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02/22/90
A.L.W. v. OUTAGAMIE COUNTY DEPARTMENT
child support and non-liable spouse 06/16/88 MARRIAGE SUE ANN BURGER v. JAMES L.
BURGER Income, new spouse income and
child support Biel case: discussion of contempt, child support,
arrears, modification Beaumont case: discussion of child support
modification Luna case: child support, arrears, modification Peterson case: income, child support modification Niemi case: interest, child support, credit for
payments Krueger case: tax intercept and child support Krieman case: child support modification Van Offeren case: child support modification Ress case: child support modification Cameron case: child support and arrears Brinkman: recent discussion of modification of
custody and child support Wingad: recent discussion of child support and joint
custody Raz: modification of child support Cameron: child support and custody modification:
discussion Bascom: childs preference and custody Fortin: arrears, contempt, interest, modification 02/22/90
A.L.W. v. OUTAGAMIE COUNTY DEPARTMENT
child support and non-liable spouse
[1] SUPREME
COURT OF WISCONSIN [2] No.
88-0255-FT [3] 1990.WI.48
<http://www.versuslaw.com>, 451 N.W.2d 416, 153 Wis. 2d 412 [4] February 22,
1990 [5] IN THE
INTEREST OF A.L.W., A PERSON UNDER THE AGE OF 18 YEARS: J.G.W.,
APPELLANT-PETITIONER v. OUTAGAMIE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT [6] Review of
decision of the Court of Appeals. [7] For the
appellant-petitioner there were briefs by Vance M. Waggoner and Denissen,
Kranzush, Mahoney & Ewald, S.c., Green Bay, and oral argument by Mr. Waggoner. [8] For the
respondent there were briefs and oral argument by Michael J. Balskus, assistant
district attorney. [9] Chief
Justice Heffernan. [10] The opinion
of the court was delivered by: Heffernan [11] This is a
review of an unpublished decision of the court of appeals, which affirmed the
decision of the circuit court for Brown county, William J. Duffy, circuit
Judge, that the Department of Health and Social Services was authorized by
statute to promulgate a rule that takes the income of non-liable family members
into consideration in determining the liable family member's ability to pay for
social services rendered to a dependent from a prior marriage. In addition, we
address whether sec. 766.55(2)(c)2 of the Marital Property Act prohibits
consideration of the non-liable spouse's income in satisfying a
pre-determination-date obligation of the other spouse. We affirm the decision
of the court of appeals. [12] The facts
are not in dispute. A.L.W. is the adopted daughter of J.G.W., the petitioner,
and his former wife, N.R.W. N.R.W. died in March 1984, and J.G.W. subsequently
married his current wife, V.W., in January of 1985. V.W. is neither the
biological nor adoptive parent of A.L.W. J.G.W. is the only person liable to
the Department for services provided to A.L.W. [13] On November
19, 1985, the Outagamie county circuit court found A.L.W. to be a Child in Need
of Protection and Services. The court ordered that A.L.W. be placed outside of
her home in a residential treatment center. The court also ordered that
parental support be determined by the Outagamie Department of Social Services,
retroactive to the date of placement. [14] The
Department issued four orders to J.G.W. requiring him to make monthly payments
to the Department for services rendered to A.L.W. *fn1 J.G.W. appealed each
order to the circuit court. At a hearing before Judge William J. Duffy it was
established that the Department applied the uniform fee schedule, which
combined the income of J.G.W. and of V.W., his wife, and considered that
J.G.W.'s family has four dependents (J.G.W., V.W., A.L.W., and V.W.'s daughter)
to determine his ability to pay. The circuit court held that the Department had
statutory authority to consider non-liable family members' income in
determining the liable person's ability to pay. J.G.W. disagreed and appealed
the decision of the circuit court. The court of appeals affirmed the circuit
court's decision in an unpublished decision and order dated August 23, 1988.
