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Case Spotlight: McLaren v. McLaren

By Matthew J. Price

As the budget bill furor which engulfed the State Capitol in Madison throughout most of the spring and summer diminishes to a simmer, among other issues, state legislators can now turn to wrangling with several possible options to overhaul the child support system in Wisconsin. Up for consideration are administrative rule proposal CR 03-022, promulgated by the Wisconsin Department of Workforce Development, and 2003 Assembly Bill 250, which strips the authority from DWD to establish child support guidelines by instead making it statutory. Whichever proposal (or some variation on either) they might prefer, it appears that one matter that the majority of participants in the child support process (parties, attorneys, court commissioners, judges and child support enforcement agency personnel) can agree is that the methodology for computing child support requires repair. By way of example, one flaw exposed in the current child support system follows from the uncertainty concerning the division of responsibility for child care expenses.

Given the sharp decline in stay-at-home parenting compared to decades past, one of the most fertile litigation battlegrounds surrounds court-ordered contributions by the payor-spouse toward child care expenses above and beyond the child support award. This Case Spotlight reviews a recent Wisconsin Court of Appeals decision which examined the impact of child care expenses on child support awards.

On June 25, 2003, the Court of Appeals Publication Committee granted a motion made by a non-party to publish a District II opinion that was not recommended for publication when it was decided. McLaren v. McLaren, 2003 WI App 125 (May 14, 2003), reversed and remanded with directions the portion of the judgment entered by Judge Paul V. Malloy (Ozaukee County Cir. Ct.) relating to child support.

Following a nearly ten year marriage which produced two children, Patricia McLaren filed for divorce from her husband Sean. The parties entered into a partial Marital Settlement Agreement. Left to be resolved at trial were, among others, issues involving deviation from the presumptive 25 percent child support, guidelines and the extent of Sean’s contribution toward the child care expenses. In his post-trial ruling, Judge Malloy expressly rejected a deviation from the child support percentage guidelines. In addition, Judge Malloy ordered Sean to contribute one-half of the child care expenses. Sean appealed.

Sean argued, inter alia, that ordering a payor to share in the child care expenses in addition to paying the full child support percentage guidelines constitutes a deviation upward from the guidelines. The court of appeals agreed.
After setting forth the recognized principle that a circuit court may deviate from the WIS. ADMIN. CODE ch. DWD 40 percentage guidelines only if, after considering the WIS. STAT. § 767.25(1m) factors, the circuit court finds application of the percentage guidelines to be unfair. The court of appeals next examined the circuit court’s actions in light of this rule, as follows:

Here, the trial court ordered Sean to pay 25% of his gross monthly income, in accordance with WIS. ADMIN. CODE § DWD 40.03(1)(b). However, the trial court also ordered Sean to pay 50% of the monthly child care expenses in addition to 25% of his gross monthly income. Looking at WIS. STAT. § 767.25, the only provision to split child care costs, in addition to child support, is child care costs related to health insurance and medical costs. Sec. 767.25(4m). Section 767.25 makes no provision as to splitting child care beyond what is provided in the child support payments.
We therefore conclude that the trial court did, in fact, deviate from the child support guidelines by ordering payment of child care expenses in addition to 25% of Sean's gross monthly income. Thus, the trial court was required under WIS. STAT. § 767.25 to explain its deviation from the guidelines. The trial court did explain why it awarded daycare expenses in addition to 25% of Sean’s income:

With regard to child care or daycare expenses, I believe both parties should bear one-half of the expense and I will order that. The reason for that is that day care allows both parents to work, provides secure care for the children. The children are young. I don’t know that you could do this any less, for any less cost than they were doing this, and I don’t think it should be an individual responsibility of Mrs. McLaren. One or the other of them would have to quit working if it wasn’t for day care, in my opinion, particularly, during the summer.

However, the trial court also simultaneously (and inconsistently) asserted that it was not going to deviate from the child support percentage standards and did not address any of the § 767.25(1m) factors required for such a deviation.

Because the trial court did, in fact, deviate from the child support percentage standards when it ordered Sean to pay one-half of the daycare expenses and did so without addressing the WIS. STAT. § 767.25(1m) factors, the trial court erroneously exercised its discretion. We therefore reverse the child support order in its entirety and remand this matter to the trial court to conduct further proceedings on the issue of child support.

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Many practitioners complain of the lack of consistency and predictability in circuit courts’ award of child care expenses. While certain judges routinely divide child care expenses, others (especially in higher income cases) are of the belief that the child support percentage guidelines alone sufficiently provide for all child support and care. Most, if not all judges, however, consider the matter on a case-by-case basis and rule accordingly. McLaren does not bridge the gap of these disparities, nor does it better equip practitioners to advise their clients on the issue with any degree of certainty. Instead, the true test of McLaren will be to what extent the circuit courts will be willing to stray from the comfort zone inherent in the application of the straight presumptive child support guidelines and fashion a comprehensive child support and care package that best suits each particular case.

Matthew J. Price, senior associate at Loeb & Herman, S.C., Milwaukee, primarily concentrates his practice in the area of trial and appellate family law.

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