767.59 Note
NOTE: The standard for modifying child support orders was significantly changed by
1993 Wis. Act 16.
767.59 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 (1970).
767.59 Annotation
Although one parent took the children out of the state without court approval or letting the other know where the children could be visited, the court could 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 (1973).
767.59 Annotation
Even assuming the parties' agreement as to child support gave rise to 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 (1975).
767.59 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 (1975).
767.59 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 (1976).
767.59 Annotation
The trial court abused its discretion in denying the former husband's motion to terminate alimony by failing 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 (1976).
767.59 Annotation
The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under s. 767.26. Vander Perren v. Vander Perren,
105 Wis. 2d 219,
313 N.W.2d 813 (1982).
767.59 Annotation
It was improper to discontinue maintenance payments to a former spouse solely upon the ground of cohabitation. Van Gorder v. Van Gorder,
110 Wis. 2d 188,
327 N.W.2d 674 (1983).
767.59 Annotation
When a stipulation required maintenance payments during the wife's lifetime, the husband was estopped from requesting termination of payments under sub. (3) when the wife remarried. Rintelman v. Rintelman,
118 Wis. 2d 587,
348 N.W.2d 498 (1984).
767.59 Annotation
A 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).
767.59 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).
767.59 Annotation
A state family court may modify the paying spouse's support obligation following his or her discharge in bankruptcy. Eckert v. Eckert,
144 Wis. 2d 770,
424 N.W.2d 759 (Ct. App. 1988).
767.59 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).
767.59 Annotation
It is within a trial court's discretion to apply the percentage standards to a child support revision. If applied to a remarried parent, gross income 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).
767.59 Annotation
A 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).
767.59 Annotation
A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson,
158 Wis. 2d 690,
462 N.W.2d 915 (Ct. App. 1990).
767.59 Annotation
A party is estopped from seeking a maintenance revision if the parties stipulated to permanent nonmodifiable maintenance that was part of a comprehensive settlement of all property and maintenance issues that was approved by the court and was fair and not illegal or against public policy at the time and relief is being sought on the grounds that the court did not have power to enter the order the parties had agreed to. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.2d 619 (1991).
767.59 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).
767.59 Annotation
In determining income for maintenance revision, investment income from 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).
767.59 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).
767.59 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).
767.59 Annotation
When a paying 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).
767.59 Annotation
A paying 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 if the choice is not reasonable in light of the payer's support obligation. Van Offeren v. Van Offeren,
173 Wis. 2d 482,
496 N.W.2d 660 (Ct. App. 1992).
767.59 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).
767.59 Annotation
In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payer 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).
767.59 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).
767.59 Annotation
When a broadly worded settlement agreement required the payer 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 when the court found those needs were being met. Jacquart v. Jacquart
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
767.59 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),
95-1087.
767.59 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),
95-1960.
767.59 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),
96-0336.
767.59 Annotation
When 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. [now sub. (1f) (b) 2.] that child support should be modified, but the family court maintains its discretion whether the percentage guidelines should be applied. Zutz v. Zutz,
208 Wis. 2d 338,
559 N.W.2d 914 (Ct. App. 1997),
96-1136.
767.59 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),
96-3522.
767.59 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),
96-3522.
767.59 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),
97-2453.
767.59 Annotation
Sub. (1r) modifies the common law
. 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),
98-2922.
767.59 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 payer 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),
98-2950.
767.59 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), 1997 stats. Section 767.01 (1) [now s. 767.201] 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,
98-1234.
767.59 Annotation
Equitable estoppel does not apply to prevent modification of a stipulation for nonmodifiable maintenance if at the time that the stipulation was entered into it violated public policy because it indefinitely burdened only one party with the entire risk of financial hardship. Patrickus v. Patrickus,
2000 WI App 255,
239 Wis. 2d 340,
620 N.W.2d 205,
99-3315.
767.59 Annotation
Incarceration is a change in circumstance sufficient to give a court competence to review a child support order, but should not be the sole determinative factor. Consideration of the nature of the criminal conduct is appropriate for an overall evaluation of the parent's behavior as it relates to ability and attitude toward paying child support. Rottscheit v. Dumler,
2003 WI 62,
262 Wis. 2d 292,
664 N.W.2d 525,
01-2213.