J.G.W. petitioned this court for review of the court of appeals decision and,
in addition, asked this court to consider the effect of sec. 766.55(2)(c)2 of
the Marital Property Act upon this case. *fn2 We granted the petition for
review. [15] J.G.W.
asserts two issues for review. He claims that Chapter 46 of the Wisconsin
Statutes does not authorize the Department to consider the income of non-liable
family members in determining how much he owes the Department for services
rendered to A.L.W. In addition, J.G.W. asserts that the Marital Property Act
prohibits the Department from considering his non-liable spouse's income in
order to determine his liability for a pre-determination-date obligation. [16] First we
address J.G.W.'s argument that Wis. Admin. Code secs. HSS 1.03(11) and
1.01(2)(e) exceed statutorily conferred authority by imposing liability for the
care of his adopted daughter on his spouse, who is not made liable under secs.
46.03(18) or 46.10, Stats. In In Matter of Guardianship of Klisurich, 98 Wis.
2d 274, 281, 296 N.W.2d 742 (1980), this court held that the legislative
directive to establish fee schedules and guidelines regarding ability to pay
was a lawful delegation of authority to the Department. In this case, we are
only concerned with the Department's authority to act within the confines of
the statute, not with the legislative authority to impose liability upon
relatives for the support of other dependent relatives. In determining whether
an administrative agency has exceeded its statutory authority in promulgating a
rule, we must look to the enabling statute to determine whether there is
express or implied authorization for the rule. Brown County v. H&SS
Department, 103 Wis. 2d 37, 48, 307 N.W.2d 247 (1981). [17] Chapter 46
of the Wisconsin Statutes imposes liability upon certain family members for
social services rendered by the Department to other family members. The purpose
of secs. 46.03(18) and 46.10, Stats., is to recoup the costs of providing
social services and treatment by requiring liable family members to pay their
fair share. In Matter of Guardianship of Klisurich, 98 Wis. 2d at 281. Section
46.03(18)(a) directs the Department to establish a uniform system of fees for
services provided by the Department. *fn3 Pursuant to this delegation, the
Department promulgated a schedule of fees which takes into consideration the
total family income and the number of dependents to arrive at a maximum monthly
fee which the liable person must pay. [18] Under sec.
46.03(18)(b), Stats., J.G.W. is liable for services rendered to his adopted
daughter because he is a parent under that section. *fn4 However, J.G.W.'s
wife, V.W., is neither the biological, nor the adoptive, parent of A.L.W. and,
therefore, is not a liable person under sec. 46.03(18). Nevertheless, sec. HSS
1.03(11) Wis. Adm. Code (1985) bills the liable family member on the basis of
the family's ability to pay. *fn5 "Family" is defined in Section HSS
1.01(2)(e) Wis. Adm. Code (1985) as an adult, the adult's spouse, and any other
persons who meet internal revenue service standards as their dependents. Under
this scheme, the Department considers all family income, including non-liable
family members' income, in determining the liable family member's ability to pay. [19] The court of
appeals held that sec. 46.03(18), Stats., provided authority for the Department
to consider the family's financial resources, the number of dependents, and
each family member's income in determining the responsible person's ability to
pay. We conclude that both secs. 46.03(18) and 46.10(3) require that the
Department consider the liable person's family resources in determining their
ability to pay. Section 46.10(3) provides: [20] After
investigation of the liable persons' ability to pay, the department shall make
collection from the person who in the opinion of the department under all of
the circumstances is best able to pay, giving due regard to relationship and
the present needs of the person or of the lawful dependents . . . . [21] Section
46.03(18)(c), Stats., provides in part: [22] The
department shall make collections from the person who in the opinion of the
department is best able to pay, giving due regard to the present needs of the
person or of his or her lawful dependents. The department may bring action in
the name of the department to enforce the liability established under par. (b). [23] By directing
the Department to give due regard to relationship and the present needs of the
lawful dependents, both secs. 46.10(3) and 46.03(18) authorize the Department
to consider non-liable family members' income in determining a liable family
member's ability to pay. [24] We find the
case of Ponath v. Hedrick, 22 Wis. 2d 382, 389, 126 N.W.2d 28 (1964),
instructive. In Ponath, this court interpreted a statute which, much like secs.
