Marathon County Child Support Agency v. Steven E. Schultz

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 8, 2020
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. 2019AP739 Cir. Ct. No. 2003PA4PJ

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE PATERNITY OF K. M. S.:

MARATHON COUNTY CHILD SUPPORT AGENCY AND
HEATHER M. GUSTAFSON,

PETITIONERS-RESPONDENTS,

V.

STEVEN E. SCHULTZ,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
JILL N. FALSTAD, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2019AP739

¶1 PER CURIAM. Steven Schultz appeals an order denying his
post-paternity action motions regarding child support. Schultz argues the circuit
court erred by denying his request to invalidate an August 2007 temporary order
and any child support and other obligations flowing from that order. We reject
Schultz’s arguments and affirm.

BACKGROUND

¶2 In March 2003, Schultz was adjudicated as the father of
Heather Gustafson’s then four-and-one-half-year-old child. Schultz and Gustafson
were granted joint legal custody, but Gustafson had primary physical placement
with reasonable periods of placement available to Schultz upon notice. Schultz
was ordered to pay $175 per month in child support. In June 2003, the parties
stipulated to a modified placement schedule that granted Schultz alternating weeks
with the child and included grandparent visitation and placement. The stipulation
specified that it did not affect child support.

¶3 Schultz subsequently moved to revise child support. Based on the
parties’ shared placement schedule, the circuit court reduced Schultz’s child
support obligation to zero as of October 1, 2005. Schultz, however, remained
responsible for any support arrears.

¶4 In April 2007, Gustafson sought a change in custody and physical
placement, averring that Schultz was in jail and had been “in and out of jail for the
last few years.” Gustafson added that Schultz had not held a job in the past eight
years and could not “physically/financially” take care of their daughter. Gustafson
thus sought full custody, with placement for Schultz every other weekend upon his
release from jail. The parties were ordered to undergo mediation and, in the
interim, Gustafson sought “temporary full custody.”

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¶5 After an August 2, 2007 hearing at which both parties appeared in
person, a court commissioner issued what was identified as a “Temporary Order
from 8/2/07 Hearing,” under which Gustafson was given primary physical
placement with Schultz having placement every other weekend and every Tuesday
and Thursday from 5:00 p.m. until 8:45 p.m. Because Schultz was unemployed,
the court commissioner imputed to him the minimum wage of $6.50 per hour or
$1,127 per month of gross income. Based on that imputed income, Schultz was
ordered to pay $192 per month in child support. Schultz was also ordered to pay
$50 per month toward arrears. Both the child support and arrears payments
became effective as of August 1, 2007.

¶6 Attempts at mediation reached an impasse when Schultz failed to
comply with the mediation order by not viewing a required video. On
February 29, 2008, the court commissioner issued a “Notice of Intent to Dismiss
Custody/Placement Issue,” in which Schultz was advised that, the issues he raised
regarding custody and physical placement were dismissed based on his failure to
attend an impasse review hearing. That notice was returned as undeliverable
because Schultz failed to keep the circuit court advised of his current address.

¶7 In May 2008, the Marathon County Child Support Agency (“the
Agency”) sought to enforce the August 2007 child support order by filing an order
to show cause. When Schultz failed to appear for the scheduled hearing, the
circuit court issued a bench warrant for his arrest. The warrant was later quashed
and the court ultimately dismissed the contempt action in February 2009 because
Schultz was scheduled to be incarcerated until June of that year. However, the
court acknowledged the existing order for $192 per month in current child support
and $50 per month for arrears.

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No. 2019AP739

¶8 In March 2009, Schultz again petitioned to modify child support,
arguing that his financial situation had drastically changed as a result of his
incarceration. In June 2009, presumably following Schultz’s release from
incarceration, Gustafson moved to modify placement, asserting that overnight
visits with Schultz should stop because of his “unstable lifestyle.”

¶9 At a hearing on Schultz’s petition, the circuit court informed the
parties that because mediation had previously failed and the child’s placement was
at issue, it was required to appoint a guardian ad litem (“GAL”) to represent the
child’s best interests. The court instructed the parties that unless they stipulated to
the custody and placement issues, they were liable for the GAL fees. When
Gustafson failed to make payment arrangements for her share of the GAL fees, she
was warned that her claims regarding custody and placement would be dismissed
if payment arrangements were not made within twenty days. From the record, it
does not appear Gustafson made such arrangements. In August 2011, Schultz
stipulated to increasing his child support from $192 to $251 per month. Schultz’s
July 2012 motion to reduce child support was denied.

¶10 Throughout this time, the Agency continued to enforce the child
support orders via remedial contempt. Between July 2010 and March 2014,
Schultz signed eleven orders acknowledging his obligation to pay child support,
four of which specifically set forth the $192 per month due under the August 2007
temporary order.