767.59 Annotation
The test for a substantial change in circumstances is the same whether the issue of maintenance was originally stipulated to or contested. The correct test regarding modification considers fairness to both parties under all circumstances, not whether it is unjust or inequitable to alter the original award. A judge who reviews a request to modify a maintenance award should adhere to the findings of fact made by the circuit court. Education expenses for an adult child do not have to be considered by the modifying court when examining a party's budget, but can be. Rohde-Giovanni v. Baumgart,
2004 WI 27,
269 Wis. 2d 598,
676 N.W.2d 452,
01-3014.
767.59 Annotation
A trial court's decision to deny an extension of maintenance, including deciding whether there is a substantial change in circumstances, is a discretionary decision. The trial court's decision on a substantial change in circumstances is upheld if there is a reasonable basis in the record for the trial court's decision. Cashin v. Cashin,
2004 WI App 92,
273 Wis. 2d 754,
681 N.W.2d 255,
03-1010.
767.59 Annotation
During a maintenance modification proceeding, the appropriate comparison for any change in the parties' financial circumstances is to the facts that existed at the time of the most recent maintenance order, whether in the original divorce judgment or a subsequent modification. Neither issue or claims preclusion applies to a maintenance modification proceeding after a court has found the parties' financial circumstances to be substantially changed. Once a party has demonstrated a substantial change since the time of the operative maintenance award, a maintenance modification proceeding does not present the same issues or claims that were originally litigated. Kenyon v. Kenyon,
2004 WI 147,
277 Wis. 2d 47,
690 N.W.2d 251,
02-3041.
767.59 Annotation
Retroactive applications of subs. (1m) and (1r) do not violate due process. Retroactive applications serve significant public purposes, while remedying general social and economic issues. Barbara B. v. Dorian H.
2005 WI 6,
277 Wis. 2d 378,
690 N.W.2d 849,
03-1877.
767.59 Annotation
Generally, a final division of property is fixed for all time and is not subject to modification. Section 806.07 is applicable to divorce cases, but permits reopening of final judgments only in extraordinary circumstances. Post-divorce employer modification of a pension, years after a divorce, that was thoroughly negotiated and divided at the time of the divorce does not compel reopening the divorce judgment. Winkler v. Winkler,
2005 WI App 100,
282 Wis. 2d 746,
699 N.W.2d 652,
04-1231.
767.59 Annotation
In shirking cases, when considering a spouse's conduct in voluntarily reducing his or her income, a court applies a test of reasonableness under the circumstances, balancing the needs of the parents and the needs of the child, both financial and otherwise, like child care and the ability of both parents to pay child support. Furthermore, under s. 767.25 (1m) (d) and (e) [now s. 767.511 (1m) (d) and (e)] after considering the listed economic factors, the desirability that the custodian remain in the home as a full-time parent, and the value of custodial services performed by the custodian if the custodian remains at home, the court may conclude that the percentage standard is unfair to the child or to any of the parties. Chen v. Warner,
2005 WI 55,
280 Wis. 2d 344,
695 N.W.2d 758,
03-0288.
767.59 Annotation
A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances was unenforceable. As is implicit from
Ondrasek, 158 Wis. 2d 690: a marital settlement agreement entered into by divorcing parties that purports to limit in any way a child support payee's ability to seek a support modification upon a substantial change in circumstances is against public policy; it thus cannot provide a basis to estop the payee from seeking a modification.
Ondrasek is not limited to unilateral waivers of a payee's right to obtain increased child support. Wood v. Propeck,
2007 WI App 24,
299 Wis. 2d 470,
728 N.W.2d 757,
05-2674.
767.59 Annotation
While prohibiting the court from reducing arrearages, sub. (1m) does not prevent the parties from compromising or waiving them subject to court approval. Sub. (1m) applies in the case of an adversarial proceeding under this statute, and not to a court-approved joint stipulation. Motte v. Motte,
2007 WI App 111,
300 Wis. 2d 621,
731 N.W.2d 294,
05-2776.
767.59 Annotation
A stipulation that sets a ceiling and bars any change in the maximum amount of child support defeats the statutory goal of providing for the child's best interests as parents are precluded from seeking a modification of an amount necessary for the child's best interests and is unenforceable and contrary to public policy. Frisch v. Henrichs,
2007 WI 102,
304 Wis. 2d 1,
736 N.W.2d 85,
05-0534.
