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 willful 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 office of 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. 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.
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(1)(d)
(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.
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;
2001 a. 16,
61,
105.
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 (1970).
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 (1973).
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 (1975).
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 (1975).
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 (1976).
767.32 Annotation
The trial court abused its discretion in denying the former husband's motion to terminate alimony by failing 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 (1976).
767.32 Annotation
The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under s. 767.26. Vander Perren v. Vander Perren,
105 Wis. 2d 219,
313 N.W.2d 813 (1982).
767.32 Annotation
It was improper to discontinue maintenance payments to a former wife 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 the wife remarried. Rintelman v. Rintelman,
118 Wis. 2d 587,
348 N.W.2d 498 (1984).
767.32 Annotation
A 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
A state family court may modify the paying spouse's support obligation following the his or her 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 the percentage standards to a child support revision. If applied to a remarried parent, gross income for 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
A 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
A party is estopped from seeking a maintenance revision if the parties stipulated to permanent nonmodifiable maintenance that was part of a comprehensive settlement of all property and maintenance issues that was approved by the court and was fair and not illegal or against public policy at the time and relief is being sought on the grounds that the court did not have power to enter the order the parties had agreed to. 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 from 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
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 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
When a paying 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 paying 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 if the choice is not reasonable in light of the payer's support obligation. Van Offeren v. Van Offeren,
173 Wis. 2d 482,
496 N.W.2d 660 (Ct. App. 1992).
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 payer 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
When a broadly worded settlement agreement required the payer 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 when 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
When 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. 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 payer 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
Equitable estoppel does not apply to prevent modification of a stipulation for nonmodifiable maintenance if at the time that the stipulation was entered into it violated public policy because it indefinitely burdened only one party with the entire risk of financial hardship. Patrickus v. Patrickus, 2000 WI App 255,
239 Wis. 2d 340,
620 N.W.2d 205.
767.32 Annotation
A change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. State v. Beaudoin, 2001 WI App 42,
241 Wis. 2d 350,
625 N.W.2d 619.
767.32 Annotation
Mere silence regarding whether interest was owed on a specified sum to be paid over time did not render a judgment ambiguous. Hutjens v. Hutjens, 2002 WI App 162, ___ Wis. 2d ___,
647 N.W.2d 448.
767.32 Cross-reference
Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, HFS 80, and DWD 40, Wis. Adm. Code, the child support percentage of income standard.
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.
