Christine Michelle Adamavich v. Brian David Adamavich

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 3, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP777 Cir. Ct. No. 2017FA325
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
CHRISTINE MICHELLE ADAMAVICH,
PETITIONER-RESPONDENT,
V.
BRIAN DAVID ADAMAVICH,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Dodge County:
MARTIN J. DeVRIES, Judge. Affirmed.
Before Fitzpatrick, P.J., Blanchard, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP777
¶1 PER CURIAM. Brian Adamavich appeals a post-divorce order
denying his motion to modify his child support obligation. We conclude that the
circuit court did not erroneously exercise its discretion in denying Brian’s motion
and, therefore, we affirm the order.1
BACKGROUND
¶2 Brian and Christine Adamavich were married in 2000. At the time
of their divorce in June 2011, they had three minor children: nine-year-old twins
and a five-year-old. Brian and Christine entered into a marital settlement
agreement that was approved by the circuit court and incorporated into the
judgment of divorce. Pursuant to the agreement, the parties stipulated that Brian
would pay a minimum amount of $2,000 per month in child support until the
youngest child reached age 18 or, if that child was pursuing a high school diploma
or its equivalent, age 19.
¶3 In December 2017, Brian filed a motion for relief from the marital
settlement agreement and judgment of divorce, as well as a motion to reduce his
child support obligation. Brian argued that the agreement purported to set a
“floor” for the amount of child support, irrespective of any and all changes in
circumstances, thereby running contrary to public policy. After briefing and a
hearing, the circuit court entered an order in which it found that the parties’
stipulation to an unmodifiable floor of child support violated public policy.
1
Because the parties share a surname, we will refer to the parties by their first names
throughout the opinion.
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¶4 The circuit court held a two-day evidentiary hearing on the issue of
child support. Following the hearing, the court entered an order on February 1,
2019, denying Brian’s motion to modify his support obligation, concluding that
the monthly amount of $2,000 remained appropriate. Brian now appeals.2
DISCUSSION
¶5 We begin our discussion with the standard of review as our guide.
Whether or not child support should be modified is left to the circuit court’s
discretion. Rottscheit v. Dumler, 2003 WI 62, ¶11, 262 Wis. 2d 292, 664 N.W.2d
525. “‘All that is required for us to affirm a trial court’s exercise of discretion is a
demonstration that the court examined the evidence before it, applied the proper
legal standards and reached a reasoned conclusion.’” Id. (quoting Voecks v.
Voecks, 171 Wis. 2d 184, 189, 491 N.W.2d 107 (Ct. App. 1992)). On appeal,
Brian argues that the circuit court erred in numerous aspects of its decision. The
issues he identifies in his appellant’s brief have substantial overlap with one
another. Therefore, we will address those issues as they arise within the context of
our discussion of the circuit court’s exercise of discretion.
¶6 Modification of the amount of child support “may be made only
upon a finding of a substantial change in circumstances.” WIS. STAT.
2
Christine’s brief includes a request that we strike pages 7 and 8 of Brian’s brief-in-chief
on the basis that those pages contain statements that stray outside the lines of proper advocacy.
Upon motion of a party, this court may strike “redundant, immaterial, impertinent, scandalous, or
indecent matter” from a pleading. WIS. STAT. § 802.06(6). However, the motion to strike must
be filed “before responding to a pleading.” Id. Here, no separate motion to strike was filed prior
to Christine’s filing of her brief. For this reason, we take no action on the motion to strike
contained within Christine’s brief, even though we conclude that the criticism of Brian’s brief is
well placed.
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No. 2019AP777
§ 767.59(1f)(a) (2017-18).3 As an initial matter, we note that Brian makes a
number of arguments that boil down to the assertion that the circuit court did not
properly apply the burden of proof when considering Brian’s motion for
modification. Brian argues that, to the extent the court applied any burden at all, it
improperly placed the burden on him to show why his monthly child support
payments should be lowered. He asserts that, under § 767.59(1f)(b)2., there
existed a rebuttable presumption of a substantial change in circumstances because
more than 33 months had expired since the date of the entry of the last child
support order and his modification motion. Brian is correct in this assertion.
However, a circuit court ordinarily does not end its analysis of child support there.
¶7 Once a substantial change in circumstances has been established, a
circuit court applies the same standards applicable to initial child support
determinations. See WIS. STAT. § 767.59(2)(a); see also WIS. STAT. § 767.511(1j)
and (1m) and WIS. ADMIN. CODE § DCF 150 (through July 2020). Ordinarily, a
circuit court shall revise child support payments by using the percentage standard
set forth by the Department of Children and Families. See § 767.59(2)(a).
