2001 Wisconsin Act 61

61,218 Section 218. 767.32 (1) (a) of the statutes is amended to read:

767.32 (1) (a) After a judgment or order providing for child support under this chapter or s. 48.355 (2) (b) 4., 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) (a), 938.363 (2) or 948.22 (7), maintenance payments under s. 767.26 or family support payments under this chapter, or for the appointment of trustees under s. 767.31, the court may, from time to time, on the petition, motion or order to show cause of either of the parties, or upon the petition, motion or order to show cause of the department, a county department under s. 46.215, 46.22 or 46.23 or a county child support agency under s. 59.53 (5) if an assignment has been made under s. 46.261, 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h) or 49.45 (19) or if either party or their minor children receive aid under s. 48.57 (3m) or (3n) or ch. 49, and upon notice to the office of family court commissioner, revise and alter such judgment or order respecting the amount of such maintenance or child support and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment or order respecting any of the matters that such court might have made in the original action, except that a judgment or order that waives maintenance payments for either party shall not thereafter be revised or altered in that respect nor shall the provisions of a judgment or order with respect to final division of property be subject to revision or modification. A revision, under this section, of a judgment or order with respect to an amount of child or family support may be made only upon a finding of a substantial change in circumstances. In any action under this section to revise a judgment or order with respect to maintenance payments, a substantial change in the cost of living by either party or as measured by the federal bureau of labor statistics may be sufficient to justify a revision of judgment or order with respect to the amount of maintenance, except that a change in an obligor's cost of living is not in itself sufficient if payments are expressed as a percentage of income.

61,219 Section 219. 767.327 (2) (c) of the statutes is amended to read:

767.327 (2) (c) Upon receipt of a copy of a notice of objection under par. (a), the court or family circuit court commissioner shall promptly refer the parents for mediation or other family court counseling services under s. 767.11 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling services do not resolve the dispute within 30 days after referral, the matter shall proceed under subs. (3) to (5).

61,220 Section 220. 767.33 (2) of the statutes is amended to read:

767.33 (2) An adjustment under sub. (1) may be made only if the party receiving payments applies to the family a circuit court commissioner for the adjustment. If the order specifies the date on which the annual adjustment becomes effective, the application to the family circuit court commissioner must be made at least 20 days before the effective date of the adjustment. The family circuit court commissioner, upon application by the party receiving payments, shall send a notice by certified mail to the last-known address of the obligor. The notice shall be postmarked no later than 10 days after the date on which the application was filed and shall inform the obligor that an adjustment in payments will become effective on the date specified in the order or, if no date is specified in the order, 10 days after the date on which the notice is sent. The obligor may, after receipt of notice and before the effective date of the adjustment, request a hearing on the issue of whether the adjustment should take effect, in which case the adjustment shall be held in abeyance pending the outcome of the hearing. The family circuit court commissioner shall hold a hearing requested under this subsection within 10 working days after the request. If at the hearing the obligor establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child support obligation, the family circuit court commissioner may direct that all or part of the adjustment not take effect until the obligor is able to fulfill the adjusted obligation. If at the hearing the obligor does not establish that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted obligation, the adjustment shall take effect as of the date it would have become effective had no hearing been requested. Either party may, within 15 working days of the date of the decision by the family circuit court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.

61,221 Section 221. 767.37 (1) (a) of the statutes is amended to read:

767.37 (1) (a) In any action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such matters, the written judgment shall include a provision that disobedience of the court order with respect to the same is punishable under ch. 785 by commitment to the county jail or house of correction until such judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties. The findings of fact and conclusions of law and the written judgment shall be drafted by the attorney for the moving party, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the findings, conclusions and judgment shall first be submitted to respondent's counsel for approval and if the family circuit court commissioner has appeared at the trial of the action, such papers shall also be sent to the family circuit court commissioner for approval. After any necessary approvals are obtained, the findings of fact, conclusions of law and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.

61,222 Section 222. 767.37 (2) of the statutes is amended to read:

767.37 (2) So far as a judgment of divorce affects the marital status of the parties the court has the power to vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of such judgment. No such judgment shall be vacated or modified without service of notice of motion on the office of family court commissioner. The court may direct the family a circuit court commissioner or appoint some other attorney, to bring appropriate proceedings for the vacation of the judgment. The compensation of the family circuit court commissioner when not on a salaried basis or other attorney for performing such services shall be at the rate of $50 per day, which shall be paid out of the county treasury upon order of the presiding judge and the certificate of the clerk of the court. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of such judgment. If after vacation of the judgment either of the parties brings an action in this state for divorce against the other the court may order the petitioner in such action to reimburse the county the amount paid by it to the family circuit court commissioner or other attorney in connection with such vacation proceedings. Whenever a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to s. 767.19; and thereafter neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.

