Sauk County Child Support Agency v. Drier

351 N.W.2d 745, 119 Wis. 2d 312, 1984 Wisc. App. LEXIS 3823
CourtCourt of Appeals of Wisconsin
DecidedMay 10, 1984
Docket82-1784
StatusPublished
Cited by5 cases

This text of 351 N.W.2d 745 (Sauk County Child Support Agency v. Drier) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sauk County Child Support Agency v. Drier, 351 N.W.2d 745, 119 Wis. 2d 312, 1984 Wisc. App. LEXIS 3823 (Wis. Ct. App. 1984).

Opinions

BABLITCH, J.

The Sauk County Child Support Agency (agency) appeals from that portion of a divorce judgment holding open an award of child support for the parties’ three minor children, and ordering the husband to pay the monthly mortgage payments, taxes and insurance on the parties’ homestead.1 As a result of the order, [315]*315the agency is presently unable to collect reimbursement through the wife’s child support assignment for public assistance payments made to her under ch. 49, Stats. The sole question on appeal is whether the trial court abused its discretion in failing to order present child support payments by the husband. We hold that under the circumstances of this case it did not. We therefore affirm the judgment.

The parties were married in 1963 and had four children, three of whom were minors at the time of the final hearing. The wife, an unemployed housewife, commenced this action in March 1982. At that time, the husband was a mechanical press operator with a net income of $400 per week. Pursuant to the temporary order, he continued to reside with his family in a home the couple had purchased four years previously. No child support was ordered, but the husband was required to assume responsibility for the couple’s preexisting debts and to deposit his wages in the joint checking account for the use of both parties during the pendency of the action.

In April, the wife applied for aid to families with dependent children (AFDC) under ch. 49, Stats., and signed a support assignment form pursuant to sec. 49.19 (4) (h)l.b.2 In May, the husband was indefinitely laid [316]*316off from his employment. In June, the parties’ eldest child turned eighteen, and the wife signed a new support assignment reflecting a reduction in the number of her AFDC-eligible dependents from four to three.

At the time of the final hearing in August 1982, the husband’s sole income was $191 per week in unemployment compensation which was due to expire, unless extended, at the end of January. He had no immediate prospects of returning to work. The wife’s sole income was $547 per month in AFDC benefits. She was hospitalized at a drug and alcohol abuse treatment facility, from which she was due to be released in a few days. The husband was still residing in the parties’ home. Although he had not located another place to live, he planned to move out of the home when the wife returned from the hospital. The eldest child, who planned to attend school, continued to reside in the home.

The couple had filed Chapter 13 bankruptcy proceedings during the pendency of the divorce action. Pursuant to those proceedings, they entered a repayment program covering all debts except the mortgage, and requiring payment of $68.17 per week for the next three years. The husband had assumed this obligation, together with the mortgage obligation of approximately $107 per week, for a total weekly payment of about $175. This left him about $16 per week from his unemployment compensa[317]*317tion to meet his own needs. He had been unable to pay the full amount owing to the bankruptcy trustee and was paying $25 or $30 per week, as he was able, with the understanding that he would make up the balance when he returned to work.

Prior to the hearing, the parties executed a stipulation as to custody, property division, and support. The stipulation granted custody of the minor children to the wife and awarded items of personal property to each party. The only substantial marital asset was the home, which the parties owned in joint tenancy. The stipulation provided that the joint tenancy would be terminated and that the husband and wife would hold the property as tenants in common until its eventual sale.

The stipulation required the husband to continue paying the mortgage, taxes, and insurance on the property. Sale was to occur upon the wife’s death, remarriage, or removal from the home, when the youngest child reached the age of eighteen (or nineteen if attending school), or at the agreement of the parties. The net sale proceeds were to be divided equally between the parties.

The husband was also to be responsible for all debts incurred prior to the commencement of the action. The stipulation designated no specific amount for child support, but provided that it “shall be set by the Court.” It required the husband to notify the wife and the clerk of courts when he resumed his employment.

The agency approved the stipulation through its counsel’s signature on the document. At the final hearing, however, it contended through the same counsel that the wife should be ordered to make the $428 per month mortgage payment out of her $547 monthly AFDC allotment, and that the husband should be ordered to pay some lesser amount by way of child support. Otherwise, it noted, there would be no record of payments made under the judgment, the agency would be unable to assist the wife [318]*318by bringing enforcement proceedings, and the taxpayers would be unable to obtain any reimbursement through the child support assignments for AFDC payments made to the wife. The agency acknowledged that such an order might necessitate the sale of the home because of the wife’s inability to meet the mortgage payments. It asserted, however, that it was “not the obligation of the . . . agency to see that divorced couples maintain their residence.”

The trial court rejected the agency’s arguments and approved the stipulation. At the agency’s request, however, it ordered that the husband make monthly reports to the agency concerning his employment status “so they can keep tabs on it,” rather than merely report his return to work as the stipulation provided.

A determination of child support is committed to the sound discretion of the trial court and will not be reversed on appeal except for an abuse of that discretion. Proper exercise of discretion rests upon an assessment of the needs of the custodial parent and the ability of the noncustodial parent to pay. A needs assessment considers factors including the custodial parent’s assets and income, any special needs that parent may have, the age and health of parent and children, and their customary station in life. An assessment of ability to pay considers the noncustodial parent’s income, assets and debts, age and health. Edwards v. Edwards, 97 Wis. 2d 111, 116, 293 N.W.2d 160, 163 (1980). “ ‘These determinations are to be made upon the basis of the circumstances existing at the time of the divorce.’ ” Id. (quoting Anderson v. Anderson, 72 Wis. 2d 631, 643, 242 N.W.2d 165, 171 (1976)).

The agency claims that the trial court abused its discretion by failing to consider that the wife was an AFDC recipient, that the husband had an obligation to support his children, and that the state was entitled to reimbursement [319]*319through the mechanism of child support assignments for the AFDC benefits it provided.3 It asserts that as a result of the trial court’s order, the state will be unable to recoup any amount of those benefits.

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Sauk County Child Support Agency v. Drier
351 N.W.2d 745 (Court of Appeals of Wisconsin, 1984)

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Bluebook (online)
351 N.W.2d 745, 119 Wis. 2d 312, 1984 Wisc. App. LEXIS 3823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sauk-county-child-support-agency-v-drier-wisctapp-1984.