In Tierney v. Berger, No 2011AP565, the court of appeals held that mixed orders concerning child support can be appropriate in certain cases.
Currently, sec. 767.511(1)(a) states that a support order must be stated as a fixed sum unless the parties agree, via stipulation, to use a percentage of the payor’s income in the child support order. sec. 767.34(2)(am)(1). However, even then, certain conditions must be met. In Tierney, the father was ordered to pay a set monthly amount of child support, but was also ordered to pay a percentage of his bonus income towards child support for the minor children. Tierney argued that sec. 767.511 and sec. 767.34(2)(am)(1) prohibits percentage orders unless a) there is a stipulation and b) the exceptions of 767.34(2)(am)(1) are met.
The court of appeals, noting that no cases about mixed child support orders exits, examined case law relevant to maintenance. In Hefty v. Hefty, 172 Wis.2d 124, 493 N.W.2d 33 (1992). In Hefty, the husband was ordered to pay maintenance of $5,000 per month, plus 20% of his bonus income to the wife. The supreme court held that percentage standards in maintenance cases are permitted in “very unusual circumstances.” The court classified discretionary, unknown bonuses as falling within this category since they cannot be predicted.
The child support situation parallels Hefty. The court of appeals first noted that the statute does not completely prohibit percentage orders; rather, if the parties agree, via stipulation, that child support shall be a percentage rather than a fixed sum, that a percentage standard could be used. In this case, while there was no stipulation, there are “very unusual circumstances” – namely that Mr. Tierney receives a bonus each year, of an unknown amount, and that the bonus money would clearly be subject to child support. As such, having a monthly obligation based on known income, as well as a percentage order regarding the discretionary bonus, was appropriate in child support cases as it is in maintenance cases.
