STATE OF WISCONSIN CIRCUIT
HONORABLE MARY K. WAGNER CIRCUIT
January 5, 2004
Petitioner, Bernard Tocholke, appeared in person.
Respondent, Shereen Tocholke, appeared in person and by Attorney Thomas
I have edited out the jibber jabber to not
waste your time reading it. If you want a complete transcript you can
ask the courts for a complete copy of your own.
MR. ANDERSON: I can also report that, and the Court may recall, this
is the case in which there are seven minor children, five of which
are in the primary care of Mrs. Tocholke, two of which are in the primary
care of Mr. Tocholke. Mr. Tocholke, at the time that we stipulated
to the provisions for judgment--for the Judgment of Divorce, and again
I believe it's important for the Court to remember that this was a stipulated
agreement, Mr. Tocholke had plans on moving from Wisconsin up to--
T-HE COURT: Minneapolis or--
MR. ANDERSON: --the state of Minnesota and he didn't do that. He spent
a significant amount of time still around here. The two boys were moved
up to Minnesota that are in his primary care.
THE COURT: To his dad's house, was it?
MR. ANDERSON: To his father's house somewhere. As I understand it now,
he's reported that he's quit the tree cutting business, which is what
he had done for position is he made some choices, and perhaps; they haven't
been the smartest choices, but he has to live with those choices.
a number of years during the course of the parties marriage, and is
now working for a meat cutter. His motion for de novo review essentially
says-- And there was a period of time where the court entered an order
saying if you don't pay your regular support and if you don't have a
job get a job. Mr. Tocholke's, I think, of the opinion now that since
he's obtained employment that that means that his obligation ought to
be modified at this point because he's no longer doing the tree cutting
You know, our position is that this is a stipulated judgment that is
now just a year old. We've been back in court on this and this is, I
believe, the second or third motion to modify since the judgment was
granted. It's been denied each time for primarily a lack of change of
circumstances. And again we would take the position that there isn't
a lack of change of circumstances but for, I guess, Mr. Tocholke's decision
The child support amount- - This was a long-term
marriage. The parties were married 17 years. Mrs. Tocholke received no
maintenance under the terms of this Judgment much Divorce even though
she had worked very little during the course of their marriage. The child
support amount was calculated based upon assumed income to Mr. Tocholke
of $40,000 annually and assumed income to Mrs. Tocholke based upon approximately
MR. ANDERSON: For five kids in Mrs.Tocholke's care,
two in Mr. Tocholke's care. There was, as I indicated, an offsetting
adjustment that was done to come up with that dollar amount. I don't
know what Mr. Tocholke has been doing in terms of trying to obtain either
other employment or doing the work that he had previously done. I guess
our question is he made some choices and decisions to move up to Minnesota.
Mrs. Tocholke had nothing to do with that. In fact, she does not--she
did not want that to happen because her two oldest children are quite
a bit a ways away from her and she has not seen those children of any
substance besides maybe a meeting here or there.
THE COURT: They're away from their brothers and sisters.
MR. ANDERSON: Since July, yeah, and that is also
the case. Whether or not, you know, Mr. Tocholke is making the type of
money that he was in the past, I guess our
So, we also believe that his income earning potential
is greater than what he is, I guess, indicating to the Court that he
can earn at this point. And to relieve him or reduce his support obligation,
in our opinion, is not fair and is not appropriate.
THE COURT: How did the income get imputed to Mrs. Tocholke?
We imputed it by agreement.
THE COURT: Is she a teacher?
She had done some work in the past. Basically, what it comes out
to is seven dollars an hour working 40 hours a week. That comes out to
$14,560. We imputed 40,000 to Mr. Tocholke.
MR. ANDERSON: Feed, clothe, etcetera. The other
issue that we're here on the purge review is the placement situation,
because he was under an order from Commissioner Pious to continue to
keep up with the placement. He ends up coming down here most of the time
and, in fact, he had the kids over Christmas break or during his weekend
to see the five kids. However, he--
THE COURT: Doesn't bring the two.
MR. ANDERSON: Well, we set it up in two distinct weekends so there would
be two trips a month, one where the boys would be brought down and stay
with the kids here with their mother and one where the children would--
THE COURT: See dad.
