A parent’s settlement from a wrong termination of employment lawsuit was properly counted as income subject to child support.
“Scot also argues that because his settlement included ‘an unallocated portion for the loss of a contractual right to sell his company,’ the settlement is not income under Wis. Admin. Code § DCF 150.02(13). Scot offered no expert testimony as to what this amount is, or how ‘the loss of a contractual right to sell his company’ is not the same as a replacement of the loss of income he suffered as a result of his wrongful termination. Scot has the burden of proof as to what amounts would not fall within ‘gross income.’ See Szymczak v. Terrace at St. Francis, 2006 WI App 3, ¶24, 289 Wis. 2d 110, 709 N.W.2d 103 (Ct. App. 2005) (‘[T]he party who asserts the affirmative of a proposition has the burden of proof.’). Scot’s burden was to prove what amount of the settlement was not ‘gross income’ rather than attempting to place the burden upon the court to decipher an amount that equaled the ‘loss of a contractual right to sell his company.'”
“On his tax returns, Scot reported the entire settlement amount as ordinary or capital gain income. Scot offered no expert testimony as to any amount of the settlement that would fall outside of ‘gross income.’ Scott admitted that no allocation was made for future loss of income. Scot’s inability to ‘allocate’ through credible testimony what amounts, if any, fall outside the definition of ‘gross income’ is a failure of Scot to meet his burden of proof. Given the record presented to the circuit court, we affirm that the entire settlement falls within the category of ‘gross income.'”
Recommended for publication in the official reports.
2010AP470 Lyman v. Lyman
Dist. II, Ozaukee County, Wolfgram, J., Reilly, J.
Attorneys: For Appellant: Merkle, Thomas A, Milwaukee; Mager, Gregory S., Port Washington; For Respondent: O’Neill, Bruce C., Milwaukee; Slomowitz, Diane, Milwaukee