767.37 Annotation
The death of party within 6 months of a divorce judgment did not void the judgment or divest the court of jurisdiction to order property division. Roeder v. Roeder,
103 Wis. 2d 411,
308 N.W.2d 904 (Ct. App. 1981).
767.38
767.38
Judgment revoked on remarriage. When a judgment of divorce has been granted and the parties shall afterwards intermarry, the court, upon their joint application and upon satisfactory proof of such marriage, shall revoke all judgments and any orders which will not affect the right of 3rd persons and order the record impounded without regard to
s. 767.19 and neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.
767.38 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 352; Stats. 1979 s. 767.38.
767.39
767.39
Maintenance payments or other allowances pending appeal. 767.39(1)(1) In actions affecting the family pending in an appellate court, no allowance for suit money, counsel fees or disbursements in the court, nor for temporary maintenance payments to the spouse or the children during the pendency of the appeal will be made in the court.
767.39(2)
(2) Allowances specified in
sub. (1), if made at all, shall be made by the proper trial court upon motion made and decided after the entry of the order or judgment appealed from and prior to the return of the record to an appellate court, provided, that if the allowance is ordered before the appeal is taken the order shall be conditioned upon the taking of the appeal and shall be without effect unless and until the record is transmitted to the court of appeals.
767.39 History
History: 1975 c. 94;
1977 c. 105;
1977 c. 187 s.
89;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.39; Sup. Ct. Order, 146 Wis. 2d xiii (1988).
767.40
767.40
Contempt proceedings. All contempt orders in which confinement is imposed shall be issued by a judge.
767.40 History
History: 1977 c. 323;
1979 c. 32 s.
50; Stats. 1979 s. 767.40.
767.42
767.42
Abandonment; seizure of property. 767.42(1)
(1) If a person absconds or is about to abscond from his or her children or spouse, or is about to remove permanently from the municipality in which he or she resides leaving a spouse or children, or both, chargeable or likely to become chargeable upon the public for support or neglects or refuses to support or provide for the spouse or children, the county where the spouse or children may be, by the official or agency designated to administer public assistance, may apply to the circuit court for any county in which any real or personal property of the parent or spouse is situated for a warrant to seize the property.
767.42(2)
(2) Upon due proof of the facts the court shall issue a warrant authorizing the county to seize the property of that person wherever found in the county; and they shall, respectively, be vested with all the rights and title, as limited in this section, to that property which the person had at the time of his or her departure. They shall immediately make an inventory of the property and return it with the warrant and their proceedings thereon to the circuit court. All sales and transfers of any real or personal property left in that county made by the person after the issuing of the warrant is void.
767.42(3)
(3) Upon the return the circuit court may inquire into the facts and circumstances and may confirm the seizure or discharge the same. If the seizure is confirmed, the court shall from time to time direct what part of the personal property shall be sold and how much of the proceeds of the sales and the rents and profits of the real estate shall be applied toward the maintenance of the spouse or children of the person. All such sales shall be at public auction in accordance with the laws relating to execution sales of personalty and realty as provided in
ss. 815.29 and
815.31.
767.42(4)
(4) The county shall receive the proceeds of all property so sold and the rents and profits of the real estate of such person and apply the same to the maintenance and support of the spouse or children of such person; and it shall account to the court for the moneys so received and for the application thereof from time to time.
767.42(5)
(5) If the person whose property has been seized under this section returns and supports the abandoned spouse or children or gives security to the county, with its approval, that the spouse or children shall not thereafter be chargeable to the county, the court shall discharge the warrant and order the restoration of the property seized and remaining unappropriated, or the unappropriated proceeds, after deducting the expenses of the proceedings.
767.45
767.45
Determination of paternity. 767.45(1)
(1) The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under
s. 891.405 or
891.41 (1):
767.45(1)(d)
(d) A man alleged or alleging himself to be the father of the child.
767.45(1)(e)
(e) The personal representative of a person specified under
pars. (a) to
(d) if that person has died.
767.45(1)(f)
(f) The legal or physical custodian of the child.
767.45(1)(g)
(g) This state whenever the circumstances specified in
s. 767.075 (1) apply, including the delegates of the state as specified in
sub. (6).
767.45(1)(j)
(j) A parent of a person listed under
par. (b),
(c) or
(d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under
s. 49.90 (1) (a) 2.
767.45(1)(k)
(k) In conjunction with the filing of a petition for visitation with respect to the child under
s. 767.245 (3), a parent of a person who has filed a declaration of paternal interest under
s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under
s. 69.15 (3) (b) 3. with respect to the child.
767.45(2)
(2) Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.
767.45(3)
(3) If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.
767.45(4)
(4) The child may be a party to any action under this section.
767.45(5)(a)(a) In this subsection, "any alleged father" includes any male who has engaged in sexual intercourse with the child's mother during a possible time of conception of the child.
767.45(5)(b)
(b) An action under this section may be joined with any other action for child support and shall be governed by the procedures specified in
s. 767.05 relating to child support, except that the title of the action shall be "In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or court commissioner, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under
s. 49.225 or
767.48.
