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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                          This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 20, 2002
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                           petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                   Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                            and RULE 809.62.
                                                                                                                                                            Cir. Ct. No.   96-FA-51
Appeal No.                                                                               02-1846-FT
STATE OF WISCONSIN                                                                                                                                          IN COURT OF APPEALS
                                                                                                                                                            DISTRICT II
IN RE THE MARRIAGE OF:
RICHARD J. SCHWARTEN,
PETITIONER-RESPONDENT,
V.
LESLIE SMITH, F/K/A LESLIE SCHWARTEN,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Sheboygan County:
JAMES J. BOLGERT, Judge.  Affirmed.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶1                                                                                       PER CURIAM.    Leslie Smith has appealed from an order requiring
the respondent, Richard J. Schwarten, to pay child support of $300 per month for
the support of the parties’ two minor daughters.   Smith contends that the trial court




No.   02-1846-FT
should have applied the child support percentage standards and ordered Schwarten
to make payments of  $847 per month, representing  25% of his gross monthly
income.   Pursuant to this court’s order of August 27, 2002, and a presubmission
conference, the parties have submitted memorandum briefs.   Upon review of those
memoranda and the record, we affirm the order of the trial court.
¶2                                                                                       The parties were divorced in 1996.   In February 1998, the parties
agreed  to  amend  the  divorce  judgment  to  provide  that  Schwarten  would  pay
support of $100 per week for the girls, who were placed with Smith.   Support was
to increase to $125 per week on June 1, 1998.   The trial court issued an order
amending the divorce  judgment in accordance with the parties’  agreement on
February 9, 1998.
¶3                                                                                       Shortly after the first amendment of the divorce judgment, Smith
notified Schwarten of her intent to move outside Wisconsin with the children.
Schwarten initially opposed the removal of the children, but in May 1998 entered
into  a  second  stipulation  to  amend  the  divorce  judgment.     In  the  second
stipulation, the parties agreed that Smith could move the children out of state, and
that  Schwarten  would  have  placement  of  the  children  for  the  summer,
commencing one week after school was recessed and ending one week before
school began in the fall.   The stipulation also provided that Smith would make the
children available to visit Schwarten in Wisconsin for a three- to four-day period
during the school year, and that he could visit the children if he traveled to their
new home state.   The stipulation provided that in lieu of child support, both parties
would share equally in any transportation costs associated with compliance with
the placement schedule.   The stipulation also provided that in lieu of child support,
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No.   02-1846-FT
the parties were to establish college education funds for the children, with monthly
payments of not less than $50 per child.1   The parties stipulated that imposition of
the child support percentage standards would be unfair and not in the best interests
of  the  children  because  Schwarten  had  a  pre-existing  serial  family  support
obligation,  he  would  have  substantial  summer  placement,  there  would  be
extraordinary travel expenses associated with seeing the children, and the children
would benefit from the college fund.   The trial court approved the stipulation and
amended the divorce judgment accordingly on May 11, 1998.
¶4                                                                                          Smith  moved  with  the  children  first  to  Tennessee,  and  then  to
Louisiana.   In April 2002 she moved for modification of the divorce judgment,
requesting that Schwarten be required to pay 25% of his gross income as child
support.   After conducting an evidentiary hearing on June 11, 2002, the trial court
found that there had been a  “slight” change in the parties’ circumstances, that
Schwarten’s income was approximately $3000 per month, and that child support
of  $300 per month, rather than  25% of his gross income, was an appropriate
amount.
¶5                                                                                          Modification of a child support award may be made only upon a
finding  of  a  substantial  change  in  circumstances.    WIS.  STAT.  § 767.32(1)(a)
(1999-2000).2   When child support is not expressed as a percentage of parental
income in a divorce judgment, the passage of thirty-three months from the date of
1  Smith’s obligation under this provision was to commence when she obtained full-time
employment.   Schwarten’s obligation was to commence when Smith notified him that she had
commenced full-time employment.
2  All references to the Wisconsin Statutes are to the 1999-2000 version.
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No.   02-1846-FT
the entry of the last child support order creates a rebuttable presumption of a
substantial change in circumstances.   Sec. 767.32(1)(b)2.
