Christopher William Rose v. Tammy Jo Rose

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.
October 30, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP381-FT Cir. Ct. No. 2019FA529

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE MARRIAGE OF:

CHRISTOPHER WILLIAM ROSE,

PETITIONER-APPELLANT,

V.

TAMMY JO ROSE,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County:
JON E. FREDRICKSON, Judge. Affirmed in part, reversed in part, and cause
remanded with directions.

Before Neubauer, Grogan and Lazar, JJ.

¶1 LAZAR, J. Christopher William Rose appeals from an order of the
circuit court denying his motion for credit for overpayment of child support
No. 2024AP381-FT

pursuant to WIS. STAT. § 767.59(1r)(e) (2021-22)1 and for modification of his
child support order to include an offset for health insurance costs. We conclude
that the circuit court erred in interpreting § 767.59(1r)(e) as requiring a payer of
child support to have physical placement for sixty consecutive days beyond that
ordered by the court in order to be eligible for credit, so we reverse and remand
with respect to that issue. We affirm with respect to the health insurance issue.

BACKGROUND

¶2 After almost fourteen years of marriage, Christopher2 filed a petition
for divorce from Tammy Jo Rose, with whom he had four minor children. The
parties reached agreement on custody and placement of their children in late 2019.
They filed their agreement as a partial stipulation in December 2019, and the same
agreement was incorporated into their judgment of divorce on April 21, 2020. The
agreement provided for “9/5” placement in favor of Tammy during the school
year, which meant that the children would be placed with Tammy for nine
overnights in comparison to Christopher’s five overnights, with Christopher
having the right to two additional evening placements (5:00 p.m. to 8:30 p.m.)
during Tammy’s nine-day block. The parties also agreed, and the circuit court
ordered, that Christopher would “continue to cover the parties’ minor children
under a policy of health insurance and that he should be responsible for the
premium costs associated with the same.” Although the parties had waived

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
For ease of reference, the parties are referred to by their first names.

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maintenance, Christopher was ordered to make monthly child support payments of
$5,700.

¶3 The parties did not strictly adhere to the placement schedule ordered
by the circuit court. This was due at least in part to the fact that the children
attended school in the Kenosha Unified School District, where the marital home
had been and where Christopher continued to live, while Tammy had moved to
McHenry County, Illinois, about an hour’s drive away. Relevant to this appeal,
the “children were in the primary care of [Christopher]” for the five months from
October 2022 through February 2023.

¶4 On March 6, 2023, Christopher filed the motion underlying this
appeal. In his accompanying affidavit, he attested that Tammy attempted to try
the original 9/5 placement schedule at the beginning of the 2022-23 school year,
but that the “arrangement … didn’t work and [Tammy] realized this after only a
couple of weeks.” He further attested that Tammy had communicated her
intention to sell her house in Illinois and move closer to the children’s school, but
that beginning in October and as of March 6, “the placement of the children … at
[Tammy’s] request” was “70% with [Christopher], and 30 % with [Tammy].”
From November 2022 until he filed his motion, Christopher’s affidavit further
stated, he unsuccessfully attempted to negotiate a stipulation in accordance with
Tammy’s wishes for placement that adjusted the amount of child support he paid.
Christopher sought an order granting him placement for each school week and one
weekend per month until Tammy completed her move, a modification of the child
support order, and a credit for overpayment of child support from October 2022
through February 2023 pursuant to WIS. STAT. § 767.59(1r)(e).

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¶5 Tammy did not contest that she agreed to “temporarily alter” the
court-ordered placement schedule while she attempted to sell her home in Illinois,
which “took longer than expected.”3 Nevertheless, after a hearing, the circuit
court denied Christopher’s request for a credit for overpayment of child support
for the months of October 2022 through February 2023 based upon its conclusion
that, “although the minor children were in the primary care of [Christopher] during
this period of time,” WIS. STAT. § 767.59(1r) was inapplicable because Tammy
did not forego placement for more than sixty consecutive days beyond a Court-
ordered period of placement.4 The court then ordered, based upon a stipulation of
the parties, that Christopher and Tammy would have equal shared placement of
the children beginning in June 2023, with an adjusted child support payment from
Christopher. The court determined, however, that Christopher was not entitled to
offset this support obligation based on his payment for the children’s health
insurance as he had requested.