61,223 Section 223. 767.45 (5) (b) of the statutes is amended to read:

767.45 (5) (b) An action under this section may be joined with any other action for child support and shall be governed by the procedures specified in s. 767.05 relating to child support, except that the title of the action shall be "In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or circuit court commissioner, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under s. 49.225 or 767.48.

61,224 Section 224. 767.455 (5) (form) of the statutes is amended to read:

767.455 (5) (form)

STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY

In re the Paternity of A. B.

STATE OF WISCONSIN

and

C. D.

Address

City, State Zip Code File No. ...

, Petitioners

vs. S U M M O N S

E. F.

Address .... (Case Classification Type): .... (Code No.)

City, State Zip Code

, Respondent

THE STATE OF WISCONSIN, To the Respondent:

You have been sued. .... claims that you are the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is:

Date:

Time:

Room:

Judge or Family Circuit Court Commissioner:

Address:

If you do not appear, the court will enter a default judgment finding you to be the father. A default judgment will take effect 30 days after it is served on or mailed to you, unless within those 30 days you present to the court evidence of good cause for failure to appear. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are unable to afford an attorney, the court will appoint one for you only upon the blood tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0%. Appearance is not required if you complete the attached waiver of first appearance statement and send it to the court at least 10 days prior to the date of your scheduled appearance in this summons.

Dated: ...., .... (year)

Signed:.... ....

G. H., Clerk of Circuit Court

or

Petitioner's Attorney

State Bar No.: ....

Address: ....

City, State Zip Code: ....

Phone No.: ....

61,225 Section 225. 767.458 (1m) of the statutes is amended to read:

767.458 (1m) In an action to establish the paternity of a child who was born to a woman while she was married, where a man other than the woman's husband alleges that he, not the husband, is the child's father, a party may allege that a judicial determination that a man other than the husband is the father is not in the best interest of the child. If the court or a circuit or supplemental court commissioner under s. 757.69 (3) 757.675 (2) (g) determines that a judicial determination of whether a man other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

61,226 Section 226. 767.46 (1) of the statutes is amended to read:

767.46 (1) A pretrial hearing shall be held before the court or a circuit or supplemental court commissioner under s. 757.69 (3) 757.675 (2) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests and present other evidence relevant to the determination of paternity.

61,227 Section 227. 767.463 of the statutes is amended to read:

767.463 Dismissal if adjudication not in child's best interest. Except as provided in s. 767.458 (1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or circuit or supplemental court commissioner under s. 757.69 (3) 757.675 (2) (g) may, with respect to a man, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or circuit or supplemental court commissioner determines that a judicial determination of whether the man is the father of the child is not in the best interest of the child.

61,228 Section 228. 767.465 (2) (a) of the statutes is amended to read:

767.465 (2) (a) Except as provided in sub. (2m), if a respondent is the alleged father and fails to appear at the first appearance, unless the first appearance is not required under s. 767.457 (2), scheduled court-ordered genetic test, pretrial hearing or trial, the court shall enter an order adjudicating the respondent to be the father and appropriate orders for support, legal custody and physical placement. The orders shall be either served on the respondent or mailed by regular, registered or certified mail, to the last-known address of the respondent. The orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court or a circuit or supplemental court commissioner under s. 757.69 (3) (g) 757.675 (2) (g) evidence of good cause for failure to appear or failure to have undergone a court-ordered genetic test.

61,229 Section 229. 767.62 (2) (b) of the statutes is amended to read:

767.62 (2) (b) If a statement acknowledging paternity is timely rescinded as provided in s. 69.15 (3m), a court or family circuit court commissioner may not enter an order specified in sub. (4) with respect to the man who signed the statement as the father of the child unless the man is adjudicated the child's father using the procedures set forth in ss. 767.45 to 767.60.

61,230 Section 230. 767.62 (3) (b) of the statutes is amended to read:

767.62 (3) (b) Except as provided in s. 767.045, in an action specified in par. (a) the court or family a circuit court commissioner may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a party who is a minor, unless the minor party is represented by an attorney.

61,231 Section 231. 767.62 (4) (intro.) of the statutes is amended to read:

767.62 (4) Orders when paternity acknowledged. (intro.) In an action under sub. (3) (a), if the persons who signed and filed the statement acknowledging paternity as parents of the child had notice of the hearing, the court or family circuit court commissioner shall make an order that contains all of the following provisions:

61,232 Section 232. 769.102 of the statutes is amended to read:

769.102 Tribunal of this state. The courts and circuit and supplemental court commissioners are the tribunal of this state.

