767.29(3)(b)
(b) If a child who is the beneficiary of support under a judgment or order is placed by court order in a child caring institution, juvenile correctional institution or state mental institution, the right of the child to support during the period of the child's confinement, including any right to unpaid support accruing during that period, is assigned to the state. If the judgment or order providing for the support of a child who is placed in a child caring institution, juvenile correctional institution or state mental institution includes support for one or more other children, the support that is assigned to the state shall be the proportionate share of the child placed in the institution, except as otherwise ordered by the court or family court commissioner on the motion of a party.
767.29 History
History: 1971 c. 41 s.
12; Sup. Ct. Order,
67 Wis. 2d 585, 775 (1975);
1975 c. 82,
200;
1975 c. 401 s.
4;
1977 c. 105 s.
59;
1977 c. 271,
418,
447;
1979 c. 32 ss.
50,
92 (4);
1979 c. 257 s.
17; Stats. 1979 s. 767.29;
1981 c. 20 s.
2202 (20) (m);
1983 a. 27,
302;
1985 a. 29,
176;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7104tm,
9126 (19),
9130 (4);
1995 a. 77,
279,
289,
404;
1997 a. 27,
35,
105,
191,
252;
1999 a. 9.
767.29 Annotation
A public welfare agency is entitled to collect unpaid alimony and support money that had accumulated prior to the effective date of an assignment under sub. (2) and prior to the assignor's receipt of welfare assistance. Schiavo v. Schiavo,
71 Wis. 2d 136,
237 N.W.2d 702.
767.29 Annotation
The defense of laches is not available in an action or proceeding brought to secure enforcement of a child-support order in a divorce action. Paterson v. Paterson,
73 Wis. 2d 150,
242 N.W.2d 907.
767.29 Annotation
Sub. (1) specifically authorizes a family court commissioner to initiate a contempt action to enforce child support orders pursuant to s. 785.06. State ex rel. Stedman v. Rohner,
149 Wis. 2d 146,
438 N.W.2d 585 (1989).
767.29 Annotation
A commissioner acts in public interest, not as private advocate, when bringing remedial contempt proceeding to enforce existing order or judgment under (1).
76 Atty. Gen. 21.
767.293
767.293
Affidavit for certain arrearages. 767.293(1)
(1) If an order for child support under this chapter or
s. 948.22 (7), an order for family support under this chapter or a stipulation approved by the court or the family court commissioner for child support under this chapter requires a payer to pay child or family support in an amount that is expressed as a percentage of parental income, the payee, including the state or a county child support agency under
s. 59.53 (5) if the state is a real party in interest under
s. 767.075 (1), may establish an arrearage by filing an affidavit in the action in which the order for the payment of support was entered or the stipulation for support was approved. The affidavit shall state the amount of the arrearage and the facts supporting a reasonable basis on which the arrearage was determined and may state the payer's current income and the facts supporting a reasonable basis on which the payer's current income was determined. Not later than 60 days after filing the affidavit, the payee shall serve the affidavit on the payer in the manner provided in
s. 801.11 (1) (a) or
(b) or by sending the affidavit by registered or certified mail to the last-known address of the payer. After the payee files a proof of service on the payer, the court shall send a notice to the payer by regular, registered or certified mail to the payer's last-known address. The notice shall provide that, unless the payer requests a hearing to dispute the arrearage or the amount of the arrearage not later than 20 days after the date of the notice, the court or family court commissioner may enter an order against the payer in the amount stated in the affidavit and may provide notice of assignment under
s. 767.265. The notice shall include the mailing address to which the request for hearing must be mailed or delivered in order to schedule a hearing under
sub. (2).
767.293(2)
(2) If the payer makes a timely request for a hearing, the court or family court commissioner shall hold a hearing on the issue of the amount of the arrearage, if any. If the court or family court commissioner determines after hearing that an arrearage exists, the court or family court commissioner shall enter an order establishing an arrearage in the amount determined by the court or family court commissioner and may send notice of assignment under
s. 767.265.
767.293(3)
(3) If the court or family court commissioner sends the notice under
sub. (1) and the payer fails to make a timely request for a hearing, the court or family court commissioner, if the affidavit demonstrates to the satisfaction of the court or family court commissioner that an arrearage exists, shall enter an order establishing an arrearage in the amount determined by the court or family court commissioner and may send notice of assignment under
s. 767.265. The court or family court commissioner shall send the order to the payer's last-known address and shall inform the payer whether an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the order should be vacated or the assignment should be withdrawn.
767.293(4)
(4) An assignment under
sub. (2) or
(3) shall replace any assignment in effect for the order or stipulation on which the arrearage is based. An assignment under
sub. (2) or
(3) shall be for an amount sufficient to ensure payment under the order or stipulation on which the arrearage is based and to pay the arrearage determined under
sub. (2) or
(3), together with any arrearages due before the proceeding under this section, at a periodic rate not to exceed 50% of the amount of support due under the order or stipulation on which the arrearage determined under
sub. (2) or
(3) is based, except that the total amount withheld under the assignment may not leave the payer at an income below the poverty line established under
42 USC 9902 (2).
767.293(6)
(6) Section 814.025 applies to the filing of an affidavit under this section.
