Beaupre v. Airriess

• Decision Date: 09 January 1997
• Docket Number: No. 96-0336,96-0336
• Citation: 208 Wis.2d 238,560 N.W.2d 285
• Parties: In re the Marriage of Sandra K. BEAUPRE, Petitioner-Appellant, v. Eric G. AIRRIESS, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 285

560 N.W.2d 285

208 Wis.2d 238

In re the Marriage of Sandra K. BEAUPRE, Petitioner-Appellant, v. Eric G. AIRRIESS, Respondent-Respondent.

No. 96-0336.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 12, 1996.

Opinion Released Jan. 9, 1997.

Opinion Filed Jan. 9, 1997.

For the petitioner-appellant the cause was submitted on the briefs of Karen D. Julian of Julian, Musial & Friedrich of Madison.

For the respondent-respondent the cause was submitted on the brief of Eric Airriess, pro se of Madison.

Before EICH, C.J., and VERGERONT and DEININGER, JJ.

DEININGER, Judge.

Sandra Beaupre appeals an order granting her ex-husband's motion for a reduction in child support. The issues are: (1) whether an amendment to the administrative code constitutes a "substantial change in circumstances" justifying a modification of child support under § 767.32(1)(a), STATS.; and (2) whether the trial court properly denied Beaupre's requests for frivolous costs and attorney fees and for a contribution by Airriess to her costs and fees in the circuit court and on appeal.

We conclude that a change in an administrative regulation alone does not constitute a substantial change in circumstances allowing modification of child support. Further, we reject Beaupre's request for frivolous costs and attorney fees and for a contribution to her costs and trial attorney fees, but we conclude that Beaupre may be entitled to a contribution to her costs and attorney fees for this appeal. Accordingly, we reverse the order and remand for a determination whether Beaupre is entitled to a contribution to her appellate costs and attorney fees.

BACKGROUND

Sandra Beaupre and Eric Airriess were divorced on January 30, 1995. Beaupre was given primary placement of the parties' children. Airriess received placement of the children for one night a week, alternate weekends, and some holidays and school vacations. The parties stipulated that Airriess would pay child support in the amount of 25% of his gross income, in accordance with WIS.ADM.CODE § HSS 80.03 guidelines for two children. The stipulation was incorporated into the judgment of divorce.

Six weeks after the judgment was entered, Airriess filed a motion to decrease his child support obligation pursuant to WIS.ADM.CODE § HSS 80.04(2). ¹ This rule, newly revised since the judgment of divorce, sets guidelines for determining child support for shared-time payers. Airriess did not allege any change in the parties' financial circumstances or the financial needs of the children.

Beaupre filed a motion to dismiss and requested attorney fees and costs under the frivolous action statute, § 814.025, STATS., and later filed a motion for costs and attorney fees on appeal under § 767.39, STATS. The trial court granted Airriess' motion to reduce child support, finding"that there has been a substantial change in circumstances by the adoption of revised Statute HSS80" and, applying WIS.ADM.CODE § HSS 80.04(2), reduced Airriess' child support obligation by $104 per month. The court denied Beaupre's motions for frivolous costs and fees and for a contribution to her appellate costs and fees. The court also denied a contribution to costs and trial attorney fees to either party.

ANALYSIS

Substantial Change in Circumstances

Modification of the amount of child support is committed to the sound discretion of the trial court. Burger v. Burger, 144 Wis.2d 514, 523, 424 N.W.2d 691, 695 (1988). We will not reverse a trial court's discretionary ruling where the trial court arrives at a conclusion that is one a reasonable judge could reach and consistent with applicable law. Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct.App.1991). However, if the discretionary determination rests upon an error of law, the decision is beyond the limits of the trial court's discretion. State v. Wyss, 124 Wis.2d 681, 734, 370 N.W.2d 745, 770 (1985).

Under § 767.32(1)(a), STATS., a judgment providing for child support may be revised "only upon a finding of a substantial change in circumstances." The statute lists four factors which may constitute a substantial change in circumstances: (1) a change in the payer's income, where the amount of child support is not expressed as a percentage of income; (2) a change in the child's needs; (3) a change in the payer's earning capacity; or (4) any other factor the court deems relevant. Section 767.32(1)(c). Beaupre argues that an individual seeking to modify support must show a change in the factual circumstances of the parties, not simply an administrative rule change, before child support may be modified. ² We agree. ³

Judgment provisions regarding child custody and support are not subject to traditional principles of claim preclusion and may be altered even after a final judgment. See §§ 767.32 & 767.325, STATS.; Thies v. MacDonald, 51 Wis.2d 296, 301-02, 187 N.W.2d 186, 189 (1971). However, Wisconsin courts have long held that judgments of custody and support based on a certain state of facts should be given the effect of claim preclusion as long as the state of facts has not materially changed. Severson v. Severson, 71 Wis.2d 382, 386, 238 N.W.2d 116, 119-20 (1976).

