author: ¶ 1. NETTESHEIM, PJ.

text:
    Global Steel Products Corp. and Accurate Partitions Corp., Plaintiffs-Respondents, v. Ecklund Carriers, Inc., Defendant-Appellant, QuadGraphics Inc., Garnishee-Defendant.
    Court of Appeals

      No. 01-1151.

      Submitted, on briefs February 7, 2002.

    Decided March 6, 2002.

    2002 WI App 91
    (Also reported in 644 N.W.2d 269.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles J. Hertel of Dempsey, Magnusen, Williamson & Lampe, LLP of Oshkosh.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Paul W. Rosenfeldt of Edgarton, St. Peter, Petak, Massey & Bullow of Fond du Lac.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   ¶ 1. NETTESHEIM, PJ.

Ecklund Carriers, Inc., appeals from a partied summary judgment awarding Global Steel Products Corp. and Accurate Partitions Corp. replevin of property and from a later judgment awarding damages in the amount of the diminution in value of the replevied property while it was in storage with Ecklund. On appeal, Ecklund argues that there is insufficient evidence to sustain the trial court's finding that the property had diminished in value by $34,070.83 and that the award of damages in addition to replevin constitutes an improper windfall to Global. We reject each of Ecklund's challenges and affirm the judgment.

¶ 2. We additionally reject Global's motion for costs, fees and reasonable attorney fees pursuant to Wis. Stat. Rule 809.25(3) (1999-2000). Given the dearth of current replevin law as it relates to damages, we cannot conclude that Ecklund's appeal is frivolous.

BACKGROUND

¶ 3. The facts underlying Ecklund's appeal are largely undisputed. Global and Accurate Partitions are affiliated manufacturers and distributors of public restroom partitions. Ecklund is an over-the-road common carrier doing business throughout North America.

¶ 4. On or about June 4, 1996, Global engaged M.J. Meyers, Inc., for the transport of a load of restroom stall components and hardware from its plant in New York to Accurate's plant in Illinois. Meyers sent a trailer to Global's plant, loaded the materials and then made arrangements with Ecklund to haul the materials to Illinois. Meyers submitted an invoice to Global for its services. However, Ecklund did not deliver Global's materials to Accurate. Instead, Ecklund informed Global that it would not be delivering the materials because Meyers had ceased operations and had not paid Ecklund for previous transport services and for the transport services related to this case.

¶ 5. More than three years later, on November 8, 1999, Global commenced this action against Ecklund for replevin. Ecklund denied the allegations of the complaint and counterclaimed, asserting that Meyers was acting as an agent for Global and, as such, Global was obligated to pay Ecklund for the transport services.

¶ 6. On July 7, 2000, Global moved for partial summary judgment on its replevin claim. Following a hearing on July 31, 2000, the trial court granted Global's motion on August 9, 2000, finding that "there is no genuine, material dispute with respect to the facts alleged by [Global]." The judgment awarded Global "replevin of the property which is the subject of this action; that in lieu of replevin the plaintiffs shall recover . . . the value of the property, $39,903.33." The judgment additionally provided for lost profits, dismissed Ecklund's counterclaim and awarded Global costs and fees incurred in bringing the action.

¶ 7. On February 14, 2001, the trial court conducted further proceedings in the form of a bench trial as to the diminution in value of Global's materials from the date the property was delivered to Ecklund in June 1996 through the grant of partial summary judgment. Global presented the testimony of Carl Liggett, the general manager of Accurate, as to the current value of the materials. Liggett testified that he had inspected the materials stored on Ecklund's property and had observed rusting on a number of panels. Liggett testified that based on the "extreme rust" and "evidence of moisture," "a reasonable person would not want to take these products and run the risk of selling them to their customers." Liggett concluded that the products could be used only as scrap metal for a residual value of 2.7 cents per pound. As to the hardware, Liggett concluded that it had not deteriorated during storage but was obsolete as the designs of the partitions had changed so as to use different hardware. Liggett expected to be able to recoup 25-30% of its original value of $19,000.

¶ 8. Ecklund presented two witnesses at trial, Robert Schumacher and Keary Ecklund. Both testified as to the physical condition of the products. Schuma-cher testified that he observed very little rust on the panels and stated his opinion that any rust could be easily removed. Keary Ecklund testified that the products had been stored in a climate-controlled facility during the four and one-half years since Ecklund took possession and that he had observed similar rusting in previous loads transported for Global.

¶ 9. The trial court found Ligget's testimony to be "very credible" and "uncontroverted" as to the type of rusting and the compromised integrity of the pieces exposed to moisture. The court additionally accepted Liggett's testimony as to the value of the partitions and hardware. Based on Liggett's testimony, the court arrived at a resale value of $5832.50, stating, "subtracting that from the $39,903.33, the Court would find for [Global] for $34,070.83." Ecklund appeals.

DISCUSSION

Standard of Review

¶ 10. We will not set aside the trial court's findings of fact unless clearly erroneous. Wis. Stat. § 805.17(2). It is for the trial court, not the appellate court, to resolve conflicts in the testimony. See Fuller v. Riedel, 159 Wis. 2d 323, 332, 464 N.W.2d 97 (Ct. App. 1990). It is not within our province to reject an inference drawn by a fact finder when the inference drawn is reasonable. Onalaska Elec. Heating, Inc. v. Schaller, 94 Wis. 2d 493, 501, 288 N.W.2d 829 (1980). We will search the record for evidence to support the findings that the trial court made, not for findings that the trial court could have made but did not. Becker v. Zoschke, 76 Wis. 2d 336, 347, 251 N.W.2d 431 (1977). The trial court is the arbiter of the credibility of witnesses, and its findings will not be overturned on appeal unless they are inherently or patently incredible or in conflict with the uniform course of nature or with fully established or conceded facts. Chapman v. State, 69 Wis. 2d 581, 583, 230 N.W.2d 824 (1975).

¶ 11. Whether the trial court's replevin award coupled with the damage award for diminution in value of the property was proper turns on the language of Wis. Stat. § 810.14. The construction of a statute and its application to undisputed facts are questions of law which we determine de novo. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 233, 568 N.W.2d 31 (Ct. App. 1997).

Sufficiency of Evidence

¶ 12. Ecklund first challenges the trial court's finding as to the amount of diminution in value of Global's products. Ecklund argues that the trial court's findings are clearly erroneous when considered against the evidence presented at trial. Ecklund's challenge centers on the trial court's reliance on Liggett's testimony. Ecklund contends that Liggett's testimony as to the physical condition of the property should not have been relied upon and was controverted by its witnesses "who had taken considerable time to examine the condition of the [p]roducts."

¶ 13. In support of its argument, Ecklund points to Liggett's testimony that the conditions during his inspection were not ideal. Liggett testified that he examined the load with nothing more than a flashlight and the light from outside the trailer. He testified that the products were "jammed together" in the trailer "with no light and very limited access." Ecklund also points to testimony of its witnesses that there was very little rust and that it could he easily removed. However, Liggett's testimony demonstrated that it was moisture, not only rust, that gave cause for concern. Liggett explained that the partitions are constructed by bonding two sheets of galvanized steel to a "honeycomb" craft paper or cardboard core. Liggett felt "certain" that the moisture he observed would have weakened the cardboard core of the partitions and degraded the bond between the steel and the core. The only way to rule out such damage would be to tear the partitions apart, thereby ruining them. Either way, Liggett did not feel it would be responsible to sell questionable merchandise.

