Poehnelt v. Poehnelt

• Decision Date: 04 March 1980
• Docket Number: No. 77-302,77-302
• Citation: 94 Wis.2d 640,289 N.W.2d 296
• Parties: Dorothy E. POEHNELT, Plaintiff-Respondent, v. Matthew H. POEHNELT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 296

289 N.W.2d 296

94 Wis.2d 640

Dorothy E. POEHNELT, Plaintiff-Respondent, v. Matthew H. POEHNELT, Defendant-Appellant.

No. 77-302.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 7, 1980.

Decided March 4, 1980.

Richard Bolte Law Offices, Wausau, on briefs, for defendant-appellant.

Nikolay, Jensen & Scott, Abbotsford, on brief, for plaintiff-respondent.

COFFEY, Justice.

This case involves an appeal from an order of the circuit court amending a divorce judgment and increasing the monthly child support payments.

Dorothy Poehnelt, the plaintiff-respondent, and Matthew Poehnelt, the defendant-appellant, obtained a divorce on September 24, 1973 pursuant to a written stipulation. ¹ The stipulation provided for a division of the marital estate and assets in lieu of alimony and also payment of child support for the seven minor children. The plaintiff-wife was to receive the family farm valued at $40,000 and assume an $1,800 mortgage debt thereon, as well as the farm machinery, milking equipment and cattle valued at $34,555. The defendant-husband, on the other hand, was awarded a truck valued at $3,000, an automobile valued at $2,300, a check for $5,200 and also the plaintiff was directed to execute a $30,000 mortgage lien on the farm property in favor of the defendant. The lien was to be due and payable in ten (10) years from the date of divorce or at the time of sale of the property by the plaintiff if the sale occurred before the expiration of the ten year period.

In addition, the plaintiff-wife was granted custody and control of the minor children and the defendant was required to pay $70 per month for each of the seven minor children, until they reach the age of majority. However, the defendant-husband was not required to make actual monthly cash payments to the plaintiff, but rather the child support obligation would be satisfied by granting him a monthly credit against interest and/or principal of the $30,000 mortgage lien recited in the property settlement and thus reducing the amount due. A schedule ² reflecting these reductions in the mortgage principal was prepared, based on the dates of the children's birthdays, as set out in the respondent's complaint for divorce.

Approximately four years later, following the sale of the farm property, the plaintiff obtained an order to show cause requesting an increase in child support payments. In her affidavit in support of the order to show cause she alleged the following:

1. that she obtained a divorce judgment including child support payments;

2. that at the time of the divorce judgment, September 24, 1973, the respondent was residing on a farm and thus had the benefit of farm produce to help support the minor children; ³

3. that she was now temporarily leasing and operating a coffee shop without profit and did not anticipate any income from another source in 1977.

Based on a change in circumstances, she requested an increase in the support payments for the three remaining minor children and that the balance due the defendant on the prior mortgage debt, by virtue of the sale of the farm, be held in escrow to secure the future payment of support.

At the time of the hearing on the order to show cause, the plaintiff-wife tendered approximately $21,000 (the remaining principal of the mortgage due the defendant pursuant to the property settlement) to the defendant's attorney. In turn, she received a quit claim deed from the defendant in satisfaction of the balance of the mortgage lien. It was established at the hearing on the order to show cause ⁴ that the birthdates of the children, as listed in the original divorce complaint, were understated and in error, this resulting in the defendant overpaying his support obligation in the amount of $2,800. While the trial court acknowledged the overpayment, nevertheless the presiding judge refused to give the defendant-husband credit for the overpayment.

At the hearing on the order to show cause the court found:

1. that there was a 35% To 40% Increase in the cost of living in the 41/2 years since the divorce judgment was entered;

2. that the plaintiff had approximately $800 of expenses per month (including utilities, clothing, food, hospitalization insurance and school lunches);

3. that her income from investments and wages was only $350 per month;

4. that the plaintiff's monthly expenses were increased because of the fact that a non-minor child was living with her while recuperating from an operation.

5. the defendant's income had remained substantially the same since the divorce (approximately $10,000-$11,000 a year).

