767.32(2m)
(2m) Upon request by a party, the court may modify the amount of revised child support payments determined under
sub. (2) if, after considering the factors listed in
s. 767.25 (1m), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.
767.32(2s)
(2s) In an action under
sub. (1), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under
s. 46.10 (14),
301.12 (14),
767.25,
767.51 or
767.62 (4), whichever is appropriate.
767.32(2w)
(2w) A revision of a judgment or order with respect to child support, family support or maintenance payments has the effect of modifying the original judgment or order with respect to such payments to the extent of the revision from the date on which the order revising such payments is effective. The child support, family support or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising such payments is effective.
767.32(3)
(3) After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of remarriage, vacate the order requiring such payments.
767.32(4)
(4) In any case in which the state is a real party in interest under
s. 767.075, the department shall review the support obligation periodically and whenever circumstances so warrant, petition the court for revision of the judgment or order with respect to the support obligation.
767.32(5)
(5) A summons or petition, motion or order to show cause under this section shall include notification of the availability of information under
s. 767.081 (2).
767.32 History
History: 1971 c. 220;
1977 c. 105 ss.
38,
48,
49;
1977 c. 418;
1979 c. 32 ss.
50,
92 (4); Stats. 1979 s. 767.32;
1981 c. 20 s.
2202 (20) (m);
1981 c. 314 s.
146;
1983 a. 27;
1985 a. 176;
1987 a. 27,
355,
413;
1989 a. 212;
1991 a. 39;
1993 a. 16,
481,
491;
1995 a. 27 s.
9126 (19);
1995 a. 77,
201,
225,
279,
289,
404,
417;
1997 a. 27,
35,
105,
191,
237,
273;
1999 a. 9,
103.
767.32 Annotation
That a child needs more support at age 6 than age 2 is sufficient to justify an increase in payments if the father is able to make them. Klipstein v. Klipstein,
47 Wis. 2d 314,
177 N.W.2d 57.
767.32 Annotation
Even though the mother took the children out of the state without court approval or letting the father know where he could visit them, the court may not suspend payment of a support allowance without a hearing as to the effect on the children. Krause v. Krause,
58 Wis. 2d 499,
206 N.W.2d 589.
767.32 Annotation
Even assuming the parties' agreement as to child support gave rise to a contractual obligations, these obligations remained subject to modification by the court under this section. Vaccaro v. Vaccaro,
67 Wis. 2d 477,
227 N.W.2d 62.
767.32 Annotation
While a divorced party owes no duty of sexual fidelity to the former spouse, cohabitation by the party can be a change of circumstances affecting the former spouse's responsibility to provide alimony, with the manner and extent of the cohabitation and surrounding circumstances to be considered in determining whether alimony payments should be modified. Taake v. Taake,
70 Wis. 2d 115,
233 N.W.2d 449.
767.32 Annotation
A child support provision reducing payments proportionately as each of several minor children attains majority is not against public policy. Severson v. Severson,
71 Wis. 2d 382,
238 N.W.2d 116.
767.32 Annotation
The trial court abused discretion in denying the former husband's motion to terminate alimony, where the court failed to consider the former wife's increased estate as the result of an inheritance. Lemm v. Lemm,
72 Wis. 2d 457,
241 N.W.2d 593.
767.32 Annotation
A judgment's prohibition against modification of the amount or term of limited maintenance violated this section. Dixon v. Dixon,
107 Wis. 2d 492,
319 N.W.2d 846 (1982).
767.32 Annotation
A court may not order a custodial parent to live in a designated part of the state or else lose custody of children. Groh v. Groh,
110 Wis. 2d 117,
327 N.W.2d 655 (1983).
767.32 Annotation
Maintenance payments to a former wife were improperly discontinued solely upon the ground of her cohabitation with another man. Van Gorder v. Van Gorder,
110 Wis. 2d 188,
327 N.W.2d 674 (1983).
767.32 Annotation
Where a stipulation required maintenance payments during the wife's lifetime, the husband was estopped from requesting termination of payments under sub. (3) when wife the remarried. Rintelman v. Rintelman,
118 Wis. 2d 587,
348 N.W.2d 498 (1984).
767.32 Annotation
Court may revise a judgment incorporating a stipulation regarding limited maintenance if the petition to revise is filed before expiration of a maintenance obligation. Fobes v. Fobes,
124 Wis. 2d 72,
368 N.W.2d 643 (1985).
767.32 Annotation
A petition for revision filed 20 days after receipt of the final scheduled maintenance payment was properly dismissed as untimely. Lippstreu v. Lippstreu,
125 Wis. 2d 415,
373 N.W.2d 53 (Ct. App. 1985).
767.32 Annotation
The "Millikin standard" did not apply to the transfer of physical placement of a child under an existing joint custody arrangement. Abel v. Johnson,
135 Wis. 2d 219,
400 N.W.2d 22 (Ct. App. 1986).
767.32 Annotation
A state family court may modify the payor spouse's support obligation following the payor's discharge in bankruptcy. Eckert v. Eckert,
