767.241(4) (4) Payment by state or county.

767.241(4)(a) (a) Except as provided in par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.

767.241(4)(b) (b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.

767.241 History History: 1977 c. 105; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.262; 1983 a. 27; 1993 a. 481, 490; 1995 a. 201, 279, 404; 1997 a. 27, 35, 252; 2005 a. 443 ss. 99, 112; Stats. 2005 s. 767.241.

767.241 Annotation An allowance of $1,000 attorney fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970).

767.241 Annotation Attorney fees on appeal depend on need, ability to pay, and whether there is a reasonable ground for the appeal. Klipstein v. Klipstein, 47 Wis. 2d 314, 177 N.W.2d 57 (1970).

767.241 Annotation An order for attorney fees is enforceable by contempt. The court cannot enter a judgment in favor of the attorney directly. Before a contempt order is issued, the defendant must have notice of an application by the spouse to whom the fees are payable. O’Connor v. O’Connor, 48 Wis. 2d 535, 180 N.W.2d 735 (1970).

767.241 Annotation Denial of the wife’s motion for her husband to contribute to attorney fees to prosecute the wife’s appeal was an abuse of discretion when the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 Wis. 2d 735, 223 N.W.2d 616 (1974).

767.241 Annotation A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client who the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992).

767.241 Annotation Nonmarital assets may be considered in determining whether to order one party to contribute to the other’s fees. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994).

767.241 Annotation Under Ondrasek, 126 Wis. 2d 469 (1985), the overtrial doctrine may be invoked in family law cases when one party’s unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. The public policy that an innocent party who is the victim of overtrial should not be burdened with the payment of extra and unnecessary attorney fees occasioned by the other party is equally applicable with respect to guardian ad litem fees. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.

767.251 767.251 Content, preparation, and approval of judgment.

767.251(1) (1) Content. In an action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in those matters, the written judgment shall include a statement that disobedience of the court order is punishable under ch. 785 by commitment to the county jail or house of correction until the judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. Final written agreements and stipulations of the parties shall, unless set forth in the judgment, be appended to the judgment and incorporated by reference.

767.251(2) (2) Preparation. The findings of fact, conclusions of law, and the written judgment shall be drafted by the petitioner unless the court otherwise directs, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted.

767.251(3) (3) Approval. The draft findings, conclusions, and judgment shall be approved by all counsel appearing, including a guardian ad litem and county child support enforcement agency attorney, and any other person designated by the court or local rule. After necessary approvals are obtained, the findings of fact, conclusions of law, and judgment shall be submitted to the court.

767.251 History History: 2005 a. 443 ss. 169, 170.

767.251 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.264 767.264 Dismissal; vacation; substitution or withdrawal of attorney.

767.264(1) (1) Opportunity to respond. An action affecting the family may not be dismissed under s. 805.04 (1) unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.

767.264(2) (2) Attorney fees and other amounts owing.

767.264(2)(a) (a) Upon making an order for dismissal of, for substitution of attorney in, for withdrawal of attorney from, or for vacation of a judgment granted in an action affecting the family, the court shall, prior to or in its order, grant separate judgment in favor of an attorney who has appeared for a party to the action and in favor of a guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court’s judgment, entitled and against the party responsible for the fees and disbursements.

767.264(2)(b) (b) Upon making an order for dismissal of an action affecting the family or for vacation of a judgment granted in the order, the court shall, prior to or in its order of dismissal or vacation, preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under ch. 785, owed to the state if either party in the case was a recipient of aid under ch. 49.

767.264 History History: 2005 a. 443 ss. 33, 92, 114.

767.264 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.264 Annotation Sub. (3) (a) [now sub. (2) (a)] is strictly construed to apply to those situations expressly set forth in the statute, such as orders for dismissal, substitution of attorneys, and vacation of judgments, in actions affecting families. In other cases an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 531 N.W.2d 606 (Ct. App. 1995).

767.264 Annotation The only reasonable meaning of sub. (3) (a) [now sub. (2) (a)] is that it gives the court authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless when or if the client retains another attorney to replace the withdrawing attorney in that action. Kohl v. DeWitt Ross & Stevens, 2005 WI App 196, 287 Wis. 2d 289, 704 N.W.2d 586, 04-0328.

767.264 Annotation The Federal Tax Consequences of Divorce. Meldman & Ryan. 57 MLR 229 (1974).

767.273 767.273 Allowances pending appeal. In an action affecting the family pending in appellate court, an allowance for suit money, counsel fees, or disbursements in the court or for temporary maintenance or support payments to the spouse or the children during the pendency of the appeal may be made by the proper trial court upon motion made and decided after entry of the order or judgment appealed from and prior to the return of the record to appellate court. If the allowance is ordered before the appeal is taken, the order shall be conditioned upon the taking of the appeal and is not effective until the record is transmitted to appellate court.

767.273 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); 2005 a. 443 s. 176.