767.75(7m)(b)
(b) If after an assignment is in effect the payer's employer changes its payroll period, or the payer changes employers and the new employer's payroll period is different from the former employer's payroll period, the county child support agency under
s. 59.53 (5) may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:
767.75(7m)(b)1.
1. The withholding frequency corresponds to the new payroll period.
767.75(7m)(b)2.
2. The amounts to be withheld reflect the adjustment to the withholding frequency.
767.75(7m)(c)
(c) The county child support agency shall provide notice of the amended withholding assignment or order by regular mail to the payer's employer and to the payer.
767.75 History
History: 1971 c. 110;
1975 c. 94 s.
91 (3);
1975 c. 199;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196,
221; Stats. 1979 s. 767.265;
1981 c. 20,
186;
1983 a. 27,
384;
1985 a. 29;
1987 a. 38 s.
136;
1987 a. 332 s.
64;
1987 a. 398,
403;
1989 a. 31,
56,
212,
336;
1991 a. 287;
1993 a. 16,
326,
389,
481;
1995 a. 27 s.
9130 (4);
1995 a. 279,
404;
1997 a. 27,
191;
1999 a. 9;
2001 a. 16,
61,
105;
2005 a. 443 ss.
116 to
118,
237; Stats. 2005 s. 767.75.
767.75 Annotation
The maximum amount subject to assignment to collect an arrearage is 50% of the support currently due. A 25% wage assignment for current support limits an assignment for arrearages to an additional 12.5% of wages. Schnetzer v. Schnetzer,
174 Wis. 2d 458,
497 N.W.2d 772 (Ct. App. 1993).
767.75 Annotation
The assignment under sub. (1) does not require earnings to be withheld and therefore is not a garnishment subject to federal restrictions. Carpenter v. Mumaw,
230 Wis. 2d 384,
602 N.W.2d 536 (Ct. App. 1999),
98-2874.
767.75 Annotation
The mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.
767.76
767.76
Account transfers. 767.76(1)(1)
Authority of court to require. If the court determines that income withholding under
s. 767.75 is inapplicable, ineffective, or insufficient to ensure payment under an order or stipulation specified in
s. 767.75 (1), or that income withholding under
s. 767.513 (3) is inapplicable, ineffective, or insufficient to ensure payment of a child's health care expenses, including payment of health insurance premiums, ordered under
s. 767.513, the court may require the payer to identify or establish a deposit account, owned in whole or in part by the payer, that allows for periodic transfers of funds and to file with the financial institution at which the account is located an authorization for transfer from the account to the department or its designee. The authorization shall be provided on a standard form approved by the court and shall specify the frequency and the amount of transfer, sufficient to meet the payer's obligation under the order or stipulation, as required by the court. The authorization shall include the payer's consent for the financial institution or an officer, employee, or agent of the financial institution to disclose information to the court, county child support agency under
s. 59.53 (5), department, or department's designee regarding the account for which the payer has executed the authorization for transfer.
767.76(2)
(2) Transfer of funds by financial institutions. A financial institution that receives an authorization for transfer under
sub. (1) shall transfer the amounts as specified in the authorization or shall transfer the amount available for transfer if at a time of transfer that amount is less than the amount specified in the authorization. The financial institution may accomplish the transfer by any lawful means, including payment by check, subject to the terms of the account. The financial institution may deduct from the payer's account for each transfer its usual fee for such fund transfers. If the account is closed or if no funds are available at a time of transfer, the financial institution shall notify the county child support agency under
s. 59.53 (5) or the department or its designee, whichever is appropriate, within 10 days after the date on which the funds should have been transferred.
767.76(3)
(3) Priority of transfer authorization. An authorization for transfer under
sub. (1) has priority over any other authorization for transfer and over an assignment, garnishment or similar legal process under state law or the laws of another state.
767.76(4)
(4) Revocation of transfer authorization. An authorization for transfer under
sub. (1) may not be revoked except by court order.
767.76(5)
(5) Authorized disclosure. A financial institution or an officer, employee, or agent of a financial institution may disclose information to the court, county child support agency under
s. 59.53 (5), department, or department's designee concerning an account for which a payer has executed an authorization for transfer under
sub. (1).
767.76(6)
(6) Liability immunity. No financial institution or officer, employee or agent of a financial institution is liable to an account owner for any sum transferred, or for any information disclosed, in compliance with this section.
767.77
767.77
Enforcement of payment obligations. 767.77(1)
(1)
Definition. In this section, "payment obligation" means an obligation to pay 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. 767.501, child support, family support, or maintenance under
s. 767.225, child support under
s. 767.511, maintenance under
s. 767.56, family support under
s. 767.531, attorney fees under
s. 767.241, child support or a child's health care expenses under
s. 767.85, paternity obligations under
s. 767.805 (4),
767.863 (3), or
767.89, support arrearages under
s. 767.71, or child or spousal support under
s. 948.22 (7).
767.77(1m)
(1m) Terms of payment. The court may order that a payment obligation be paid in the amounts and at the times that it considers expedient.
767.77(2)
(2) Security for payment. The court may impose liability for a payment obligation as a charge upon specific real estate of the obligated party or may require that party to give sufficient security for payment. No charge upon real estate is effective 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.
767.77(3)
(3) Noncompliance; enforcement. If a party fails to pay a payment ordered under
sub. (1m) 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:
767.77(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.
767.77(4)
(4) Information on boat ownership. 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.
