767.511 Annotation The percentage standards may be used to generate future as well as present support. Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996), 93-1929.

767.511 Annotation The percentage standards presumptively apply in the case of a high income payee absent the payer’s showing of unfairness by the greater weight of the credible evidence. Luciani v. Montemurro-Luciani, 199 Wis. 2d 280, 544 N.W.2d 561 (1996), 93-2899.

767.511 Annotation Sub. (6) makes interest on child support arrearages mandatory. A trial court has no discretion in awarding interest, even if it determines that to do so would be inequitable. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960.

767.511 Annotation A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a parent’s job choice voluntary and unreasonable. Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), 95-2730.

767.511 Annotation The fact that a party, by deliberate conduct, frustrates an accurate calculation of the party’s income does not prevent the trial court from making the appropriate finding of fact. The court may make its findings based on the available evidence. Lellman v. Mott, 204 Wis. 2d 166, 554 N.W.2d 525 (Ct. App. 1996), 96-0618.

767.511 Annotation The court did not abuse its discretion in ruling against a request in a high income payer case for an increase in support according to the percentage standards when the court believed that the request was really a disguised claim for extra money to support the custodial parent’s own lifestyle. Nelsen v. Candee, 205 Wis. 2d 632, 556 N.W.2d 784 (Ct. App. 1996), 95-2208.

767.511 Annotation In certain cases, such as with military retirement pay, an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963.

767.511 Annotation When a noncustodial parent seeks to impose a trust on arrearages owed under a pre-August 1, 1987, support order, that parent must demonstrate that the trust is in the child’s best interest and, when the custodial parent does not agree to the trust, that the primary custodian is unwilling to or incapable of managing the support money. Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997), 95-0311.

767.511 Annotation Income disparity resulting from applying the percentage standards is only relevant if the payer can show inability to pay or that the income disparity will adversely affect the children or payer. Equalizing lifestyles between parents is not a support objective. The amount of discretionary income either parent will have to spend on their children is a secondary consideration. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997.

767.511 Annotation The repayment to the payer spouse of a loan made by him to a company that he owned was a proper addition to the payer’s income available for support. It was properly found to be deferred compensation, which is included within the applicable definition of income. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997.

767.511 Annotation A stipulation for child support with no time limit or opportunity for review was against public policy, and the payer was not estopped from seeking a modification due to a material change in circumstances. Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997), 96-3489.

767.511 Annotation Absent a finding that an individual partner has authority to unilaterally control a partnership asset, partnership assets will be imputed as available income only in accordance with the partnership agreement. Health insurance premiums paid by a partnership are included in the partners’ income available for child support. Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App. 1997), 96-3576.

767.511 Annotation The trial court properly exercised its discretion under sub. (1m) (i) by excluding from the application of the percentage standards the value of nonassignable trips received by the paying spouse as employment bonuses although the trips constituted taxable income. State v. Wall, 215 Wis. 2d 595, 573 N.W.2d 862 (Ct. App. 1997), 97-0826.

767.511 Annotation In concluding that a deviation from the percentage standards is warranted, all listed factors need not be applied. State v. Alonzo R., 230 Wis. 2d 17, 601 N.W.2d 328 (Ct. App. 1999), 98-3333.

767.511 Annotation The percentage standards under sub. (1j) include the shared-time payer formula in s. DWD 40.04 (2) [now s. DCF 150.04 (2)], Wis. Adm. Code, as well as the straight percentage standards in s. DWD 40.03 (1) [now s. DCF 150.03 (1)]. The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W.2d 737, 99-0531.

767.511 Annotation Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor’s employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor’s property division payout to provide for payment of the support obligation. Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889, 634 N.W.2d 852, 00-1868.

767.511 Annotation Subs. (1j), (1m), and (1n) give the court authority 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. Zawistowski v. Zawistowski, 2002 WI App 86, 253 Wis. 2d 630, 644 N.W.2d 252, 01-0655.

767.511 Annotation This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125, 265 Wis. 2d 529, 665 N.W.2d 405, 02-2451.

767.511 Annotation A trial court may establish a trust from funds paid for child support for the purpose of funding a child’s postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer’s higher income, a child is entitled to the money over and above the child’s needs. A trust is in the child’s best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of “educational needs” under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339, 03-0573.

767.511 Annotation Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

767.511 Annotation When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, 275 Wis. 2d 252, 685 N.W.2d 379, 03-2074.

767.511 Annotation When information the payer spouse supplied did not permit more than an approximate determination of the payer’s true gross income, the court was not required to precisely subtract the amount the payer alleged the payer would have to pay to service a new debt. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 03-2181.

767.511 Annotation The trial court erred when it ordered that child support be held open based upon the asset of the wife’s Ph.D. in psychology and upon her imputed enhanced education income upon her expected, but as yet unattained, licensure to practice. Child support determinations are to be made upon the basis of the circumstances existing at the time of the divorce and a held-open determination indicates that an order for child support is not necessary based upon current circumstances. Weiler v. Boerner, 2005 WI App 64, 280 Wis. 2d 519, 695 N.W.2d 833, 03-2606.

767.511 Annotation When undistributed company earnings are at issue, the court must: 1) ascertain whether the child support payer has the ability to individually control or access the undistributed earnings; and 2) determine whether there is a valid business reason for the company’s decision to retain the earnings. If the payer has the ability to individually control or access earnings and the company has no valid reason for retaining its earnings, the undistributed income can be considered when calculating the payer’s child support obligation. Winters v. Winters, 2005 WI App 94, 281 Wis. 2d 798, 699 N.W.2d 229, 04-0747.

767.511 Annotation A lump sum payment as the result of a pension plan enhancement was gross income subject to the child support standards. There is no windfall exception to the application of child support to gross income. Absent a finding of unfairness, grounded in the specific facts of the case, and after considering all enumerated factors in sub. (1m) and any other factors relevant to the particular case, a trial court is not authorized to deviate from the percentage standards. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231.

767.511 Annotation The circuit court erred when it upheld the court commissioner’s decision to exclude overtime pay as a general policy without exception when applying the percentage standard. Overtime income clearly constitutes a portion of salary and wages, and Wisconsin law does not exclude overtime income in the application of the percentage standard. Jarman v. Welter, 2006 WI App 54, 289 Wis. 2d 857, 711 N.W.2d 705, 05-1616.

767.511 Annotation A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances, was unenforceable. As is implicit from Ondrasek, 158 Wis. 2d 690 (1990), any marital settlement agreement entered into by divorcing parties that purports to limit a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee’s right to obtain increased child support. Wood v. Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757, 05-2674.

767.511 Annotation In not revealing that he was a trust beneficiary, a father failed to make proper financial disclosure at the time of a divorce as was required by s. 767.127. The rationale of Grohmann, 189 Wis. 2d 532 (1995), is applicable to both grantor and nongrantor trusts if there is an obligation to report that trust’s income as one’s own because it is the obligation to report the income that makes the income reachable for calculations of a child support obligation. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143.

767.511 Annotation There is no basis upon which a trial court can reduce that support owed to a payor spouse’s marital child based on nonchild-support amounts paid to the payee spouse’s nonmarital child. However, the benefit received by the nonmarital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202.