Children’s Evening Meal Does Not Equate to ‘Overnight Care’

By Attorney Gregg Herman
September 29, 2004

The District II Court of Appeals recently called into question the definition of “equivalent care” and the efficacy of the sharing of “variable expenses” in the state’s child support guidelines, in Rumpff v. Rumpff, No. 03-2646 (Wis. Ct. App. Sept. 8, 2004) (recommended for publication).

In the case, Timothy and Amy Rumpff filed for divorce after 15 years of marriage which produced two children. The parties stipulated to a complex placement schedule, which resulted in Timothy having 36% of the overnight placement, with the trial court declining to afford any overnight equivalency to Timothy’s twice-weekly periods of placement during the school year which lasted until 7:00 p.m., i.e. “dinner placement”. Notwithstanding Timothy’s shared time status, Manitowoc County Circuit Court Judge Darryl W. Deets ordered him to pay a full 25 percent guidelines support (less a credit for the sharing of the children’s health insurance premiums), reasoning that setting full guidelines child support, which eliminates Timothy’s obligation for the 36 percent of children’s variable expenses, obviates the need for splitting the children’s expenses 64 percent/36 percent between the parties.

While the court of appeals, in a decision written by Judge Harry G. Snyder, noted the presumptive nature of the shared time formula, the court observed that trial courts have the discretion to set aside the guidelines if found unfair to the children or any of the parties. Finding that the trial court, after considering the testimony of the parties concerning variable costs (which included the parties’ informality in handling expenses, the potential for future litigation and Amy’s willingness to forego sharing even though it may benefit Timothy financially), expressed a rational basis for its deviation, the court of appeals affirmed.

There are two significant aspects to this case. The first relates to the rejection of Timothy’s argument that he should have been given credit for his twice weekly non-overnight placement during the school year, which by his calculations would raise his level of placement to more than 43 percent. The court of appeals in reviewing the record noted that Timothy did not provide evidence of expenses incurred or substantial care provided during these periods. On appeal the parties argued about who provided meals, as their basis for their positions on overnight equivalents. The court of appeals rejected Timothy’s position, unequivocally holding: “If the DWD had intended an evening meal to equate to an overnight equivalent, it could have advised as much in a note to this section. Instead, as the note to Wis. Admin. Code § 40.02(25) indicates, equivalent care must be something of substance.”

The court of appeals decision may have the effect of repealing the “equivalent care” clause in the guidelines. Other than providing meals, it is difficult to conceive of what costs can be claimed due to extended placement. This effect may be salutary, as “overnight care” then becomes a black-line test for counting times of placement. Still, if the appellate court is correct that the costs of meals do not equate to an overnight equivalent, one wonders what expense would qualify. If only overnights count, the ironic effect is that actual economic expenses do not effect child support. Instead, child support is determined only by where the child sleeps – a time during which no expenses are actually being incurred.

The second interesting holding relates to the court’s use of the percentage guidelines over variable costs, at least partly to avoid future litigation. Under the DWD guidelines, if a court utilizes the shared-placement formula, it must require that variable child costs be divided between the parties in the same percentage as they share placement. See Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W. 2d 737. As a practical matter, the trial court is quite correct — by requiring two people who do not get along to share unspecified costs, the variable cost formula is an invitation to litigation. On the other hand, if avoiding future litigation is an appropriate ground to vitiate the variable cost requirement, the court of appeals may have just eliminated this requirement from the child support guidelines.

This is not to suggest that either the trial court’s decision or its affirmance by the appellate court are wrong. Rather, as long as the rule prohibiting citation to unpublished decisions remains in effect, perhaps this case might best fall among the ones whose holding would be limited to the individuals involved.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.