IN RE MARRIAGE OF ROTTSCHEIT v. Dumler

• Citation: 664 N.W.2d 525,262 Wis.2d 292,2003 WI 62
• Decision Date: 25 June 2003
• Docket Number: No. 01-2213.,01-2213.
• Parties: IN RE the MARRIAGE OF: Toni L. (Dumler) ROTTSCHEIT, Petitioner-Respondent, STATE of Wisconsin, Respondent, v. Terry L. DUMLER, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

262 Wis.2d 292

2003 WI 62

664 N.W.2d 525

IN RE the MARRIAGE OF: Toni L. (Dumler) ROTTSCHEIT, Petitioner-Respondent,

STATE of Wisconsin, Respondent, v. Terry L. DUMLER, Respondent-Appellant-Petitioner.

No. 01-2213.

Supreme Court of Wisconsin.

Oral argument December 3, 2002.

Decided June 25, 2003.

For the respondent-appellant-petitioner there were briefs by Todd G. Smith and LaFollette Godfrey & Kahn, Madison, and oral argument by Todd G. Smith.

For the respondent there was a brief and oral argument by Frank R. Vazquez, Clark County Corporation Counsel.

An amicus curiae brief was filed by Scott A. Sussman, Madison, and Anne Arnesen and Carol W. Medaris, Madison, on behalf of the Center on Fathers, Families, and Public Policy and the Wisconsin Council on Children and Families.

¶ 1. JON P. WILCOX, J.

This is a review of an unpublished court of appeals summary decision, Rottscheit v. Dumler, No. 01-2213, order (Wis. Ct. App. April 2, 2002), which affirmed an order by the Clark County Circuit Court, Jon M. Counsell, Judge, denying Terry Dumler's (Dumler) motion for modification of his child support order. Dumler, the petitioner, was incarcerated in January 2000. In 2001, he requested modification of an order that required him to pay $543 per month for the support of his three children. The central issue before this court is whether the circuit court erroneously exercised its discretion in refusing to reduce Dumler's child support payments in light of Dumler's incarceration and resulting change in income. Although we find it appropriate for a court to consider incarceration when reviewing a request for modification, we find that the fact of incarceration by itself neither mandates nor prevents modification. Incarceration is one factor that should be considered, but the determination should be made on a case-by-case basis, looking at the totality of the relevant circumstances. We conclude that under the circumstances presented in this case, the circuit court properly exercised its discretion under Wis. Stat. § 767.32 (1999-2000)¹ in finding that the facts in this case did not constitute a substantial change in circumstances sufficient to warrant modification.

I

¶ 2. The following facts are undisputed. Dumler married Toni Dumler² (now Rottscheit) on April 19, 1989. They had three children: Jeffrey Lee, born October 22, 1987; Greggory Douglas, born October 4, 1988; and Trenten Michael, born November 30, 1990. During their marriage, Rottscheit worked as a nurse's assistant and Dumler worked as a laborer.³

¶ 3. In 1990, Rottscheit filed for divorce. The parties entered a stipulated divorce, and Rottscheit received custody of their three minor children. The judgment of divorce was signed on July 7, 1992, and, consistent with state guidelines, provided that Dumler was required to pay 29 percent of his gross income for child support. In 1998, Dumler's child support order was reconciled to a fixed amount set at $543 dollars per month.⁴

¶ 4. In 1999, Dumler was convicted under Wis. Stat. § 346.63(1)(a) for his fifth or greater offense of operating a vehicle while intoxicated (OWI). He was also convicted of cocaine possession under Wis. Stat. § 961.41(3g)(c). Dumler was sentenced to two years in a correctional facility for the OWI charge. He also received a consecutive one-year sentence for the drug conviction. Dumler had been incarcerated on at least three previous occasions for OWI convictions.

¶ 5. In January 2000, Dumler entered the Racine Correctional Institution. He initially earned wages of approximately $60 per month from working at the institution. However, 25 percent of this amount had to be withheld to pay court fines. While incarcerated, Dumler made several nominal child support payments, most under $10 per month.

¶ 6. On May 21, 2001, Dumler petitioned the circuit court for a modification of the child support order. He claimed that as a result of his incarceration, he could not make the child support payments. At the time of the petition, Dumler acknowledged that he was over $12,500 in arrears. He requested that the child support order be suspended during his incarceration or, alternatively, modified to 29 percent of his institutional wages. He asserted that if the order was not modified, he would accumulate over $25,000 in back arrearages, not including interest.

