AB248: Bill Text

LRB-2785/1

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2001 - 2002 LEGISLATURE

2001 Assembly BILL 248

March 26, 2001 - Introduced by Representatives Kestell, Albers, Duff, J. Lehman, Musser, Ott, Riley and Owens, cosponsored by Senators George, Cowles and Roessler, by request of Department of Workforce Development. Referred to Committee on Children and Families.

AB248,1,7 An Act to renumber and amend 767.33 (2); to amend 767.08 (2) (b), 767.23 (1) (c), 767.25 (1) (a), 767.265 (3m), 767.27 (2), 767.27 (2m), 767.32 (1) (a), 767.33 (1), 767.33 (1m) (a), 767.33 (1m) (b) and 808.075 (4) (d) 3.; and to create 767.32 (1) (d), 767.33 (2) (c) 1., 767.33 (2) (c) 2. and 767.33 (2) (c) 3. of the statutes; relating to: expressing child support as a fixed sum, requiring child support payers annually to furnish copies of tax returns, and providing for annual adjustments in child support.

Analysis by the Legislative Reference Bureau

Under current law, child or family support may be expressed in a judgment or order as a fixed sum, as a percentage of a parent's income, or as a combination of the two in the alternative by requiring payment of the greater or lesser of either a percentage of a parent's income or a fixed sum. In order to revise a judgment or order with respect to an amount of child or family support, the court must find that there has been a substantial change in the circumstances of at least one of the parties. This bill requires that child or family support be expressed as a fixed sum in a judgment or order, including a temporary order. The bill also provides that the court is not required to make a finding of a substantial change in circumstances to change the manner of expressing the amount of child or family support to a fixed sum in a judgment or order in which the amount of child or family support is expressed as a percentage, or as a percentage or a fixed sum in the alternative.

Under current law, the parties to an action affecting the family are required to disclose all of their assets, including income, on a financial disclosure form. If the court orders child or family support in the action, the court must order the party who must pay support to furnish a financial disclosure form annually, and may order that party to furnish copies of his or her most recently filed state and federal income tax returns annually, to the payee of the support and, if the state is a real party in interest, such as when a dependent child involved in the action is receiving medical assistance, to the county child support agency. The bill eliminates the requirement that the court order the support payer to furnish a financial disclosure form to the payee of the support and to the county child support agency but requires, instead of authorizes, the court to order the support payer to furnish copies of his or her most recently filed state and federal income tax returns annually to the payee of the support.

Finally, current law provides that a child support order that is expressed as a fixed sum may provide for an annual adjustment in the support amount, based on a change in the payer's income. The adjustment is not automatic, however; the payee of the support must apply to the family court commissioner for the actual adjustment. The bill requires every child or family support order that is expressed as a fixed sum to provide for an annual adjustment in the support amount, based on a change in the payer's income, and still requires application to the family court commissioner for the adjustment to take effect. Since an adjustment would be a decrease in the support amount if the payer's income decreased, the bill provides that either party, not just the payee, may apply for the adjustment. If the family court commissioner receives an application for an adjustment, the family court commissioner must send notice to the other party, who may request a hearing on whether the adjustment should go into effect. If a hearing is held, the family court commissioner may direct that all or part of the adjustment not go into effect until such time as directed by the family court commissioner if: 1) as under current law, the payer establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjustment; 2) the payee establishes that the payer has voluntarily and unreasonably reduced his or her income below his or her earning capacity; or 3) the party who requested the hearing establishes that the adjustment would be unfair to the child.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB248, s. 1 Section 1. 767.08 (2) (b) of the statutes is amended to read:

AB248,3,6 767.08 (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. 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.

AB248, s. 2 Section 2. 767.23 (1) (c) of the statutes is amended to read:

AB248,3,12 767.23 (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.

AB248, s. 3 Section 3. 767.25 (1) (a) of the statutes is amended to read:

AB248,3,18 767.25 (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.

AB248, s. 4 Section 4. 767.265 (3m) of the statutes is amended to read:

AB248,4,2 767.265 (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. 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.

AB248, s. 5 Section 5. 767.27 (2) of the statutes is amended to read:

AB248,4,8 767.27 (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.

