Sarah M. Morgan v. Christopher J. Tossing

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.
July 10, 2025
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. 2023AP2203 Cir. Ct. No. 2023FA203

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

SARAH M. MORGAN,

PETITIONER-RESPONDENT,

V.

CHRISTOPHER J. TOSSING,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, Graham, 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. 2023AP2203

¶1 PER CURIAM. Christopher Tossing, pro se, appeals an order
denying a motion to modify his child support obligation. Tossing moved to
modify child support based on his incarceration, and he argues that the circuit
court erroneously exercised its discretion when it denied his motion. For the
reasons stated below, we affirm.

BACKGROUND

¶2 Christopher Tossing and Sarah Morgan were married in 2008 and
had two children during their marriage. They were divorced in 2017. At that
time, Tossing worked as a software engineer, had an annual income ranging from
$120,000 to $128,000, and was ordered to pay $2,340 in child support each month.

¶3 In 2022, Tossing pled no contest to a charge of Child Enticement –
Sexual Contact that involved the parties’ young child. Tossing was sentenced to
ten years and two months of initial confinement and seven years and ten months of
extended supervision. Tossing moved to modify his child support based on the
fact that he was incarcerated. After a hearing, the circuit court denied Tossing’s
motion, relying on Rottscheit v. Dumler, 2003 WI 62, ¶11, 262 Wis. 2d 292, 664
N.W.2d 525, which we discuss in greater detail below. Tossing appeals.

DISCUSSION

¶4 A child support judgment may be revised “only upon a finding of a
substantial change in circumstances.” WIS. STAT. § 767.59(1f)(a) (2023-24).1
“The burden of showing that there has been a change in circumstances sufficient

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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to justify a modification falls to the party seeking modification.” Rottscheit, 262
Wis. 2d 292, ¶11. We review a circuit court’s denial of a motion to modify child
support for an erroneous exercise of discretion. Id. “‘All that is required for us to
affirm a [circuit] court’s exercise of discretion is a demonstration that the court
examined the evidence before it, applied the proper legal standards and reached a
reasoned conclusion.’” Id. (quoting Voecks v. Voecks, 171 Wis. 2d 184, 189, 491
N.W.2d 107 (Ct. App. 1992)).

¶5 “[T]he fact of incarceration by itself neither mandates nor prevents
modification. Incarceration is one factor that should be considered, but the
determination should be made on a case-by-case basis, looking at the totality of
the relevant circumstances.” Id., ¶1. When considering whether a child support
payer’s incarceration is a substantial change in circumstances that warrants
modification,

a court should examine factors including: the length of
incarceration, the nature of the offense and the relevant
course of conduct leading to incarceration, the payer’s
assets, the payer’s employability and the likelihood of
future income upon release, the possibility of work release
during incarceration, the amount of arrearages that will
accumulate during the incarceration, and the needs of the
children.

Id., ¶41. “[C]hild support is supposed to reflect what is in the best interests of the
child,” and the “‘only person to benefit if support is suspended would be [the
incarcerated parent].’” Id., ¶35 (second alteration in original) (quoted source
omitted).

¶6 Tossing argues that the circuit court erroneously exercised its
discretion when it denied his motion to modify his child support obligation.
Specifically, Tossing contends that, contrary to Rottscheit, the court did not

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adequately consider his “significant income reduction during his ten-year
incarceration and the likely continued inability to earn his previous income upon
release.” He states that he currently earns $8.67 per month, that he was sentenced
to more than ten years in prison, that he essentially has no assets given the balance
on his mortgage and the liens against his home, and that at the end of his period of
initial confinement, he will owe an estimated $538,065.84 in child support and
arrears. Tossing further states that after his release, he will be 50 years old and
will be unable to resume work as a software engineer because he will likely be
unable to use the internet as a condition of his extended supervision and because
he will lack the required skills given how much his field of work will have
changed during his incarceration. We reject Tossing’s arguments for the reasons
that follow.

¶7 We first observe that the circuit court explicitly considered the
Rottscheit factors, asked Tossing questions related to those factors, and heard
argument from Tossing, during which all of the information that Tossing argues is
relevant was presented to the court. The court, in rendering its decision, then
explicitly referenced the nature of Tossing’s offense, the length of Tossing’s
incarceration, his age, his employment prospects after his release, and his assets,
and the court acknowledged that Tossing was “in a difficult financial situation.”
The court nonetheless denied Tossing’s motion. In doing so, the court appears to
have determined that the nature of Tossing’s criminal conduct and the needs of the
children outweighed any other factors that may have supported modifying child
support. For example, the court asked, “Mr. Tossing, do you … accept
responsibility for the fact that every single thing that you have stated here today is
a result of your own intentional conduct toward your daughter? Because that’s
also something that I consider.” And in its written decision, the court stated that

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Tossing “could reasonably anticipate his conduct, particularly the nature of his
crime, would result in incarceration which would interfere with his ability to pay
support.” Relying on Rottscheit, the court further stated, “Having a child is a
long-term responsibility and child support is of the utmost priority for parents,”
and that “[a] child should not have to forego monetary support forever because a
parent is incarcerated.”