¶11 The child turned eighteen in September 2016, thus ending Schultz’s
obligation to pay new child support. In August 2016, Schultz asked the circuit
court to forgive all child support, arrears, and interest, arguing he had equal
custody of the child since 2009 and the Agency had been improperly collecting

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No. 2019AP739

child support imposed by a “temporary order that was dismissed.” It is unclear
from the record before us whether there was a ruling on that request before Schultz
moved the court for an order “reconciling the child support record,” again
claiming the August 2007 temporary order had been vacated or otherwise rendered
invalid. Schultz’s motions were denied, and this appeal follows.1

DISCUSSION

¶12 As an initial matter, Schultz claims the underlying action was
“procedurally flawed from the beginning,” asserting that the record does not
reflect that he was timely served with Gustafson’s filings in the circuit court.
Schultz, however, fails to adequately develop that argument. This court need not
consider arguments that are unsupported by adequate factual and legal citations or
are otherwise undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992). In any event, as the Agency points out (and which
Schultz does not dispute), Schultz did not raise that procedural challenge in the
circuit court and, ultimately, he consented to the court’s jurisdiction. See Shadley
v. Lloyds of London, 2009 WI App 165, ¶25, 322 Wis. 2d 189, 776 N.W.2d 838
(holding that issues not presented to the circuit court will not be considered for the
first time on appeal). For those reasons, we reject that challenge by Schultz.

1
The circuit court’s written order states: “For the reasons set forth by the court on the
record, the court denies all of [Schultz]’s motions.” We note that the February 18, 2019 transcript
of the court’s oral ruling is not part of the record on appeal. As the appellant, Schultz was
responsible for ensuring that all relevant transcripts are in the record. See WIS. STAT.
RULE 809.11(4). However, the transcript is cited extensively in the Agency’s brief and is
included in the appendices to both parties’ briefs. Because the contents of the transcript do not
appear to be disputed, we accept the contents of the transcript as presented by the parties.

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No. 2019AP739

¶13 Schultz also claims the temporary order is invalid both because the
court commissioner did not overtly find that there was a substantial change in
circumstances and because there was no GAL appointed at the time the order was
granted. Schultz again fails to dispute the Agency’s claim that these arguments
were not raised in the circuit court. Generally, we do not consider issues raised for
the first time on appeal. Id. We therefore decline to consider those challenges to
the temporary order.

¶14 Next, Schultz argues that the circuit court erred by denying his
request to invalidate the August 2007 temporary order and any child support
obligations flowing therefrom. Child support determinations rest within the circuit
court’s sound discretion and will not be reversed absent an erroneous exercise of
that discretion. See Pergolski v. Pergolski, 143 Wis. 2d 166, 173-74, 420 N.W.2d
414 (Ct. App. 1988). It is well established that “[w]hen reviewing a circuit court’s
exercise of discretion, we affirm if the circuit court applied the proper law to the
relevant facts of record and used a rational process to arrive at a reasonable
result.” Ambrose v. Continental Ins. Co., 208 Wis. 2d 346, 350, 560 N.W.2d 309
(Ct. App. 1997).

¶15 Here, Schultz fails to acknowledge this court’s standard of review or
otherwise explain how he believes the circuit court erroneously exercised its
discretion by denying his request for relief. Rather, Schultz asserts that the
February 29, 2008 “Notice of Intent to Dismiss Custody/Placement Issue” should
be interpreted as also voiding the terms of the temporary order. We are not
persuaded. As the circuit court noted, the “Notice of Intent” informed Schultz in
“plain language” that the issues of custody and physical placement raised by him
were dismissed based on his failure to comply with the mediation order. The

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No. 2019AP739

notice did not address the child support obligations set forth in the temporary
order.

¶16 Further, the circuit court properly recognized that Schultz had
several opportunities to contest the temporary order and that he “was on notice as
to the issues raised as to custody, placement, and child support.” The court found:

The record is clear after the August 2, 2007 hearing it took
Mr. Schultz months to follow through on the most basic of
requirements such as showing up to watch a[] [mediation]
orientation video. Ultimately, he missed court and did not
advise the clerk of his whereabouts.

Because Mr. Schultz did not pursue in person, in writing,
or through an attorney contesting the order set forth
following the August 2, 2007 hearing, that temporary
hearing order became in effect the final order of the case.

¶17 Moreover, Schultz’s own actions demonstrate that he believed he
was still obligated to pay child support. As noted above, he signed eleven orders
acknowledging his obligation to pay child support, including orders that
specifically set forth the $192 per month due under the August 2007 order. He
also moved to reduce child support, thus acknowledging his existing obligation.

¶18 In denying Schultz’s motion, the circuit court conducted an
evidentiary hearing and received bench briefs from the parties before pronouncing
a detailed oral ruling. The court properly exercised its discretion by giving
reasonable effect to all of the orders as a whole, noting that the record created a
consistent and unambiguous obligation on the part of Schultz to provide relatively
modest support for his child. We therefore affirm.

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No. 2019AP739

By the Court.—Order affirmed.

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

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