¶6                                                                                         Although the trial court stated simply that it found a “slight” change
in circumstances, Schwarten has not contended on appeal that because the trial
court did not expressly find a substantial change in circumstances, it exceeded its
authority when it modified support.    Moreover, as already noted, WIS. STAT.
§ 767.32(1)(b)2  creates  a  rebuttable  presumption  that  a  substantial  change  in
circumstances occurred in this case because more than thirty-three months had
passed  since  entry  of  the  last  support  order.    Based  on  § 767.32(1)(b)2,  and
Schwarten’s failure to argue on appeal that a substantial change in circumstances
did not occur, we conclude that a substantial change in circumstances exists as a
matter of law.
¶7                                                                                         In contending that the trial court was required to apply the child
support percentage standards after it found a substantial change in circumstances,
Smith relies on WIS. STAT. § 767.32(2), which provides:
Except as provided in sub. (2m) or (2r), if the court revises
a judgment or order with respect to child support payments,
it shall do so by using the percentage standard established
by the department under s. 49.22(9).
¶8                                                                                         She also relies on WIS. STAT. § 767.32(2m), which provides:
Upon request by a party, the court may modify the amount
of revised child support payments determined under sub.
(2) if, after considering the factors listed in s. 767.25(1m),
the  court  finds,  by  the  greater  weight  of  the  credible
evidence, that the use of the percentage standard is unfair to
the child or to any of the parties.
¶9                                                                                         Smith argues that no party requested that the trial court deviate from
the percentage standards.   This argument is specious.   Schwarten opposed Smith’s
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No.   02-1846-FT
motion for modification of support, contending that no support was warranted.
Schwarten’s failure to expressly contend that the percentage standards should not
be applied cannot reasonably be deemed a waiver of his right to oppose the trial
court’s use of the percentage standards when modifying the support order.
¶10    In her brief-in-chief, Smith also argues that the trial court’s finding
that Schwarten’s current income is $3000 per month, rather than $3388, is clearly
erroneous.   However, in her reply brief she states that “it is not the amount of the
income we necessarily argue with,” and that her real objection is to the trial
court’s failure to apply the percentage standards to Schwarten’s income, or to
adequately explain why application of the percentage standards would be unfair to
the parties or the children.
¶11    The trial court’s finding that Schwarten’s income is approximately
$3000  per  month  is  supported  by  Schwarten’s  testimony  at  trial  regarding  a
reduction in the substantial amount of overtime he had previously worked.   Based
on this evidence, and the concession made in Smith’s reply brief, we need address
Smith’s objection to the finding no further.
¶12    In  contending  that  the  percentage  standards  should  have  been
applied by the trial court, Smith relies on evidence presented at the June  2002
hearing indicating that Schwarten no longer has a serial family support obligation,
neither daughter has visited Schwarten since February 2001, and Schwarten has
failed to put funds into a college account for the girls.    Smith also relies on
evidence indicating that one of the daughters suffers from emotional problems
which  necessitate  her  attendance  at  year-round  school,  and  eliminates  the
possibility  of  summer  placement  with  Schwarten.    In  addition,  she  relies  on
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No.   02-1846-FT
Schwarten’s failure to pay all of the mental health counseling bills which he is
obligated to pay under the trial court’s prior orders.
¶13    Smith also appears to argue that because a substantial change in
circumstances occurred, application of the percentage standards by the trial court
was mandatory.   However, this argument ignores Zutz v. Zutz, 208 Wis. 2d 338,
344, 559 N.W.2d 919 (Ct. App. 1997), which held that the elapse of thirty-three
months as set forth in WIS. STAT.  § 767.32(1)(b)2 gives a party a prima facie
claim that child support should be modified, but does not deprive the trial court of
its discretionary authority to hear evidence and evaluate whether the percentage
standards should apply.   Section 767.32(1)(b)2 “did not curtail the family court’s
discretionary  power  to  consider  an  existing  agreement  and  not  modify  child
support arrangements when such a modification would be unfair to the child or
one of the parties.”   Zutz, 208 Wis. 2d at 340.