MR. ANDERSON: --see dad, and that was designed to allow all of them
to have time together at least two weekends out of the month. But the
boys haven't been coming down and there has been problems with the boys.
We can get into the litany of different problems that have occurred when
the boys came down. The boys have taken on an attitude at least previously
with their mother in terms of defiance. it's the whole thing that is
back to Mr.
Tocholke's of the opinion that the church and religion
that is being practiced by Mrs. Tocholke constitutes a cult and is bad
for the kids and the two older boys have taken on that position from
dad. It's quite a mess.
THE COURT: How old are the oldest boys?
MR. TOCHOLKE: 17 and 15.
MR. ANDERSON: 17 and 15.
THE COURT: Okay. A-nd
they're enrolled in school and what school?
MR. TOCHOLKE: Yes, they are. They're in Hinckley, Minnesota, and they've
been there--this is the second year for them there. I've been supporting
them. I'm living on my dad's property right now in one of his trailers.
I have gotten myself when I was-- In September I was told to either be
current on child support, have 10 job applications, or have a job. By
the time December 5th came around I went and had looked for a job, I
couldn't find anything here above eight, nine dollars an hour and there
were a few offered to me at nine. I went up north. I can live free rent
through the winter until I get back on my feet again. I don't own any
equipment anymore. I went bankrupt, basically.
THE COURT: Where'd your equipment go?
MR. TOCHOLKE: Huh?
THE COURT: Where did your equipment
MR. TOCHOLKE: Okay. The.equipment depreciated down to like--
THE COURT: I don't care if it depreciated. Everybody uses depreciated
MR. TOCHOLKE: Just got rid of it. Just got rid of it.
THE COURT: You gave it away?
MR. TOCHOLKE: It was worth 17,000. I still owe 18,000
on it. So I sold it to the saw mill. That's all it was worth. I got it
appraised and that's what it came up to be worth about 16,500, 17,000,
something like that and I still owed--
THE COURT: Where'd you have this equipment?
MR. TOCHOLKE: I had the equipment down here.
THE COURT: To cut trees.
MR. TOCHOLKE: Yeah. I lost it all.
You didn't lose it. Youcold it.
MR. TOCHOLKE: I didn't sell it for a nickel.
THE COURT: I'm just saying-- You sold it. You decided that that was
not the business you wanted to be in anymore.
MR. TOCHOLKE: Because I couldn't make the payments on everything what
I was framed for, the 40,000. I never made $40,000 income ever.
THE COURT: Well, Mr. Tocholke--
MR. TOCHOLKE: And I went bankrupt.
THE COURT: You did. Why would you have agreed in the beginning to not
having made--to pay on 40,000 and $197 a week or 198, whatever this little
figure is right now, to feed five children, isn't a lot of money. And
you had seven children. You made a choice to have seven children. You
have seven children and five of them are with her and they have to eat
and she has never had a history of working.
MR. TOCHOLKE: She has a college education. There's a daughter in the
house that's 14 years of age. The pastor's wife, her daughter--
THE COURT: What's the 14 year old got to do with it? Is she supposed
to go get a job or what?
MR. TOCHOLKE: As far as-- Okay.
THE COURT: Is the 14 year old supposed to go earn
MR. TOCHOLKE: No.
THE COURT: Then what do you mean by the daughter
(I was forcefully cut off from trying to make the
point that there should not be a good excuse for Shereen not to get a
full-time teaching job. A first year teacher in Kenosha makes about $26,000.
All five children are school age. The 14 year old and the pasors daughter
pictured in the Child Abuse Tolerance article on page four, who is almost
constantly at their house could handle any vacancy if any of the difference
in schedules of students vs. teachers.
I ws cut off from making the point that Shereen
should be labeled as a teacher and under employing herself if she is
MR. TOCHOLKE: What I'm saying-- Okay. I have five attorneys.
No, no. Okay.
THE COURT: Doesn't matter. You can have one, you can have none, you
can have five.
MR. TOCHOLKE: I'd like to make an explanation. I
had five attorneys that looked at the situation. One sent me a letter
and said they won't take the case. One begged me to get off this case.
