01-0655 In Re: the Marriage of Daniel R. Zawistowski v. Tamara S. Zawistowski

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“The trial court’s statements show that it believed that the formula assumed that the payee pays all the variable costs and the payer pays child support in order to pay his or her share of those costs. We cannot read the court’s comments in any way other than expressing this view. This view is directly contradictory to the definition of a shared-time payer-someone who ‘assumes all variable child care costs in proportion to the number of days he or she cares for the child under the shared-time arrangement.’ …

“The formula that applies to a shared-time payer assumes that this is the case, and, for this reason, reduces what would otherwise be the percentage of child support owed under Wis. Admin. Code § DWD 40.03. Thus, the court’s reason for not applying the shared-time payer formula-that the formula would require Tammra to pay for all variable costs, and Daniel to pay her child support to help cover those-is based on an error of law. …

“We also conclude the court erred in its implicit assumption that it has the authority to order the parties to share equally in variable costs for the children as an alternative to ordering child support. …

“The support amount may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative. … As noted above, the court must either ‘determine child support payments’ by using the standards established in Wis. Admin. Code § DWD ch. 40, or ‘modify the amount of child support payments determined [under those standards]’ after considering the factors in subsec. (1m) and making the findings required by subsec. (1n). Section 767.25(1j), (1m) and (1n). Thus, the authority given the court is to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other.”

Affirmed in part, reversed in part and remanded.

Dist IV, Jefferson County, Koschnik, J., Vergeront, P.J.

Attorneys:

For Appellant: Bennett J. Brantmeier, Jefferson

For Respondent: Terry P. Race, Whitewater