¶14    In addressing a motion for modification of child support, the trial
court is required to consider the needs of the custodial parent and children, and the
ability of the noncustodial parent to pay.   Burger v. Burger, 144 Wis. 2d 514, 523-
24, 424 N.W.2d 691 (1988).   Our review of the trial court’s discretionary decision
is confined to whether the court examined the relevant facts, applied the proper
legal standard, and reached a logical conclusion.   Zutz, 208 Wis. 2d at 342.   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 court’s
decision.”   Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372 (Ct. App.
1987).                                                                                  “Indeed,   …  we  generally  look  for  reasons  to  sustain  discretionary
decisions.”   Burkes v. Hales, 165 Wis. 2d 585, 591, 478 N.W.2d 37 (Ct. App.
1991) (citation omitted).
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No.   02-1846-FT
¶15    The  trial  court  may  give  weight  to  an  existing  agreement  when
making  a  determination  as  to  whether  to  modify  child  support  to  meet  the
percentage standards.   Zutz, 208 Wis. 2d at 345.   In this case, the trial court noted
that the parties entered into an arrangement in 1998.   Pursuant to their stipulation,
the parties agreed that Schwarten would not be obligated to pay child support,
provided he relinquished his objections to the children’s out-of-state move.   The
trial court did not disturb this arrangement when it modified support.
¶16    The trial court could consider that Schwarten gave up significant
rights by entering into the  1998 agreement, in exchange for which he was not
required to pay support.   It could also reasonably conclude that, while changes in
the parties’ circumstances warranted an increase in support to $300 per month,
they were not so significant as to warrant application of the percentage standards,
and that, in light of the parties’ 1998 agreement, applying those standards would
be unfair to Schwarten.
¶17    The facts of record support the trial court’s exercise of discretion.
As noted by the trial court, the parties’ respective incomes were not significantly
different than in 1998.   The trial court nevertheless increased support to $300 per
month, noting that Schwarten’s support obligation from his prior marriage had
ended, that summer placement had not occurred as contemplated in the  1998
agreement, and that Schwarten apparently would not have summer placement in
the future with the daughter who was in year-round school.   However, in declining
to increase support to 25% of Schwarten’s income, the trial court also reasonably
considered that Schwarten would have travel expenses to see the children in the
future, and that he should maintain contact with them.   The trial court also noted
that  Schwarten  had  substantial  health  care  expenses  for  the  girls,  including
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No.   02-1846-FT
insurance costs and uninsured mental health care bills.3   In addition, it considered
that one of the girls had lived with Schwarten from June 1999 to February 2001.
¶18    In modifying support, the trial court also reasonably refused to attach
significance  to  Schwarten’s  failure  to  comply  with  the  portion  of  the                     1998
agreement requiring him to deposit money into a college fund.   Pursuant to the
terms of the agreement, the parties’ obligations to make deposits into a college
fund were mutual.   Since Smith herself had deposited only $250, the trial court
could reasonably conclude that neither party was benefiting from, or being harmed
by, this portion of the agreement.   Since the trial court’s elimination of the college
fund provision benefited Smith as much as Schwarten, Schwarten’s failure to
deposit the funds cannot be deemed so significant as to compel application of the
percentage standards.
¶19    The  trial  court  thus  considered  appropriate  factors  in  evaluating
Smith’s motion for modification of child support.   Based upon those factors, it
could reasonably conclude that an increase in support to  $300 per month was
warranted, but that an increase to $847 per month as requested by Smith would be
unfair to Schwarten.
By the Court.—Order affirmed.
3  Smith objects to Schwarten’s failure to pay a $405 bill from a mental health counselor
as required pursuant to the 1998 agreement.   Although Schwarten acknowledged that he had not
paid the bill, the trial court was not required to conclude that Schwarten’s noncompliance was so
significant as to warrant increasing support to an amount indicated by the percentage standards,
particularly since Smith may move to find Schwarten in contempt if he fails to comply with his
obligations under the support order.
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No.   02-1846-FT
                   This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)          (b)5.
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