There were several of them that looked and said if everything was punched
in into the computer according to what I actually made and according
to what her potential actually is this is what it would show up to be.
They punched into the state of Wisconsin computer and said these are
the numbers it would be, and I'm wondering why--
THE COURT: But that's not the agreement you got
into. You didn't agree to that. You signed an agreement saying I will
base what I will pay in child support on 40,000. You signed an agreement.
MR. TOCHOLKE: But I never made 40,000.
THE COURT: Well, then you lied. I can't -- You either
lied then or you lied now I don't know. But you said we will set this
support at about $200 a week and we'll call it fair. And now because
you don't wantto consider it fair or you're having some trouble with
it, you're saying, you know, it was all based on lies. Your lies, not
mine. I didn't make up the 40,000.
MR. TOCHOLKE: I didn't either.
THE COURT: Well, where do you think that came from?
MR. TOCHOLKE: It originated from judge-Commissioner Pious.
No, he didn't make up the number.
MR. TOCHOLKE: He made up $430 with
THE COURT: He made up the support order, but he didn't make up the
40,000. Somebody told him that. You. And the other part is is probably
a lot of your work is tax free when you were cutting trees.
MR. TOCHOLKE: No, no.
THE COURT: Come on, Mr. Tocholke. I know a lot of
tree cutters in Eau Claire, Wisconsin, and the always want cash, no checks.
Now, I don't dispute that whole deal. It's not my business. And when
you've got seven kids there's certain things that people have to do to
be able to support them, but $200 a weeks isn't an outrageous amount
to support five kids, whether you go get two jobs or three jobs. I mean,
I grew up there were people I knew who had three jobs to try to support
Now, it's a sad thing. You've got a dispute about
this religion. That's not my bag. I mean, I don't have anything to say
about what people believe or what they do with their own personal beliefs.
The belief I have to have is what the statute says is that people have
to support their kids. You signed an agreement. You said you'd pay this
197 a week based on the fact that she could earn 13 and you could earn
40. That was your agreement. I didn't make it up. Now you have to stick
with your agreement.
MR. TOCHOLKE: I went bankrupt and I no longer have
THE COURT: You made a choice to not cut trees anymore.
MR. TOCHOLKE: I make $279 a week.
THE COURT: Get
MR. TOCHOLKE: I can't find another job.
Yes, you can. You can call some tree cutter up there and say if you need
some help I'll come out and help you.
MR. TOCHOLKE: It's wintertime. Everybody's laid
off I am struggling trying to pay for the boys and their school expenses.
THE COURT: Mr. Tocholke, I'm not interested in putting you in jail.
I will if I have to, but I'm not interested in putting you in jail. I'm
interested in you making a honest effort to meet your contract. You promised
to pay her $197. She isn't getting maintenance. She would have gotten--
In a trial she'd have gotten maintenance for the next I don't know how
many years. I can't be speculative about it, but she'd be getting maintenance
and child support and she's not getting maintenance. She signed, she
said I'll take care of myself, I need the money to support the kids,
200 a week. That's not a lot of money for five children.
MR. TOCHOLKE: I paid $17,000 so far.
THE COURT: That's doesn't come out to 200 a week.
MR. TOCHOLKE: Plus
I take care of my two boys.
THE COURT: Right. And if you didn't have the two boys it'd be probably
300 or 400 a week. So that's where we're at. I mean, I'm not trying to
be unfair to you. I'm not trying to-- You write me these letters going
on about everybody is all goofed up and you have seven children. You
worked as a saw man or a tree man and you were able to support these
seven. When people get divorced they have two houses that they
have to support.
Now, I'm not saying-Clearly, based on the fact that she's not getting
maintenance there was an assumption that she ultimately would have to
go to work, but that's why you don't have to pay maintenance.
MR. TOCHOLKE: She has a teaching degree, four year college degree.
THE COURT: If she didn't have that you'd be paying maintenance. You
aren't paying maintenance. You are paying child support. And there's
five kids. And are they 14 and under? Is that the--14 and under?
MR. TOCHOLKE: All the way to six.
MR. ANDERSON: All the way down to age six.