46.03(18) and 46.10, Stats., imposed liability upon relatives for the cost of
supporting dependent family members according to their ability to pay. In
determining Mrs. Hedrick's ability to pay for the support of her aged mother,
the court stated that it could properly consider her husband's income and
economic position. *fn6 [25] If the wife
has an income that can be considered, then the trial court, under sec. 52.01,
Stats., is free to consider her husband's economic position both in terms of
his worth and his income. This is because the court should consider these
factors in determining the extent to which the husband has sufficient income or
other economic position in order for him to assume responsibility for his
wife's basic needs, thus freeing her income for possible consideration as an
ability to pay on her part for a portion or all of the support furnished to a
dependent relative under the statute. [26] But since, in the case at bar, Mrs. Hedrick
had no income that could be legally considered in charging her with a duty to
support her mother, there was no basis for the trial court to consider her
husband's economic position or income. [27] 22 Wis. 2d
at 390. [28] Although the
court was interpreting another statute, the principles are the same. When the
legislature instructs an agency or a court to consider an individual's ability
to pay, giving due regard to that person's lawful dependents, it is appropriate
to consider the income of each family member. [29] The family
income concept promulgated pursuant to secs. HSS 1.01(2)(e) and 1.03(11), Wis.
Adm. Code (1985) follows the legislature's directive to determine the liable
person's ability to pay by considering both the needs and the resources of each
family member. J.G.W. suggests that the legislature only contemplated
consideration of his family's needs and not their contributions to the family.
This is an unreasonable interpretation of the legislature's directive to
determine the liable person's ability to pay. As this court noted in the Ponath
case, if a family member is contributing to the support of the liable family
member, that allows a greater proportion of the liable person's income to be
used for the support of the dependent relative. That is, their ability to pay
increases. If the Department were to look only at how much the liable person's
family costs him or her without considering how much the family contributes to
that person's support, the Department would not be following the legislative
mandate to determine the person's ability to pay. [30] Furthermore,
we disagree with petitioner that HSS secs. 1.01(2)(e) and 1.03(11) of the
Wisconsin Administrative Code impose liability on J.G.W.'s non-liable spouse.
Considering the family's resources does not mean that the individual's
liability is shifted to the non-liable family members. It is his ability to pay
that is determined on the basis of his family's income. It is only J.G.W.'s
income which may be used to satisfy his obligation to the Department. HSS sec.
1.03(14)(a), Wis. Adm. Code (1985), limits J.G.W.'s liability to the sum of his
unearned income and one-half of his earned income. *fn7 In addition, if the
calculated amount due would create a hardship on the family, a lower payment
may be authorized. See sec. HSS 1.03(14)(b), Wis. Adm. Code. These safeguards
insure that a responsible person's liability is limited to that individual's
income. Therefore, we conclude that HSS secs. 1.01(2)(e) and 1.03(11) (1985),
which utilize the family income concept in order to determine a liable person's
ability to pay for services rendered to a dependent relative are authorized by
the legislature in secs. 46.10 and 46.03(18), Stats. [31] J.G.W. also
argues that sec. 766.55(2)(c)2 of the Marital Property Act prohibits the
Department from satisfying his obligations which arose prior to January 1,
1986, with his non-liable spouse's income. *fn8 Sections 766.55(2)(c)1 and 2,
Stats., prohibit the use of a new spouse's income to satisfy an obligation
incurred by the other spouse either prior to the couple's marriage or prior to
enactment of the Marital Property Act. Petitioner asserts that this obligation
arose prior to January 1, 1986 (effective date of the Marital Property Act),
and therefore, sec. 766.55(2)(c)2 applies. Section 766.55(2)(c) provides in
part: [32] (2) After
the determination date all of the following apply: [33] (c) 1. . . .
. [34] 2. An
obligation incurred by a spouse before, on or after January 1, 1986, that is
attributable to an obligation arising before January 1, 1986, or to an act or
omission occurring before January 1, 1986, may be satisfied only from property
of that spouse that is not marital property and from that part of marital
property which would have been the property of that spouse but for the
enactment of this chapter. [35] Under sec.
766.55(2)(c)2, Stats., petitioner correctly states that only his individual
salary, his social security checks, and his interest income may be used to
satisfy his obligation to the Department because it is a pre-Act obligation.
Petitioner then claims sec. 766.55(2)(c)2 prohibits the Department from
considering any of his wife's earned or unearned income in determining his
liability to the Department. Petitioner argues that, by considering his
non-liable spouse's income in determining his ability to pay, the Department is
in effect using her income to "satisfy" his pre-Act obligation in
violation of sec. 766.55(2)(c)2. We disagree. [36] Whether or
not the legislature's use of the word, "satisfy," in sec.
766.55(2)(c)2, Stats., was intended to prohibit the Department from considering
the resources of a non-liable spouse in determining a liable person's ability
to pay for a dependent relative's care is ambiguous. When a statute is
ambiguous, we turn to the rules of statutory construction to determine the
legislative intent of that statute. Kollasch v. Adamany, 104 Wis. 2d 552, 563,
313 N.W.2d 47 (1981). When construing a statute, the court must consider it in
relation to its scope, history, context, subject matter and object to be
accomplished or remedied. Id. [37] The object
to be accomplished by sec. 766.55(2)(c)2, Stats., is to insure that premarital
or pre-Act creditors do not receive a windfall due to enactment of the Marital
Property Act. *fn9 The concern of sec. 766.55, as reflected in the use of the
term, "satisfy," is to prevent premarital creditors from having
access to the non-obligated spouse's income or assets which were attributed to
the obligated spouse by virtue of enactment of the Marital Property Act. [38] Prior to
enactment of the Marital Property Act, the legislature authorized consideration
of the non-obligated family member's income for purposes of determining the
liable family member's ability to pay, but did not authorize the use of the
non-liable family members' income to "satisfy" the debt. See secs.
46.10(3) and 46.03(18), Stats. 1973, and Ponath v. Hedrick, supra. The actual
liability of the responsible family member was limited to that individual's
income. Therefore, under the former law, none of the non-obligated spouse's
income could be used to "satisfy" the obligated spouse's debt,
although the non-obligated spouse's income could be considered in determining
the obligated spouse's ability to pay. J.G.W. asserts that, when the
legislature passed sec. 766.55(2)(c)2 it intended to change existing law so
that whatever windfall existed for creditors prior to the Marital Property Act
would be removed. We find no support for this interpretation of sec. 766.55. To
the contrary, the legislature's concern was simply to insure that enacting the
Marital Property Act would not create a windfall for pre-Act creditors by
imputing the non-liable spouse's income or assets to the liable spouse. See
note 9 (supra) . On the basis of this history, we therefore conclude that the
legislative prohibition against using a non-liable spouse's income to
"satisfy" a pre-marital or pre-Act obligation in sec. 766.55(2)
consistent with prior legislative enactments, was not intended to prohibit
consideration of the non-liable spouse's income in determining the liable
spouse's ability to pay under Chapter 46 of the Wisconsin Statutes. [39] Finally,
J.G.W. relies on this court's decisions in In re Marriage of Poindexter, 142
Wis. 2d 517, 419 N.W.2d 223 (1988), and In re Marriage of Burger v. Burger, 144
Wis. 2d 514, 424 N.W.2d 691 (1988), which hold that none of a new spouse's
income is available under the Marital Property Act to satisfy maintenance or
support obligations of a prior marriage. J.G.W. argues that, under Poindexter,
the non-obligated spouse's income cannot even "enhance" the assets
available to satisfy a pre-marital obligation. 142 Wis. 2d at 542. We agree
with petitioner's interpretation of these cases, insofar as they prohibit the
use of the non-obligated spouse's income to "satisfy" the obligated
spouse's pre-Act obligations. However, both Poindexter and Burger presented a
different situation from this case and, therefore, do not provide support for
J.G.W.'s position. The obligated spouse in both of those cases had no income.
