Amendment SSA1-SB106

LRBs0112/3

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2001 - 2002 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2001 SENATE BILL 106

June 28, 2001 - Offered by Committee onJudiciary, Consumer Affairs, and Campaign Finance Reform.

SB106-SSA1,1,9 An Act to amend 767.08 (2) (b), 767.23 (1) (c), 767.25 (1) (a), 767.263 (1), 767.265 (3m), 767.27 (2), 767.27 (2m), 767.32 (1) (a), 808.075 (4) (d) 3. and 814.04 (intro.); to repeal and recreate 767.33; and to create 20.445 (3) (fs), 767.10 (2) (am) and 767.32 (1) (d) of the statutes; relating to: expressing child support as a fixed sum, expressing child support as a percentage of income in certain situations, requiring a child support payer to notify the payee of a change of employer or in income, requiring the payer and payee of child support annually to exchange financial information, providing for annual adjustments in child support, and making an appropriation.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB106-SSA1, s. 1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

SB106-SSA1, s. 2 Section 2. 20.445 (3) (fs) of the statutes is created to read:

SB106-SSA1,2,6 20.445 (3) (fs) Child support order conversion assistance. The amounts in the schedule to provide assistance to county child support agencies for the costs of converting child support orders to fixed-sum orders, to be allocated to counties on the basis of the number of percentage-expressed or mixed orders in a county in cases in which the state is a real party in interest under s. 767.075 (1).

SB106-SSA1, s. 3 Section 3. 767.08 (2) (b) of the statutes is amended to read:

SB106-SSA1,2,18 767.08 (2) (b) The court in the action shall, as provided under s. 767.25 or 767.26, determine and adjudge the amount, if any, the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum should be paid. This amount may must be expressed as a percentage of the person's income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of the person's income or a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.10 (2) (am) 1. to 3. are satisfied. The amount so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either party upon sufficient evidence.

SB106-SSA1, s. 4 Section 4. 767.10 (2) (am) of the statutes is created to read:

SB106-SSA1,3,4 767.10 (2) (am) A court may not approve a stipulation for expressing child support or family support as a percentage of the payer's income unless all of the following apply:

SB106-SSA1,3,6 1. The state is not a real party in interest in the action under any of the circumstances specified in s. 767.075 (1).

SB106-SSA1,3,8 2. The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.

SB106-SSA1,3,11 3. All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.29 (1) (d), are expressed as a percentage of the payer's income.

SB106-SSA1, s. 5 Section 5. 767.23 (1) (c) of the statutes is amended to read:

SB106-SSA1,3,19 767.23 (1) (c) Subject to s. 767.477, requiring either party or both parties to make payments for the support of minor children, which payment amounts may must be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.10 (2) (am) 1. to 3. are satisfied.

SB106-SSA1, s. 6 Section 6. 767.25 (1) (a) of the statutes is amended to read:

SB106-SSA1,4,2 767.25 (1) (a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount may must be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.10 (2) (am) 1. to 3. are satisfied.

SB106-SSA1, s. 7 Section 7. 767.263 (1) of the statutes is amended to read:

SB106-SSA1,4,16 767.263 (1) Each order for child support, family support , or maintenance payments shall include an order that the payer and payee notify the county child support agency under s. 59.53 (5) of any change of address within 10 business days of such change. Each order for child support, family support, or maintenance payments shall also include an order that the payer notify the county child support agency under s. 59.53 (5) and the payee, within 10 business days, of any change of employer and of any substantial change in the amount of his or her income, including receipt of bonus compensation, such that his or her ability to pay child support, family support, or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order under s. 767.32 or an annual adjustment of the child or family support amount under s. 767.33 is sought.

SB106-SSA1, s. 8 Section 8. 767.265 (3m) of the statutes is amended to read:

SB106-SSA1,5,2 767.265 (3m) Benefits under ch. 108 may be assigned and withheld only in the manner provided in s. 108.13 (4). Any order to withhold benefits under ch. 108 may shall be for a percentage of benefits payable or for a fixed sum, or for a combination of both in the alternative by requiring the withholding of the greater or lesser of either a percentage of benefits payable or a fixed sum unless the court-ordered obligation on which the withholding order is based is expressed in the court order as a percentage of the payer's income, in which case an order to withhold benefits under ch. 108 shall be for a percentage of benefits payable. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.

SB106-SSA1, s. 9 Section 9. 767.27 (2) of the statutes is amended to read:

SB106-SSA1,5,8 767.27 (2) Except as provided in sub. (2m), disclosure Disclosure forms required under this section shall be filed within 90 days after the service of summons or the filing of a joint petition or at such other time as ordered by the court or family court commissioner. Information contained on such forms shall be updated on the record to the date of hearing.

SB106-SSA1, s. 10 Section 10. 767.27 (2m) of the statutes is amended to read:

SB106-SSA1,6,3 767.27 (2m) In every action in which the court has ordered a party to pay child support under s. 767.25, 767.51 or 767.62 (4) or family support under s. 767.261 and the circumstances specified in s. 767.075 (1) apply this chapter, including an action to revise a judgment or order under s. 767.32, the court shall require the party who is ordered to pay the support to annually furnish the disclosure form required under this section and may require that party to annually furnish a copy of his or her most recently filed state and federal income tax returns to the county child support agency under s. 59.53 (5) for the county in which the order was entered. In any action in which the court has ordered a party to pay child support under s. 767.25, 767.51 or 767.62 (4) or family support under s. 767.261, the court may require the party who is ordered to pay the support to annually furnish the disclosure form required under this section and a copy of his or her most recently filed state and federal income tax returns to the party for whom the support has been awarded parties annually to exchange financial information. A party who fails to furnish the information as required by the court under this subsection may be proceeded against for contempt of court under ch. 785. If the court finds that a party has failed to furnish the information required under this subsection, the court may award to the party bringing the action costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.