¶8 The circuit court also rejected Tossing’s argument that the court was
considering only the nature of Tossing’s offense in reaching its decision: the court
explained that the nature of Tossing’s offense “is one point of consideration” and
that the court was considering all of the relevant factors under Rottscheit, although
the court also recognized that it did not need to weigh the Rottscheit factors
equally. See id., ¶39 (stating that the “weight in the balance” of factors relevant to
modification “should be left to the circuit court examining the particular
circumstances”). The court denied Tossing’s motion after “looking at all these
factors and weighing the needs of the children and not just Mr. Tossing’s best
interest.” Based on the record before us, we cannot conclude that the court’s
weighing of the Rottscheit factors constituted an erroneous exercise of discretion.
Thus, to the extent that Tossing suggests that the court erroneously exercised its
discretion by failing to consider, or by improperly weighing, the factors in
Rottscheit, his argument is unpersuasive.

¶9 Tossing also relies on statements in Rottscheit that “consideration of
the nature of the criminal conduct is appropriate … for an overall evaluation of the
parent’s behavior as it relates to his ability and attitude toward paying child
support.” Id., ¶42. Tossing argues that the nature of his offense does not relate to
his ability and attitude toward paying child support and thus does not support the
circuit court’s decision to deny his motion for modification. However, Tossing

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reads this language from Rottscheit too narrowly. The Rottscheit court
specifically rejected the payer’s argument “that unless the offense relates to
avoidance of child support, the nature of the offense is irrelevant.” Id., ¶40. In
rejecting this argument, the court concluded “that a parent’s behavior, or course of
conduct over a period of time, may be very relevant to child support
determinations.” Id. Pertinent here, the Rottscheit court concluded that the nature
of the offenses in that case—operating while intoxicated as a fifth or greater
offense and possession of cocaine—“show[ed] disregard for the welfare of his
children and a lack of responsibility,” which was “certainly relevant.” Id., ¶¶4, 40.
Given this language from Rottscheit, we conclude that the court did not
erroneously exercise its discretion by considering as relevant the nature of
Tossing’s offense—which, as noted, was for child enticement of the parties’
young daughter.2

¶10 In arguing that the circuit court erroneously exercised its discretion
by not adequately considering the length of Tossing’s sentence, Tossing also relies
on the following footnote from Rottscheit:

2
Tossing also suggests that the attorney for the State of Wisconsin Child Support
Agency “mislabeled” his offense as sexual assault of a child rather than child enticement, which
Tossing argues “caused confusion.” To be sure, the circuit court did state at the hearing that
Tossing “made a plea regarding a child -- his own child -- I believe it was child enticement or
sexual assault of his own child.” We note that CCAP records indicate that Tossing was initially
charged with three counts of Repeated Sexual Assault of Same Child (at least three violations of
first-degree sexual assault), which perhaps explains the court’s statement. In any case, despite
this statement, the court did not mistakenly assume that Tossing’s conviction was for sexual
assault rather than for child enticement. At the hearing, the court specifically asked Tossing why
he was incarcerated, and he responded, for “[c]hild enticement, sexual contact.” And more
importantly, the court’s written decision accurately states that “Tossing was … convicted of
felony Child Enticement - Sexual Contact.” Finally, Tossing advances no developed argument as
to how any uncertainty regarding the exact nature of the offense supports his larger argument that
the court erroneously exercised its discretion. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶180
n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address undeveloped arguments.”).

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No. 2023AP2203

Although the facts of this case present a defendant with a
relatively short [three-year] period of incarceration, we note
that a longer period of incarceration may well tip the
balance in favor of modification and make the refusal to
modify payments an erroneous exercise of discretion on the
part of the circuit court. Courts should carefully consider
such circumstances in reviewing requests for modification
from incarcerated parents. However, those facts are not
before us. [The payer] did not face a period of
incarceration of ten, or even five, years. [The payer’s]
short period of incarceration was properly factored in to the
circuit court’s analysis.

Id., ¶46 n.12; see also id., ¶4 (stating the length of the payer’s sentence).

¶11 Tossing’s reliance on this footnote from Rottscheit is unavailing
because Tossing has failed to show that the circuit court erroneously exercised its
discretion when, despite the length of Tossing’s sentence, it denied Tossing’s
motion to modify child support. The court, consistent with Rottscheit, explicitly
considered the length of Tossing’s sentence, and in so doing, the court “‘examined
the evidence before it’” and “‘applied the proper legal standards.’” See id., ¶11
(quoting Voecks, 171 Wis. 2d at 189). To the extent that Tossing means to argue
that the court did not “‘reach[] a reasoned conclusion,’” we disagree. See id.
(quoting Voecks, 171 Wis. 2d at 189). “[T]he question is not whether we agree
with the circuit court’s ruling, but rather, whether the circuit court acted within the
realm of its discretion.” Id., ¶12; see also id., ¶22 (recognizing “the great amount
of discretion given to the circuit court in setting and modifying child support”).
As stated, the length of the payer’s sentence is but one factor for the court to
consider, and here, the court appears to have determined that the nature of
Tossing’s criminal conduct and the needs of the children outweighed any other
factors—including Tossing’s relatively long sentence—that may have supported
modifying child support. We observe that although the length of Tossing’s
sentence could be weighed more heavily in favor of modification than the payer’s

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No. 2023AP2203

sentence in Rottscheit, at the same time, the nature of Tossing’s criminal conduct
could be weighed more heavily against modification than the payer’s conduct in
Rottscheit.

¶12 In sum, we conclude that Tossing has failed to demonstrate that the
circuit court erroneously exercised its discretion in denying his motion to modify
child support.

CONCLUSION

¶13 For the reasons stated above, we affirm.

By the Court.—Order affirmed.

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

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