THE COURT: So, I know you're in a tough spot and I don't want to see
you go to jail. I don't like people who aren't criminals to go to jail.
Sut it is a contempt of court to not make your best effort to pay your
child support, and $197 a week isn't a lot of money.
MR. TOCHOLKE: The reason I'm still behind is because of that 430 a week
that I could never pay. I have never made 40,000.
MR. TOCHOLKE: I have nothing to live on anymore.
You brought them into the world. The state doesn't say to me I have to
look at what the kids ought to pay you so you can stay alive. The state
says to me I have to look at whether kids can live on support. They have
a right to have food, a roof over their head. Divorce is a terrible thing.
I don't like it any more than anybody else does and it ruins kids' lives,
but this is where we're at and I can't make it change.
The statutes say she's entitled to support. You have to pay the support
and you have to figure out somehow, a clever man like you are, to do
it. That's what-- That's the way it is. And you're fortunate you got
your mother and dad, o your dad to help you. You're a very lucky man.
And you've got friends to help you. But you've got to figure out that
there's no way with seven children anybody can take a job, only one job
that pays 297 a week. You have to get a second job that pays chat.
MR. TOCHOLKE: Okay.
THE COURT: And if you get six hours of sleep at night, there's many
people that have been in business themselves that have done that--
MR. TOCHOLKE: Okay.. Well--
THE COURT: --trying to get their kids
MR. TOCHOLKE: I got a question then. Why do other
people sit here right in the court the same way I do and they take their
wages, figure out what they made, and garnish their wages?
THE COURT: Because they didn't enter the agreement to pay 197 a week
with a waiver of maintenance. That's why. They didn't get the deal. You
made a deal for her not to get maintenance and you said I'll pay this
Now, is it because of that agreement? No, not exactly. But you said
you'd pay it and now you're saying, well, my circumstance changed, I
only make $300 a week now, so I can't stick with my agreement. Well,
you made the choices that changed that. That's what this Court is finding.
You made the choices that made that difference.
MR. TOCHOLKE: I never made $40,000 in my life ever.
MR. ANDERSON: That's just not true. That's not true. I can show you
the 2001 tax return, Mr. Tocholke, that Commissioner Plous worked off
of and we worked off of, your 2001 tax return, which I have.
MR. TOCHOLKE: I got the 2002 right here.
MR. ANDERSON: 2002 is not--
THE COURT: --the one that was used.
MR. TOCHOLKE: Okay. 2001 then.
MR. ANDERSON: 2001. Shows business income wages of $14,191 on line
13. And you go to schedule C and it shows depreciation and section 179
THE COURT: Add them together and you got forty.
MR. ANDERSON: Add them together you got a little over forty, to be honest
with, Your Honor, and the gross receipts from the business were $64,225
that year. There was almost 4,000 in advertising. There was some expenses
for interest. I mean, that is right from the tax return that were filed.
That's where the $40,000 a year came from. So to say I never earned $40,000
a year and keep saying it is not correct.
MR. TOCHOLKE: Okay. The thing is right here. For the 2002 it goes along
with the 2001, equipment payments, the payments that you make on equipment
is a direct expense.
THE COURT: Right.
MR. TOCHOLKE: The only way you write it off on taxes
is through depreciation. If that was not true, then you should be able
to find the $5,700 on the write off I paid on 2002, $5,774.06, and I
paid that on equipment. There is nowhere that you will find it anywhere
on the forms except on depreciation. I paid two equipments that overlapped
that year of 2001. One was $500 • month, the other one was 630 a month,
plus I had. a $4,000 down payment. That reflects on the depreciation.
I have a letter here from my tax accountant
that he used an accelerated depreciation for that year because I needed
it. The amount of depreciation that was reported on the federal tax
return was 25,400. This includes section 179 depreciation and it should
not be included in calculation of income. The correct amount of add
back depreciation is $12,248, which raises the 2001 federal AGI to
$20,677. It is clearly understood by Mr. Tocholke that depreciation
is added back as income by courts and financial institutions to help
determine an individuals annual actual income. What should not be added
back as income is accelerated section 179 depreciation that was taken
on the 2001 federal tax return. That amount, after considering what
normal depreciation would have been, is $13,152. It may be that Mr.