¶ 14. As to his lack of further inspection, Liggett testified that due to the severity of the rust he observed initially, he did not feel the need to explore the products by removing their packaging and inspecting them further. In Liggett's opinion, the partitions could be sold for scrap metal and the hardware for only 25-30% of its original value.

¶ 15. The trial court found Liggett's testimony to be credible, including his testimony as to the value of the stored products. We have reviewed the record and find ample evidence to support the trial court's findings. Although Ecklund's witnesses offered testimony conflicting with Liggett's, it is the trial court's function, not ours, to resolve such conflicts. Fuller, 159 Wis. 2d at 332. The trial court's findings are not clearly erroneous.

Replevin and Diminution of Value

¶ 16. Ecklund next argues that the money judgment awarded to Global is not permitted under Wis. Stat. § 810.14, which governs recovery in a replevin action. The statute provides:

In any action of replevin judgment for the plaintiff may be for the possession or for the recovery of possession of the property, or the value thereof in case a delivery cannot be had, and of damages for the detention; and when the property shall have been delivered to the defendant, under s. 810.06, judgment may be as aforesaid or absolutely for the value thereof at the plaintiffs option, and damages for the detention. If the property shall have been delivered to the plaintiff under ss. 810.01 to 810.13 and the defendant prevails, judgment for the defendant may be for a return of the property or the value thereof, at the defendant's option, and damages for taking and withholding the same.

¶ 17. Ecklund argues that the plain language of this statute requires that Global take judgment for either the possession of the property or for its value. However, Ecklund overlooks that the statute also provides for "damages for the detention" whether the plaintiff chooses to pursue replevin or the value of the. property if delivery cannot be made. Id.

¶ 18. That Global is entitled to recover damages in addition to replevin of the property is supported by case law. In Commercial Investment Trust, Inc. v. William Frankfurth Hardware Co., 179 Wis. 21, 30, 190 N.W. 1004 (1922), the court held:

[W]hatever may be the rights of one whose property has been wrongfully attached, a plaintiff in a replevin action, when successful, both at common law and by statute is entitled to damages.
In cases where the property is recovered to the owner, the damages are usually measured by interest and depreciation in value.... [WJhere the property depreciates in value during the time of the wrongful detention the owner is also entitled to damages for the amount of the depreciation.

¶ 19. On a variation of this same theme, Ecklund also contends that the trial court erred by later awarding a money judgment to Global for the value of the property after already awarding Global replevin of the property. However, this is not what the trial court did. The trial court awarded Global the diminution in value of the property while it was in the Ecklund's custody and control. This additional remedy is expressly sanctioned by Commercial Investment Trust. Id.

¶ 20. The net result in this case is that Global received its property with a present value of $5225 plus a damage award of $34,070.83, representing the diminution in value of the property during the years of storage with Ecklund. Contrary to Ecklund's argument, these combined remedies do not constitute a windfall to Global. Rather, they make Global whole, which is precisely what Wis. Stat. § 810.14 and Commercial Investment Trust envision.

Frivolous Appeal

¶ 21. As a final matter, we address Global's motion for costs and fees associated with this appeal pursuant to Wis. Stat. Rule 809.25(3). Global argues that Ecklund filed this appeal for the sole purpose of harassment and that it knew or should have known that the appeal was without any reasonable basis in law or equity. Because of the dated law surrounding Ecklund's appeal as to the propriety of damages in a replevin action, we cannot conclude that the appeal as to this issue is frivolous.

¶ 22. Even if we agreed with Global that Ecklund's challenge to the sufficiency of the evidence is frivolous, see Lessor v. Wangelin, 221 Wis. 2d 659, 667-69, 586 N.W.2d 1 (Ct. App. 1998), we cannot award fees under Wis. Stat. Rule 809.25(3) unless "the entire appeal is frivolous," see Manor Enters., Inc. v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999).

¶ 23. Here, both parties acknowledge the lack of recent case law addressing whether a party may recover . in both replevin and damages. Global even asks that we publish this opinion "in view of the paucity of modern case law on the remedy of replevin." Without a recent case revisiting such dated law, we cannot conclude that Ecklund's appeal as to the proper application of Wis. Stat. § 810.14 is frivolous.

CONCLUSION

¶ 24. We conclude that the trial court's findings as to the diminution in value of Global's property are not clearly erroneous and, thus, the trial court did not err in awarding Global damages of $34,070.83. We further conclude that the trial court's award of damages in addition to replevin was appropriate under Wis. Stat. § 810.14. We therefore affirm the trial court's judgment.

¶ 25. Finally, we cannot conclude that Ecklund's appeal is frivolous pursuant to Wis. Stat. Rule 809.25(3). We therefore deny Global's motion for costs and fees on appeal.

By the Court. — Judgment affirmed.

       All statutory references are to the 1999-2000 version unless otherwise indicated.

       Global's complaint also made claims on grounds of conversion of property, property damage, lost profits, breach of contract and intentional interference with performance of contract. Those claims are not at issue on appeal.

       Neither the appellate record nor the parties' briefs explain who requested this further hearing or why it was requested. Regardless, the record does not reveal that Ecklund objected to the hearing. Nor does Ecklund raise the propriety of the hearing as an issue on appeal. Instead, Ecklund quarrels with the sufficiency of the evidence adduced at the hearing and the propriety of the damage award in light of the trial court's prior award of replevin to Global.

       Therefore, we reject Ecklund's further argument that Global was required to elect as between these remedies.


source: Caselaw Access Project

author: ¶ 1. SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul K. Shanks, Defendant-Appellant.

    Court of Appeals

      No. 01-1372-CR.

      Submitted on briefs February 7, 2002.

      Decided March 13, 2002.

      2002 WI App 93
    (Also reported in 644 N.W.2d 275.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven A. Koch of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney-general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 7-26-02.

   ¶ 1. SNYDER, J.

Paul K. Shanks appeals from a judgment of conviction for first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1999-2000), and an order denying his request for postconviction relief. Shanks argues that the trial court erroneously exercised its discretion in allowing the victim to sit on her grandmother's lap while testifying. Shanks also asserts that the trial court's deniál of a new trial based on newly discovered evidence constituted an erroneous exercise of discretion. Finally, Shanks contends that there is insufficient evidence to sustain a guilty verdict in this matter. We disagree with all of his contentions and affirm the judgment and order.

FACTS

¶ 2. On May 12, 2000, Shanks was charged with first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1). The complaint alleged that Shanks had sexual contact with K.L.E., d.o.b. May 15,1997, by placing his right index finger in her vagina. Shanks and K.L.E.'s mother, Candy Chandler, lived together starting around the beginning of October 1999. The complaint alleged that on October 27, 1999, K.L.E. told Chandler "Paul hurting me" while holding up her right index finger. Chandler confronted Shanks and he denied hurting K.L.E.

¶ 3. On November 2, 1999, Chandler took K.L.E. to the emergency room, after which, on November 3, 1999, she was examined by sexual assault nurse examiner Jacqueline Callari at Lakeland Medical Complex; Callari noted a one-centimeter tear in K.L.E.'s posterior fourchette, consistent with digital penetration. K.L.E. also told Callari "Paul hurting me" and pointed to her vagina.

