00-1868 In Re: the Marriage of Sandra Lynn Modrow v. Kim Modrow

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Although a husband’s incarceration may be considered in determining child support obligations, the trial court appropriately observed that the husband’s incarceration was the result of his voluntary choice to operate a motor vehicle while intoxicated despite four previous OWI arrests, and the court noted that if the husband was unsuccessful in obtaining employment, he could petition the court for modification.

“Here, the family court observed that Kim’s incarceration was the result of his conviction for his fifth offense of OWI. While acknowledging that alcoholism is a disease, the court found that Kim voluntarily chose to operate a vehicle while intoxicated. The court found this decision to be unreasonable. We agree. In light of Kim’s OWI history, he is reasonably held to have anticipated that further OWI conduct would result in his incarceration and interfere with the ability to support his children. A parent remains obligated to make reasonable choices that will not deprive his or her children of the support to which they are entitled.”

However, we conclude that the trial court erred in ordering the husband to pay the wife’s attorneys’ fees.

Affirmed in part and reversed in part.

Recommended for publication in the official reports.

Dist II, Racine County, Constantine, J., Nettesheim, J.

Attorneys:

For Appellant: Kim Jerome Modrow, Duluth, MN

For Respondent: Carrie R. Michelson, Racine