Tocholke's income for the fiscal year end December 31, 2001, was overstated
by $13,000." And I only read the last two paragraphs.
It goes ahead and describes the whole thing. Depreciation is a total
reflection of the income.
I talked to a different attorney and they--and to a different accountant
here in town and they said that, sure, depreciation should be added back
in, but there's two different types of depreciation. The' a depreciation
on property, property you pay the bank a thousand dollars, the thousand
dollars goes to-- You owe a little more on the property. The bank owes
a little less. At the end of the 30 years, or whatever it's been financed
out at, you still have the equipment and you have it totally paid for
and you depreciated it along the whole time of the loan. That is depreciation.
That's not-- It's actually an appreciating--
THE COURT: Where'd you get $64,000? Mr. Tocholke, where'd you get the
64,000 in wages from?
MR. TOCHOLKE: Individuals. We lived together. (My Ex. and I made that
THE COURT: No. I understand that. Individuals, and you reported 64,000.
MR. TOCHOLKE: Yes.
THE COURT: And--
MR. TOCHOLKE: I have receipts of only-- out of that 64,000, probably
receipts of only about 55,000. I added the cash into that.
THE COURT: Well, you're an honest man, but that still makes it 64,000.
MR. TOCHOLKE: Yes. Yes. I made 64,000.
THE COURT: So, it's 64,000.
MR. TOCHOLKE: I was honest. When we lived together yet as a family I
struggled to support $100, $125, $150 a week. She would beg me for money.
I says, well, this is what we have. This is all we have. The rest went
just payments and insurance and stuff like that. We lived on $100, $125
a week is what we lived.
THE COURT: What was your rent? MR. TOCHOLKE: 400. THE COURT: Well, then
how could you
live on 125 a week? MR. TOCHOLKE: I'm talking about grocery
bills. I'm talking about groceries.
THE COURT: What is she living in? MR. TOCHOLKE: She's living in the
church house. THE COURT: And do you think she's supposed to pay rent?
MR. TOCHOLKE: No, because the whole property is paid for. THE COURT:
She doesn't pay for it. MR. TOCHOLKE: No. No, no. The property, the church-THE
COURT: But that doesn't mean the
people don't pay the costs. There's heat. There's lights. There's all
kinds of things that go on in maintenance of a building. You don't get
to live there for free.
MR TOCHOLKE They got the whole church property.
It's a half million dollar property. They got the whole thing for about--
COURT: Mr. Tocholke, she doesn't own the church property, does she?
MR. TOCHOLKE: No, no, no.
THE COURT: So I don't
care if it's a half a million.
MR. TOCHOLKE: Okay. They got it for 20,000. There's
a house, a church, everything like that.
THE COURT: What, the church is supposed to raise your children?
MR. TOCHOLKE: No.
THE COURT: Well, I don't think so. I mean, that's your moral obligation.
And, you know, I understand you're in a tough spot.
MR. TOCHOLKE: Okay. Back to the depreciation, though, the property,
as far as property, real estate, that appreciates during the time. Equipmcnt
THE COURT: Depreciates.
MR. TOCHOLKE: Depreciates, totally depreciates. By the time you have
it rolled off depreciation and payments, you go get a $50,000 piece of
equipment, you finance it out over five years. You can rarely finance
it over any longer than that, five, that's $10,000 a year. You can depreciate
it roughly $10,000 a year. You can balloon it out one way or the other
way, but at the end they will equalize themselves out. The only thing
you can actually deduct off taxes is the interest. At the end of the
five years the equipment might be worth $5,000 when it's totally paid
for, where real estate is the opposite.
THE COURT: Sometimes.
MR. ANDERSON: I don't disagree with hardly anything
he says, you know, but really it's neither here nor there at the present
time. As the Court has already indicated, because we're talking about
a stipulated agreement, choices that Mr. Tocholke made to leave his employment.
We're talking about five kids. I don't know what to do with the situation
because, you know, he's got a new job. I don't think there's a wage assignment
in effect. It certainly isn't going to cover the number that we're talking
about here. We're just going to end up further in arrears at this stage.
