Child Support Review questions

[smtotwo]

Copy of letter sent to ex arrived at our house concerning CS.

Letter states

We have reviewed your support order. Based on Financial Information we have determined that the support order should be adjusted to $xxx per month.

This is based on 25% of gross income of $xxxxx per year.

If there is agreement any party may file a motion with the court to change the order, including the state.

DH called and was told by CS worker that if he didn't stipulate to amount calculated they would impute income he's never earned, based on him working a 36 week work year. DH is a brick/block layer and has always worked 24-26 weeks a yr and collected unemployment the remainder of the year.  Even while he and the ex were married, and this was 9 yrs ago.

THere are no arrears to the state and arrears to the ex will be paid in full next week.

I thought that since CS wants to impute income DH should let either the ex or the state file the motion to amend the order.  We don't want the order changed, so we aren't filing a motion.

I did some research and this is what I found.  
      Wiseman v. Wiseman   9-30-2003  District III court of appeals

       To base a child support award on capacity to earn rather than actual income, there should be a finding based on evidence that the parent was failing to exercise his or her capacity to earn because of a  disregard of his or her support obligations.  A trial courts consideration of earning capacity rather than actual earnings is improper absent a finding that the parent was not fairly or diligently working at the occupation to which he or she is best suited, or that he or she willfully accepted employment and resultant lower compensation for the purpose of reducing his ability to pay support money.

 1)  Weren't  % awards of child support deemed unconstitutional?

 2)  If the ex files a motion to amend would this appeal ruling help at all?

 3)  Can the state file the motion to amend, even if the state has "no real interest" in the case?  (other than the federal matching funds they'll get by the increase in support)

THanks A TON !!!

[socrateaser]

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[smtotwo]

DWD 40.03  DETERMING INCOME IMPUTER BASED ON EARNING CAPACITY

In situations where the income of the parent is less than the parents earning capacity or is inknown, the county may impute income to the parent at an amount that represents the parents ability to earn based on

the parents education, (dh did not graduate HS), training and recent work experience,(has had the same job 13 yrs), earning during previous periods, (based on w-2, and 1099-g, unemployment records, income has actually gone down every year in the past 5 yrs) current physical and mental health, (dh had a disc removed from his back las thursday, from a work related injury), and the availability of work in or near the parents community, (we live in northern wisconsin, where it's to cold to lay brick or block until spring).

If evidence is presented that due diligence has been exercised to ascertain information on the parents actual income or ability to earn AND THAT INFORMATION IS UNAVAILABLE, the court may impute income to the parent the income that parent would earn by working a 35 hour week per the federal minimum wage under 29 USC 206 (a) (1)

THese are Child supports own rules on imputing income.

In parenthesis are our arguments against imputing income along with their own rule that says  due diligence has been exercised and that information is unavailable.  The actual info is available we have ALL w-2's and 1099-g's from the past 7 yrs.

Thanks.

[socrateaser]

>> 1)  Weren't  % awards of child support deemed
>unconstitutional?

In CA, found unlawful (Marriage of Hall). In WI, I don't know, and no time to research at the moment.

>
> 2)  If the ex files a motion to amend would this appeal
>ruling help at all?

Yes, if it's the current precedent. Your argument is that you are working exactly to your earning capacity, because the number of weeks that you work are the maximum number that someone in your profession can reasonably be expected to work during any typical year, because weather conditions prevent working any greater amount.

You should have some proof of the amounts that you have worked in years gone by as a demonstration that you are doing nothing different than you have always done. You could also subpoena a company who routinely contracts for work in your profession, or a Union representative, to come and testify that what you claim is true.

>3. Can the state file the motion to amend, even if the state
>has "no real interest" in the case?  (other than the federal
>matching funds they'll get by the increase in support)

You are grasping at straws. The state has a statutorily mandated interest in your case, and it can and will do whatever it wants unless you fight back.