¶ 4. A jury trial was held on October 31, 2000. The State's first witness was K.L.E. Prior to her testimony, the State asked that K.L.E. be allowed to sit on her grandmother's lap while testifying, citing Wis. Stat. § 906.11(1) as authority. Shanks's defense counsel objected, asking, "How do I know that her grandmother hasn't exercised undue influence over her already?" and "[w]hy don't we see how she reacts before we go putting her on the grandmother's lap?" Shanks's counsel then stated, "Hit's my understanding that this is the paternal grandmother, and there's some conflict between the father and the defendant here. I just don't think that if they did it with someone else, that would be all right, if they brought the mother in, I wouldn't object to that, but why do we have to have the paternal grandmother sitting there?" The trial court granted the State's motion and allowed K.L.E. to testify while sitting on her grandmother's lap.

¶ 5. Shanks was found guilty of the charge and was sentenced to fifteen years' probation, with one year in jail as a condition of probation. On April 26, 2001, Shanks filed a postconviction motion asking for a new trial based on newly discovered evidence. He also asked the court to set aside the verdict for insufficient evidence. The trial court denied the motions and Shanks appeals.

DISCUSSION

¶ 6. Both parties agree that the proper standard of review for all of Shanks's arguments is whether or not the trial court erroneously exercised its discretion. The term "discretion" contemplates an exercise of judicial judgment based on three factors: (1) the facts of record, (2) logic and (3) the application of proper legal standards. Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982). Where the court has undertaken a reasonable inquiry and examination of the facts as the basis of its decision and has made a reasoned application of the appropriate legal standard to the relevant facts in the case, it has properly exercised its discretion and we will affirm if there is a reasonable basis for its determination. Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727 (1982). Stated another way, we will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision. Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372 (Ct. App. 1987). We need not agree with the trial court's exercise in order to sustain it. Indep. Milk Producers Co-op v. Stoffel, 102 Wis. 2d 1, 12, 298 N.W.2d 128 (Ct. App. 1980).

¶ 7. Shanks argues that the trial court erroneously exercised its discretion when it allowed K.L.E. to testify while sitting on her grandmother's lap. We reject this contention.

¶ 8. Shanks concedes that there is no specific procedure for a court to follow in determining the circumstances under which a child should be allowed assistance to testify but cites State v. Suka, 777 P.2d 240 (Haw. 1989), as the only authority for his argument. In Suka, the Hawaii Supreme Court found reversible error when a representative of a victim-witness program was allowed to stand behind a fifteen-year-old victim and place her hands on the victim's shoulders while she testified. Id. at 241-43. The Hawaii Supreme Court stated that the jury might conclude that the representative had learned of information unavailable to the jury and believed that the victim was telling the truth. Id. at 242.

¶ 9. However, the Suka court specifically noted that this same risk of prejudice is unlikely when a witness is accompanied by a close relative because the jury is more likely to view that as family support; in addition, the Suka court noted that there is less risk of bolstering credibility if the witness is quite young as then the jury would likely view it as needed assistance. Id. at 242 n.l. Here, we have the exact situation contemplated by Suka-, the victim was quite young, three years old at the time of trial, and she sat on the lap of her grandmother. Suka is not binding precedent upon this court and is of no value here.

¶ 10. Wisconsin Stat. § 906.11 allows a trial court to control the mode and order of interrogation and presentation of witnesses:

(1) CONTROL by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.

The trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness, State v. Gilbert, 109 Wis. 2d 501, 517, 326 N.W.2d 744 (1982), and is not required to determine that a child is unable to testify unless accommodations are provided. Courts have fashioned rules to protect a child, scrupulously taking into consideration the traumatic effect of testifying, of facing a defendant and of being subject to cross-examination. Id. at 515.

¶ 11. Here, the trial court was aware that the victim was only three years old and the nature of the case was a sexual assault by her mother's roommate. The trial court also was informed that the child had lived with her grandmother for quite some time pursuant to a court order and did not see her mother very frequently. The trial court stated:

I know the law provides a certain amount of leeway here for the court to make a discretionary decision ....
I guess they can consider the fact she's sitting on grandma's lap just as well as they can consider a witness fidgeting or whatever, and I guess it's just a proper matter of discretion. I usually try them without a seat. I just think, I saw the girl walking by, so I recall her to be a fairly tiny child ....
I will allow it in the discretion of the court.

The trial court informed the jury that K.L.E. was going to testify from her grandmother's lap because of her small size and instructed the grandmother, in the presence of the jury, not to coach the child in any way.

¶ 12. We see no misuse of discretion in allowing the child witness to sit on her grandmother's lap while testifying. Here, the trial court wisely used the tools available to it to lessen the burden on K.L.E. and afforded her as much protection; as was consistent with Shanks's constitutional rights. Id. at 517.

¶ 13: Shanks also contends that the trial court erroneously exercised its discretion when it denied his postconviction motion for a new trial based on newly discovered evidence. The requirements for granting a new trial for newly discovered evidence are:

(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.

State v. Brunton, 203 Wis. 2d 195, 200, 552 N.W.2d 452 (Ct. App. 1996) (citation omitted). Shanks assumes the burden of establishing each of these five criteria by clear and convincing evidence. Id. at 207.

¶ 14. The basis for Shanks's newly discovered evidence is in the form of two affidavits, the first from Chandler and the second from Richard Stoerp, an acquaintance of Chandler's and Shanks's.

¶ 15. Chandler's affidavit reads as follows, in relevant part:

1. That I am Candy Chandler, the same person who testified in the case of "State of Wisconsin vs. Paul K. Shanksf] on October 31, 2000 in Elkhorn, Wisconsin.
4. That during my testimony of October 31, 2000, I stated under redirect examination by [the district attorney] that it was Saturday, October 30, 1999, that I went to Ripon, Wisconsin and left my daughter, [K.L.E.], with Paul all day.
5. That at the time of my testimony, I was under a great deal of stress and I now recall that on Saturday, October 30, 1999, I did not go to Ripon, Wisconsin, I did not leave my daughter, [K.L.E.], alone with Paul, but rather left her with her grandmother. Richard Stoerp, Paul and myself went to Fifties East bowling alley in Lake Geneva, Wisconsin. I returned home and Richard Sto-erp later brought Paul home and at no time on Saturday, October 30, 1999, did I leave [K.L.E.] alone with Paul.
6. I state under oath that at no time from the time [K.L.E.] reported hurting in the area of her crotch on October 27, 1999 until I took her for the vaginal examination on November 3,1999, did I ever leave Paul alone with her. I have reflected on this and I can truthfully say this at this time under oath that from October 27, 1999 to November 3, 1999, I did not leave [K.L.E.] alone with Paul.

Stoerp's affidavit is meant to corroborate Chandler's:

I, Richard Stoerp, under oath state as follows:

That on Saturday, October 30, 1999, I met Paul Shanks and Candy Chandler and we went to a Hallow-
611 een party at Fifties, which is at the bowling alley in Lake Geneva, Wisconsin. I was with them all night and Candy's daughter, [K.L.E.] was not with Candy nor was Paul at any time with her daughter [K.L.E.] during the time I observed them. I first observed them at about 9:00 to 9:30 p.m. on October 30, 1999. I went to their house in Lake Geneva, Wisconsin and met them at that time. We all then went together to Fifties, a bowling alley in Lake Geneva. We stayed there until closing, which was approximately 2:00 a.m. We then went to breakfast at Hanny's Restaurant and left there at approximately 2:05 a.m. because we did npt stay there. I then took Paul home and arrived at the house at approximately 2:15 a.m. and that was the last I saw of Paul that morning. I remember this entire incident as it was the day before Halloween and it was a Halloween party at Fifties. I specifically recall this as being Saturday, October 30, 1999.