Following the hearing, the court modified that portion of the judgment providing for child support and ordered the appellant to pay $300 per month towards the support of the three remaining minor children, (thus in effect increasing the support payment sum $30 per month per child). The court further ordered that this sum was to be reduced by $50 per month as each child reached the age of majority, thus the court ordered support payments would only be $200 per month for the Last remaining minor child. The court granted the plaintiff's motion for security as to future child support payments and ordered the $10,000 received in satisfaction of the $30,000 mortgage lien held in trust. From this order amending the divorce judgment the defendant-husband appeals.

Issues

1. Did the court err in increasing the child support payments and ordering the respondent to place $10,000 in trust as security to ensure the payment of the future child support?

2. Did the court err in refusing to give the defendant credit for the $2,800 overpayment in child support?

Amendment of Support Obligation

The defendant-husband does not dispute the authority of the court to modify or revise a judgment or support award as provided in sec. 247.25 ⁵ and sec. 247.32 ⁶ (1975), Stats. ⁷ See also : Krause v. Krause, 58 Wis.2d 499, 508-09, 206 N.W.2d 589 (1973) and Monson v. Monson, 85 Wis.2d 794, 271 N.W.2d 137 (Ct.App.1978). However, the burden of proof to show that the modification of a divorce judgment is justified is on the party seeking to alter the provisions of the prior judgment. Krause v. Krause, supra.

In Krause v. Krause, supra, this court held that a court may modify the provisions of a judgment of divorce relating to support money, only when there has been a substantial change in the circumstances of the parties or children and the modification " . . . would be in the best interests of the children." ⁸ Id. 58 Wis.2d at 509, 206 N.W.2d at 595; Kritzik v. Kritzik, 21 Wis.2d 442, 448, 124 N.W.2d 581 (1963). The defendant thus contends that the court abused its discretion in increasing the amount of child support without a sufficient showing of a change in circumstances.

The court's decision to increase the child support payments was based on its finding that there had been a substantial increase in the cost of living (35 to 40%) in the 4 years since the date of the divorce and that the husband-appellant was able to pay the increase in support, the court said:

"I do feel that the Court can find as a fact that there has been a change in circumstances in terms of inflation alone. Now, you can say what you want, but the cost of living has gone up about 35 to 40 percent in four years. I think, based on this gentleman's income, that $70.00 a month is not sufficient support money in terms of inflation. Taking into account a 40 percent increase in the cost of living. I think that for the Court to order $300.00 for the three children would not be unfair to either side here, and that's what the court will order him to pay, based on the inflation rate."

Based on its findings that the 35 to 40% Increase in the cost of living constitutes a substantial change in circumstances the court therefore modified the divorce judgment.

On appeal this court has developed two tests for reviewing a trial court's modification of a divorce judgment:

"Where the modification rests entirely on a factual determination the test is whether that determination is contrary to the great weight of the evidence. Where the modification rests primarily on an exercise of discretion the test is whether there was an abuse of discretion by the trial court." Thies v. MacDonald, 51 Wis.2d 296, 303-04, 187 N.W.2d 186, 190 (1971).

The trial court's modification of the support obligation, allowing an increase in the monthly support payments of $30 per minor child to account for a 35 to 40% Increase in the cost of living, involves an exercise of discretion on the part of the trial court. Thus the test to be applied on review is whether the trial court Abused its discretion in finding that a 35 to 40% Increase in the cost of living constitutes a sufficient material change in circumstances justifying a proportional modification of the amount of child support to be paid by the appellant.

In Dittberner v. Dittberner, 54 Wis.2d 671, 196 N.W.2d 643 (1972), a case involving a modification of a divorce judgment, this court stated that proper discretion is exercised where the trial court has considered the combined needs of the wife or children and the husband's ability to pay. It was held in Anderson v. Anderson, 72 Wis.2d 631, 242 N.W.2d 165 (1976) that an abuse of discretion may arise when there is a failure to consider all of the relevant facts and principles of law applicable to a particular situation or where, under the circumstances, the award is considered excessive or inadequate. Moreover, this court has held that any modification of child support, in the absence of a material change in the premise (circumstances) on which the original determination was made, constitutes an abuse of discretion. Severson v. Severson, 71 Wis.2d 382, 238 N.W.2d 116 (1976).

An increase in the cost of living is among the relevant factors to be considered when determining whether there is a material change in circumstances. In Miller v. Miller, 67 Wis.2d 435...