¶ 7. The circuit court held a hearing on the motion on August 1, 2001. Dumler appeared by telephone without counsel. At the hearing, Dumler stated that he had a pay rate of 28 cents an hour for approximately 160 hours per month, and thus made just under $45 per month. He acknowledged that the child support order had been set at a level he could pay when not incarcerated. Dumler explained that he would owe in excess of $25,000 if he was not granted relief, and that because the child support agency had a lien on him, it was unlikely that he could get a loan.

¶ 8. In response to questioning from the court, Dumler testified about his criminal record. As noted, at the time of the hearing, Dumler was serving a three-year sentence, one year for cocaine possession and two years for his fifth or greater OWI offense. Dumler acknowledged that he had been involved in 11 criminal court cases since 1986, although there were not convictions in all cases. He further admitted that at least three prior OWI convictions had resulted in incarceration. Also, the hearing record indicates that the one-year sentence for cocaine possession resulted from a revocation of probation. When asked if he was aware of the consequences of his criminal behavior, Dumler stated: "Yes, and I have always gotten out and paid my child support." The court noted that the needs of the children had not changed since or because Dumler was incarcerated. When asked if there was anything else he would like to put before the court in support of his claim, Dumler stated that he believed the court had before it all the relevant information, including the record of child support payments. Dumler admitted alcohol and drug dependency, and noted that the institution had a program to help him solve that.

¶ 9. The circuit court held that Dumler's child support order should not be modified. The court found that Dumler's financial condition was Dumler's fault and resulted from Dumler's voluntary actions. The court further explained:

This is not a situation where you need to wilfully avoid [] child support duty. In other words, he may not have had this intent in mind when he was deciding that he was going to [do] something involving him going to prison, but the consequences of prison were known, and really under the circumstances presented here, and given the intentional decision to drink and drive, intentional decision to possess cocaine, the intentional decision to undergo an act which resulted in the revocation of that probation, involved a definite effect on his future income, but looking at the fact that he will be — he's in treatment now which should improve his future employment prospects, and in considering everything else presented here, along with the fact that the children's needs don't go down just because somebody's put in prison, upon release from prison and after becoming gainfully employed, he could pay on these arrearages, and so I think it is appropriate that the order not be modified. ¶ 10. Dumler appealed the circuit court's order and on April 2, 2002, the court of appeals issued a summary disposition order affirming the circuit court's ruling. This court then granted Dumler's petition for review on June 25, 2002.

II

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¶ 11. The decision whether a child support judgment should be modified is left to the circuit court's discretion. Abitz v. Abitz, 155 Wis. 2d 161, 174, 455 N.W.2d 609 (1990). Under Wis. Stat. § 767.32(1)(a), revision to a child support judgment "may be made only upon a finding of a substantial change in circumstances." The burden of showing that there has been a change in circumstances sufficient to justify a modification falls to the party seeking modification. Parker v. Parker, 152 Wis. 2d 1, 4, 447 N.W.2d 64 (Ct. App. 1989). Unless the circuit court has erroneously exercised its discretion, the decision will not be overturned. Abitz, 155 Wis. 2d at 174; see also Burger v. Burger, 144 Wis. 2d 514, 523, 424 N.W.2d 691 (1988). As the court of appeals has stated: "All that is required for us to affirm a trial court's exercise of discretion is a demonstration that the court examined the evidence before it, applied the proper legal standards and reached a reasoned conclusion." Voecks v. Voecks, 171 Wis. 2d 184, 189, 491 N.W.2d 107 (Ct. App. 1992). Even if a circuit court fails to articulate the reasons for its decision, this court will independently review the record to determine whether there is any reasonable basis upon which we may uphold the circuit court's discretionary decision. State v. Davidson, 2000 WI 91, ¶ 53, 236 Wis. 2d 537, 613 N.W.2d 606.

III

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¶ 12. As noted, the issue before this court is whether the circuit court erroneously exercised its discretion by denying Dumler's motion for modification of his child support order under the circumstances presented. We point out that the question is not whether we agree with the circuit court's ruling, but rather, whether the circuit court acted within the realm of its discretion. We hold that it did.

¶ 13. Dumler argues that the court erred in rejecting his motion for modification because incarceration has reduced his income to approximately $45 per month and he has no other assets that may be used to pay child support. Dumler claims that the circuit court erroneously focused upon the "voluntariness" of Dumler's criminal actions and ignored the economic realities faced by incarcerated parents. The State agrees that courts may consider incarceration in determining a motion for modification, but asserts that incarceration should only be one factor in the court's exercise of discretion.

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