767.45(5m)
(5m) Except as provided in
ss. 767.458 (3),
767.465 (2) and
(2m),
767.477,
767.62 and
769.401, unless a man is presumed the child's father under
s. 891.41 (1), is adjudicated the child's father either under
s. 767.51 or by final order or judgment of a court of competent jurisdiction in another state or has acknowledged himself to be the child's father under
s. 767.62 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody or physical placement until the man is adjudicated the father using the procedure set forth in
ss. 767.45 to
767.60. Except as provided in
ss. 767.477,
767.62 and
769.401, the exclusive procedure for establishment of child support obligations, legal custody or physical placement rights for a man who is not presumed the child's father under
s. 891.41 (1), adjudicated the father or acknowledged under
s. 767.62 (1) or a substantially similar law of another state to be the father is by an action under
ss. 767.45 to
767.60 or under
s. 769.701. No person may waive the use of this procedure. If a presumption under
s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption.
767.45(6)(a)(a) The attorney responsible for support enforcement under
s. 59.53 (6) (a) shall provide the representation for the state as specified under
s. 767.075 (1) in cases brought under this section.
767.45(6)(b)
(b) The attorney under
s. 59.53 (6) (a) is the only county attorney who may provide representation when the state delegates its authority under
sub. (1) (g).
767.45(6)(c)
(c) The attorney under
s. 59.53 (6) (a) or any state attorney acting under
par. (b) may not represent the state as specified under
s. 767.075 (1) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.
767.45(6m)
(6m) The attorney designated under
sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under
s. 69.03 (15) that no father is named on the birth certificate of a child who is a resident of the county if paternity has not been acknowledged under
s. 767.62 (1) or a substantially similar law of another state or adjudicated, except in situations under
s. 69.14 (1) (g) and
(h) and as provided by the department by rule.
767.45(6r)(a)1.
1. Give priority to matters referred under
s. 48.299 (6) (a) or
938.299 (6) (a), including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity.
767.45(6r)(a)2.
2. As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following:
767.45(6r)(a)2.a.
a. The date on which an action has been brought under this section or the approximate date on which such an action will be brought.
767.45(6r)(a)2.b.
b. That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought.
767.45(6r)(a)3.
3. If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity.
767.45(6r)(b)
(b) The attorney designated under
sub. (6) (a) who receives a referral under
s. 48.299 (7) or
938.299 (7) may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under
par. (a) when a matter is referred under
s. 48.299 (6) (a) or
938.299 (6) (a).
767.45(7)
(7) The clerk of court shall provide without charge, to each person bringing an action under this section, except to the state under
sub. (1) (g) or
(6m), a document setting forth the percentage standard established by the department under
s. 49.22 (9) and listing the factors which a court may consider under
s. 767.25 (1m).
767.45 Annotation
Under the facts of the case, the nonbiological father was not equitably estopped from denying paternity or child support. Marriage of A. J. N. & J. M. N.
141 Wis. 2d 99,
414 N.W.2d 68 (Ct. App. 1987).
767.45 Annotation
A posthumous paternity action is allowable where it is brought by the personal representative of the deceased putative father. Le Fevre v. Schreiber,
167 Wis. 2d 733,
482 N.W.2d 904 (1992).
767.45 Annotation
A paternity action may not be used to challenge paternity previously decided in a divorce action. That paternity was not challenged in the divorce is irrelevant where it could have been litigated. In Re Paternity of Nathan T.
174 Wis. 2d 352,
497 N.W.2d 740 (Ct. App. 1993).
767.45 Annotation
The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity where a paternity decree of another state would have been subject to collateral attack in that state. In Re Paternity of R.L.L.
176 Wis. 2d 224, N.W.2d (Ct. App. 1993).
767.45 Annotation
Because a child has a right to bring an independent action for paternity under sub. (1) (a), where the child was not a party to an earlier paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N.
202 Wis. 2d 461,
551 N.W.2d 34 (Ct. App. 1996).
767.45 Annotation
An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child's best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L.
207 Wis. 2d 390,
558 N.W.2d 897 (Ct. App. 1996).
767.455(1)(1)
Purpose. The summons shall state the purpose of the action.
767.455(2)
(2) Signing. The process shall be signed by the clerk of the court or by the petitioner's attorney.
767.455(3)
(3) Return date. Every summons shall specify a return date and time before the court. The clerk of the court shall set the date and hour at which the summons is returnable.
767.455(4)
(4) Service. The summons and petition shall be served in the manner provided in
s. 801.11 (1) (a) or
(b) or, notwithstanding
s. 990.001 (13), by registered or certified mail, with return receipt signed by the respondent.
767.455(5)
(5) Form. The summons shall be in substantially the following form:
STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY
In re the Paternity of A. B.
STATE OF WISCONSIN
and
C. D.
Address
City, State Zip Code File No. ...
, Petitioners
vs. S U M M O N S
E. F.
Address .... (Case Classification Type):.... (Code No.)
City, State Zip Code
, Respondent
THE STATE OF WISCONSIN, To the Respondent:
You have been sued. .... claims that you are the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is:
Date:
Time:
Room:
Judge or Family Court Commissioner:
Address:
If you do not appear, the court will enter a default judgment finding you to be the father. A default judgment will take effect 30 days after it is served on or mailed to you, unless within those 30 days you present to the court evidence of good cause for failure to appear. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are unable to afford an attorney, the court will appoint one for you only upon the blood tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0%. Appearance is not required if you complete the attached waiver of first appearance statement and send it to the court at least 10 days prior to the date of your scheduled appearance in this summons.
