Court of appeals settles child support dispute.

• Date: 18 March 2002

Byline: David Ziemer

In setting child support, a trial court is bound by the definition of "shared-time payer" in the Wisconsin Administrative Code as it relates to variable child care costs, the Wisconsin Court of Appeals held on Mar. 14.

Placement and Support

Daniel R. and Tammra S. Zawistowski divorced in 1999, with two children, aged six and eleven. Both Daniel and Tammra worked for the United States Postal Service, and each earned approximately $40,000 annually.

The parties stipulated to joint legal custody and to a sophisticated placement schedule that accommodated each party's work schedule. Under the schedule, Tammra had the children overnight on school nights.

The parties were not able to agree on child support, however, and that issue was tried to the court. Tammra asked that the court order Daniel to pay 25% of his gross income in child support or, in the alternative, to pay child support based on the shared-time payer formula under Wis. Admin. Code DWD 40.04(2).

Daniel argued that the court should not apply the formula and instead order the parties to share the variable costs 50-50.

Jefferson County Circuit Court Judge Randy R. Koschnick adopted the custody and placement schedule the parties agreed to, and agreed with Daniel on the support issue.

The court found that, under the schedule, Daniel would have the children with him for an average number of 120 over-nights, and determined on that basis that he was a shared-time payer as defined under DWD 40.02(25).

The court found that 25% of his income was $930.50, and, under the formula in Wis. Admin. Code DWD 40.04(2), his child support payment would be reduced to 83.35% of that figure, or $775.57 (A correct application of the formula would result in 90.01%, and thus, $837.54 per month, but neither party raised this error).

The trial court described the issue whether to apply the shared-time payer formula as follows:

"The issue ... is whether the Court should follow the guidelines of the Administrative Code, which assumes that the wife will pay for all the variables and that the husband will then pay the wife child support which would presumably account for the variable expenses paid for by the wife when the children are with her and the variables which are paid by the husband when the children are with him."

The court then considered each of the factors listed in section 767.25(1m) (1999-2000) and determined the following:

(1) The financial resources of the parents were...