The question presented was whether the non-obligated spouse's income or assets
could be imputed to the obligated spouse for purposes of satisfying the
obligated spouse's premarital obligations. [40] In this
case, J.G.W. has his own income. If J.G.W. had no income, the Department would
not be able to use any of V.W.'s income to "satisfy" J.G.W.'s
obligation, regardless of how much money V.W. might have. That was precisely
the result reached in Poindexter, Burger, and Ponath v. Hedrick. Our holdings
in Poindexter and Burger are consistent with the requirement that none of the
non-obligated spouse's income may be used to "satisfy" the obligated
spouse's pre-Act obligation even though the non-obligated spouse's income may
be taken into consideration in determining the liable spouse's ability to pay. [41] In summary,
we conclude that the Department has not exceeded its statutorily conferred
authority by promulgating HSS secs. 1.01(2)(e) and 1.03(11) (1985), which
implement the family income concept in determining a liable person's ability to
pay for a dependent relative's care. We also conclude that sec. 766.55(2)(c)2,
Stats., does not prohibit the Department from considering the non-liable
spouse's income in determining the liable spouse's ability to pay under HSS
secs. 1.03(11) and 1.01(2)(e), Wis. Adm. Code (1985). [42] By the
Court. -- Decision affirmed. -------------------------------------------------------------------------------- Opinion Footnotes -------------------------------------------------------------------------------- [43] *fn1 The
initial order was issued on December 27, 1985 requiring petitioner to pay
$921.18 for services rendered to A.L.W. beginning on November 25, 1985. Three
subsequent amended orders were issued on February 25, 1986 ($1001.54), June 2,
1986 ($1192.21), and July 3, 1986 ($1148.67, $1044.17 and $1007.17), which
adjusted the petitioner's liability due to a change in his economic
circumstances. [44] *fn2
Petitioner raised this issue for the first time in his petition for review
before this court. This case was first heard on oral argument on September 6,
1989. At that oral argument the parties did not fully address the marital
property issue. On September 11, 1989, this court ordered the parties to
further brief the marital property issue and invited the Family Law Section of
the State Bar of Wisconsin to file an amicus brief discussing the impact of the
Marital Property Act on this case. The case was again scheduled for oral
argument on January 4, 1990. No amicus brief was submitted. Although petitioner
has waived his right to have this issue reviewed, we choose to consider the
effect of the Marital Property Act on this case because it is a question of
law, the issue has now been fully briefed, and it is an issue of sufficient
public interest to merit decision. See Wirth v. Ehly, 93 Wis. 2d 433, 444, 287
N.W.2d 140 (1980). [45] *fn3 Section
46.03(18)(a), Stats., provides in part: [46] The
department of health and social services shall establish a uniform system of
fees for services provided or purchased by the department of health and social
services, a county department . . . . A county department under s. 46.215,
46.22, 51.42 or 51.437 shall apply the fees which it collects under this
program to cover the cost of such services. [47] *fn4 Section
46.03(18)(b), Stats., provides: [48] Any person
receiving services provided or purchased under par. (a) or the spouse of the
person and, in the case of a minor, the parents of the person, . . . shall be
liable for the services in the amount of the fee established under par. (a) . .