MR. TOCHOLKE: It's impossible for me to pay that amount.
THE COURT: Get another job. Get two more jobs. That's the way the world
is. It's a tough world. Your kids have to eat and you've got to do it.
That's the way it is. And people have had to face that decision for eons.
And you decided to get out of a lucrative job. That was a choice you
made. You made it. I suppose, thinking you could do better.
MR. TOCHOLKE: I went bankrupt.
THE COURT: But you're doing worse and you're going to go to jail if
you don't start doing better. This is nonsense. And writing me letters
saying am I going, I got to know if I'm going. I don't make decisions
ahead of time. You come to court. We. hear what the facts are. So don't
write me any more of those letters unless you send a copy to Mr. Anderson.
MR. TOCHOLKE: I wrote one to let my boss know does he need to look for
somebody else, will I be hauled off to jail, can I have permission to
look for at least a week being so he can find another guy to replace
me? That's all I asked about.
THE COURT: I can't make those decisions without
being in court. I can't say, oh, yeah, okay, sure,
MR. TOCHOLKE: I only wrote one letter.
THE COURT: Well, you got lots of things written on everything in this
file it seems like. 1'm just telling you--
MR. TOCHOLKE: I wrote just one letter.
THE COURT: --whenever you send it
You've got to send it to him and me. Okay?
You can't send something to me without sending it to him. Do you understand?
MR. TOCHOLKE: Yes.
THE COURT: --you're representing yourself. He has to send-- Anything
he sends to me he sends to you. NOW, secondly, what are you going to
do about getting another job?
MR. TOCHOLKE: I have to find some kind of weekend--
THE COURT: You know, when people are in jail they still have to pay
child support and it just collects.
MR. TOCHOLKE: Yeah, I know.
THE COURT: They do. It adds up.
It's very depressing.
THE COURT: I'm sure it is.
MR. TOCHOLKE: It's
a very depressing thing when I was falsely framed for 40,000 I
did not make. You take the numbers off the 2001 because I had the highest
depreciation, but I had the highest payments too. I cannot pay child
support when I make equipment payments of $500 or a thousand dollar equipment
payment. I cannot take that same thousand dollars and get penalized again
and pay it.
THE COURT: I understand that you can't do that.
MR. TOCHOLKE: And that's what I've done. And that's what's actually
happened with that 40,000.
THE COURT: Then you go to the bank and you try to renegotiate a payment
schedule so you can support your kids. Because the whole goal of having
the equipment, the whole goal of cutting down trees, the whole goal of
doing all the stuff that parents do to feed their kids is to feed the
kids. It's not to have the equipment. It's not to cut down the tree.
It's to support their family. And your family's been ripped apart. You
know, you filed for divorce.
MR. TOCHOLKE: Okay. The reason-- Okay. I'd like to please-- Please give
me the opportunity to explain why I filed for divorce.
THE COURT: It makes no-- Mr. Tocholke, it doesn't make any difference.
MR. TOCHOLKE: Please, please.
THE COURT: It has nothing to do with today.
MR. TOCHOLKE: Yes, it does.
THE COURT: No. What we're here-- The only thing
it'd have to do with today is why you're not making more effort to try
and support them at 197 a week.
MR. TOCHOLKE: Can I even please explain?
THE COURT: No, you can't, because we're not here
about that. I don't have the time to listen to all of it. That's why
we have no fault divorce in Wisconsin. People can get divorced if they
want and I haven't got anything to say about whether they get divorced
other than that they meet the statute. The same thing about child support.
Now, I'm telling you, what are you going to do to meet your obligation
of $200 a week, 197, to pay support for these kids? What are you going
MR. TOCHOLKE: I have to have a $40,000 job. I can't do that without
THE COURT: You can get a second job. You can get
a second job, which is what people do. I mean, I'd prefer you to have
two or three jobs than to have you sitting in the county jail for about
$200 a day.
MR. TOCHOLKE: But we'll be back here again because I cannot make it.
I cannot make it.
MR. ANDERSON: S0 I see that we're going to be essentially
in the same position six months from now.
And I know Mr. Tocholke wants to tell you all about his tale of woe.
