WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT
Division of Workforce Solutions
Bureau of Child Support
To: Child Support Directors
Child Support Supervisors or Lead Workers No.: 06-08
Child Support Attorneys
Bureau of Child Support
Subject: Treatment of Overtime When Setting Child Support Under DWD 40
The Wisconsin Court of Appeals recently decided a case involving counting overtime when
determining child support obligations under DWD 40. This bulletin informs child support
agencies about the recently-published appellate court decision in the case of Jarman v.
Welter, 2005AP1616. (Note that, while the court of appeals decision states that the decision is
not recommended for publication, this decision has been published.)
In Jarman v. Welter, the Eau Claire County Child Support Agency (CSA) appealed a circuit
court decision that upheld the family court commissioner’s decision to exclude Larry Welter’s
overtime income when calculating his gross income and child support obligations. The family
court commissioner’s order indicated that he excluded the overtime income as a general policy
when setting a child support order. The child support agency argued that excluding overtime
income is a discretionary decision, and that excluding overtime income in all cases, as a
general policy, is erroneous.
The Court of Appeals agreed that excluding overtime income, as a general policy, is
erroneous. The Court of Appeals reversed the lower court’s decision and remanded the case
back to the court. The Court of Appeals noted that under the percentage standard (DWD 40),
overtime clearly constitutes a portion of salary and wages. The Court of Appeals further noted
there may be circumstances when overtime may be excluded from the gross pay of a spouse,
and that the lower court could have deviated from the percentage standard if they had
considered the appropriate factors and articulated their reasoning why application of the
standards would be unfair to the child or to the parties.
Under Wisconsin Administrative Code DWD 40.02(13)(a)1, the definition of gross income
includes all salary and wages for setting child support. The Court of Appeals noted that
overtime income clearly constitutes a portion of salary and wages, and that Wisconsin law
does not exclude overtime income in the application of the percentage standard.
Under Wis. Stat. § 767.25(1m), the court has the discretion to deviate from the percentage
standard based on the facts of each case if its application would be unfair to the child or any of
the parties. The Court of Appeals cited Rumpff v. Rumpff (2004, WI App 197, 14, 276 WIs.
2d 606, 688, N.W.2d 699) and noted that although the court is not required to precisely follow
the percentage standard “it must articulate its reasoning process for the decision to remain
within the support guidelines or to deviate from them.”
In this case, the court and the court commissioner could have deviated from the percentage
standard if they had considered the factors under Wis. Stat. § 767.25(1m), and stated why
overtime income should be excluded from Mr. Welter’s gross pay.
The court commissioner’s order indicates that he excluded the overtime income as a matter of
general policy when calculating gross income and setting child support obligations. The
Appellate Court held that it is erroneous for a court to set forth a general policy regarding the
calculation of a child support obligation when the law calls for an exercise of discretion.
This case was reversed and remanded with directions to the circuit court to analyze the facts
and apply the proper legal standards when exercising its discretion on whether to exclude
Enclosures: Court of Appeals Decision: Jarman v. Welter