767.59 Annotation
To invoke equitable estoppel against a party seeking relief from a provision of a stipulation, the party must show: 1) that both parties entered into the stipulation freely and knowingly, 2) that the overall settlement is fair and equitable and not illegal or against public policy; and 3) that one party subsequently seeks to be released from its terms on the grounds that the court could not have entered the order it did without the parties' agreement. A 4-year prohibition preventing a payer from seeking a child support review for any reason contravened public policy was unenforceable. Jalovec v. Jalovec,
2007 WI App 206,
305 Wis. 2d 467,
739 N.W.2d 834,
06-1872.
767.59 Annotation
There is no basis upon which a trial court can reduce that support owed to a payor spouse's marital child based on nonchild-support amounts paid to the payee spouse's nonmarital child. However, the benefit received by the non marital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig,
2010 WI App 78,
325 Wis. 2d 497,
785 N.W.2d 664,
09-1202.
767.59 Annotation
Maintenance may be awarded after the death of the payor if the parties expressly agree by stipulation. When the judgment provided that "maintenance shall terminate on August 25, 2014 and said maintenance payments shall not be modifiable in either duration or amount under any circumstance, and, further, shall not be subject to revision as provided for in s. 767.32," the language was unambiguous in precluding modification in any circumstance, including death. Wagner v. Estate of Sobczak,
2011 WI App 159,
338 Wis. 2d 92,
808 N.W.2d 167,
10-0286.
767.59 Annotation
There exists a framework governing child support stipulations and orders: 1) ceilings on child support payments are presumed to be invalid; 2) an unmodifiable floor on child support payments that is not limited in duration or that has an excessively long duration may violate public policy; 3) when the parties have entered into a stipulation for a limited period of time that the court has adopted, courts will attempt to give effect to the parties' intentions when the stipulation was entered into freely and knowingly, was fair and equitable when entered into, and is not illegal or violative of public policy; 4) courts retain the equitable power to consider circumstances in existence when the stipulation is challenged that were unforeseen by the parties when they entered into the stipulation if those circumstances adversely affect the best interests of the child. May v. May,
2012 WI 35,
339 Wis. 2d 626,
813 N.W.2d 179,
10-0177.
767.59 Annotation
Sub. (1f) (b) 2.'s rebuttable presumption that arises at 33 months represents what the legislature has determined is a reasonable time to reconsider support. Beyond the legislature's rebuttable presumption of 33 months, case law suggests that stipulations lasting more than four years could be too lengthy. So too, stipulations that are not related to a point in time that reasonably would support a reevaluation of the parties' support obligations and needs may not meet with the approval of the circuit court. May v. May,
2012 WI 35,
339 Wis. 2d 626,
813 N.W.2d 179,
10-0177.
767.59 Annotation
In shirking cases there is only one standard, based on reasonableness under the circumstances. There is not a different test where the parent was involuntarily terminated from employment. The reasonableness standard applies to all employment decisions made by a parent, regardless of the circumstances that led to the making of those decisions. In the event of involuntary termination, the focus is on the employee's employment decisions subsequent to termination and those decisions are subjected to the test of reasonableness under the circumstances. Becker v. Becker,
2014 WI App 76, ___ Wis. 2d ___, ___ N.W.2d ___,
13-1481.
PROPERTY DIVISION
767.61
767.61
Property division. 767.61(1)(1)
Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under
s. 767.001 (1) (h), the court shall divide the property of the parties.
767.61(2)(a)(a) Except as provided in
par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:
767.61(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in
s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under
ch. 705.
767.61(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.61(3)
(3) Presumption of equal division. The court shall presume that all property not described in
sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
767.61(3)(b)
(b) The property brought to the marriage by each party.
767.61(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.61(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
767.61(3)(e)
(e) The age and physical and emotional health of the parties.
767.61(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.61(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
767.61(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
767.61(3)(i)
(i) The amount and duration of an order under
s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under
s. 767.531 and whether the property division is in lieu of such payments.
767.61(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
767.61(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
767.61(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.
767.61(4)
(4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under
s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.
767.61(5)
(5) Related provisions of judgment. In a judgment described under
sub. (1), the court shall do all of the following:
767.61(5)(a)
(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.
767.61(5)(b)
(b) Include all of the following in the judgment:
767.61(5)(b)1.
1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.