3
Tammy now states that “she does dispute Christopher’s position that he was exercising
75% of the placement.” As noted above, Christopher attested in his February 2023 affidavit that
he had 70% placement during the relevant time. In a brief filed with the circuit court on
December 11, 2023, he asserted that “he had the children in his care more than seventy-five
percent (75%) of the time” from September 2022 through May 2023. Tammy does not challenge
the circuit court’s finding that the “children were in the primary care” of Christopher during the
relevant time period and she “did not present any contrary arguments or calculations” challenging
Christopher’s assertion that the additional placement time with him was at least sixty days in
excess of that ordered by the court as required to trigger WIS. STAT. § 767.59(1r)(e). But
Christopher stated in December 2023 that “the amount of time that both parents were spending
with the minor children during the entirety of the school year of 2022 – 2023 … will require a
fact-finding hearing.” This potential factual issue is left to the circuit court on remand.
4
Christopher’s motion was initially heard and granted by a court commissioner, who
ordered that the children were to have 60% placement with Christopher and 40% placement with
Tammy, that Christopher’s child support payments be reduced, and that, “based upon the
uncontested fact that [Christopher] had placement of at least 70% … from October 1, 2022
through [May 4, 2023],” Christopher was entitled to credit for overpayment during that time
period pursuant to WIS. STAT. § 767.59(1r)(e). Tammy moved for de novo hearing on the issues
of child support and placement.

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¶6 Christopher appeals, arguing that the circuit court erroneously
exercised its discretion in disallowing a child support credit for the October 2022-
February 2023 time period when he had primary placement of the children and in
declining to modify the child support order to account for payments made for the
children’s health insurance.

STANDARD OF REVIEW

¶7 This court “review[s] a circuit court order regarding child support
for an erroneous exercise of discretion.” Franke v. Franke, 2004 WI 8, ¶72, 268
Wis. 2d 360, 674 N.W.2d 832. “[A] discretionary determination must be the
product of a rational mental process by which the facts of record and law relied
upon are stated and are considered together for the purpose of achieving a
reasoned and reasonable determination.” LeMere v. LeMere, 2003 WI 67, ¶13,
262 Wis. 2d 426, 663 N.W.2d 789 (alteration in original) (quoting Hartung v.
Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)). We reverse if a
discretionary decision is based on a mistaken view of the law. See Cook v. Cook,
208 Wis. 2d 166, 171-72, 560 N.W.2d 246 (1997). Whether a circuit court based
its decision relating to child support on the correct interpretation of a statute is a
question of law that we review independently. Id. at 172.

DISCUSSION

A. Credit for Overpayment Pursuant to WIS. STAT. § 767.59(1r)(e)

¶8 Christopher’s first argument is that the circuit court applied the
incorrect legal standard to the issue of credit for overpayment of child support,
wrongly holding that WIS. STAT. § 767.59(1r)(e) requires the payer to have
placement for sixty consecutive days beyond the court-ordered placement before
being eligible for this credit. Indeed, the court rested its decision denying credit

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on the uncontested fact that Christopher “never exercised placement for more than
60 continuous days beyond the end of a court-ordered period of physical
placement.”

¶9 As always when we endeavor “to faithfully give effect to the laws
enacted by the legislature,” we begin, as instructed by our supreme court in State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44-45, 271
Wis. 2d 633, 681 N.W.2d 110, with the text of the statute in question. WISCONSIN
STAT. § 767.59(1r) provides:

In an action under sub. (1c) to revise a judgment or order
with respect to child support or family support, the court
may grant credit to the payer against support due prior to
the date on which the petition, motion, or order to show
cause is served for payments made by the payer … in any
of the following circumstances:

….

(e) The payer proves by a preponderance of the
evidence that the child lived with the payer, with the
agreement of the payee, for more than 60 days beyond a
court-ordered period of physical placement. Credit may
not be granted under this paragraph if, with respect to the
time that the child lived with the payer beyond the court-
ordered period of physical placement, the payee sought to
enforce the physical placement order through civil or
criminal process or if the payee shows that the child’s
relocation to the payer’s home was not mutually agreed to
by both parents.

(Emphasis added). We are to give this language—in this case, the phrase “60 days
beyond a court-ordered period of physical placement”—“its common, ordinary,
and accepted meaning.” See Kalal, 271 Wis. 2d 633, ¶45. In so doing, we must
consider the context in which the language is used, “in relation to the language of
surrounding or closely-related statutes.” Id., ¶46.

¶10 The language used in closely related statutes is particularly
important in this case, because several other sections of WIS. STAT. ch. 767

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address the number of days a party in a family law action may do certain things
with a child before such activity triggers legal consequences. For example, WIS.
STAT. § 767.215(2)(j)2. states that a party may be held in contempt of court if he
or she “[r]emov[es] a minor child of the parties from the state for more than 90
consecutive days” during the pendency of a divorce case. See also WIS. STAT.
§ 767.117(1)(c) (prohibiting “removing a minor child of the parties from the state
for more than 90 consecutive days”). Similarly, WIS. STAT. § 767.481(6) states
that “a person who has legal custody of and periods of physical placement with the
child shall notify any other person who has periods of physical placement with the
child before removing the child from the child’s residence for a period of more
than 14 consecutive days.” By contrast, the formula5 used in determining the child
support obligations of shared-placement parents counts the number of “days per
year based on the number of overnights” to determine the percentage of a year that
a parent has placement—without regard to whether those days are consecutive.
See WIS. ADMIN. CODE § DCF 150.035(1)(a) (Dec. 2023).

¶11 That certain provisions are explicit when requiring consecutive days
is significant because “where the legislature uses similar but different terms in a
statute, particularly within the same section, it is presumed that the legislature
intended such terms to have different meanings.” Nelson v. McLaughlin, 211
Wis. 2d 487, 496, 565 N.W.2d 123 (1997); see also State v. Smits, 2001 WI App
45, ¶¶10-15, 241 Wis. 2d 374, 626 N.W.2d 42 (using this rule of statutory
interpretation to determine that the term “motor vehicle” was a more restrictive
term and not coextensive with the term “vehicle” when both terms were used in
the same section of a criminal statute). “It is reasonable to presume that the

5
The legislature authorized the Department of Children and Families to “promulgate
rules that provide a standard for courts to use in determining a child support obligation based
upon …. the amount of physical placement with each parent,” among other things. WIS. STAT.
§ 49.22(9).

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No. 2024AP381-FT

legislature chose its terms carefully and precisely to express its meaning.” Smits,
241 Wis. 2d 374, ¶15 (citation omitted). We decline to construe the phrase “60
days” in WIS. STAT. § 767.59(1r)(e) as “60 consecutive days”; we may not add
words to a statute under the guise of interpreting it. See Lovelien v. Austin Mut.
Ins. Co., 2018 WI App 4, ¶15, 379 Wis. 2d 733, 906 N.W.2d 728 (2017)
(“[C]ourts avoid interpretations that require inserting words into statutes.”).

¶12 The circuit court did not address the legislature’s use of “consecutive
days” in other provisions of WIS. STAT. ch. 767. It did, however, mention the
language of WIS. STAT. § 767.41(6)(h)3., which requires “a parent granted periods
of physical placement” to obtain a court order before relocating one hundred miles
or more from another parent who also “has court–ordered periods of physical
placement.” The court deemed important that WIS. STAT. § 767.59(1r)(e), by
contrast, states that credit may be due a payer if a child lives with the payer “for
more than 60 days beyond a court-ordered period”—singular—“of physical
placement.” In the court’s view, this use of the singular “period” rather than the
plural “periods” signaled the legislature’s intent that credit would be due a payer
only if the “60 days [is beyond] one of the court-ordered periods.” In other words,
the court concluded that the sixty days with the payer had to follow a single court-
ordered period of placement with the payee, meaning the sixty days with the payer
would have to be uninterrupted, i.e., consecutive. The court suggested that the
purpose of paragraph (1r)(e) was to correct for overpayment of child support when
a parent essentially abandons a child or “skips off” for an extended period, leaving
the children with the other parent.