The supreme court outlined the factors a trial court is to consider when determining whether child support should be modified in Miller v. Miller, 67 Wis.2d 435, 442-43, 227 N.W.2d 626, 630 (1975):

An increase in support payments will be granted only where the party seeking such increase demonstrates that there has been a substantial or material change in the circumstances upon which the existing payments were predicated, and that such an increase is justified. The aging of the children, the increased cost of living, the ability of the noncustodial parent to pay, the marital status of the parents, and the financial status of the parents and their spouses, are among the relevant factors to be considered in determining whether a material change in the circumstances has occurred.

(Footnotes omitted).

The Wisconsin Supreme Court has further explained that "the court's power to modify is not the power to grant a new trial or to retry the issues determined in the original judgment, but 'only to adapt the decree to some distinct and definite change in the financial circumstances of the parties or children.' " Severson, 71 Wis.2d at 387, 238 N.W.2d at 120 (quoting Thies, 51 Wis.2d at 302, 187 N.W.2d at 189).

The statute governing modifications to child custody orders similarly provides that a trial court may not alter a custody order unless "[t]here has been a substantial change of circumstances" of the parties. See § 767.325, STATS. In Licary v. Licary, 168 Wis.2d 686, 484 N.W.2d 371 (Ct.App.1992), we held that an amendment to the statute governing determinations of child custody, § 767.24(2)(b), STATS., which altered the circumstances under which the trial court may grant joint custody, did not constitute a "substantial change of circumstances" justifying a modification of the custody order. There we stated:

The term "substantial change of circumstances" is well known in family law. It focuses on the facts. It compares the facts then and now. It requires that the facts on which the prior order was based differ from the present facts, and the difference is enough to justify the court's considering whether to modify the order.

Id. at 692, 484 N.W.2d at 374.

The sole ground for the trial court's modification of support was the amendment to WIS.ADM.CODE § HSS 80.04(2). Airriess does not contend that the facts on which the prior order was based differ from present facts. He refers us to no evidence showing that either his or Beaupre's financial circumstances, or the needs of the children, are substantially different from what they were at the time the judgment of divorce was entered.

Airriess cites two cases which he contends allow a trial court to modify child support based on a statutory revision. In Schmitz v. Schmitz, 70 Wis.2d 882, 236 N.W.2d 657 (1975), the payee parent moved to have the payer held in contempt when he failed to make child support payments once the children reached eighteen. The Wisconsin Supreme Court held that the statute decreasing the age of majority from twenty-one to eighteen took away the "family court['s] ... inherent power ... to order child support in favor of eighteen-year-old adults." The supreme court affirmed the trial court's order allowing the payer to cease payments once the children reached age eighteen, despite an earlier order requiring payments until the children reached twenty-one. Id. at 890, 236 N.W.2d at 662.

In Behnke v. Behnke, 103 Wis.2d 449, 309 N.W.2d 21 (Ct.App.1981), we held that the newly enacted § 767.25(4), STATS., which empowered circuit courts to extend child support until the age of nineteen for a child still in high school, could be applied to modify support even where the original support order predated the statute. Id. at 454, 309 N.W.2d at 23. We did not require the moving party to show a substantial change in factual circumstances. However, the law enacting § 767.25(4) specifically provided for the application of the statute to motions to modify support where the original support order predated the statute. Laws of 1979, ch. 196, § 49; Behnke, 103 Wis.2d at 451, 309 N.W.2d at 22. ⁴

Neither case is inconsistent with our holding here. Schmitz and Behnke stand for the proposition that where the legislature has either taken away or extended the circuit court's jurisdiction to order or modify support, a trial court may modify support consistent with its new jurisdiction without requiring a party to first show a change in the factual circumstances of the parties. Here, however, WIS.ADM.CODE § HSS 80.04(2) does not affect the jurisdiction of the circuit court to order support; rather, it revises the method by which the circuit court may determine the amount of child support in certain situations.

Airriess also argues that WIS.ADM.CODE §...