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Winkler v. Winkler4/26/2005
l be considered income to a child care provider.
e. Food stamps under 7 USC 2011 to 2036.
f. Cash benefits paid by counties under s. 59.53(21), Stats.
g. Supplemental Security Income under 42 U.S.C. 1381 to 1383f and state supplemental payments under s. 49.77, Stats.
h. Payments made for social services or any other public assistance benefits.
Winkler argues that the backdrop pension is not income, and that it cannot be counted for child support purposes because it fits in none of the categories described by § DWD 40.02(13)(a). In response, Zablocki notes, and it was not disputed during oral argument, that Winkler may choose to receive the backdrop in cash, subject to taxation, or he may roll it into an IRA to avoid immediate taxation. Whether this available payment is characterized as "deferred compensation " under § DWD 40.02(13)(a)7. or "other income" under § DWD 40.02(13)(a)10., we hold that it is gross income subject to the child support standards. Winkler's ability to defer receipt of the benefit, potentially until the child is an adult, cannot be used to deprive the child of the benefit of this support.
B. Whether the Trial Court Erroneously Ordered that Winkler Pay Support from the Backdrop as a Lump Sum
Winkler disputes the application of the standard child support guidelines to the backdrop payment. "A trial court is not required to apply the percentage guidelines in every case, but it must articulate its reasoning process for the decision to remain within the support guidelines or to deviate from them." Rumpff v. Rumpff, 2004 WI App 197, , 276 Wis. 2d 606, 688 N.W.2d 699. The trial court has the discretionary authority to deviate from the percentage standards when it finds that the use of the presumptive child support amount "is unfair to the child or to any of the parties." WIS. STAT.§ 767.25(1m). The party seeking a deviation from the established child support standards has the burden of proving that application of the standards in that case is unfair to the party or the child. See Randall v. Randall, 2000 WI App 98, , 235 Wis. 2d 1, 612 N.W.2d 737.
The fact that the child will benefit from what numerous parties have termed a "windfall" does not permit the trial court to ignore the percentage 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 fifteen enumerated factors set out in WIS. STAT.§ 767.25(1m) and any other factors relevant to the particular case, a trial court is not authorized to deviate from the percentage standards. See Rumpff,276 Wis. 2d 606, ; see also WIS. STAT.§ 767.25(1m). There was no such finding of unfairness in this case.
Winkler also argues that the trial court actually awarded Zablocki what was, in effect, "back support for a period prior to the time that the motion for child support modification had been made...." The trial court correctly refused to award child support retroactively. See WIS. STAT.§ 767.32(1m) (" he court may not revise the amount of child support ... due ... that has accrued, prior to the date that notice of the action is given to the respondent....). Although the trial court heard testimony concerning payments made by Zablocki in the past for both daughters, the trial court properly exercised its discretion when it specifically found: that the needs of this child far exceed the reasonable needs, exceed the amount of child support that has been paid during the term of this case, and certainly since Mr. Winkler retired the $142.00 a month goes nowhere near supporting ... a normal healthy ch
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