¶13 We disagree. Pursuant to WIS. STAT. § 990.001(1), “[t]he singular
includes the plural, and the plural includes the singular” in statutory construction.
Determining whether credit is due requires a baseline against which the sixty extra
days of placement can be measured. The “court-ordered period of physical
placement” is that baseline. See WIS. STAT. § 767.59(1r)(e) (emphasis added). In

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this case, Christopher’s court-ordered period of physical placement from
October 2022 through February 2023 was five out of every fourteen days pursuant
to the 9/5 placement schedule (in favor of Tammy) to which the parties agreed and
the court ordered at the time of divorce. Thus, his court-ordered period of physical
placement was approximately thirty-six percent of the time. The parties agree that
the children actually lived with Christopher a higher percentage of the time, and
§ 767.59(1r)(e) provides that credit may be granted if the difference between the
actual period of placement and the court-ordered period of placement is more than
sixty days—the number of extra days that the legislature deemed sufficient to
justify crediting a payer (whose obligation was calculated based on a lesser period
of placement) in that special circumstance where the increased placement with the
payer was by agreement with the payee before a change to the support obligation
is formally requested.

¶14 Christopher persuasively argues that our case law (albeit scant) is in
harmony with the interpretation that WIS. STAT. § 767.59(1r)(e) does not require
sixty consecutive days in excess of court-ordered placement (or abandonment by
the payee) for credit eligibility. In both Motte v. Motte, 2007 WI App 111, ¶¶8,
11-12, 300 Wis. 2d 621, 731 N.W.2d 294, and Monicken v. Monicken, 226
Wis. 2d 119, 122, 132, 593 N.W.2d 509 (Ct. App. 1999), this court recognized
subsection (1r) as an exception to § 767.59(1m), which prohibits retroactive
revisions to child support except in the case of a calculation error, and held that a
payer could be entitled to credit under § 767.59(1r)(e). In neither case was there

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mention of whether the payer had sixty consecutive days of placement beyond the
placement ordered by the court.6

¶15 For her part, Tammy does not defend the circuit court’s
interpretation of WIS. STAT. § 767.59(1r)(e) with any textual argument. Instead,
she argues that § 767.59(1m)—the statute that generally prohibits retroactive
revisions to child support—controls because “there is conflict” between the two
subsections of § 767.59. There is no conflict. There is simply the general rule in
subsection (1m) and exceptions to that rule in subsection (1r) that allow a payer to
be credited for “payments made under specified circumstances,” as we
acknowledged in Zimmer v. Zimmer, 2021 WI App 40, ¶8 n.2, 398 Wis. 2d 586,
961 N.W.2d 898, although the payer in that case did not allege that any of the
circumstances in subsection (1r) applied.7

¶16 Tammy also argues that the “60 days” in WIS. STAT. § 767.59(1r)(e)
is ambiguous—subject to multiple interpretations—and that the circuit court’s
interpretation should be adopted because it is reasonable. She offers no authority
for her assertion that “it is not the function of the reviewing court to pick the
correct interpretation [but] only to affirm whether the lower court’s interpretation
is rooted in reason.” In fact, it is precisely the job of a reviewing court to
6
Tammy mischaracterizes the holding of Monicken v. Monicken, 226 Wis. 2d 119, 593
N.W.2d 509 (Ct App. 1999), asserting that it “clearly and unambiguously” states “that a court
may grant a credit to a payer for support paid ‘on the date on which the motion for payment is
served … under the limited circumstances’ outlined in WIS. STAT. § 767.32(1r) [renamed as the
current § 767.59(1r)]” and cannot grant credit for a period preceding a motion for amendment to a
support order. In fact, Monicken states that the statute’s “plain and unambiguous language …
permits a court to grant credit to a payer against support due on the date on which the motion for
payment is served.” Monicken, 226 Wis. 2d at 130-31. Far from holding that the court’s ability
to grant credit begins on the day the payer’s motion is filed, it is explicit that credit for past
payments may be granted pursuant to subsection (1r). Id.
7
Tammy is therefore incorrect in citing this case for the proposition that our case law
“allows for a retroactive correction in support only when there has been a mathematical mistake.”
(Emphasis added).

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determine the correct interpretation of a statute in analyzing whether a circuit court
properly exercised its discretion by applying the correct standard of law. E.g.,
LeMere, 262 Wis. 2d 426, ¶¶15-22 (interpreting statute de novo to determine
whether circuit court properly exercised its discretion in property division).