¶ 16. The newly discovered evidence is, according to Shanks, the fact that Chandler did not go to Ripon on October 30, 1999, but instead went to a party that evening with Shanks and Stoerp. Thus, Shanks argues, this evidence demonstrates that he was never alone with K.L.E. during the seventy-two hour time frame for the injury, as established by Callari, and thus had no opportunity to commit the offense. However, the trial testimony surrounding Chandler's whereabouts on October 30, 1999, was nowhere as unequivocal as Shanks would ask us to believe.

¶ 17. Chandler was asked many times, by both the district attorney and defense counsel, about her whereabouts on October 30,1999, and the timing of the trip to Ripon.

[CHANDLER]: [H]e was also with her alone when I had to take Matt's brother to go visit his girlfriend in Ripon, Wisconsin. [DISTRICT ATTORNEY]: Do you know when that was?
[CHANDLER]: Right off hand I don't remember.
[DISTRICT ATTORNEY]: .... But wasn't it that Saturday that you went to Ripon, and Paul Shanks stayed alone with her all day?
[CHANDLER]: I don't remember. I don't remember when we went to Ripon ....

¶ 18. Despite previous statements that K.L.E. first told her about her injury on October 27, 1999, initially at trial Chandler was adamant that K.L.E. told her of the injury on Saturday, October 30, 1999. But then the district attorney presented Chandler with previous statements she had made about the day of October 30, 1999, and asked:

[DISTRICT ATTORNEY]: .... So Saturday you went to Ripon and Paul Shanks was alone with her?
[CHANDLER]: I'm sorry. Yes. He did watch her that night. I just wasn't sure which night it was we went to Ripon, but —
[DISTRICT ATTORNEY]: So it wasn't Saturday that [K.L.E.] first told you, because Saturday you were in Ripon. It was Wednesday that she first told you?
[CHANDLER]: It could very possibly be. These dates are all screwy. I'm sorry.

¶ 19. Furthermore, KL.E.'s father, Matthew E., was asked if he remembered going to Ripon with Chandler on October 30, 1999; Matthew agreed that he had gone to Ripon with Chandler but "thought it was sometime in the middle of November." The district attorney asked, "So the statement of that Saturday beforehand, that doesn't coincide with your memory?" Matthew responded, "No, it doesn't."

¶ 20. The first two criteria for granting a new trial based on newly discovered evidence is that the evidence came to the attention of the defense after trial and that the defendant was not negligent in seeking to discover it. Id. at 200. Shanks has not established by clear and convincing evidence either of these two conditions. During trial, Chandler was quite hazy regarding her whereabouts on October 30, 1999, and the timing of the trip to Ripon. Matthew testified that the Ripon trip did not occur on October 30, 1999, but instead took place sometime in November 1999. Therefore, Shanks was aware of the confusion surrounding the activities of October 30, 1999, and the possibility that Chandler had not gone to Ripon that day, leaving K.L.E. alone with Shanks.

¶ 21. In addition, it was within Shanks's own personal knowledge that he, Chandler and Stoerp had been together the night of October 30, 1999. Shanks fails to explain why he was unaware, until after trial, of his own whereabouts on October 30, 1999. The affidavits presented by Chandler and Stoerp do not constitute newly discovered evidence.

¶ 22. Finally, Shanks argues that insufficient evidence was presented to sustain a finding of guilt. We disagree.

¶ 23. The standard for reviewing the sufficiency of the evidence to support a conviction is the same in either a direct or circumstantial evidence case. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). Under that standard, commonly referred, to as the reasonable doubt standard of review:

The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true .... The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted.

Id. at 503-04 (citation omitted). An appellate court may not substitute its judgment for that of the trier of fact; accordingly, an appellate court may not reverse a conviction unless the evidence, viewed most favorably to the State and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. Id. at 501, 507.

¶ 24. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it. Id. at 507.

¶ 25. While we admit that the evidence presented at trial did not overwhelmingly indicate Shanks's guilt, we cannot conclude that the evidence, viewed most favorably to the State and the conviction, was so insufficient in probative value and force that as a matter of law no reasonable trier of fact could have found guilt beyond a reasonable doubt. Even though Chandler testified that K.L.E. initially identified her father as the source of her injury, Chandler later testified that K.L.E. soon after repeatedly identified Shanks as her assailant. Admittedly, K.L.E.'s trial testimony was, at best, inconsistent and equivocal. However, both Chandler and Callari testified that K.L.E. made statements shortly after the assault to each of them, separately, implicating Shanks. Furthermore, a police officer testified that when he interviewed Chandler on November 4, 1999, at her home, K.L.E. came into the room, pointed to her private parts with her right index finger and said Shanks hurt her. In addition, while Callari admitted that the injury could have been self-inflicted or caused by some unknown source, she testified that K.L.E.'s superficial abrasion was consistent with digital penetration. We may not substitute our judgment for that of the trier of fact. Id.

¶ 26. Shanks asserts that there was no evidence of his intent to become sexually aroused or gratified or that he placed his finger in KL.E.'s vagina for that purpose. The trier of fact is free to choose among conflicting inferences of the evidence, id. at 506, and intent, including the intent to become sexually aroused or gratified, can be inferred from the conduct of the accused. State v. Drusch, 139 Wis. 2d 312, 326, 407 N.W.2d 328 (Ct. App. 1987). Intent to become sexually aroused or gratified can be inferred when a man places his finger in the vagina of a two-year-old girl. The evidence presented here was not so insufficient in probative value and force that as a matter of law no reasonable trier of fact could have found guilt beyond a reasonable doubt.

CONCLUSION

¶ 27. We reject Shanks's contentions that the trial court erroneously exercised its discretion in allowing the victim to sit on her grandmother's lap and in denying his motion for a new trial. We further reject his argument that there is insufficient evidence to sustain a guilty verdict in this matter. We affirm the judgment and order of the trial court.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       More extensive discussion and analysis of State v. Suka, 777 P.2d 240 (Haw. 1989), can be found in Judge Charles B. Schudson, On Trial, Support Persons and Comforting Laps in Court: Dangerous Decisions from Hawaii Threaten Sexually Abused Children, RoundTable Magazine, Summer 1990, at 12.

       Shanks also argues for the first time on appeal that the trial court should have considered the factors set forth in Wis. Stat. § 967.04(7) for permitting a videotaped deposition in lieu of the child's testimony at trial. This suggestion was not made at trial. Issues not raised or considered in the trial court will not be considered for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980).


author: ¶ 1. ANDERSON, J.

text:
    David C. Williams, Plaintiff-Appellant, v. City of Lake Geneva, a Municipal corporation, Defendant-Respondent, Spyro Condos and Patricia Condos, Intervening Defendants-Respondents.
    Court of Appeals

      No. 01-1733.

      Submitted on briefs January 25, 2002.

    Decided March 13, 2002.

    2002 WI App 95
    (Also reported in 643 N.W.2d 864.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David C. Williams of Allen, Harrison, Williams, McDonell & Swatek, Lake Geneva.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Tara M. Mathison of Davis & Kuelthau, S.C., and Daniel J. Borowski of Davis & Kuelthau, S.C., Milwaukee.
    Before Brown, Anderson and Snyder, JJ.
   ¶ 1. ANDERSON, J.

