Sommer v. Sommer
| Decision Date | 15 July 1982 |
| Docket Number | No. 81-2414,81-2414 |
| Parties | Carolyn SOMMER, Plaintiff-Respondent, v. Stanley SOMMER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
S. A. Schapiro, Milwaukee, for defendant-appellant.
William W. Moir, III of Miller, Hayes, Werner & Moir, S. C., Sheboygan, for plaintiff-respondent.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
The major issue in this appeal is whether a personal injury damage award to the noncustodial spouse can be considered a change of circumstances that justifies an increase in child support. The trial court answered the question "yes," and we affirm.
Carolyn Sommer commenced a divorce action on September 12, 1977. Eleven days later, Stanley Sommer was injured in a job accident. The divorce was granted in December 1980, and Stanley Sommer received his personal injury proceeds in April 1981. There was no mention of the personal injury action or possible proceeds from the action in the findings of fact, conclusions of law or judgment of divorce.
In July 1981, Carolyn Sommer moved to increase support of the children. As one of her grounds, she alleged that her ex-spouse had received a substantial personal injury award resulting in his improved economic standing. Stanley Sommer objected, claiming that the court could not consider the damage award since it was based, in part, on his diminished earning capacity as a result of the injury. He contended that the damage award was to compensate him for his disabilities and should not be considered as an improvement over his normal economic circumstances but rather as a vehicle to bring him back to where he would have been had he not been injured.
The trial court found that his net monthly income at the time of the divorce was between $932 and $1,050. His present rate of pay now gives him $1,217.90 net pay, or an increase from $6.75 per hour to $7.90. Therefore, his earnings have improved.
The trial court also held that Stanley Sommer's recovery in a personal injury action could be considered in modifying the support payments. We agree with the trial court's actions and accordingly affirm.
Mr. Sommer's first argument on appeal questions the propriety of taking personal injury damages into account in determining economic status in child support modification actions. He asserts that personal injury damages are personal to the victim and ought to be invulnerable to this kind of attack. He argues that damages are designed to make the victim whole and depletion of them for child support purposes relegates the victim to uncompensated status. Whether this court wholeheartedly concurs in Mr. Sommer's characterization of the theory of personal injury damages, we do not share in his conclusion. We determine that the policy behind the Family Code overrides, in this case, the theory of damages.
The intent behind the Family Code, as expressed in sec. 1(2), ch. 105, Laws of 1977, is undeniably pellucid:
[T]hat the standard of living of any minor children of the parties be maintained at the level the children would have enjoyed had the marriage not ended, so that insofar as is possible, the children will not suffer economic hardship. [Emphasis added.]
Child support payments, then, are designed to maintain children, insofar as possible, at the economic level they would have enjoyed had there been no divorce. That the noncustodial parent has an obligation to share with his minor children the fruits of post-divorce economic improvements, there can be little doubt. "[A] divorce terminates only the relationship of husband and wife, and does not affect in any manner the parental relations or duties of the parties." Hutschenreuter v. Hutschenreuter, 23 Wis.2d 318, 321, 127 N.W.2d 47, 49 (1964). Had Mr. Sommer not been divorced, it is expected that any improvement in his economic status achieved through a personal injury recovery would have accrued, at least in part, to his family. The divorce does not change this obligation.
Mr. Sommer cites In re Buda, 323 F.2d 748 (7th Cir. 1963), in support of his theory that personal injury damage awards belong to the injured party alone and cannot be made accessible to third parties. There, the court prohibited creditors in a bankruptcy proceeding from gaining access to the proceeds of a damage award, stating: " '[i]t is not ... the policy of the law' to take from a wrongfully injured person the compensation for his injury to satisfy his creditors in a bankruptcy proceeding." Id. at 750 (quoting Sibley v. Nason, 196 Mass. 125, 81 N.E. 887, 889 (1907)). We believe Buda to be inapposite to the case at bar. There is a substantial difference in relationship between a debtor and his creditors and a father and his children. 1 The state's policy that parents support their children governs here.
Finally, we point out that the statutory provision governing the modification of child support payments, sec. 767.32(1), Stats., requires the court to "take into consideration each parent's earning capacity and total economic circumstances ...." (Emphasis added.) No exception is made for monies received from extraordinary sources. 2
Having so determined that a court examining changed financial circumstances in a child support modification action may look to personal injury compensation, we now address whether the trial court properly did so in this case.
Whether a noncustodial parent's ability to pay child support has changed is a question of fact. Where a modification rests entirely on a factual determination, the test on appeal is whether that determination is contrary to the great weight of the evidence. Thies v. MacDonald, 51 Wis.2d 296, 303, 187 N.W.2d 186, 190 (1971). That damages are intended to make a person whole does not guarantee that the person is in precisely the same economic condition as he or she was before the accident; only some sort of financial accounting can determine that. Here, the evidence showed that not only had Mr. Sommer received a sizeable damage award upon which he receives interest, he also earns more now than he did before the accident. Plainly, then, a finding of increased ability to pay is not against the great weight of the evidence.
We note, in passing, that whether a personal injury recovery does indeed improve a victim's economic condition for child support purposes will not always be easy or obvious. There are times, of course, when the victim has suffered actual economic impairment as a result of the tort-feasor's negligence, and the award is merely repaying the victim for the actual economic impairment. If so, the award may truly make the victim economically whole again and...
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