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.
767.32 Annotation
The trial court abused discretion in denying the former husband's motion to terminate alimony, where the court failed 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.
767.32 Annotation
A judgment's prohibition against modification of the amount or term of limited maintenance violated this section. Dixon v. Dixon,
107 Wis. 2d 492,
319 N.W.2d 846 (1982).
767.32 Annotation
A court may not order a custodial parent to live in a designated part of the state or else lose custody of children. Groh v. Groh,
110 Wis. 2d 117,
327 N.W.2d 655 (1983).
767.32 Annotation
Maintenance payments to a former wife were improperly discontinued solely upon the ground of her cohabitation with another man. Van Gorder v. Van Gorder,
110 Wis. 2d 188,
327 N.W.2d 674 (1983).
767.32 Annotation
Where a stipulation required maintenance payments during the wife's lifetime, the husband was estopped from requesting termination of payments under sub. (3) when wife the remarried. Rintelman v. Rintelman,
118 Wis. 2d 587,
348 N.W.2d 498 (1984).
767.32 Annotation
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).
767.32 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).
767.32 Annotation
The "Millikin standard" did not apply to the transfer of physical placement of a child under an existing joint custody arrangement. Abel v. Johnson,
135 Wis. 2d 219,
400 N.W.2d 22 (Ct. App. 1986).
767.32 Annotation
A state family court may modify the payor spouse's support obligation following the payor's discharge in bankruptcy. Eckert v. Eckert,
144 Wis. 2d 770,
424 N.W.2d 759 (Ct. App. 1988).
767.32 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).
767.32 Annotation
It is within trial court's discretion to apply HSS 80 percentage standards to a child support revision. If applied to a remarried parent, gross income for purposes of base 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).
767.32 Annotation
Sub. (1m) applies prospectively only and arrearages accruing under a support order entered before August 1, 1987, may be modified, reduced or eliminated. The trial court may grant credit against arrearages for expenditures made for a child in a manner other than that prescribed in the support order under some circumstances. Schulz v. Ystad,
155 Wis. 2d 574,
456 N.W.2d 312 (1990).
767.32 Annotation
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).
767.32 Annotation
Discussion of factors required to find a party estopped from seeking a maintenance revision. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.2d 619 (1991).
767.32 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).
767.32 Annotation
In determining income for maintenance revision, investment income form 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).
767.32 Annotation
Where, pursuant to Schultz, equitable credit for direct expenditures for support in a manner other than included in the divorce order or judgment is justified, it may be reimbursed as well as set-off against an arrearage. Rummel v. Karlin,
167 Wis. 2d 400,
481 N.W.2d 695 (Ct. App. 1992).
767.32 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).
767.32 Annotation
The revision of s. 767.24 allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying change to joint custody. Licary v. Licary,
168 Wis. 2d 686,
484 N.W.2d 371 (Ct. App. 1992).
767.32 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).
767.32 Annotation
Even though incarceration results from intentional criminal conduct, it is a change of circumstance under sub. (1). Voecks v. Voecks,
171 Wis. 2d 184,
491 N.W.2d 107 (Ct. App. 1992).
767.32 Annotation
Where a payor 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).
767.32 Annotation
A payor 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 where the choice is not reasonable in light of the payor's support obligation. Van Offeren v. Van Offeren,
173 Wis. 2d 482,
496 N.W.2d 660 (Ct. App. 1992).
767.32 Annotation
The parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms,
174 Wis. 2d 780,
498 N.W.2d 229 (1993).
767.32 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).