767.295
767.295
Work experience and job training orders and child support orders in certain cases. 767.295(1)
(1) In this section, "custodial parent" means a parent who lives with his or her child for substantial periods of time.
767.295(2)(a)(a) In an action for modification of a child support order under
s. 767.32, an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4) or a contempt of court proceeding to enforce a child support or family support order in a county that contracts under
s. 49.36 (2), the court may order a parent who is not a custodial parent to register for a work experience and job training program under
s. 49.36 if all of the following conditions are met:
767.295(2)(a)1m.
1m. If the parent resides in a county other than the county in which the court action or proceeding takes place, the parent resides in a county with a work experience and job training program under
s. 49.36 and that county agrees to enroll the parent in the program.
767.295(2)(a)2.
2. The parent works, on average, less than 32 hours per week, and is not participating in an employment or training program which meets guidelines established by the department.
767.295(2)(a)3.
3. The parent's actual weekly gross income averages less than 40 times the federal minimum hourly wage under
29 USC 206 (a) (1) or the parent is earning less than the parent has the ability to earn, as determined by the court.
767.295(2)(b)
(b) Under this subsection, the parent is presumed to be able to work full time. The parent has the burden of proving that he or she is not able to work full time.
767.295(2)(c)
(c) If the court enters an order under
par. (a), it shall order the parent to pay child support equal to the amount determined by applying the percentage standard established under
s. 49.22 (9) to the income a person would earn by working 40 hours per week for the federal minimum hourly wage under
29 USC 206 (a) (1) or equal to the amount of child support that the parent was ordered to pay in the most recent determination of support under this chapter. The child support obligation ordered under this paragraph continues until the parent makes timely payment in full for 3 consecutive months or until the person participates in the program under
s. 49.36 for 16 weeks, whichever comes first. The court shall provide in its order that the parent must make child support payments calculated under
s. 767.25 (1j) or
(1m) after the obligation to make payments ordered under this paragraph ceases.
767.30
767.30
Enforcement of payments ordered. 767.30(1)
(1) If the court orders any payment for support under
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) or
938.363 (2), support or maintenance under
s. 767.08, child support, family support or maintenance under
s. 767.23, child support under
s. 767.25, maintenance under
s. 767.26, family support under
s. 767.261, attorney fees under
s. 767.262, child support or a child's health care expenses under
s. 767.477, paternity obligations under
s. 767.458 (3),
767.51 or
767.62 (4), support arrearages under
s. 767.293 or child or spousal support under
s. 948.22 (7), the court may provide that any payment be paid in the amounts and at the times that it considers expedient.
767.30(2)
(2) The court may impose liability for any payment listed under
sub. (1) as a charge upon any specific real estate of the party liable or may require that party to give sufficient security for payment. However, no such charge upon real estate may become effectual until the order or judgment imposing liability or a certified copy of it is recorded in the office of the register of deeds in the county in which the real estate is situated.
767.30(3)
(3) If the party fails to pay a payment ordered under
sub. (1) or to give security under
sub. (2), the court may by any appropriate remedy enforce the judgment, or the order as if it were a final judgment, including any past due payment and interest. Appropriate remedies include but are not limited to:
767.30(3)(f)
(f) For failure to pay child support or family support, satisfaction under
s. 780.10 out of the proceeds of the sale of any ship, boat or vessel attached and sold under
ch. 780.
767.30(4)
(4) Upon the request of a county, the department of natural resources shall provide the county with a list of the names and addresses of all of the owners of boats that have a valid certificate of number or registration that has been issued by the department under
s. 30.52. The department shall prepare the list annually before May 31 of each year.
767.30 Annotation
A court is justified in requiring the creation of a trust to secure the payment of support money where the husband has a record of failing to obey prior court orders. Foregger v. Foregger,
48 Wis. 2d 512,
180 N.W.2d 578.
767.30 Annotation
Where parents each own a 1/2 interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible,
91 Wis. 2d 394,
283 N.W.2d 427 (Ct. App. 1979).
767.30 Annotation
The trial court had the power to order a father to look for additional or alternative employment or be held in contempt. Proper contempt procedures discussed. Dennis v. Dennis,
117 Wis. 2d 249,
344 N.W.2d 128 (1984).
767.30 Annotation
There is no authority under this section to grant credits against arrearages. To grant a credit requires modification of the judgment under s. 767.32. Under s. 767.32 (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).
767.303
767.303
Enforcement of child support; suspension of operating privilege. 767.303(1)(1) If a person fails to pay a payment ordered for support under
s. 767.077, support under
s. 767.08, child support or family support under
s. 767.23, child support under
s. 767.25, family support under
s. 767.261, revised child or family support under
s. 767.32, child support under
s. 767.458 (3), child support under
s. 767.477, child support under
s. 767.51, child support under
s. 767.62 (4), child support under
ch. 769 or child support under
s. 948.22 (7), the payment is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person's operating privilege, as defined in
s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. If otherwise eligible, the person is eligible for an occupational license under
s. 343.10 at any time.
