Burger v. Burger

• Decision Date: 16 June 1988
• Docket Number: No. 87-0174,87-0174
• Citation: 424 N.W.2d 691,144 Wis.2d 514
• Parties: In re the Marriage of Sue Ann BURGER, now Koos, Petitioner-Respondent, v. James L. BURGER, Respondent-Appellant.
• Court: Wisconsin Supreme Court

Page 691

424 N.W.2d 691

144 Wis.2d 514

In re the Marriage of Sue Ann BURGER, now Koos, Petitioner-Respondent, v. James L. BURGER, Respondent-Appellant.

No. 87-0174.

Supreme Court of Wisconsin.

Argued March 30, 1988.

Decided June 16, 1988.

Walter W. Stern, III, argued, and Stern, Caviale & Stern, on brief, Kenosha, for respondent-appellant.

Geoffrey Dowse, argued, and Ventura, Dowse & Wagner, on brief, Kenosha, for petitioner-respondent.

Daniel L. Furrh, Waukesha, on brief, for the American Academy of Matrimonial Lawyers, Wisconsin Chapter and the Family Law Section, State Bar of Wis. and the of Family Lawyers, amicus curiae.

DAY, Justice.

This is an appeal from an order of the circuit court for Kenosha county, Honorable Michael S. Fisher, circuit judge, modifying a judgment of divorce, which this court accepted on certification from the court of appeals. In its certification, the court of appeals framed the sole issue for review as follows: "Whether, in analyzing each parent's earning capacity and total economic circumstances to determine whether to modify a child support order under sec. 767.32(1), Stats., the trial court must consider half the marital income of a remarried, voluntarily unemployed, custodial parent under the marital property reform act, ch. 766, Stats." After acceptance of certification of the present action, this court decided Poindexter v. Poindexter, 142 Wis.2d 517, 419 N.W.2d 223 (1988). Though Poindexter dealt with modification of maintenance in a divorce action, application of the statutory interpretation of sec. 766.55(2)(c)2, barring use of marital property income to satisfy a pre-marital obligation, is equally applicable in analyzing modification of child support provisions. Following the analysis of Poindexter, none of a new spouse's income is available under the Marital Property Reform Act for consideration of support obligations, which would be classified as a pre-Act debt. Counsel for Mr. Burger conceded at oral argument that Poindexter resolved the certified issue.

Although this case could be remanded to the court of appeals since the issue certified is resolved by existing case law, in the interests of judicial economy, we address the other issues argued by the parties on appeal. We conclude the circuit court's holdings concerning increased child support, arrearage credit, contempt for failure to pay support, ability to claim the minor children as dependents for tax purposes, and employer deductions under wage assignment, were resolved within properly exercised discretion. We therefore affirm the circuit court's order.

The facts are not in dispute. Sue Ann Burger (now Koos) and James L. Burger (Burger) were divorced in 1981. Ms. Koos was awarded custody of the parties' two children, then six and four years of age. Mr. Burger was ordered to pay $75.00 per week for child support. At the time of the divorce, Koos was employed and earning approximately $12,000 annually. Burger's gross income was $408 per week.

In 1982, Koos remarried. She terminated her outside employment while pregnant with the first of two children she had with her new husband, and thereafter remained at home to care for her children.

In December, 1985, Koos filed an order to show cause for an increase in child support, and to determine and require payment of arrearage. On January 16, 1986, the acting family court commissioner hearing the motion concluded a substantial change of circumstances existed and increased child support to $115 per week. The amount of support was determined based on Burger's representations at the hearing, estimating his 1985 gross income at $17,500, plus disability benefit payments, for a gross weekly income of $458.40. The commissioner then apparently applied the percentage standard established under sec. 767.25(1p), Stats. (1985-86) ¹, to arrive at the $115 support figure ($458.40 X 25% = $114.60, rounded to the nearest dollar = $115).