He's told it to everybody in terms of why I can't pay this and why I
shouldn't have to pay this, this is why I have to file for divorce. And
to me that's the problem in that he continues to resist paying his support
with the idea in mind that he shouldn't have to because this was all
not his fault. This was the responsibility of the church and all of the
attendant problems, and I think that's at the heart of why he doesn't
want to pay.
MR. TOCHOLKE: That's not true. That's not true.
The thing is if it would have been accurately adjusted according to my
income. I make $20,000 a year income. You can add the depreciation back
in. I'm not so concerned about that.
THE COURT: What would that make your payment? No,
you tell me. Just tell me. What would that make-- Sit down. Mr. Tocholke,
sit down and tell me. What would that make your payment?
MR. TOCHOLKE: I can afford--
THE COURT: No, don't tell me what you can afford. What would the 20,000
make your payment?
MR. TOCHOLKE: About $100 a week.
THE COURT: And do you think that
anybody can support kids on a hundred dollars a week, five of them?
MR. TOCHOLKE: We've been living like that for the last 18 years and
it's a struggle.
THE COURT: I don't suppose for the last 18 you had five of them.
MR. TOCHOLKE: The thing is I'm capable of making
20,000. I've made 20,000, 25,000 a year. Logging I actually did better.
I actually did 25,000. Here I have gross receipts of 60,000, yes, but
actual workable income, I have it all itemized, this is the form that
I gave to my tax accountant. These are the expenses. This is what I lived
on. Income all included. That includes the cash money added into it,
this is what I make. And there's nowhere that you can make $40,000 except
if you falsely identified what I already explained, that it was accelerated
depreciation added into it to be able to come up with that 40,000. 1
have made consistently about 20,000, 25,000. That is it. And I was framed
for 40,000. I started out--
THE COURT: Framed. Who are you talking about framing you? You were framed
for forty. You signed the agreement. Nobody framed you at all. I mean,
if you're accusing this Court of framing you, I didn't make up the 40,000
and neither did they. You signed it. You said it. You filed it. So don't
use that framing to me one more time unless you're talking about going
out and framing a house which you're also capable of doing and you ought
to get a job doing it. They're building like crazy all over the place.
Go get work.
MR. TOCHOL1KE: Which would be about $20,000, $25,000 a year.
THE COURT: Which isn't what you're doing now.
MR. TOCHOLKE: That's
what I'm capable of paying, but still-
THE COURT: You could be capable
of doing your wood cutting. You could be capable of getting a second
job if you had to. You could be capable of paying support of $200
a week and you ought to get doing it. So, if you're going to tell me
you aren't going to do it, then we'll just go to jail today for six
months and because you're in contempt of the Court's order, clear as
MR. TOCHOLKE: Then why is this form that would
be punched into the regular computer--
THE COURT: Whose regular computer?
MR. TOCHOLKE: The computer that's plugged into the state. These are
the numbers that would be spit out.
THE COURT: Well, I don't know who-what state computer there is. I don't
have a state computer. I have a circuit court computer and I have different
programs that if I put the numbers in it'll multiply things the way I
want them to.
MR. TOCHOLKE: Okay.
THE COURT: But, you see, when somebody is living at this kind of level
there's nothing that says you have to stick to the formula. There's nothing
that says that. And there's a minimal amount, when you look at five children,
at about $200 a week, minimal.
MR. TOCHOLKE: Does she pay anything on the two?
THE COURT: No.
MR. ANDERSON: What I'm saying-- What he's saying--
Just so you understand what he's talking about--
THE COURT: He's saying if you use the FIN plan or something.
MR. ANDERSON: He's used the FIN plan and put in $25,000 income for him
and $25,000 income for her.
THE COURT: 25,000 for her when she's never earned--
MR. TOCHOLKE: She's a teacher. She's a teacher, certified teacher, four
THE COURT: When did she ever earn 25,000?
MR. TOCHOLKE: A first year teacher--
THE COURT: Mr. Tocholke, when did she ever earn
$25,000 a year? What year? Tell me the year she did. She didn't, did
MR. TOCHOLKE: She was home.