This is a liquor licensing issue. David C. Williams appeals from a trial court judgment dismissing his complaint in which he asked the court to review a decision of the City of Lake Geneva to dismiss his Verified Complaint claiming that Spyro Condos and Patricia Condos violated Wis. Stat. § 125.66 (1999-2000) by selling and possessing with intent to sell intoxicating liquor without holding an appropriate license or permit. For the reasons discussed below, we reverse and remand with directions.

¶ 2. The relevant facts are undisputed. On September 14, 1999, the City issued to the Condoses a Class B Combination Intoxicating Liquor and Fermented Malt Beverage License for the license period beginning July 1, 1999, and ending June 30, 2000, based on the Condoses' application for an Original Alcohol Beverage License. Neither the city clerk nor anyone else on behalf of the City published a Notice of Application as is required by Wis. Stat. § 125.04(3)(g). The following year, on June 15, 2000, the City issued the Condoses a liquor license for the license period beginning July 1, 2000, and ending June 30, 2001, based on the Condoses' application for a Renewal Alcohol Beverage License.

¶ 3. On or about June 26, 2000, Williams served his Verified Complaint upon the City claiming that the Condoses violated Wis. Stat. § 125.66 by selling and possessing with intent to sell intoxicating liquor without holding an appropriate license or permit. The Condoses' 1999-2000 liquor license was due to expire June 30, 2000. See Wis. Stat. § 125.26(1). On July 24, 2000, twenty-four days after the expiration of the 1999-2000 license, a hearing was held on Williams' Verified Complaint.

¶ 4. The City found that the Notice of Application for the 1999-2000 license was not published as required by Wis. Stat. ch. 125, and thus concluded that the 1999-2000 license was void under Wis. Stat. § 125.04(2), which provides that:

No license or permit may be issued to any person except as provided in this chapter. Any license or permit issued in violation of this chapter is void.

The City found that the Condoses sold liquor under the void license in violation of Wis. Stat. § 125.66(1), which provides:

No person may sell, or possess with intent to sell, intoxicating liquor unless that person holds the appropriate license or permit. Whoever violates this subsection may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

The City further found that the void/unpublished license (i.e., the "old" 1999-2000 license) expired on June 30, 2000, and that a "new," properly issued license went into effect July 1, 2000. The City took no action against the "new" 2000-2001 license and dismissed Williams' Verified Complaint. Thereafter, Williams filed a complaint with the trial court pursuant to Wis. Stat. § 125.12(2)(d), to review the City's decision.

¶ 5. At trial, Williams' position was that Wis. Stat. § 125.12(2)(b)2 required the City to suspend or revoke the "new"/current license upon its finding that the Condoses had sold liquor illegally under the "old"/expired license. Section 125.12(2)(b)2 provides in relevant part:

If the licensee appears as required by the summons and denies the complaint, both the complainant and the licensee may produce witnesses, cross-examine witnesses and be represented by counsel. The licensee shall be provided a written transcript of the hearing at his or her expense. If the hearing is held before the municipal governing body and the complaint is found to be true, the license shall either be suspended for not less than 10 days nor more than 90 days or revoked, except that, if a complaint under par. (ag)4. is found to be true with respect to a license issued under s. 125.51(4)(v), the license shall be revoked. (Emphasis added.)

The City took the position that the "new" license was a new creature and under § 125.12(2)(b)2 the City did not have the authority to suspend or revoke the "new" license for a violation pertaining to the "old" license. The City argued that the language of § 125.12(2)(b)2 indicates that its mandatory penalty can only be levied against "the" license .under which a violation has occurred. And, since "the" license under which the violation occurred (i.e., the 1999-2000 license) had already expired, there was no authorized penalty that the City could impose against a "new" license under § 125.12(2)(b)2. The City also maintained that this interpretation does not leave the City powerless because under § 125.12(1)(a), it retains discretionary authority to revoke or suspend "any" license for a violation found under an "old" license. Section 125.12(1)(a) provides:

Except as provided in this subsection, any municipality or the department may revoke, suspend or refuse to renew any license or permit under this chapter, as provided in this section. (Emphasis added.)

¶ 6. On March 9, 2001, the trial court found that the Condoses' 1999-2000 liquor license was void because notice of their 1999-2000 license application had not been published as required by Wis. Stat. § 125.04(3)(g), that therefore, as a matter of law, no liquor could be sold under the 1999-2000 license, and that the Condoses violated Wis. Stat. ch. 125 by selling alcohol after September 13,1999. The trial court adopted the City's -position and concluded that the revocation or suspension covered under Wis. Stat. § 125.12(2)(b)2 only applies to the license under which a violation is found; specifically, the court held that the City did not have the authority under § 125.12(2)(b)2 to suspend or revoke the Condoses' "renewed" license. The court also concluded that the City did have discretionary authority to suspend or revoke the "renewed" license but only under § 125.12(1)(a). Finally, the court held that the City acted correctly and did not violate § 125.12(2)(b)2. On June 12, 2001, Williams' complaint was dismissed by the trial court. Williams appeals.

¶ 7. On appeal, Williams argues that the trial court's interpretation creates an unreasonable or absurd result, that its decision was based upon a mistaken view of the law and the nature of liquor licenses, and that it failed to construe Wis. Stat. § 125.12 as a whole to harmonize possible conflicting statutory provisions. This case involves the interpretation of Wis. Stat. ch. 125. The interpretation or application of a statute is a question of law which this court-reviews de novo. State v. Pablo R., 2000 WI App 242, ¶ 7, 239 Wis. 2d 479, 620 N.W.2d 423. When we interpret a statute, our goal is to ascertain and give effect to the intent of the legislature. Id. We first look to the language of the statute itself. Id. If the language of the statute is unambiguous in its meaning, we go no further. Id. A cardinal rule of statutory construction is that statutes must be construed to avoid an absurd or unreasonable result. State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478 (1980). We will not find a statute ambiguous simply because the parties differ as to its meaning. State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 154-55, 454 N.W.2d 792 (1990). "The plain meaning of a statute takes precedence over all extrinsic sources and rules of construction." UFE, Inc. v. LIRC, 201 Wis. 2d 274, 282 n.2, 548 N.W.2d 57 (1996).

¶ 8. First, we note that the trial court was correct in finding that the 1999-2000 license issued to the Condoses was void. The City never should have issued the license because a Notice of Application had not been published as required under Wis. Stat. § 125.04(3)(g) which makes it mandatory that a Notice of Application for a Class B liquor license be published in a newspaper. This nonpublication violation made the 1999-2000 license void under § 125.04(2), which provides that:

No license or permit may be issued to any person except as provided in this chapter. Any license or permit issued in violation of this chapter is void.

Additionally, the trial court was correct in finding that the Condoses selling of liquor under a void license constituted a violation of Wis. Stat. § 125.66(1), which provides:

No person may sell, or possess with intent to sell, intoxicating liquor unless that person holds the appropriate license or permit. Whoever violates this subsection may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

¶ 9. That established, we move forward in our analysis. First, it is necessary to define what is meant by "void." Black's Law Dictionary 1568 (7th ed. 1999) defines the meaning of "void" as:

Of no legal effect; null... void can be properly applied only to those provisions that are of no effect whatsoever — those that are an absolute nullity.

Thus, a void license is an absolute nullity; it is of no legal effect. Our supreme court held that a liquor license found to be void is "null.. . and affords no protection to the [licensee] .... Consequently, [a void license is] no license .. .." State ex rel. Treat v. Hammel, Mayor, 134 Wis. 61, 114 N.W. 97 (1907).

