Michael S. Eisenga v. Clare A. Hawthorne

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1404 Cir. Ct. No. 2010FA160

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

MICHAEL S. EISENGA,

PETITIONER-APPELLANT,

V.

CLARE A. HAWTHORNE PKA CLARE A. EISENGA,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Columbia County:
TODD J. HEPLER, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1404

¶1 PER CURIAM. Michael Eisenga appeals an order denying his
motion to modify child support. We affirm.

¶2 Eisenga’s motion sought to modify a child support order. As
explained in an accompanying affidavit, Eisenga was at that time subject to an
order to pay $15,000 per month in child support as a floor that had been entered
pursuant to an arbitrator’s decision at the time of divorce. He asserted that a
substantial change in his circumstances had occurred, and he asked the circuit
court to set a new child support amount based on application of DCF support
guidelines to his current income.

¶3 The circuit court held an evidentiary hearing and denied the motion.
In its written decision, the court found Eisenga not credible, and stated that it was
difficult for the court to determine the actual amount of his estate, which was the
main source for his child support payments. The circuit court stated in its written
decision that Eisenga failed to meet his burden to establish a substantial change in
circumstances.

¶4 Eisenga argues that the circuit court failed to apply the presumption
provided in WIS. STAT. § 767.59(1f)(b)2. (2019-20).1 That statute provides that a
revision in child support may be made only upon a finding of a substantial change
in circumstances, but when, as here, the amount of support is not expressed as a
percentage of parental income, there is a rebuttable presumption that the expiration
of thirty-three months after the entry of the last child support order is a substantial
change in circumstances sufficient to justify a revision. Sec. 767.59(1f)(b)2. The

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1404

parties agree that in this case more than thirty-three months had passed since the
prior order.

¶5 Eisenga’s argument is based on the fact that the circuit court
decision did not refer to the statutory presumption, and on language in its decision
that, he contends, showed the court was placing the burden on him to show that
there had been a substantial change in circumstances. He argues that instead,
because respondent Clare Hawthorne did not rebut the statutory presumption that a
substantial change in his circumstances sufficient to warrant a revision had
occurred, the court should have determined child support without regard to the
existing order, by applying DCF guidelines to the parties’ current incomes, unless
Clare established that the guidelines should be deviated from. See WIS. STAT.
§ 767.59(2)(a), (2)(b).

¶6 We conclude that the circuit court implicitly applied the presumption
statute and then determined that the support order should not be revised because
Eisenga did not provide credible financial information.

¶7 We previously rejected an argument similar to Eisenga’s in Zutz v.
Zutz, 208 Wis. 2d 338, 559 N.W.2d 919 (Ct. App. 1997). In Zutz, the circuit court
determined that a substantial change in circumstances had occurred for both
parties, but then denied the modification motion because the changes in
circumstances had not resulted in a situation that was unfair for the parents or the
child that would necessitate a change in support. Id. at 341-42. We held that,
even when the movant shows that the statutory presumption applies, that
presumption does not prevent the court from declining to use the DCF standards
because they would be unfair to the child or the parties. Id. at 343-45. In other
words, meeting the terms of the presumption does not mean that a revision of

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support is required to occur, because the court may still determine that use of the
standards is unfair.

¶8 Here, as we stated, the circuit court found that Eisenga’s financial
information was not credible. He does not dispute that finding on appeal. He also
does not provide any calculation of what he believes the correct support payment
would be under DCF guidelines, based on information in the record.

¶9 Instead, Eisenga argues that the circuit court should now hold “a
very standard child support hearing” to determine his income and support
obligation. However, Eisenga fails to acknowledge that the court has already held
an evidentiary hearing on his motion, at which he failed to provide credible
financial information. Without such information, the court was unable to
determine Eisenga’s income and apply the DCF percentage, or to determine
whether doing so would have been unfair. In the absence of credible information
from the movant, we are satisfied that the court did not erroneously exercise its
discretion by leaving the existing support order in place, declining to apply the
DCF standards, and denying Eisenga’s motion for a revision.

¶10 Eisenga moves for sanctions under WIS. STAT. RULE 809.83(2)
against Hawthorne’s attorney for citing an unpublished opinion of this court that
may not be cited under WIS. STAT. RULE 809.23(3)(a). In addition to the citation
noted in the motion, we note a second such citation on the same page of the
respondent’s brief. We decline to impose a sanction, but we caution counsel not to
repeat the error.

¶11 The motion for sanctions is denied.

By the Court.—Order affirmed.

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No. 2020AP1404

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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