THE COURT: Okay. Because the two of you made a choice
to have a lot of kids and she was going to stay home and take care of
them. And that teaching degree is just as valid to be a home maker as
it is to be teacher. These are choices that the two of you made and now
the choice has been that you're divorcing. You are divorced, almost a
MR. TOCHOLKE: Over a year.
THE COURT: Okay. And so now you're still arguing
about what ought to be and it isn't. I mean, it just isn't that way.
You've got to support your kids. Now, tell me if you want to go get another
job, come back here in two months and show me that you have a second
job and you're paying 197 a week, or if you want to just go to jail for
six months now? I don't want you to go to jail. Then the other two boys
will have to come back home. They'll have to come back home and live
at their mother because nobody else has custody of them. Take them out
MR. TOCHOLKE: I don't want to go to jail, but on the other hand, I believe
I will be going.
THE COURT: You aren't going to go if you go get another job and start
paying 197 a week.
MR. TOHOLKE: That's going to be very difficult.
THE COURT: Well, it is difficult. MR. TOCHOLKE: It is very difficult
THE COURT: You made your life difficult.
MR. TOCHOLKE: When I'm doing a hundred percent, when I'm totally paying
a hundred percent on the boys, their school expenses, all that stuff.
THE COURT: Right, I know. I'm not saying that it's
an easy task.
MR. TOCHOLKE: I looked around. I was told in September
I either got to be current on child support, which was impossible, I
got to either have 10 job applications a week, or I have to have a job.
I looked around. I had 10 job applications for several weeks looking
for work right away in September. Forget it. I can't take this business
anymore. There's no way. There's just too many expenses. I do not get
the credit for when I have equipment payments so I just can't make it.
And I had 10 job applications. The typical job out there which I could
get into was eight, nine dollars an hour. That's all I could get. I looked
I went up north. At least I could get a nine dollar--
8.75 is what I was making, what I could find right there, meat cutting.
It's a different type of occupation. I have a logger that would hire
me at ten dollars an hour or have just a percentage or just a production
type of thing, but then I'd be right back stuck again, that if I have
any chain saw equipment, anything that I depreciate, that would be added
in back as income. I spent that money, that dollar already once, and
then I got to spend it again on child support, and there's no way. So
I'd rather take it by the hour, ten dollars an hour. That would be an
increase. I have some other loggers that probably I could get work for
twelve dollars an hour, but I was told that if I take that position right
there that it would be right away considered. You're still in tree cutting,
you're still making $40,000, but I'm not.
THE COURT: Well, now you're in meat cutting and
the Court still considers you capable of earning $40,000 a year, so not
as a meat cutter, probably.
MR. TOCHOLKE: I never have made 40,000 is what--
THE COURT: No, don't say that, Mr. Tocholke. The
tax papers and the agreement you entered say it. I didn't make it up
and I didn't frame you and I didn't create your tax return. You did.
So here's the question. What do you want to do? Do you want to try to
pay 197 a week or not? I mean, pay it. I don't mean mail it every six
weeks and then wait for the tax intercept and then get some friend of
yours to bail you out.
MR. TOCHOLKE: That's all borrowed money too I
still got to pay back.
THE COURT: That's right.
MR. TOCHOLKE: I got
$11,000 borrowed money there.
THE COURT: So, why don't you have another job already
to pay your friends back that loaned you the money? You know, some guys
would say, geez, you know, I've got this job, I've got to get a second
job so I could at least start making a few payments to my friends.
MR. TOCHOLKE: Five days of the week right now I'm going out at daybreak
and I'm coming back at dark.
THE COURT: Well, that doesn't take much.
MR. TOCHOLKE: And Saturday and Sunday I'm working getting the trailer,
trying to get some heat in there and stuff like that.
THE COURT: You're
saying your kids are living without heat?
MR. TOCHOLKE: Electric heat.
THE COURT: And what do you have?
MR. TOCHOLKE: Electric
bill is $269 a month. My van payment is $400 a month.
THE COURT: It's terrible.
MR. TOCHOLKE: It's a struggle.
Right. But your kids have to eat.
MR. TOCHOLKE: Yeah.
And you have to pay for it.
MR. TOCHOLKE: The two I'm feeding there