61,233 Section 233. 769.302 of the statutes is amended to read:

769.302 Action by minor parent. A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor's child. Notwithstanding s. 767.045 (1) or 803.01 (3), the court may appoint a guardian ad litem for the minor's child, but the court need not appoint a guardian ad litem for a minor parent who maintains such a proceeding unless the proceeding is one for the determination of parentage, in which case the court or a family circuit court commissioner shall appoint a guardian ad litem for a minor parent within this state who maintains such a proceeding or for a minor within this state who is alleged to be a parent, as provided in s. 767.475 (1).

61,234 Section 234. 782.01 (3) of the statutes is amended to read:

782.01 (3) In this chapter, unless the context requires otherwise, judge includes the supreme court, the court of appeals and circuit courts and each justice and judge thereof and circuit and supplemental court commissioners; and prisoner includes every person restrained of personal liberty; and imprisoned includes every such restraint, and respondent means the person on whom the writ is to be served.

61,235 Section 235. 782.03 of the statutes is amended to read:

782.03 Petition for writ. Application for the writ shall be by petition, signed either by the prisoner or by some person in his or her behalf, and may be made to the supreme court, the court of appeals or the circuit court of the county, or to any justice or judge of the supreme court, court of appeals or circuit court or to any circuit or supplemental court commissioner, within the county where the prisoner is detained; or if there is no judge within the county, or for any cause he or she is incapable of acting, or has refused to grant the writ, then to some judge residing in an adjoining county; but every application, made by or on behalf of a person sentenced to the state prisons, must contain a copy of any motion made under s. 974.06 and shall indicate the disposition of the motion and the court in which the disposition was made. If no motion was made, the petition shall so state.

61,236 Section 236. 782.28 of the statutes is amended to read:

782.28 Transfer from circuit court commissioner. If the writ is returnable before a circuit court commissioner, either party may make a request for transfer to the court in which the matter is filed. Upon receipt of such request the circuit court commissioner shall forthwith transmit all papers and records in the proceedings to the court.

61,237 Section 237. 799.03 of the statutes is amended to read:

799.03 Definition. In this chapter unless otherwise designated, "court" means circuit court and "court" does not mean circuit court commissioner.

61,238 Section 238. 799.05 (7) (intro.) of the statutes is amended to read:

799.05 (7) Form; circuit court commissioner. (intro.) Except as provided in s. 799.22 (4) (b) 3., in counties establishing at least one part-time or full-time court commissioner position under s. 757.68 (1) (b) in which a circuit court commissioner is assigned to assist in small claims matters, the summons shall be substantially in the following form:

61,239 Section 239. 799.06 (1) of the statutes is amended to read:

799.06 (1) Pleadings. All pleadings except the initial complaint may be oral. Any circuit court may by rule require written pleadings and any judge or circuit court commissioner may require written pleadings in a particular case.

61,240 Section 240. 799.11 (3) of the statutes is amended to read:

799.11 (3) When, in any action under this chapter, it appears from the return of service of the summons or otherwise that the county in which the action is pending is not a proper place of trial and that another county would be a proper place of trial, the court or circuit court commissioner shall, on motion of a party or its own motion, transfer the action to that county unless the defendant appears and waives the improper venue. The clerk of the court to which the action is transferred shall issue a new notice of return date upon payment of the fee required by s. 814.61 (2) (a).

61,241 Section 241. 799.20 (4) of the statutes is amended to read:

799.20 (4) Inquiry of defendant who appears on return date. If the defendant appears on the return date of the summons or any adjourned date thereof, the court or circuit court commissioner shall make sufficient inquiry of the defendant to determine whether the defendant claims a defense to the action. If it appears to the court or circuit court commissioner that the defendant claims a defense to the action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action, unless the parties stipulate otherwise or the action is subject to immediate dismissal.

61,242 Section 242. 799.206 (1), (2) and (4) of the statutes are amended to read:

799.206 (1) In counties establishing at least one part-time or full-time a circuit court commissioner position under s. 757.68 (1) (b) (5m), all actions and proceedings commenced under this chapter shall be returnable before a circuit court commissioner appointed under s. 757.68 (1) and SCR chapter 75. In any other county, a circuit court commissioner may conduct return date proceedings if delegated such authority under s. 757.69 (1) (d).

(2) Judgment on failure to appear may be entered by the circuit court commissioner or the clerk upon the return date as provided in s. 799.22.

(4) Except as provided in sub. (3), the circuit court commissioner shall hear all matters using the procedures set forth in s. 799.207.

61,243 Section 243. 799.207 (title) of the statutes is amended to read:

799.207 (title) Proceedings before circuit court commissioner.

61,244 Section 244. 799.207 (1) (a) of the statutes is amended to read:

799.207 (1) (a) Any circuit court commissioner assigned to assist in the administration of small claims matters may hold a conference with the parties or their attorneys or both on the return date, examine pleadings and identify issues.

61,245 Section 245. 799.207 (1) (b) of the statutes is amended to read: