An injunction against a man, whose petition to establish himself as father of 2 children had been denied, to stay away from the children until they reach age 18 was within the court's power to enforce its judgments and orders. Paternity of C.A.S. & C.D.S. 185 Wis. 2d 468
, 518 N.W.2d 285
(Ct. App. 1994).
A family court has jurisdiction to hear equitable claims against 3rd parties that affect the rights of parties to a divorce, such as a claim against a 3rd party title holder of property claimed to actually be part of the marital estate. Zabel v. Zabel, 210 Wis. 2d 337
, 565 N.W.2d 240
(Ct. App. 1997).
Chapter 822, the Uniform Child Custody Jurisdiction Act, does not, in and of itself, establish a sufficient statutory basis for personal jurisdiction over a nonresident defendant in a paternity proceeding. Paula M.S. v. Neal A. R. 226 Wis. 2d 79
, 593 N.W.2d 486
(Ct. App. 1999).
Child custody jurisdiction.
All proceedings relating to the custody of children shall comply with the requirements of ch. 822
History: 1975 c. 283
; 1979 c. 32
; Stats. 1979 s. 767.015.
Actions affecting the family. 767.02(1)
Actions affecting the family are:
Legal separation (formerly divorce from bed and board).
To enforce or modify a judgment or order in an action affecting the family granted in this state or elsewhere.
Concerning periods of physical placement or visitation rights to children, including an action to prohibit a move with or the removal of a child under s. 767.327 (3) (c)
"Divorce" means divorce from the bonds of matrimony or absolute divorce, when used in this chapter.
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client that the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37
, 483 N.W.2d 221
A divorce action terminates on the death of a spouse. After the death an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 Wis. 2d 474
, 555 N.W.2d (152 Ct. App. 1996).
There is no authority in this chapter to allow a name change for children in a divorce action. Jocius v. Jocius, 218 Wis. 2d 103
, 580 N.W.2d 708
(Ct. App. 1998).
A common law action for unjust enrichment cannot be litigated in a divorce action. Dahlke v. Dahlke, 2002 WI App 282, 258 Wis. 2d 764
, 654 N.W.2d 73
Section 767.02 (1) (i) allows all actions to modify a judgment in an action affecting marriage to be commenced in any court having jurisdiction under 767.01. 68 Atty. Gen. 106.
Post-divorce judgment venue in multicounty situations. Whipple. WBB Oct. 1987.
The 1977 amendments to the Wisconsin Family Code. Perkins, 1978 WLR 882.
Filing procedures and orders for enforcement or modification of judgments or orders in actions affecting the family.
The following filing procedures shall apply to all enforcement or modification petitions, motions or orders to show cause filed for actions affecting the family under s. 767.02 (1) (i)
Except as provided in sub. (2)
, if a petition, motion or order to show cause requesting enforcement or modification of a judgment or order in an action affecting the family which was granted by a court of this state is filed in a county other than the county in which the judgment was rendered, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion or order to show cause and summons to the clerk of the court in which the judgment was rendered. If a question arises as to which court should exercise jurisdiction, a conference involving both judges, all counsel and guardians ad litem may be convened under s. 807.13 (3)
to resolve the question. The petitioner shall send a copy of any order rendered pursuant to this petition, motion or order to show cause to the clerk of the court in which the original judgment or order was rendered.
Except as provided in ch. 769
, if the petition, motion or order to show cause is for enforcement or modification of a child support, family support or maintenance order, the petition, motion or order to show cause shall be filed in the county in which the original judgment or order was rendered or in the county where the minor children reside unless any of the following applies:
All parties, including the state or its delegate if support, support arrearages, costs or expenses are assigned under ch. 49
, stipulate to filing in another county.
The court in the county which rendered the original judgment or order orders, upon good cause shown, the enforcement or modification petition, motion or order to show cause to be filed in another county.
If the parties have stipulated to filing in another county under par. (a) 1.
, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion or order to show cause and the summons to the clerk of court in the county in which the original judgment or order was rendered.
If the court in the county which rendered the original judgment or order orders the petition, motion or order to show cause to be filed in another county under par. (a) 2.
, the petitioner or party bringing the motion or order to show cause shall attach a copy of the order when filing the petition, motion or order to show cause in the other county.
If a petition, motion or order to show cause for enforcement or modification of a child support, family support or maintenance order is filed and heard, regardless of whether it is filed and heard in a county other than the county in which the original judgment or order was rendered, any judgment or order enforcing or modifying the original judgment or order shall specify that payments of support or maintenance, and payments of arrearages in support or maintenance, if any, are payable to the department or its designee, whichever is appropriate.
Venue for a petition to modify or enforce an out-of-state custody decree is the county where the judgment is filed even though the judgment may be filed in any county. Sharp v. Sharp, 185 Wis. 2d 416
, 518 N.W.2d 254
(Ct. App. 1994).
Notice and service of process requirements. 767.027(1)(1)
In any action under s. 767.02 (1) (i)
to enforce a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied to the extent that the court finds all of the following:
That a diligent effort was made to ascertain the location of the respondent.
That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under s. 767.263 (2)
to the county child support agency under s. 59.53 (5)
The department shall promulgate rules that specify the process that the department will use under sub. (1) (a)
to ascertain the location of the respondent. Notwithstanding sub. (1) (b)
, the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs and information provided by the postmaster, for determining the current address of the respondent.
History: 1997 a. 191
See also ch. DWD 42
, Wis. adm. code.
No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage. A court may annul a marriage entered into under the following circumstances:
A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of age, because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage. Suit may be brought by either party, or by the legal representative of a party lacking the capacity to consent, no later than one year after the petitioner obtained knowledge of the described condition.