¶ 10. Our review of the trial record leads us to the conclusion that the trial court correctly found that the 1999-2000 license was void. We now take the next logical step and hold that a license based on renewal of an absolute nullity is itself an absolute nullity and "affords no protection to the [licensee]." See id. at 67.

¶ 11. On appeal, Williams correctly asserts that under Wis. Stat. § 125.12(3) renewal is guaranteed to a renewal applicant if proper application is made "unless the [renewal] applicant is found to have violated certain specified laws." Williams does not develop this insight; we do so now as it is the crux of our decision. Section 125.12(3) covers refusals by local authorities to "renew" licenses:

A municipality issuing licenses under this chapter may refuse to renew a license for the causes provided in sub. (2)(ag). Prior to the time for the renewal of the license, the municipal governing body or a duly authorized committee of a city council shall notify the licensee in writing of the municipality's intention not to renew the license and provide the licensee with an opportunity for a hearing. The notice shall state the reasons for the intended action. The hearing shall be conducted as provided in sub. (2)(b) and judicial review shall be as provided in sub. (2)(d). If the hearing is held before a committee of a city council, the committee shall make a report and recommendation as provided under sub. (2)(b)3. and the city council shall follow the procedure specified under that subdivision in making its determination. (Emphasis added.)

Thus, if a municipality (like the City) wishes to refuse renewal of a liquor license, it must show cause. Prior to the time for the renewal of the license, it must notify the licensee in writing of its intention not to renew the license and it must provide the licensee with an opportunity for a hearing. In short, renewal applicants have a due process right to an administrative hearing on cause if renewal is refused.

¶ 12. In contrast, there is no such due process right given to applicants filing for a "new"/original liquor license. Compare Wis. Stat. § 125.12(3m) which covers refusals by municipalities to issue "new" licenses:

If a municipal governing body or duly authorized committee of a city council decides not to issue a new license under this chapter, it shall notify the applicant for the new license of the decision not to issue the license. The notice shall be in writing and state the reasons for the decision.

¶ 13. The language of the statute is unambiguous in its meaning. The renewal licensee, if refused, is guaranteed a right to be heard by the municipality, and the municipality must show cause for its refusal. The new licensee, if refused, has no such guarantee. The procedural mandate required for refusal of a renewal license application gives the renewal licensee an advantage over the new licensee. Because the Condoses' original license is void, it affords them no protection. Treat, 134 Wis. at 67. The Condoses are not entitled to the due process rights of renewal applicants. See id. This is a reasonable legislative intent and we must give effect to the intent of the legislature. Pablo R., 2000 WI App 242 at ¶ 7.

¶ 14. We hold that the trial court erred in finding that the 2000-2001 license was appropriate under Wis. Stat. ch. 125. Once the City found that the Condoses' 1999-2000 license was void, the Condoses could not apply for an appropriate liquor license via renewal of that void license. The only way for them to obtain an appropriate license was to file an application for an Original Alcohol Beverage License. In fact, the Con-doses filed an application for a Renewal Alcohol Beverage License application and were granted a "renewed" license. The "renewed" license was as much of a legal nullity as the original voided 1999-2000 license because the City could not issue an appropriate license from a renewal application of a void license. In short, the 2000-2001 license, like the 1999-2000 license, was void by virtue of it being a "renewal" of a void license.

By the Court. — Judgment reversed and cause remanded.

       Wisconsin Stat. § 125.66(1) provides:
      No person may sell, or possess with intent to sell, intoxicating liquor unless that person holds the appropriate license or permit. Whoever violates this subsection may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Wisconsin Stat. § 125.04(3)(g) provides:

        Publication of application for license. The municipal clerk shall publish each application for a Class "A", Class "B", "Class A", "Class B" or "Class C" license, except licenses under ss. 125.26(6) and 125.51(10), prior to its issuance in a newspaper according to the following conditions:
      1. The publication shall include the name and address of the applicant, the kind of license applied for and the location of the premises to be licensed.
      2. The newspaper utilized for publication shall have been regularly published, on a daily or weekly basis for a period of not less than 2 years before the date of publication in the municipality in which is located the premises to be licensed.
      3. If the municipality in which the premises is located has no newspaper, the newspaper utilized for publication shall be one having circulation in the municipality and designated by the governing body. If no designation is made, publication shall be in the newspaper having the largest circulation in the municipality.
      4. The newspaper utilized for publication shall be one that is published on a daily basis, except that a weekly newspaper may be utilized if a daily newspaper is not published in the municipality.
      5. The publication shall be printed in a daily newspaper on 3 successive occasions, or if a weekly newspaper is utilized, it shall be printed at least once.
      6. At the time the application is filed, the applicant shall pay to the clerk the cost of publication as determined under s. 985.08.

       Wisconsin Stat. § 125.12(2)(d) authorizes judicial review of the action of any municipal governing body with regard to revocations, suspensions, and/or refusals to issue or renew liquor licenses for any person desiring review.


author: ¶ 1. VERGERONT, PJ.

text:
    In re the Marriage of: Daniel R. Zawistowski, Petitioner-Respondent, v. Tammra S. Zawistowski n/k/a Tammra S. Crank, Respondent-Appellant.
    Court of Appeals

      No. 01-0655.

      Submitted on briefs October 5, 2001.

    Decided March 14, 2002.

    2002 WI App 86
    (Also reported in 644 N.W.2d 252.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Bennett J. Brantmeier of Krek & Associates, S.C., Jefferson.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Terry P. Race, Whitewater.
    Before Vergeront, PJ, Roggensack and Lundsten, JJ.
   ¶ 1. VERGERONT, PJ.

Tammra Zawistowski appeals the child support provisions in the judgment of divorce from Daniel Zawistowski. The trial court did not order Daniel to pay Tammra child support for their two minor children, but instead ordered that the parties equally split the variable costs for the children. Tam-mra contends the trial court erred in finding that Daniel would have the children 120 overnights per year under the placement schedule. In the alternative, she contends the court erred in deciding not to apply the shared-time payer formula under Wis. Admin. Code § DWD 40.04 and not to order any child support. We conclude: (1) the court's finding that Daniel would have 120 overnights a year is not clearly erroneous; (2) the court had an erroneous understanding of how variable costs are treated in the shared-time payer formula; and (3) the court exceeded its authority when it ordered the parties to split variable costs as an alternative to ordering child support. We therefore reverse and remand, while affirming the finding of 120 overnights.

BACKGROUND

¶ 2. The parties' two children were six and eleven years old at the time of the divorce. Daniel and Tammra each earned approximately $40,000 annually. The parties stipulated to joint legal custody and to a placement schedule that took into account each party's work schedule. During the school year, in week one, Daniel was to have the children after school until 5:00 p.m. on Monday and Tuesday, after school until 7:00 p.m. on Wednesday, and overnight on Thursday; if there were no school on Friday, he was to have the children until Tammra was off work or 5:00 p.m., whichever was sooner. In week two, Daniel was to have the children after school until 5:00 p.m. on Monday and Tuesday, and after school on Thursday until 6:00 p.m. Sunday. Tammra was to have the children at all times when Daniel did not. During the summer months when the children were not enrolled in regular school, during week one, Daniel was to have the children from 1:00 p.m. to 7:00 p.m. on Monday, Tuesday, and Wednesday, and Friday until Tammra was off work or until 5:00 p.m., whichever was sooner. In week two, Tammra was to have the children after school Monday, Tuesday, and Wednesday until after Daniel was finished work on Thursday, when he would have the children through Sunday at 6:00 p.m. Each parent was to be responsible for appropriate daycare during his or her scheduled placement. The parents were to alternate on a yearly basis having the children with them for certain specified holidays, and each party was to have eighteen days of vacation time with the children each year. The holidays and vacation time were to supercede the regular schedule.

