Reeves v. Reeves
| Decision Date | 22 March 1990 |
| Docket Number | No. 89-1742,89-1742 |
| Citation | 455 N.W.2d 914,155 Wis.2d 468 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the MARRIAGE OF Mary B. REEVES, Petitioner-Appellant, v. Terence W. REEVES, Respondent. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Waupaca county: DEE R. DYER, Judge.
Circuit Court, Waupaca County.
AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
Mary Reeves appeals from an order adjusting child support. The issues are whether the trial court abused its discretion by: (1) reopening a default order against her former husband, Terence Reeves; (2) not applying the child support percentage of income standards set forth in Wis.Adm.Code, sec. HSS 80.03; and (3) not including the value of the housing he receives as a member of the armed forces as part of Terence's income for purposes of setting support.
We affirm the order reopening the default and the court's decision not to apply the percentage support standards. We conclude, however, that the trial court abused its discretion by not including the value of Terence's military housing as part of his income for purposes of child support. We therefore reverse that portion of the order and remand for further proceedings.
Mary and Terence Reeves were divorced in April, 1982. Custody of the couple's two children was awarded to Mary, and Terence was ordered to pay $305.50 per month as child support. Mary and Terence subsequently stipulated to joint custody and in August, 1984, Terence's child support was raised to $375 per month. At that time it was understood that Terence would not pay child support when the children were staying with him. It was also agreed that Terence would "pay the transportation costs of the children for visits and changes in residence."
In December, 1988, Terence was served with Mary's motion for an increase in child support. The accompanying notice stated that the motion would be heard by the court on May 1, 1989. Terence did not respond to the motion and a few months later he left the country for overseas duty.
When Terence failed to appear at the May 1 hearing, the trial court entered a default order requiring him to pay $700 per month as child support based on his increased earnings since the last revision of support in 1984. When he learned of the order, he moved for reconsideration and the trial court ordered the matter reopened.
At the reopened hearing, the trial court declined to use the percentage support standards and set support at $450 per month--whether the children were staying with him or their mother. The order also provided that if the children did not stay with Terence more than seventy-five days a year, his support would increase to $565 per month. It also came out at the hearing that Terence had no housing costs while he lived on the military base, and that if he lived off base he would receive a "basic assistance for quarters" payment of approximately $400 per month. Terence also testified that he maintained a residence in Alabama for which he made a $350 per month mortgage payment in addition to utilities. Other facts will be referred to below.
Whether to set aside a default judgment is within the discretion of the trial court. Sprayer Supply, Inc. v. Feider, 133 Wis.2d 397, 401, 395 N.W.2d 624, 625 (Ct.App.1986). We will not reverse a discretionary determination if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the trial court's decision. Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987). The exercise of discretion involves consideration of the facts of record in light of the appropriate and applicable law. And the record must indicate that the trial court actually engaged in a rational mental process and reached "a reasoned and reasonable" result. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
In addition, when default judgments are involved,
we are mindful, on one hand, that the law views default[s] ... with disfavor and prefers, whenever reasonably possible, to afford litigants a day in court, and, on the other hand, of the interests in prompt adjudication and "the probability that a policy which excused or tolerated ... neglect would foster delay in litigation"
and thus adversely affect the legal process. Gaertner v. 880 Corp., 131 Wis.2d 492, 498, 389 N.W.2d 59, 61-62 (Ct.App.1986) (footnote and citations omitted).
In vacating the default order, the trial court stated that:
[T]he Court is obviously aware of Mr. Reeves' circumstances, that he is in the service. The Court is also aware, on the date in which we held this hearing, that Mr. Reeves had either personally appeared in all other matters or had counsel that appeared in all other matters that had been taken up with regard to this family action.... The Court, noting the fact that Mr. Reeves is in the service and was out of the country at ... the last hearing, based upon [his attorney's] affidavit, which he has filed, does feel that it would be fair and equitable in this case to reopen the case.
The court's remarks adequately illustrate its reasoning and we have no doubt that the result was one a reasonable judge could reach, given the facts of record and the applicable law. Hartung, 102 Wis.2d at 66, 306 N.W.2d at 20-21. Accordingly, we will not disturb the reopening of the default order.
Mary next argues that the trial court abused its discretion by not using the percentage standards when it modified the child support. 1 She maintains that because trial courts are required to apply the percentage standards when they initially set child support under sec. 767.25(lj), Stats., they must also use them when they modify support. We decided this issue in Marriage of Long v. Wasielewski, 147 Wis.2d 57, 62, 432 N.W.2d 615, 616-17 (Ct.App.1988).
In Wasielewski, we explained that sec. 767.25, Stats., is the general section governing child support. It provides that the court shall set support using the DHSS percentage of income standards unless, upon the request of a party, the court finds that their use is unfair to the child or party. Sec. 767.25(lj) and (lm).
A request for modification, on the other hand, is filed pursuant to sec. 767.32(1), Stats., which governs proceedings to modify "judgment[s] providing for child support under s. 767.25." A modification proceeding is not specifically identified in sec. 767.25(1) as a proceeding to which the percentage standards apply. Thus, because sec....
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