A party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity. Suit may be brought by either party no later than one year after the petitioner obtained knowledge of the incapacity.
A party was 16 or 17 years of age and did not have the consent of his or her parent or guardian or judicial approval, or a party was under 16 years of age. Suit may be brought by the underaged party or a parent or guardian at any time prior to the party's attaining the age of 18 years, but a parent or guardian must bring suit within one year of obtaining knowledge of the marriage.
The marriage is prohibited by the laws of this state. Suit may be brought by either party within 10 years of the marriage, except that the 10-year limitation shall not apply where the marriage is prohibited because either party has another spouse living at the time of the marriage and the impediment has not been removed under s. 765.24
History: 1977 c. 105
; 1979 c. 32
, 92 (2)
; Stats. 1979 s. 767.03.
A remarriage, although unlawful in Wisconsin and dissolved through an annulment, is sufficient to terminate maintenance under s. 767.32 (3). The requirement that maintenance be terminated following remarriage is unconditional. Falk v. Falk, 158 Wis. 2d 184
, 462 N.W.2d 547
(Ct. App. 1990).
Although a marriage may be "void," the marriage governs the parties' legal relations unless it is annulled. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709
, 541 N.W.2d 190
(Ct. App. 1995), 95-0012
Actions to affirm marriage.
When the validity of any marriage shall be denied or doubted by either of the parties the other party may commence an action to affirm the marriage, and the judgment in such action shall declare such marriage valid or annul the same, and be conclusive upon all persons concerned.
History: 1979 c. 32
; Stats. 1979 s. 767.04.
Guardian ad litem for minor children. 767.045(1)(a)(a)
The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists:
The court has reason for special concern as to the welfare of a minor child.
Except as provided in par. (am)
, the legal custody or physical placement of the child is contested.
The court is not required to appoint a guardian ad litem under par. (a) 2.
if all of the following apply:
Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.325
The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.
That the appointment of a guardian ad litem will not assist the court in the determination regarding legal custody or physical placement because the facts or circumstances of the case make the likely determination clear.
That a party seeks the appointment of a guardian ad litem solely for a tactical purpose, or for the sole purpose of delay, and not for a purpose that is in the best interest of the child.
The court may appoint a guardian ad litem for a minor child in any action affecting the family if the child's legal custody or physical placement is stipulated to be with any person or agency other than a parent of the child or, if at the time of the action, the child is in the legal custody of, or physically placed with, any person or agency other than the child's parent by prior order or by stipulation in this or any other action.
The attorney responsible for support enforcement under s. 59.53 (6) (a)
may request that the court or a circuit court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under s. 767.62 (1)
or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court or circuit court commissioner shall appoint a guardian ad litem, if any of the following applies:
An application for legal services has been filed with the child support program under s. 49.22
on behalf of the child, but the state and its delegate under s. 49.22 (7)
are barred by a statute of limitations from commencing an action under s. 767.45
on behalf of the child.
A guardian ad litem appointed under par. (c)
shall bring an action or motion for the determination of the child's paternity if the guardian ad litem determines that the determination of the child's paternity is in the child's best interest.
Nothing in this subsection prohibits the court from making a temporary order under s. 767.23
that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.
(2) Time for appointment.
The court shall appoint a guardian ad litem under sub. (1) (a) 1.
whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2.
at the time specified in s. 767.11 (12) (b)
, unless upon motion by a party or its own motion, the court determines that earlier appointment is necessary.
The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under s. 767.24 (5) (am)
, subject to s. 767.24 (5) (bm)
, and custody studies under s. 767.11 (14)
. The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19
or 940.20 (1m)
, or domestic abuse, as defined in s. 813.12 (1) (am)
, and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.11 (12)
and on any parenting plan filed under s. 767.24 (1m)
. Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under s. 767.24 (5) (am) 2.
The guardian ad litem has none of the rights or duties of a general guardian.
Subject to par. (b)
, at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.
A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.
(5) Termination and extension of appointment.
The appointment of a guardian ad litem under sub. (1)
terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b)
. The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.
Sup. Ct. Order, 50Wis. 2d vii (1971); 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 196
; 1979 c. 352
; Stats. 1979 s. 767.045; 1987 a. 355
; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1993 a. 16
; 1995 a. 27
; 1997 a. 105
; 1999 a. 9
; 2001 a. 61
; 2003 a. 130
Judicial Council Note, 1990: This section clarifies and expands s. 767.045, as it was amended by 1987 Wisconsin Act 355
. It also incorporates the substance of s. 809.85 into it. Sub. (1) (a) specifies the situations in which the court is required to appoint a guardian ad litem. Sub. (1) (a) 1. reflects the desirability of broad discretion for the court to appoint a guardian ad litem. Of special note is sub. (1) (b). While the court has always had the discretion to appoint a guardian ad litem in such situations, the committee concluded that it is desirable to specifically identify these situations as requiring special attention.
Sub. (2) is the present law which takes into account the need for mediation.
Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case the "party" is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their particular importance.
The discretion for the guardian ad litem to communicate the wishes of the child in sub. (4) was added in 1987 Wisconsin Act 355
, as was much of sub. (6). These are unchanged.
Sub. (5) specifies that the appointment terminates at the final order or the conclusion of the appeal unless the court otherwise directs. The court may reappoint or continue the appointment of the guardian ad litem after this but is required to state the scope of the responsibilities for such period. [Re Order effective Jan. 1, 1990]
If both spouses have ability to pay, each should be required to contribute to the payment of the guardian ad litem's fee, with the percentage to be paid by each to be determined in the court's discretion. Tesch v. Tesch, 63 Wis. 2d 320
, 217 N.W.2d 647