AB248, s. 6 Section 6. 767.27 (2m) of the statutes is amended to read:

AB248,5,2 767.27 (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. 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 shall award to the party bringing the action costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.

AB248, s. 7 Section 7. 767.32 (1) (a) of the statutes is amended to read:

AB248,6,4 767.32 (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.

AB248, s. 8 Section 8. 767.32 (1) (d) of the statutes is created to read:

AB248,6,9 767.32 (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.

AB248, s. 9 Section 9. 767.33 (1) of the statutes is amended to read:

AB248,6,20 767.33 (1) An order for child or family support under s. 767.23 or 767.25 may this chapter, including an order revising child or family support under s. 767.32, shall provide for an adjustment in the amount to be paid based on a change in the obligor's income, as reported on the disclosure form his or her most recently filed state and federal tax returns furnished under s. 767.27 (2m) or as disclosed under s. 49.22 (2m) to the department or county child support agency under s. 59.53 (5). The order may specify the date on which the annual adjustment becomes effective. No adjustment may be made unless the order so provides and either the obligor or the party receiving payments applies for an adjustment as provided in sub. (2) (a). An adjustment under this section may be made only once in any year.

AB248, s. 10 Section 10. 767.33 (1m) (a) of the statutes is amended to read:

AB248,6,25 767.33 (1m) (a) Except as provided in par. (b), this section applies only to an a child or family support order under s. 767.23 or 767.25 this chapter in which payment is expressed as a fixed sum. It does not apply to such an order in which payment is expressed as a percentage of parental income.

AB248, s. 11 Section 11. 767.33 (1m) (b) of the statutes is amended to read:

AB248,7,5 767.33 (1m) (b) If payment is expressed in an a child or family support order under s. 767.23 or 767.25 this chapter in the alternative as the greater or lesser of either a percentage of parental income or a fixed sum, this section applies only to the fixed sum alternative under the order.

AB248, s. 12 Section 12. 767.33 (2) of the statutes is renumbered 767.33 (2) (a) and amended to read:

AB248,7,12 767.33 (2) (a) An adjustment under sub. (1) may be made only if the a party receiving payments applies to the family court commissioner for the adjustment. If the order specifies the date on which the annual adjustment becomes effective, the application to the family court commissioner must be made at least 20 days before the effective date of the adjustment.

AB248,7,22 (b) The family court commissioner, upon application by the a party receiving payments, shall send a notice by certified mail to the last-known address of the obligor nonapplicant party. The notice shall be postmarked no later than 10 days after the date on which the application was filed and shall inform the obligor nonapplicant party 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 nonapplicant party 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.

AB248,8,6 (c) The family court commissioner shall hold a hearing requested under this subsection par. (b) within 10 working days after the request. If at After the hearing the obligor establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child support obligation, the family 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 such time as the family court commissioner directs, if any of the following applies:

AB248,8,11 (d) If none of the conditions specified in par. (c) 1. to 3. is satisfied, 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 court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.

AB248, s. 13 Section 13. 767.33 (2) (c) 1. of the statutes is created to read:

AB248,8,15 767.33 (2) (c) 1. The obligor requested the hearing and establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child support obligation.

AB248, s. 14 Section 14. 767.33 (2) (c) 2. of the statutes is created to read:

AB248,8,19 767.33 (2) (c) 2. The party receiving payments requested the hearing and establishes that the obligor voluntarily and unreasonably reduced his or her income below his or her earning capacity.

AB248, s. 15 Section 15. 767.33 (2) (c) 3. of the statutes is created to read:

AB248,8,22 767.33 (2) (c) 3. The party who requested the hearing establishes that the adjustment would be unfair to the child.

AB248, s. 16 Section 16. 808.075 (4) (d) 3. of the statutes is amended to read:

AB248,8,24 808.075 (4) (d) 3. Annual adjustment of child or family support under s. 767.33.

AB248, s. 17 Section 17. Initial applicability.

AB248,9,4 (1) The treatment of sections 767.08 (2) (b), 767.23 (1) (c), 767.25 (1) (a), 767.265 (3m), and 767.33 (1) and (1m) (a) and (b) of the statutes first applies to judgments and orders, including revision orders under section 767.32 of the statutes, as affected by this act, and temporary orders, granted on the effective date of this subsection.