03-0573 In Re the Paternity of Andrew K. v. Obst

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“First, and most importantly, the rationale underpinning the supreme court’s decision in Mary L.O. remains valid despite the statutory changes. In Mary L.O., the supreme court posited that because the percentage standards presume a higher standard of living commensurate with the payer’s higher income, the child is entitled to the money over and above his or her needs and that the excess money in the trust can be used for his or her future educational needs. This would be in the child’s best interests and put the child in the same position as if the child was in an intact high-income family; thus, accomplishing the goal of the child support statutes, including Wis. Stat. § 767.25 (2001-02).

“Second, the language in Wis. Stat. § 727.25(1m)(g) (2001-02) permitting courts to consider a child’s ‘educational needs’ is clearly broad enough to encompass the higher educational needs of the child. To conclude otherwise would be to severely limit the trial court’s discretion, especially in a high income earner situation. Thus, we are convinced that the statutory changes have not altered the import of Mary L.O.

“We also note that case law interpreting Wis. Stat. § 727.25 (2001-02), the statute that now governs child support determinations in the context of paternity actions, suggests that a trust may be established for a minor child’s higher education costs. In Hubert v. Hubert, 159 Wis. 2d 803, 817, 465 N.W.2d 252 (Ct. App. 1990), we held that § 767.25(2) provides the trial court with the necessary authority to establish trusts for the postmajority needs of the children.”

And, because Scott consistently understated his income and failed to disclose his ownership interest in the company in an effort to avoid his child support obligations, the trial court was warranted in increasing support from $1,500 a month to $4,000 a month (ten percent of his income), $500 of which was to be placed in a trust to be used for the child’s health and education.

“In reaching the amount of child support, the court considered Scott’s substantial increased capacity to pay child support, Connie’s income, Andrew’s lack of financial resources, the transportation costs attendant to the placement order, Andrew’s health care costs, the typical standard of living of children in high-income families, and Andrew’s best interests. The court also noted that if Andrew lived with Scott’s family, he would have the benefit of Scott’s high income. These are all appropriate considerations. Further, we note that because the original order was based on fraud and misrepresentation, the court need not have adhered to the parties’ prior agreement to rely solely on Scott’s base income. Therefore, we conclude that the trial court properly exercised its discretion in setting the amount of child support.”

Affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Dreyfus, J., Brown, J.

Attorneys:

For Appellant: Margaret W. Hickey, Milwaukee

For Respondent: George N. Kotsonis, Milwaukee