144 Wis. 2d 770,
424 N.W.2d 759 (Ct. App. 1988).
767.32 Annotation
Orders assigning health care responsibility pursuant to s. 767.25 (4m) are subject to revision under s. 767.32. Kuchenbecker v. Schultz,
151 Wis. 2d 868,
447 N.W.2d 80 (Ct. App. 1989).
767.32 Annotation
It is within trial court's discretion to apply HSS 80 percentage standards to a child support revision. If applied to a remarried parent, gross income for purposes of base must be computed as if the remarried parent is still single. The trial court retains discretion to adjust the percentage calculation based on the circumstances. Abitz v. Abitz,
155 Wis. 2d 161,
455 N.W.2d 609 (1990).
767.32 Annotation
Sub. (1m) applies prospectively only and arrearages accruing under a support order entered before August 1, 1987, may be modified, reduced or eliminated. The trial court may grant credit against arrearages for expenditures made for a child in a manner other than that prescribed in the support order under some circumstances. Schulz v. Ystad,
155 Wis. 2d 574,
456 N.W.2d 312 (1990).
767.32 Annotation
Remarriage, though unlawful in Wisconsin and dissolved through annulment, is sufficient to terminate maintenance under sub. (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).
767.32 Annotation
Discussion of factors required to find a party estopped from seeking a maintenance revision. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.2d 619 (1991).
767.32 Annotation
A divorce judgment provision waiving maintenance takes precedence over other provisions arguably reserving or awarding maintenance. Tyson v. Tyson,
162 Wis. 2d 551,
469 N.W.2d 913 (Ct. App. 1991).
767.32 Annotation
In determining income for maintenance revision, investment income form property awarded in an equal property division may be included. Interest payments to the payee spouse under the division may not to be deducted. Hommel v. Hommel,
162 Wis. 2d 782,
471 N.W.2d 1 (1991).
767.32 Annotation
Where, pursuant to Schultz, equitable credit for direct expenditures for support in a manner other than included in the divorce order or judgment is justified, it may be reimbursed as well as set-off against an arrearage. Rummel v. Karlin,
167 Wis. 2d 400,
481 N.W.2d 695 (Ct. App. 1992).
767.32 Annotation
Lottery proceeds won after a divorce may be considered a change in financial circumstances in determining whether a change in maintenance is justified. A maintenance award is to assure the recipient spouse a standard of living comparable to that enjoyed during the marriage. Gerrits v. Gerrits,
167 Wis. 2d 429,
482 N.W.2d 134 (Ct. App. 1992).
767.32 Annotation
The revision of s. 767.24 allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying change to joint custody. Licary v. Licary,
168 Wis. 2d 686,
484 N.W.2d 371 (Ct. App. 1992).
767.32 Annotation
The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. Zimmerman v. Zimmerman,
169 Wis. 2d 516,
485 N.W.2d 294 (Ct. App. 1992).
767.32 Annotation
Even though incarceration results from intentional criminal conduct, it is a change of circumstance under sub. (1). Voecks v. Voecks,
171 Wis. 2d 184,
491 N.W.2d 107 (Ct. App. 1992).
767.32 Annotation
Where a payor spouse's termination of employment is voluntary, an order may be based on the spouse's earning capacity whether or not bad faith is shown. Roberts v. Roberts,
173 Wis. 2d 406,
496 N.W.2d 210 (Ct. App. 1992).
767.32 Annotation
A payor spouse should be allowed a fair choice of livelihood even though an income reduction may result, but the spouse may be found to be shirking where the choice is not reasonable in light of the payor's support obligation. Van Offeren v. Van Offeren,
173 Wis. 2d 482,
496 N.W.2d 660 (Ct. App. 1992).
767.32 Annotation
The parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms,
174 Wis. 2d 780,
498 N.W.2d 229 (1993).
767.32 Annotation
The date when a maintenance order is vacated under sub. (3) is a discretionary determination based on the specific facts and equities of the case. Hansen v. Hansen,
176 Wis. 2d 327,
500 N.W.2d 357 (Ct. App. 1993).
767.32 Annotation
In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payor was not estopped from seeking termination upon the payee's remarriage. Jacobson v. Jacobson,
177 Wis. 2d 539,
502 N.W.2d 869 (Ct. App. 1993).
767.32 Annotation
An agreement that the husband would complete his education when the wife completed hers and the wife's increased income upon completion of her education were both relevant to the husband's request for a change in support upon returning to graduate school full time. Kelly v. Hougham,
178 Wis. 2d 546,
504 N.W.2d 440 (Ct. App. 1993).
767.32 Annotation
Where a broadly worded settlement agreement required the payor to meet the children's current and changing needs rather than to pay a set amount or percentage, a change in the children's needs, although a change in circumstances, did not require a modification of child support to impose percentage guidelines where the court found those needs were being met. Jacquart v. Jacquart
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
767.32 Annotation
Unlike an initial award of maintenance, a party seeking to change maintenance has the burden of proof. Haeuser v. Haeuser,