On February 14, 1986, written findings of fact supporting the revised support order were signed by the acting family court commissioner. They establish that Koos, though no longer employed outside the home, was contributing to "her family, home and community by working in the home," that the two children of the parties were four and a half years older and "their needs are bound to increase," and that Burger had an increased ability to pay support. Burger's income was found to be $532.00 per week based on figures reported in his financial disclosure statement, which he had submitted to the court subsequent to the order to show cause hearing. The amount of his arrearage was fixed at $3,440. Although Burger's income as reported in his disclosure statement and adopted in the findings of fact was greater than that relied upon by the commissioner in revising the amount of child support based on percentage of income, weekly support payments remained at $115.

On June 15, 1986, Burger was ordered to show cause why he should not be held in contempt for failure to follow the revised support order. Koos alleged that Burger was then $4,186.03 in arrears in making child support payments. Of that amount, $746.30 had accrued since support had been increased from $75 to $115 per week. The acting family court commissioner found Burger had increased his arrearage by the additional amount of support required since the February, 1986 order, and she ordered payment of the arrearage in one month or Burger would be held in contempt and would be required to spend five days in jail. On May 28, 1986, based on a request to review the commissioner's order, Circuit Judge Michael Fisher stayed the contempt order pending further order.

Burger then sought review of the revised child support order before Judge Fisher, asking that the increased amount of support be modified. He further requested an order prohibiting his employer from deducting support from separate regular and holiday paychecks issued in the same week under his wage assignment, and sought a finding reducing his arrearage in the amount of social security benefits paid to his children while he was disabled. He also requested the right to claim both children as dependents for income tax purposes. Koos, in her reply motion, asked the court to uphold the commissioner's contempt and arrearage findings and further sought a wage assignment for Burger's unemployment compensation benefits.

After a hearing regarding these matters, Judge Fisher affirmed the decision of the family court commissioner, finding that there was a sufficient change of circumstances to award an increase in child support. The court found these circumstances included the fact that the parties' children were older and had greater needs, Koos was not working and Burger's income had increased.

Examining Burger's ability to pay increased support, the court determined his actual income was $28,360 by adding his taxable 1985 income to disability benefits he received. Giving Burger the benefit of the doubt concerning intermittent unemployment and disability layoffs which he claimed would occur again as they had in the past, the court then affirmed the commissioner's $115 support calculation, though it was based on twenty-five percent of Burger's estimated income of approximately $17,500 rather than his substantially greater actual income of $28,360. The court denied Burger's motion to prohibit his employer from deducting child support payments from every check, including one-day holiday paychecks, under his wage assignment, because Burger had been continuously in arrears since 1982. It further denied his motion to modify the original divorce judgment provision which awarded one tax exemption to Burger and one tax exemption to Koos for their dependent children.

By written decision on November 4, 1986, the court credited Burger with $1,325 towards his arrearage during the time he was disabled, unable to work, and his children received $4,464 in social security benefits. The $1,325 credit was equal to the amount of support Burger had failed to pay during the time he was not working at all but only receiving social security disability benefits and sick pay. Burger was not given credit toward arrearages which had accrued before or after this time, but was ordered to pay his remaining arrearage by December 4, 1986, or he would be found in contempt of court. The court further ordered execution of a wage assignment for unemployment compensation received by Burger.

Burger appealed to the court of appeals, alleging the circuit court abused its discretion in: 1) determining a change of circumstances existed sufficient to modify child support when his former wife voluntarily left the workforce to have children with her second spouse, 2) failing to credit the full amount of social security benefits paid to his children toward his arrearage, 3) finding him in contempt for failure to pay child support, 4) denying him an award of both tax exemptions for the parties' minor children, and 5) failing to curtail his employer's practice of deducting child support payments from regular and holiday paychecks issued in the same week under his court ordered wage assignment ordered by the court. The court of appeals certified this case pursuant to Rule 809.61, Stats., and we accepted the case in entirety for review.

Burger first alleges that the circuit court abused its discretion in increasing his payment of child support without a sufficient showing of a change in circumstances. The statutory provision for modification of a divorce judgment as it pertains to child support states, in pertinent part:

"767.32 Revision of judgment. (1) After a judgment providing for child support ... the court may, from time to time, on the petition of either of the parties, ... revise and alter such judgment respecting the amount of ... child support and the payment thereof.... Any change in child support because of alleged change in circumstances shall take into consideration...