¶ 3. The parties were not able to agree on child support and that issue was tried to the court. Tammra asked that the court order Daniel to pay 25% of his gross income in child support or, in the alternative, to pay child support based on the shared-time payer formula under Wis. Admin. Code § DWD 40.04(2). Daniel argued that the court should not apply the formula and instead order the parties to share the variable costs 50-50.

¶ 4. The court adopted the custody and placement schedule the parties agreed to, finding that it maximized the time each parent spent with the children and was in the best interests of the children. The court found that Daniel would have the children with him for an average number of 120 overnights, and determined on that basis that he was a shared-time payer as defined under Wis. Admin. Code § DWD 40.02(25). The court found that 25% of his income was $930.50, and, under the formula in Wis. Admin. Code § DWD 40.04(2), his child support payment would be reduced by 83.35% to $775.57. The court described the issue whether to apply the shared-time payer formula in this way:

The issue today... is whether the Court should follow the guidelines of the Administrative Code, which assumes that the wife will pay for all the variables and that the husband will then pay the wife child support which would presumably account for the variable expenses paid for by the wife when the children are with her and the variables which are paid by the husband when the children are with him.

¶ 5. The court then considered each of the factors listed in Wis. Stat. § 767.25(lm) (1999-2000) and discussed the ones it considered relevant as follows. (1) The financial resources of the parents were approximately equal. (2) The standard of living would be "approximately the same whether the Court orders child support according to the Administrative Code with full variables covered by the mother or does not order it with 50-50 compromise or division of the variables"; but the court then added that "if [Daniel] is paying support to [Tammra] and [she] has responsibility for the variables, that is a disincentive for [Daniel] to buy clothing or food or other types of things [for] the children," so splitting the variables 50-50 would likely make the children's standard of living "higher but not significantly higher." (3) Tammra has additional daycare expenses beyond those of Daniel, but the evidence shows that difference to be nominal. (4) The children will spend many more nights with Tammra, but they will spend a significant amount of their waking time with Daniel; variable expenses are more likely to be incurred in waking hours than sleeping hours; both parents will be providing a home where each child has his or her own bedroom; the amount of time each child spends with each parent "has been established to be approximately equal." (5) The best interests of the children are significant in this case. It is positive that both parents enjoy shopping for clothes with their children, preparing meals for them, and those activities should be encouraged; it would not be in the children's best interests to discourage Daniel from doing those things by "shift[ing] the financial balance."

¶ 6. The court ordered that Daniel prepare the dinner meal when the children are with him until 5:00 p.m.; that he and Tammra split the costs of clothing, informing each other of their purchases and balancing them out; and that they continue to split the cost for breakfasts and lunches. The court added that, based on the history of the parties' interactions, they would be able to do these things in a manner that was in their children's best interests. The court concluded that for all these reasons it was appropriate not to use the formula in Wis. Admin. Code ch. DWD 40 and instead to order that Daniel pay no child support.

DISCUSSION

¶ 7. The setting of child support is committed to the sound discretion of the trial court, and we affirm the circuit court's decision if it examined the relevant facts, applied the correct law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737. We accept the trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2).

¶ 8. Tammra first contends the trial court erred in finding that Daniel would have 120 overnights under the placement schedule because, she asserts, the evidence showed that he would have only 104 overnights. We do not agree with this characterization of the evidence.

¶ 9. The evidence on how many overnights Daniel would have under the schedule was conflicting because of how each party treated the eighteen days vacation each could take. Both parties agreed that, applying the schedule without regard to holidays and vacations, Daniel had 104 overnights per year (four every two weeks). Daniel testified that he would have the children for 130 or 132 overnights a year, including his eighteen days for vacation. Tammra testified that Daniel would have the children for 110 overnights, including six holidays. She did not include vacation time: since each has eighteen days for vacation with the children, she viewed this as a "wash." However, at closing argument both attorneys acknowledged that the number of overnights Daniel would have would depend on whether the parents took their vacation days on days when they already had the children overnight under the regular schedule or on days when the other parent had them overnight under the regular schedule. Since no one could know that, the dispute was not over an existing fact, but over what set of assumptions to make about the future. Daniel's attorney argued that counting vacation days, Daniel would have the children for between 121 and 127 overnights a year, depending on when the parties took their vacations. Tammra's attorney argued that the range was between 104, which he acknowledged did not count holidays or vacations, and a high of 120.

¶ 10. The court determined that 120 overnights was the appropriate figure — the high end of Tammra's attorney's range and just below the low end of Daniel's attorney's range. It was reasonable for the court to assume — although no one could now know for sure— that the parties would most likely not end up taking their vacations in a manner that maximized either all the overnights Daniel could possibly have or all the overnights Tammra could possibly have, but somewhere in between. We conclude the court's determination of 120 overnights for Daniel is reasonable and is supported by the record.

¶ 11. Tammra next contends that the trial court's decision not to order child support was based on a misunderstanding of the shared-time payer formula. She contends the trial court did not understand that this formula assumes that both parents are paying variable costs proportionate to the amount of overnights each has with the child, and sets the formula accordingly. Her position is that the court should have applied the shared-time payer formula, making adjustments if necessary, but that it was not reasonable to order no child support and instead order the parties to split the variable costs. Daniel responds that a trial court may deviate from the shared-time payer formula under Wis. Stat. § 767.25(1m), and that the court did so here in a manner that reflects a proper exercise of discretion.

¶ 12. A "shared-time payer" is "a payer who provides overnight child care or equivalent care beyond the threshold and assumes all variable child care costs in proportion to the number of days he or she cares for the child under the shared-time arrangement." Wis. Admin. Code § DWD 40.02(25). The threshold is 30% of the year or 109.5 out of every 365 days. Section DWD 40.02(28). "Variable costs" are "costs that include but are not limited to payment for food, clothing, school, extracurricular activities, recreation and day care." Section DWD 40.02(30).

¶ 13. Since the court determined that Daniel had 120 overnights a week, and since Tammra did not contend that Daniel would not be assuming variable costs in proportion to the number of days he cares for the children, the court correctly concluded that Daniel is a shared-time payer under the above definitions. The court must therefore determine Daniel's child support obligation by using the formula in Wis. Admin. Code § DWD 40.04(2), unless it would be unfair to either party or the children. Randall, 2000 WI App 98 at ¶ 15; Wis. Stat. § 767.25(1j) and (1m). The court here did undertake to apply the factors in subsec. (1m) and to make the findings required by § 767.25(1n). However, we agree with Tammra that the court had a misunderstanding of how variable costs are considered under the shared-time payer formula.

¶ 14. The trial court's statements show that it believed that the formula assumed that the payee pays all the variable costs and the payer pays child support in order to pay his or her share of those costs. We cannot read the court's comments in any way other than expressing this view. This view is directly contradictory to the definition of a shared-time payer — someone who "assumes all variable child care costs in proportion to the number of days he or she cares for the child under the shared-time arrangement." Wis. Admin. Code § DWD 40.02(25). The formula that applies to a shared-time payer assumes that this is the case, and, for this reason, reduces what would otherwise be the percentage of child support, owed under Wis. Admin. Code § DWD 40.03. Thus, the court's reason for not applying the shared-time payer formula — that the formula would require Tammra to pay for all variable costs, and Daniel to pay her child support to help cover those — is based on an error of law.