200 Wis. 2d 750,
548 N.W.2d 750 (Ct. App. 1996).
767.32 Annotation
Under sub. (1r) a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support v. Fisher,
200 Wis. 2d 807,
547 N.W.2d 801 (Ct. App. 1996).
767.32 Annotation
A change in an administrative rule, absent a change in factual circumstances, is not grounds for modification a child support order. Beaupre v. Airriess,
208 Wis. 2d 238,
560 N.W.2d 285 (Ct. App. 1997).
767.32 Annotation
Where a support order is not based on the percentage standards, the passage of 33 months gives a party a prima facie claim under sub. (1) (b) 2. that child support should be modified, but the family court maintains it discretion whether the percentage guidelines should be applied. Zutz v. Zutz,
208 Wis. 2d 338,
559 N.W.2d 914 (Ct. App. 1997).
767.32 Annotation
A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.32 Annotation
The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances, but an expected result of receiving maintenance. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.32 Annotation
The "fairness objective" of equalizing total income does not apply in a postdivorce situation. Modification of maintenance has nothing to do with contributions, economic or noneconomic, made during the marriage. Johnson v. Johnson,
217 Wis. 2d 124,
576 N.W.2d 585 (Ct. App. 1998).
767.32 Annotation
The limitation under sub. (1m) that a court may not revise the amount of child support due or the amount of arrearages restricts the court's authority to that of correcting mathematical errors only. State v. Jeffrie C. B.
218 Wis. 2d 145,
579 N.W.2d 69 (Ct. App. 1997).
767.32 Annotation
Sub. (1r) modifies the common law as set forth in Harms and Schulz. A court may grant credit for support payments not made in accordance with a judgment only under the circumstances enumerated under sub. (1r). Equitable estoppel does not apply. Monicken v. Monicken,
226 Wis. 2d 119,
593 N.W.2d 509 (Ct. App. 1999).
767.32 Annotation
Once the court determined that a reduction in support was warranted, even though the reduction was based on a finding that the payment level was inequitable and not that the payor had an inability to pay, the court did not have authority to condition that reduction on payment of arrearages. Benn v. Benn,
230 Wis. 2d 301,
602 N.W.2d 65 (Ct. App. 1999).
767.32 Annotation
If a motion seeks to clarify a court's ambiguous property division rather than revise or modify it, it is not barred by sub. (1) (a). Section 767.01 (1) grants the power to effectuate a divorce judgment by construing an ambiguous provision of a final division of property. Washington v. Washington, 2000 WI 47,
234 Wis. 2d 689,
611 N.W.2d 261.
767.32 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80 and HFS 80, the percentage standards developed by the Department of Health and Family Services.
767.325
767.325
Revision of legal custody and physical placement orders. Except for matters under
s. 767.327 or
767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.325(1)(a)(a)
Within 2 years after initial order. Except as provided under
sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under
s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
767.325(1)(a)2.
2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
767.325(1)(b)1.1. Except as provided under
par. (a) and
sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
767.325(1)(b)1.b.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.325(1)(b)2.a.
a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
767.325(1)(b)2.b.
b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
767.325(1)(b)3.
3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under
subd. 1.
767.325(2)
(2) Modification of substantially equal physical placement orders. Notwithstanding
sub. (1):
767.325(2)(a)
(a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion or order to show cause by a party, may modify such an order if it is in the best interest of the child.
767.325(2)(b)
(b) In any case in which
par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion or order to show cause of a party, may modify such an order based on the appropriate standard under
sub. (1). However, under
sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.
767.325(2m)
(2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.
767.325(3)
(3) Modification of other physical placement orders. Except as provided under
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
767.325(4)
(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
767.325(4m)
(4m) Denial of physical placement for killing other parent. 767.325(4m)(a)(a) Notwithstanding
subs. (1) to
(4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
767.325(4m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
767.325(5)
(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.325(5m)
(5m) Factors to consider. In all actions to modify legal custody or physical placement orders, the court shall consider the factors under
s. 767.24 (5) and shall make its determination in a manner consistent with
s. 767.24.
767.325(6)
(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.325(6m)
(6m) Parenting plan. In any action to modify a legal custody or physical placement order under
sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under
s. 767.24 (1m) before any hearing is held.
767.325(7)
(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.325(8)
(8) Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under
s. 767.081 (2).
767.325(9)
(9) Applicability. Notwithstanding
1987 Wisconsin Act 355, section 73, as affected by
1987 Wisconsin Act 364, the parties may agree to the adjudication of a modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.325 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.325 Annotation
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.325 Annotation
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the 2-year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B.
181 Wis. 2d 304,
510 N.W.2d 775 (Ct. App. 1993).
767.325 Annotation
There is no authority to order a change of custody at an unknown time in the future upon the occurrence of some stated contingency. Koeller v. Koeller,
195 Wis. 2d 660,
536 N.W.2d 216 (Ct. App. 1995).
767.325 Annotation
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd party guardian. Howard M. v. Jean R.
196 Wis. 2d 16,
539 N.W.2d 104 (Ct. App. 1995).