However, the court may deviate from the percentage standard if, after considering
the factors listed in § 767.511(1m), the court determines by the greater weight of
the credible evidence that use of the standard would be unfair to the child or to any
of the parties. In the instant case, the circuit court properly identified the burden
of proof, stating that the burden is on the party seeking deviation from the
percentages—here, Christine—“to establish unfairness by [the] greater weight of
the credible evidence.” As discussed below, the court ultimately determined, in
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2019AP777
the proper exercise of its discretion, that this burden had been met. Accordingly,
we reject Brian’s arguments that the court misidentified or misapplied the burden
of proof in this case.
¶8 We also reject Brian’s arguments that the circuit court failed to
address whether it had a basis to deviate from the statutory percentage guidelines
for child support, that the court violated WIS. STAT. § 767.511(1j), and that the
court failed to comply with § 767.511(1m). The record belies these arguments.
¶9 The circuit court explicitly considered “whether there is a basis to
deviate from the statutory percentage standard” in WIS. STAT. § 767.511(1)(j), and
ultimately concluded that there was. In making that determination, the court
referenced the applicable factors in § 767.511(lm), stating:
The Court is to consider financial resources of the parents,
the standard of living the children would have had minus
the divorce, the desirability that the custodial parent remain
in the home as a full-time parent, and the Court is to
consider the best interest of the children, as well as any
other factors the Court deems relevant.
¶10 Pertinent to the financial resources of the parents under WIS. STAT.
§ 767.511(1m)(b), the circuit court stated that there was no indication that Brian
could not continue making child support payments in the amount of $2,000. The
record reflects that, at the time of the hearing on modification of child support,
Brian held the same engineering position within his family’s business as he had at
the time of the divorce. The court also considered Brian’s arguments regarding
Christine’s financial resources and earning capacity, including the fact that
Christine was employed with the Mayville School District, with pay of
approximately $14,000-$15,000 annually. See § 767.511(1m)(hs). The court also
noted that Brian had retained a vocational expert, who produced a report regarding
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No. 2019AP777
Christine’s earning capacity. The vocational expert opined in the report that
Christine was qualified for full-time employment with entry level wages in the
“mid to upper $30,000’s.” The court likewise considered Christine’s argument
that, if she worked more, she would have to pay for child care. See
§ 767.511(1m)(e).
¶11 The circuit court also considered the standard of living the children
would have had were it not for the divorce, the desirability that the custodial
parent remain in the home as a full-time parent, and the best interests of the
children. See WIS. STAT. § 767.511(1m)(c), (d), and (hm). The court noted in the
introduction to its February 1, 2019 order that Christine had left her job at Harley
Davidson in 2008 to care for the children. At the time of the divorce, Christine
was a stay-at-home parent, and the court noted that both parents agreed at the time
of the divorce that it served the children’s interests to have a parent home with
them. The court considered, but ultimately rejected, Brian’s argument that,
because the children were now teenagers, they did not need the same parental care
that they did earlier. The court stated: “The need for advice on issues before
adolescents is substantial and teenaged children are particularly vulnerable without
supervision and monitoring, perhaps especially when they can drive.” The court
concluded that the goal of promoting the best interests of the children weighed in
favor of continuing the amount of child support at $2,000 per month. We are
satisfied, based on the record before us, that the circuit court properly exercised its
discretion in reaching that decision.
¶12 Finally, we address Brian’s arguments related to the enforceability
of the marital settlement agreement. He argues that, by ordering that child support
would remain at $2,000 per month, the circuit court “resurrected” the floor
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No. 2019AP777
provision in the marital settlement agreement that the court previously had found
to be contrary to public policy. We disagree.
¶13 In conducting our review of a circuit court’s discretionary decision,
we must examine the court’s on-the-record explanation of the reasons underlying
its decision. Olivarez v. Unitrin Prop. & Cas. Ins. Co., 2006 WI App 189, ¶17,
296 Wis. 2d 337, 723 N.W.2d 131. The court acknowledged in its February 1,
2019 order that it had “earlier found that the $2,000 minimum with no termination
date was not enforceable,” and went on to say that it therefore was not viewing
$2,000 in monthly support as a minimum but, rather, as the amount that had been
agreed to since 2011. In addition, the court’s statements at the child support
modification hearing provide further guidance on this point. See id. (“Because the
exercise of discretion is so essential to a circuit court’s functioning, we will search
the record for reasons to sustain its exercise of discretion.” (citation omitted)). In
discussing its prior ruling regarding the stipulated floor provision in the marital
settlement agreement, the court stated: “I don’t think I found that amount was
wrong, per se. I said … that you can take another look at this because this floor
was unenforceable under case law.”
¶14 We are satisfied, based on the record, that the circuit court properly
exercised its discretion in determining that Brian’s child support obligation should
remain in the amount of $2,000 per month, and that its determination was not
inconsistent with its prior ruling that the parties’ stipulation setting a unmodifiable
“floor” on support was contrary to public policy.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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