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).
767.32 Annotation
In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payor 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).
767.32 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).
767.32 Annotation
Where a broadly worded settlement agreement required the payor 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 where the court found those needs were being met. Jacquart v. Jacquart
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
767.32 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).
767.32 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).
767.32 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).
767.32 Annotation
Where 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. that child support should be modified, but the family court maintains it discretion whether the percentage guidelines should be applied. Zutz v. Zutz,
208 Wis. 2d 338,
559 N.W.2d 914 (Ct. App. 1997).
767.32 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).
767.32 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).
767.32 Annotation
The "fairness objective" of equalizing total income does not apply in a postdivorce situation. Modification of maintenance has nothing to do with contributions, economic or noneconomic, made during the marriage. Johnson v. Johnson,
217 Wis. 2d 124,
576 N.W.2d 585 (Ct. App. 1998).
767.32 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).
767.32 Annotation
Sub. (1r) modifies the common law as set forth in Harms and Schulz. 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).
767.32 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 payor 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).
767.32 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). Section 767.01 (1) 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.
767.32 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80 and HFS 80, the percentage standards developed by the Department of Health and Family Services.
767.325
767.325
Revision of legal custody and physical placement orders. Except for matters under
s. 767.327 or
767.329, the following provisions are applicable to modifications of legal custody and physical placement orders:
767.325(1)(a)(a)
Within 2 years after initial order. Except as provided under
sub. (2), a court may not modify any of the following orders before 2 years after the initial order is entered under
s. 767.24, unless a party seeking the modification, upon petition, motion, or order to show cause shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:
767.325(1)(a)2.
2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.
767.325(1)(b)1.1. Except as provided under
par. (a) and
sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
767.325(1)(b)1.b.
b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.325(1)(b)2.a.
a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
767.325(1)(b)2.b.
b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
767.325(1)(b)3.
3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under
subd. 1.
767.325(2)
(2) Modification of substantially equal physical placement orders. Notwithstanding
sub. (1):
767.325(2)(a)
(a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion or order to show cause by a party, may modify such an order if it is in the best interest of the child.
767.325(2)(b)
(b) In any case in which
par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion or order to show cause of a party, may modify such an order based on the appropriate standard under
sub. (1). However, under
sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.
767.325(2m)
(2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.
767.325(3)
(3) Modification of other physical placement orders. Except as provided under
subs. (1) and
(2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.
767.325(4)
(4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.
767.325(4m)
(4m) Denial of physical placement for killing other parent. 767.325(4m)(a)(a) Notwithstanding
subs. (1) to
(4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
767.325(4m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
767.325(5)
(5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.
767.325(5m)
(5m) Factors to consider. In all actions to modify legal custody or physical placement orders, the court shall consider the factors under
s. 767.24 (5) and shall make its determination in a manner consistent with
s. 767.24.
767.325(6)
(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.325(6m)
(6m) Parenting plan. In any action to modify a legal custody or physical placement order under
sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under
s. 767.24 (1m) before any hearing is held.
767.325(7)
(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.325(8)
(8) Petition, motion or order to show cause. A petition, motion or order to show cause under this section shall include notification of the availability of information under
s. 767.081 (2).
767.325(9)
(9) Applicability. Notwithstanding
1987 Wisconsin Act 355, section 73, as affected by
1987 Wisconsin Act 364, the parties may agree to the adjudication of a modification of a legal custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
767.325 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.325 Annotation
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.325 Annotation
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the 2-year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B.
181 Wis. 2d 304,
510 N.W.2d 775 (Ct. App. 1993).
767.325 Annotation
There is no authority to order a change of custody at an unknown time in the future upon the occurrence of some stated contingency. Koeller v. Koeller,
195 Wis. 2d 660,
536 N.W.2d 216 (Ct. App. 1995).
767.325 Annotation
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd party guardian. Howard M. v. Jean R.
196 Wis. 2d 16,
539 N.W.2d 104 (Ct. App. 1995).
767.325 Annotation
Neither sub. (4) nor s. 767.24 (4) (b) permits a prospective order prohibiting a parent from requesting a change of physical placement in the future. Jocius v. Jocius,
218 Wis. 2d 103,
580 N.W.2d 708 (Ct. App. 1998).
767.325 Annotation
Sections 767.325 and 767.327 do not conflict. If one party files a notification of intention to move under s. 767.327, the other parent may file a motion to modify placement under s. 767.325, and the court may consider all relevant circumstances, including, but not limited to, the move. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998).
767.327
767.327
Moving the child's residence within or outside the state. 767.327(1)(a)(a) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days written notice to the other parent, with a copy to the court, of his or her intent to:
767.327(1)(a)1.
1. Establish his or her legal residence with the child at any location outside the state.
767.327(1)(a)2.
2. Establish his or her legal residence with the child at any location within this state that is at a distance of 150 miles or more from the other parent.
767.327(1)(a)3.
3. Remove the child from this state for more than 90 consecutive days.
767.327(1)(b)
(b) The parent shall send the notice under
par. (a) by certified mail. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within the time specified in
sub. (2) (a).
767.327(2)(a)(a) Within 15 days after receiving the notice under
sub. (1), the other parent may send to the parent proposing the move or removal, with a copy to the court, a written notice of objection to the proposed action.
767.327(2)(b)
(b) If the parent who is proposing the move or removal receives a notice of objection under
par. (a) within 20 days after sending a notice under
sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under
sub. (3), unless the parent obtains a temporary order to do so under
s. 767.23 (1) (bm).
767.327(2)(c)
(c) Upon receipt of a copy of a notice of objection under
par. (a), the court or family court commissioner shall promptly refer the parents for mediation or other family court counseling services under
s. 767.11 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling services do not resolve the dispute within 30 days after referral, the matter shall proceed under
subs. (3) to
(5).
767.327(3)
(3) Standards for modification or prohibition if move or removal contested. 767.327(3)(a)1.1. Except as provided under
par. (b), if the parent proposing the move or removal has sole legal or joint legal custody of the child and the child resides with that parent for the greater period of time, the parent objecting to the move or removal may file a petition, motion or order to show cause for modification of the legal custody or physical placement order affecting the child. The court may modify the legal custody or physical placement order if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(a)1.b.
b. The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
767.327(3)(a)2.a.
a. There is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child. This presumption may be overcome by a showing that the move or removal is unreasonable and not in the best interest of the child.
767.327(3)(a)2.b.
b. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that subdivision.
767.327(3)(a)3.
3. Under this paragraph, the burden of proof is on the parent objecting to the move or removal.
767.327(3)(b)1.1. If the parents have joint legal custody and substantially equal periods of physical placement with the child, either parent may file a petition, motion or order to show cause for modification of the legal custody or physical placement order. The court may modify an order of legal custody or physical placement if, after considering the factors under
sub. (5), the court finds all of the following:
767.327(3)(b)1.a.
a. Circumstances make it impractical for the parties to continue to have substantially equal periods of physical placement.
767.327(3)(b)2.
2. Under this paragraph, the burden of proof is on the parent filing the petition, motion or order to show cause.