767.77 Annotation
A court is justified in requiring the creation of a trust to secure the payment of support money when a spouse has a record of failing to obey prior court orders. Foregger v. Foregger,
48 Wis. 2d 512,
180 N.W.2d 578 (1970).
767.77 Annotation
When 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).
767.77 Annotation
The trial court had the power to order a parent to look for additional or alternative employment or be held in contempt. Proper contempt procedures are discussed. Dennis v. Dennis,
117 Wis. 2d 249,
344 N.W.2d 128 (1984).
767.77 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 [now s. 767.59]. Under s. 767.32 (1r) [now s. 767.59 (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),
95-1960.
767.78
767.78
Enforcement; contempt proceedings. 767.78(1)
(1)
Definition. In this section, "financial obligation" means an obligation for payment incurred under
s. 48.355 (2) (b) 4.,
48.357 (5m) (a),
48.363 (2),
767.225,
767.241,
767.511,
767.531,
767.56,
767.61,
767.71,
767.805 (4),
767.85,
767.863 (3),
767.89,
938.183 (4),
938.355 (2) (b) 4.,
938.357 (5m) (a), or
938.363 (2).
767.78(2)
(2) Noncompliance; order to show cause. If a person has incurred a financial obligation and has failed within a reasonable time or as ordered by the court to satisfy the obligation, and the wage assignment proceeding under
s. 767.75 and the account transfer under
s. 767.76 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 a reasonable time specified in the order why he or she should not be subject to contempt of court under
ch. 785.
767.78 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).
767.78 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).
PATERNITY
767.80
767.80
Determination of paternity. 767.80(1)
(1)
Who may bring action or file motion. The following persons may bring an action or file a 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):
767.80(1)(d)
(d) A male alleged or alleging himself to be the father of the child.
767.80(1)(e)
(e) The personal representative of a person specified under
pars. (a) to
(d) if that person has died.
767.80(1)(f)
(f) The legal or physical custodian of the child.
767.80(1)(g)
(g) This state whenever the circumstances specified in
s. 767.205 (2) (a) apply, including the delegates of the state as specified in
sub. (6).
767.80(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.
767.80(1)(k)
(k) In conjunction with the filing of a petition for visitation with respect to the child under
s. 767.43 (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.
767.80(1m)
(1m) Venue. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.
767.80(2)
(2) Certain agreements not a bar to action. 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.
767.80(3)
(3) Stay if action before birth. 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.
767.80(4)
(4) Child as party. The child may be a party to any action under this section.
767.80(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.
767.80(5)(b)
(b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in
s. 767.205 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 court, 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 that 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
767.84.
767.80(5m)
(5m) Applicable procedure; exceptions. Except as provided in
ss. 767.805,
767.863 (3),
767.85,
767.893 (2) and
(2m), and
769.401, unless a male is presumed the child's father under
s. 891.41 (1), is adjudicated the child's father either under
s. 767.89 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. 767.805 (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 male is adjudicated the father using the procedure set forth in this subchapter, except
s. 767.805. Except as provided in
ss. 767.805,
767.85, and
769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child's father under
s. 891.41 (1), adjudicated the father, or acknowledged under
s. 767.805 (1) or a substantially similar law of another state to be the father is by an action under this subchapter, except
s. 767.805, 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.
767.80 Note
NOTE: Sub. (5m) is amended by
2009 Wis. Act 321 effective the date stated in the notice published in the Wisconsin Administrative Register under s. 769.904 to read:
Effective date text
(5m) Applicable procedure; exceptions. Except as provided in ss. 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a male is presumed the child's father under s. 891.41 (1), is adjudicated the child's father either under s. 767.89 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. 767.805 (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 male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.805. Except as provided in ss. 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child's father under s. 891.41 (1), adjudicated the father, or acknowledged under s. 767.805 (1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.805, or under s. 769.402. 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.
767.80(6)
(6) Which attorney represents state. 767.80(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. 767.205 (2) (a) in cases brought under this section.
767.80(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).
767.80(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. 767.205 (2) (a) 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.
767.80(6m)
(6m) When action must be commenced. 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. 767.805 (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.
767.80(6r)
(6r) Responsibilities of attorney upon referral. 767.80(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.
767.80(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:
767.80(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.
767.80(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.
767.80(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.
767.80(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).
767.80(7)
(7) Clerk to provide document. 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 that a court may consider under
s. 767.511 (1m).
767.80 History
History: 1979 c. 352;
1981 c. 20 s.
2202 (20) (m);
1983 a. 447;
1985 a. 29;
1987 a. 27,
355,
399,
413;
1989 a. 31,
212;
1993 a. 326,
481;
1995 a. 27 s.
9126 (19);
1995 a. 68,
100,
201,
275,
404;
1997 a. 191;
1999 a. 9;
2001 a. 61;
2005 a. 443 ss.
12,
184,
241; Stats. 2005 s. 767.80;
2007 a. 97;
2009 a. 321.
767.80 Cross-reference
Cross-reference: See also ch.
DCF 151, Wis. adm. code.
767.80 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).
767.80 Annotation
A posthumous paternity action is allowable if it is brought by the putative father's personal representative. Le Fevre v. Schreiber,
167 Wis. 2d 733,
482 N.W.2d 904 (1992).
767.80 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 if it could have been litigated. Paternity of Nathan T.
174 Wis. 2d 352,
497 N.W.2d 740 (Ct. App. 1993).
767.80 Annotation
The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity when a paternity decree of another state would have been subject to collateral attack in that state. Paternity of R.L.L.
176 Wis. 2d 224, N.W.2d (Ct. App. 1993).