. . [49] *fn5 Section
HSS 1.03(11) and (12), Wis. Adm. Code (1985), provide: [50] (11) BILLING
ON THE BASIS OF ABILITY TO PAY. [51] (a) A
responsible party who provides full financial information and authorizations
for billing all applicable insurance shall be billed on the basis of the
family's ability to pay. [52] (b) For each
family, ability to pay shall be determined in the following manner: [53] 1. The
annual gross income of family members shall be determined and totaled except
that the earned income of any child who is a full time student or a part-time
student but not a full time employe shall be excluded. Income from
self-employment or rent shall be the total net income after expenses. The
income of any family member in a residential setting is treated separately
under this rule. [54] 2. The
monthly average income shall be computed by dividing the annual gross income by
12. [55] 3. Monthly
payments from court ordered obligations shall be subtracted from monthly
average income. [56] 4. For
services other than care to minors . . . . [57] (12) MAXIMUM
MONTHLY PAYMENT. A family providing full financial information shall be billed
at a monthly rate that does not exceed the maximum amount computed by means of
the following formulas: [58] (c) Other
services for children. For other services to children, the maximum monthly
payment for a parent shall be computed as follows: [59] 3. The
department shall publish a schedule annually for agencies to compute maximum
monthly payment rates under this paragraph. [60] *fn6 See
sec. 52.01, Stats. (1956), which provided in part: [61] (1) The
parent, spouse and child of any dependent person (as defined in s. 49.01) who
is unable to maintain himself shall maintain such dependent person, so far as
able, in a manner approved by the authorities having charge of the dependent,
or by the board in charge of the institution where such dependent person is;
but no child of school age shall be compelled to labor contrary to the child
labor laws. [62] Section
52.01, Stats. (1956) was subsequently renumbered sec. 49.90 and amended by 1985
Act 29, secs. 1108 to 1114. [63] *fn7 Section
HSS 1.03(14)(a) provides: [64] In cases where family members who contribute
to the family income are not responsible parties for the liability being
charged to the family, the maximum monthly payment rate shall not exceed the
sum of the unearned and one-half the earned income of responsible party or
parties, less an amount equal to that used by the Wisconsin AFDC program for
work related expenses. [65] *fn8 The
initial order was entered on December 27, 1985, and the three amended orders
were entered after January 1, 1986. Petitioner argues that because the latter
three orders were "amended orders" they relate back to the first or
"initial order" which was entered prior to January 1, 1986, the
parties' determination date under sec. 766.01(5)(c), Stats. We agree with
petitioner that these subsequent orders should relate back to the date of the
first order because these latter orders simply modified the amount that
petitioner owed due to a change in his economic circumstances. Therefore, we
conclude that all of the orders constitute an obligation which arose prior to
January 1, 1986, the parties' determination date. [66] *fn9 The
comments to sec. 8 of the Uniform Marital Property Act, upon which sec. 766.55,
Stats., is based, provide in part: [67] This
prevents a windfall to the premarital creditor by a marriage, for no interest
in marital property attributable to the effort of the new spouse of the
obligated party becomes available to enhance the assets available to that
creditor to satisfy a debt of the obligated spouse. The objective is that the
marriage should be neutral as far as the premarital creditor is concerned,
neither adding to nor detracting from the assets available for satisfaction of
the claim. 19900222 05/10/90 MARRIAGE DANIEL ABITZ v.
SHAROL ABITZ Important discussion of
New Spouse Income and child support obligations
[1] SUPREME
COURT OF WISCONSIN [2] No. 87-1944 [3] 1990.WI.145
<http://www.versuslaw.com>, 455 N.W.2d 609, 155 Wis. 2d 161 [4] May 10, 1990 [5] IN RE THE
MARRIAGE OF: DANIEL ABITZ, PETITIONER-RESPONDENT-PETITIONER, v. SHAROL ABITZ, RESPONDENT-APPELLANT [6] Affirming
147 Wis. 2d 880, 434 N.W.2d 621 (Ct. App. 1988). Review of a decision of the
Court of Appeals. [7] For the
petitioner-respondent-petitioner there were briefs by Roger A. Glenn and Glenn
& Hoff, S.c., Appleton, and oral argument by Roger A. Glenn. [8] For the
respondent-appellant there was a brief by Bruce Chudacoff and Chudacoff &
Liebzeit, Appleton, and oral argument by Bruce Chudacoff. [9] Steinmetz,
J. [10] The opinion
of the court was delivered by: Steinmetz [11] Petitioner
Daniel Abitz seeks review of an unpublished decision of the court of appeals
that reversed an order entered by the circuit court for Outagamie county, Judge
Harold V. Froehlich, which modified a child support order. When modifying the
award, the circuit court set child support by considering the appellant's
(Sharol Abitz's) one-half interest in marital property income. The circuit
court then multiplied the marital property income by the relevant percentage
standard taken from HSS 80, Wis. Admin. Code. [12] The issue
central to the Disposition of this case is whether the circuit court erred when
it considered Sharol's marital property income in setting her support
obligation. The court of appeals held that it was error for the circuit court
to give any consideration to Sharol's marital property income when setting
support. We agree. We disagree with the court of appeals Conclusion that only
Sharol's income can be considered. Because the court of appeals decision failed
to discuss use of the percentage standards found at HSS 80, Wis. Admin. Code,
on revision of a child support order, we also discuss the central issue in
terms of what the obligated parent's gross income is for purposes of applying
the standard. [13] The second
issue presented is whether the nonobligated spouse's income and assets can be
made available toward the satisfaction of the obligated parent's child support
obligation, and it has already been decided by this court. This issue concerns
the impact sec. 766.55(2)(c), Stats., of the Marital Property Act has on
premarital or preact obligations. Section 766.55(2)(c)1 and 2 provides: *fn1 [14] Section 766.55 Obligation of spouse . . .