SB106-SSA1, s. 11 Section 11. 767.32 (1) (a) of the statutes is amended to read:

SB106-SSA1,7,5 767.32 (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 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 Except as provided in par. (d), 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.

SB106-SSA1, s. 12 Section 12. 767.32 (1) (d) of the statutes is created to read:

SB106-SSA1,7,10 767.32 (1) (d) In an action under this section to revise a judgment or order with respect to child or family support, the court is not required to make a finding of a substantial change in circumstances to change to a fixed sum the manner in which the amount of child or family support is expressed in the judgment or order.

SB106-SSA1, s. 13 Section 13. 767.33 of the statutes is repealed and recreated to read:

SB106-SSA1,7,17 767.33 Annual adjustments in support orders. (1) (a) An order for child or family support under this chapter may provide for an annual adjustment in the amount to be paid based on a change in the payer's income if the amount of child or family support is expressed in the order as a fixed sum and based on the percentage standard established by the department under s. 49.22 (9). No adjustment may be made under this section unless the order provides for the adjustment.

SB106-SSA1,7,20 (b) An adjustment under this section may not be made more than once in a year and shall be determined on the basis of the percentage standard established by the department under s. 49.22 (9).

SB106-SSA1,7,23 (c) In the order the court or family court commissioner shall specify what information the parties must exchange to determine whether the payer's income has changed, and shall specify the manner and timing of the information exchange.

SB106-SSA1,8,6 (2) If the court or family court commissioner provides for an annual adjustment, the court or family court commissioner shall make available to the parties, including the state if the state is a real party in interest under s. 767.075 (1), a form approved by the court or family court commissioner for the parties to use in stipulating to an adjustment of the amount of child or family support and to modification of any applicable income-withholding order. The form shall include an order, to be signed by a judge or family court commissioner, for approval of the stipulation of the parties.

SB106-SSA1,8,11 (3) (a) If the payer's income changes from the amount found by the court or family court commissioner or stipulated to by the parties for the current child or family support order, the parties may implement an adjustment under this section by stipulating, on the form under sub. (2), to the changed income amount and the adjusted child or family support amount, subject to sub. (1) (b).

SB106-SSA1,8,17 (b) The stipulation form must be signed by all parties, including the state if the state is a real party in interest under s. 767.075 (1), and filed with the court. If the stipulation is approved, the order shall be signed by a judge or family court commissioner and implemented in the same manner as an order for a revision under s. 767.32. An adjustment under this subsection shall be effective as of the date on which the order is signed by the judge or family court commissioner.

SB106-SSA1,8,20 (4) (a) Any party, including the state if the state is a real party in interest under s. 767.075 (1), may file a motion, petition, or order to show cause for implementation of an annual adjustment under this section if any of the following applies:

SB106-SSA1,8,22 1. A party refuses to provide the information required by the court under sub. (1) (c).

SB106-SSA1,8,24 2. The payer's income changes, but a party refuses to sign the stipulation for an adjustment in the amount of child or family support.

SB106-SSA1,9,7 (b) If the court or family court commissioner determines after a hearing that an adjustment should be made, the court or family court commissioner shall enter an order adjusting the child or family support payments by the amount determined by the court or family court commissioner, subject to sub. (1) (b). An adjustment under this subsection may not take effect before the date on which the party responding to the motion, petition, or order to show cause received notice of the action under this subsection.

SB106-SSA1,9,10 (c) Notwithstanding par. (b), the court or family court commissioner may direct that all or part of the adjustment not take effect until such time as the court or family court commissioner directs, if any of the following applies:

SB106-SSA1,9,13 1. The payee was seeking an adjustment and the payer establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child or family support obligation.

SB106-SSA1,9,16 2. The payer was seeking an adjustment and the payee establishes that the payer voluntarily and unreasonably reduced his or her income below his or her earning capacity.

SB106-SSA1,9,18 3. The payer was seeking an adjustment and the payee establishes that the adjustment would be unfair to the child.

SB106-SSA1,9,25 (d) If in an action under this subsection the court or family court commissioner determines that a party has unreasonably failed to provide the information required under sub. (1) (c) or to provide the information on a timely basis, or unreasonably failed or refused to sign a stipulation for an annual adjustment, the court or family court commissioner may award to the aggrieved party actual costs, including service costs, any costs attributable to time missed from employment, the cost of travel to and from court, and reasonable attorney fees.

SB106-SSA1,10,3 (5) (a) Nothing in this section affects a party's right to file at any time a motion, petition, or order to show cause under s. 767.32 for revision of a judgment or order with respect to an amount of child or family support.

SB106-SSA1,10,7 (b) Nothing in this section affects a party's right to move the court for a finding of contempt of court or for remedial sanctions under ch. 785 if the other party unreasonably fails to provide or disclose information required under this section or unreasonably fails or refuses to sign a stipulation for an annual adjustment.