767.303(2)
(2) Whenever the court orders suspension of a person's operating privilege under
sub. (1), the court shall notify the department of transportation, in the form and manner prescribed by the department. The notice to the department shall include the name and last-known address of the person against whom the support order was entered, certification by the court that the person has been notified of the entry of the support order and that there are arrearages in support payments that are 90 or more days past due, the place where the arrearages may be paid and that the person's operating privilege shall remain suspended until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years.
767.303(3)
(3) If the person subsequently pays the full amount of the arrearages or makes payment arrangements that are satisfactory to the court, the court shall immediately notify the department of transportation of the payment, in the form and manner prescribed by the department.
767.303(4)
(4) This section applies to support arrearages existing on or after October 1, 1996, regardless of when the arrearages accrued or when the order or judgment requiring the payment of support was entered.
767.303(5)
(5) The remedy permitted under this section is in addition to any other remedies authorized by law.
767.305
767.305
Enforcement; contempt proceedings. In all cases where a party has incurred a financial obligation under
s. 48.355 (2) (b) 4.,
48.357 (5m) (a),
48.363 (2),
767.23,
767.25,
767.255,
767.26,
767.261,
767.262,
767.293,
767.458 (3),
767.477,
767.51,
767.62 (4),
938.183 (4),
938.355 (2) (b) 4.,
938.357 (5m) (a) or
938.363 (2) and has failed within a reasonable time or as ordered by the court to satisfy such obligation, and where the wage assignment proceeding under
s. 767.265 and the account transfer under
s. 767.267 are inapplicable, impractical or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at some reasonable time therein specified why he or she should not be punished for such misconduct as provided in
ch. 785.
767.305 Annotation
Contempt is an appropriate means to enforce child support arrearages after a child has reached majority. Griffin v. Reeve,
141 Wis. 2d 699,
416 N.W.2d 612 (1987).
767.305 Annotation
When a contemnor's liberty interests are at risk he or she must be given an opportunity to show the court that the failure to comply with the purge conditions was not wilful and intentional. V.J.H. v. C.A.B.
163 Wis. 2d 833,
472 N.W.2d 939 (Ct. App. 1991).
767.31
767.31
Trustee may be appointed. The court may appoint a trustee, when deemed expedient, to receive any payments ordered, to invest and pay over the income for the maintenance of the spouse entitled thereto or the support and education of any of the minor children, or to pay over the principal sum in such proportions and at such times as the court directs. The trustee shall give such bond, with such sureties as the court requires, for the faithful performance of his or her trust.
767.31 History
History: 1971 c. 220;
1979 c. 32 s.
50;
1979 c. 196; Stats. 1979 s. 767.31.
767.32
767.32
Revision of certain judgments. 767.32(1)(a)(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 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.
767.32(1)(b)
(b) In any action under this section to revise a judgment or order with respect to an amount of child support, any of the following shall constitute a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:
767.32(1)(b)1.
1. Commencement of receipt of aid to families with dependent children under
s. 49.19 or participation in Wisconsin works under
ss. 49.141 to
49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section.
767.32(1)(b)2.
2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.
767.32(1)(b)4.
4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under
s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under
s. 46.10 (14) (d),
301.12 (14) (d) or
767.25 (1n), whichever is appropriate.
767.32(1)(c)
(c) In any action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:
767.32(1)(c)1.
1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer's income, evidenced by information received under
s. 49.22 (2m) by the department or the county child support agency under
s. 59.53 (5) or by other information, from the payer's income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section.
767.32(1)(c)4.
4. Any other factor that the court determines is relevant.
767.32(1m)
(1m) In an action under
sub. (1) to revise a judgment or order with respect to child support, maintenance payments or family support payments, the court may not revise the amount of child support, maintenance payments or family support payments due, or an amount of arrearages in child support, maintenance payments or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.
767.32(1r)
(1r) In an action under
sub. (1) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion or order to show cause is served for payments made by the payer other than payments made as provided in
s. 767.265 or
767.29, in any of the following circumstances:
767.32(1r)(b)
(b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.
767.32(1r)(c)
(c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in
s. 767.265 or
767.29, not including gifts or contributions for entertainment.
767.32(1r)(d)
(d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under
42 USC 402 (d) based on the payer's entitlement to federal disability insurance benefits under
42 USC 401 to
433. Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under
42 USC 402 (d) were paid.
767.32(1r)(e)
(e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child's relocation to the payer's home was not mutually agreed to by both parents.
767.32(1r)(f)
(f) The payer proves by a preponderance of the evidence that the payer and payee resumed living together with the child and that, during the period for which a credit is sought, the payer directly supported the family by paying amounts at least equal to the amount of unpaid court-ordered support that accrued during that period.
767.32(2)
(2) Except as provided in
sub. (2m) or
(2r), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under
s. 49.22 (9).
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.