(2) After the determination date all of the following apply: . . . [15] (c)1. An
obligation incurred by a spouse before or during marriage that is attributable
to an obligation arising before marriage or to an act or omission occurring
before marriage may be satisfied only from property of that spouse that is not
marital property and from that part of marital property which would have been
the property of that spouse but for the marriage. [16] 2. An obligation
incurred by a spouse before, on or after January 1, 1986, that is attributable
to an obligation arising before January 1, 1986, or to an act or omission
occurring before January 1, 1986, may be satisfied only from property of that
spouse that is not marital property and from that part of marital property
which would have been the property of that spouse but for the enactment of this
chapter. [17] The impact
of sec. 766.55(2)(c), Stats., was discussed in In re Marriage of Poindexter,
142 Wis. 2d 517, 419 N.W.2d 223 (1988) and In re Marriage of Burger v. Burger,
144 Wis. 2d 514, 424 N.W.2d 691 (1988). The impact of sec. 766.55(2)(c) on
premarital or preact obligations was again reviewed in In Interest of A.L.W.,
153 Wis. 2d 412, 451 N.W.2d 416 (1990). In all three cases, it was held that
sec. 766.55(2)(c) prohibits the use of a nonliable spouse's income to
"satisfy" a premarital or preact obligation. [18] In the case
now before us, both parties agree that this situation is governed either by
sec. 766.55(2)(c)1 or 2, Stats. More importantly, neither party argues that the
child support ordered violates sec. 766.55(2)(c). Both the record and orders of
the circuit court reflect its realization that sec. 766.55(2)(c) had an impact
on the ultimate sum of child support that could be satisfied by Sharol and
therefore awarded to Daniel. Thus, the ultimate impact of sec. 766.55(2)(c) is
not in dispute in this case. For purposes of clarification, however, we hold
that absent an express finding of shirking or transfer with intent to defraud,
the circuit court abuses its discretion when it orders child support at an
amount greater than that which can be fully satisfied through sole use of
income and assets of the obligated parent as defined and made available to the
circuit court pursuant to the language of sec. 766.55(2)(c). [19] The facts
are undisputed. The petitioner, Daniel Abitz, and the respondent, Sharol Abitz
(now Sharol Bassett), were married on August 19, 1967. Two children were born of
the marriage: Jeffrey, born October 17, 1968, and Kelly, born February 7, 1974.
*fn2 During their marriage, Daniel worked full-time while Sharol never worked
outside their home more than 20 hours a week. In 1983, Daniel initiated divorce
proceedings against Sharol. The judgment of divorce was effective March 7,
1984. [20] In part, the
judgment of divorce gave the parties joint custody of their then two minor
children but placed primary physical custody with Daniel. The judgment of
divorce did not require Sharol to pay any child support, apparently because
Sharol was at that time financially unable to support herself. Rather, the
issue of child support was left open to future court order. Both parties have
subsequently remarried. In 1986, Daniel married Patricia Long, and in December,
1985, Sharol married James Bassett (Bassett). [21] | ||||||||||||||||||||||||||||||||||||||||