(In) If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.

¶ 15. We recognize that the court's comments also indicate it did not use the shared-time payer formula because it found that the number of overnights the children spent with each parent did not fairly represent the amount of waking time they spent with each parent, and that waking time was more significant from the standpoint of variable costs. However, the note to the definition of "shared-time payer" in Wis. Admin. Code § DWD 40.02(25) specifically addresses this situation:

Note: There are physical placement arrangements in which the payer provides child care beyond the threshold and incurs additional cost in proportion to the time he or she provides care, but because of the physical placement arrangement he or she does not provide overnight care (e.g., payer provides day care while the payee is working). Upon request of one of the parties the court may determine that the physical placement arrangement other than overnight care is the equivalent of overnight care.

Thus, the court should have determined how much "equivalent care" Daniel provided beyond the 120 overnights and used that total in the shared-time payer formula, bearing in mind that the formula assumes that Daniel is incurring variable costs proportionate to that total number. Of course, the court would still not he obligated to order support according to that formula, if the court determined that it would be unfair to Daniel, Tammra, or the children. We are unable to tell from this record what decision the court would have made had it applied the formula correctly.

¶ 16. We also conclude the court erred in its implicit assumption that it has the authority to order the parties to share equally in variable costs for the children as an alternative to ordering child support. In a divorce proceeding, a trial court has only that authority given it by statute. See Koeller v. Koeller, 195 Wis. 2d 660, 664, 536 N.W.2d 216 (Ct. App. 1995). Wisconsin Stat. § 767.25(1)(a) provides that in a divorce action the court shall "[o]rder either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative . . .." As noted above, the court must either "determine child support payments" by using the standards established in Wis. Admin. Code ch. DWD 40, or "modify the amount of child support payments determined [under those standards]" after considering the factors in subsec. (1m) and making the findings required by subsec. (In). Section 767.25(1j), (1m) and (1n). Thus, the authority given the court is to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other.

¶ 17. We recognize that parties may agree on their own to share evenly in expenses relating to their children — or to divide them in some other way — and, if they do, the court may take that into account in determining the proper amount of child support. However, here the parties did not agree to divide the variable costs evenly. Indeed, the testimony was conflicting whether they had evenly divided expenses during the divorce proceedings, and whether that would work in the future. While both agreed they had been splitting school expenses equally, Tammra did not agree with Daniel that they had been splitting clothing expenses equally. She testified that she bought more clothing for the children because they needed more clothes at her house, since they went to school from her house more often than from Daniel's house, and she believed she would have difficulty getting Daniel to pay half of what the children needed. While the trial court is no doubt correct that it is in the children's best interests if their divorced parents can agree among themselves how to handle the children's expenses, when they do not reach such an agreement, the court's authority to make orders to provide for the children's needs is limited to that found in Wis. Stat. § 767.25. Similarly, while the trial court's goal here of encouraging both parents to take their children shopping for clothes and to prepare meals for their children is desirable, the court may not, in an effort to achieve these goals, exceed the authority granted in § 767.25. See Koeller, 195 Wis. 2d at 664.

¶ 18. Because the trial court had an erroneous understanding of the assumptions about variable costs underlying the shared-payer formula, and because it did not have the authority to order the parties to share equally in the variable costs associated with the children as an alternative to ordering child support, we must reverse and remand. On remand, as we have indicated above, the court wall have the opportunity to determine what number of overnights should be added to 120 to fairly represent the "equivalent care" Daniel provides, in light of the note to Wis. Admin. Code § DWD 40.02(25). After applying the shared-time payer formula to that number, if either Daniel or Tammra requests the result be modified, the court should determine whether application of the shared-time payer formula is unfair to either party or the children, applying Wis. Stat. § 767.25(lm) and (In). How the parties currently handle variable costs is relevant in determining the appropriate "equivalent care" Daniel provides and whether the result of the shared-time payer formula is unfair to either party or the children.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       The stipulated schedule does not specify an overnight for Daniel in week one of the summer schedule, and, in fact, makes no mention of Thursday at all. However, hoth parties agree Daniel has the children for four overnights every fourteen days in the summer, as he does in the school year. Since the stipulated schedule for the summer months provides that Daniel has the children for three overnights (Thursday, Friday, and Saturday) in week two, we assume that in week one he has them for one overnight — on Thursday.

       Maintenance was waived by the parties.

       Wisconsin Admin. Code § DWD 40.03 provides:
      Support orders. (1) Determining child support using the percentage standard. The payer's base shall be determined by adding together the payer's gross income available for child support under sub. (2), if appropriate, and the payer's imputed income for child support and dividing by 12 .... The percentage of the payer's base or adjusted base that constitutes the child support obligation shall be:
      Go) 25% for 2 children;
      Wis. Admin. Code § DWD 40.04(2) provides:
      (2) determining the child support obligation of a shared-time payer. The child support obligation in cases where both parents provide overnight child care beyond the threshold may be determined as follows:
      (a) Determine the number of overnights, or the equivalent as determined by the court in accordance with s. DWD 40.02(25), each parent has the child per year. If the parent with less time has the child at least 110 overnights but not more than 146 overnights, follow the procedure in par. (b). If each parent has the child for at least 147 overnights but for not more than 218 overnights, follow the procedure in par. (c).

        (b) In cases where the parent with less time has the child for at least 110 overnights, or the equivalent as determined hy the court in accordance with s. DWD 40.02(25), per year but not more than 146 per year, determine the child support as follows:
      1. Determine the child support obligation under s. DWD 40.03(1) of the parent with less time;
      2. Divide by 365 the number of overnights the parent with less time has physical placement of the child to determine the percentage of the year that the parent with less time provides overnight care;
      3. If the percentage under subd. 2. is over 30% but not more than 40%, reduce the child support obligation under subd. 1. in accordance with Table 40.04(2)(b);
      TABLE 40.04(2)(b) REDUCTION OF SUPPORT OBLIGATION FOR 31% TO 40% TIME WITH CHILD
      COLUMN A % of time with child COLUMN B % of original child support obligation
      30 100%
      31 96.67%
      32 93.34%
      33 90.01%
      34 86.68%
      35 83.35%
      36 80.02%
      37 76.69%
      38 73.36%
      39 70.03%
      40 66.70%
      4.Multiply the child support obligation under subd. 1. by the appropriate percentage from Column B of Table 40.04(2)(b) to determine the amount of child support due; and

        5. Express the amount of child support due identified in subd. 4. either as a percentage or as a fixed sum.

       Wisconsin Stat. § 767.25(1m) provides:
      (1m) Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:
      (a) The financial resources of the child.
      (b) The financial resources of both parents.
      Cbj) Maintenance received by either party.
      (bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 U.S.C. 9902 (2).
      (bz) The needs of any person, other than the child, whom either party is legally obligated to support.
      (c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
      (d) The desirability that the custodian remain in the home as a full-time parent.
      (e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
      (ej) The award of substantial periods of physical placement to both parents.
      (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.24.
      (f) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under sub. (4m).
      (g) The child's educational needs.

        (h) The tax consequences to each party.
      (hm) The best interests of the child.
      (hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
      (i) Any other factors which the court in each case determines are relevant.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 767.25(ln) provides: