of support, that amount becomes a lien in favor of the department upon all property of the person. The lien becomes effective when the information is entered in the statewide support lien docket under par. (b) and that docket is delivered to the register of deeds in the county where the property is located. A lien created under this paragraph is not effective against a good-faith purchaser of titled personal property, unless the lien is recorded on that title.
McPhetridge
argues here, as he did before the circuit court, that Maley v. Maley,
186 Wis. 2d 125, 519 N.W.2d 717 (Ct. App. 1994), prohibits the creation of
a child support lien if it would apply to property awarded in an underlying
divorce.
¶7 McPhetridge
misapprehends Maley. Maley
stands for the proposition that a child support arrearage may not be
applied against a capital gain reported on a tax return of a sale of an asset
awarded pursuant to a property division in a divorce judgment. The facts of Maley are clearly
distinguishable from the facts at bar as this case does not involve the sale of
a property and the report of capital gains from such a sale.
¶8 Instead,
this case involves income and is, therefore, more properly governed by Cook
v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Cook held that military
retirement pay awarded to the non-custodial parent was subject to an award of
child support. 208 Wis. 2d at
169. The non-custodial parent argued
that it was impermissible “double-counting”[3] to
include as income the portion of his military retirement pay awarded to him
pursuant to the property division in the divorce judgment, for purposes of
calculating child support. Id.
¶9 The supreme court rejected the non-custodial parent’s argument on two grounds. First, the supreme court concluded that the “double-counting” rule is not an absolute bar, but rather a caution, “to warn parties, counsel and the courts to avoid unfairness by carefully considering the division of income-producing and non-income-producing assets and the probable effects of that division on the need for maintenance and the availability of income to both parents for child support.” Id. at 180. Second, the supreme court determined that the rule does not strictly apply in the context of child support because property division and child support, while related, differ in fundamental ways:
[A] review of the cases convinces the court that the Kronforst “double-counting” rule does not apply in the context of child support. Property division, maintenance and child support, although related, differ from each other. A property division distributes assets owned by the parties in an equitable fashion. Maintenance and child support provide for support, usually from current income. Maintenance, however, looks to the relative positions of the former spouses, while child support is based on the needs of the children and the financial abilities of the parents. Nevertheless, there is significant overlap in the three. The statutes require a circuit court in setting both maintenance and child support to consider the property division. Wis. Stat. §§ 767.25(1m)(b), 767.26(3) (1993-94).
Cook, 208 Wis. 2d at
180.
¶10 Under Cook,
McPhetridge’s income from the duplex, virtually the only income available to
him for the support of his two children, is not barred by the “double-counting”
rule and is consistent with the court’s concern for fairness between the
parties and the needs of the children expressed in Cook. The record is undisputed that the children’s
needs are ongoing and have been met by Owens.
Meanwhile, McPhetridge has refused to pay child support voluntarily. The child support lien docket was created to
ensure that individuals with property, like McPhetridge, are prevented from
neglecting court-ordered child support without consequence. In light of Cook, we hold that
the circuit court’s order affirming a child support lien on McPhetridge’s
income property and dismissing his challenges to earlier court orders in the
matter was proper and lawful.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] McPhetridge admitted to the circuit court during the hearing on his challenge to the lien docket certification that his child support arrearages exceeded $10,000 at the time of the hearing.
[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[3] The rule against impermissible “double-counting” was first announced in Kronforst v. Kronforst, 21 Wis. 2d 54, 123 N.W.2d 528 (1963). Although the “contours and rationale of the Kronforst rule are not clear,” generally speaking the rule prohibits “the double-counting of an asset, once in property division and once in the maintenance award.” Cook v. Cook, 208 Wis. 2d 166, 177, 560 N.W.2d 246 (1996) (citation omitted).