¶17 Moreover, if the text of a statute is indeed ambiguous and subject to
multiple reasonable interpretations—which, as discussed above, is not the case
here based on the legislature’s clear choice to use the word “days” instead of
“consecutive days”—the next step is to determine legislative intent by looking to
extrinsic sources such as legislative history. Kalal, 271 Wis. 2d 633, ¶¶47-51.
Even if Tammy were correct that the statute is ambiguous, she has identified no
legislative history (and the court is aware of none) supporting her position. See
Barbara B. v. Dorian H, 2005 WI 6, ¶¶25-27, 277 Wis. 2d 378, 690 N.W.2d 849
(summarizing legislative history of subsections (1m) and (1r), which were enacted
to maintain state eligibility for certain federal funds while achieving fairness for
child support payers, neither of which would apparently be affected by whether
the days triggering credit eligibility were consecutive or not).

¶18 “We will not read into the statute a limitation the plain language
does not evidence.” County of Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293,
759 N.W.2d 571. This is especially so when, as in this case, the surrounding
statutory language makes very clear that when the legislature intended for the
number of days necessary to trigger a legal consequence in a family action to be
consecutive rather than cumulative, it made the requirement of “consecutive days”
explicit. We conclude as a matter of law that WIS. STAT. § 767.59(1r)(e) does not
require the payer of child support to exercise placement for a period of sixty
consecutive days in order to be eligible for a child support credit. Thus, we
remand to the circuit court for a determination of whether Christopher should be
granted the credit he sought for overpayment of child support from October 2022
through February 2023.

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B. Modification of Child Support Order to Include Health
Insurance Costs

¶19 We turn to Christopher’s other issue on appeal: the circuit court’s
denial of his request for modification of his child support obligation based on his
payment of the children’s health insurance costs. As the court noted, “the
Judgment of Divorce … required [Christopher] to be solely responsible for the
cost of the health insurance unless [Tammy] has health insurance available to her
through a benefit of employment, which is not the case at the present time.”
Christopher’s initial motion did not reference his payment of health insurance
costs as a basis for any of his requested relief. At the circuit court’s de novo
hearing, his counsel stated with respect to this issue, “I’m not asking you to
modify [the MSA incorporated in the judgment of divorce]. I’m asking that he be
given credit for it.” Before this court, Christopher argues that “[t]he trial court in
this case erred when it concluded that it could not, and would not, modify any
health-related costs which occurred nearly 4 years after the original judgment of
divorce was entered.”

¶20 While health care insurance costs are recognized as an aspect of
child support that may be modified upon findings of a change of circumstance,
Kuchenbecker v. Schultz, 151 Wis. 2d 868, 871, 876, 447 N.W.2d 80 (Ct. App.
1989), whether to modify this aspect of a child support order is a decision within
the circuit court’s discretion, see Franke, 268 Wis. 2d 360, ¶72. Nothing in the
court’s oral ruling or written order suggests that it made its decision with respect
to the payment of health insurance costs based upon a misinterpretation of law or
the incorrect belief that it was not able to make such modification under the law; it
stated that its decision not to modify the court order in this respect (or give credit
for health insurance costs) was based on the parties’ agreement that Christopher

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would be solely responsible for this cost and its disinclination to disturb that
bargained-for provision based on the facts presented and absent a substantial
change in circumstances.

¶21 While there was some discussion of the increased cost of health
insurance since the judgment of divorce, Christopher’s argument to the circuit
court seemed to be based primarily on his increased placement. The court
acknowledged that “placement might change what’s being paid and healthcare is
more expensive,” but determined that neither fact warranted a change to
Christopher’s court-ordered obligation to pay for his children’s health insurance.
Thus, the court analyzed the relevant facts and, in our view, made a reasonable
decision based on a correct interpretation of law. See LeMere, 262 Wis. 2d 426,
¶13.

CONCLUSION

¶22 For the foregoing reasons, we reverse the circuit court’s decision
relating to credit for overpayment of child support pursuant to WIS. STAT.
§ 767.59(1r)(e) and remand for a determination of whether credit is warranted
with the understanding that the statute provides that a payer may be eligible for
credit upon establishing placement over sixty days, in total, in excess of that
ordered by the court. We, however, affirm the circuit court’s decision related to
Christopher’s request for modification of child support with respect to health
insurance costs for the parties’ children.

By the Court.—Order affirmed in part, reversed in part, and cause
remanded with directions.

Recommended for publication in the official reports.

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