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A Look Back at Family Law in 2004

By Gregg Herman

As it appeared in the January 26, 2005
Edition of the Wisconsin Law Journal

Per tradition, it is time to take a look back at the significant family law cases which were decided during the past year, with either plaudits for the well-reasoned decisions or - forgive me, judges - one last kick at those with which I take issue. This article will focus on Wisconsin Supreme Court cases in 2004. Next week, we will look at the significant court of appeals cases.

Rohde-Giovanni v. Baumgart

In March, the supreme court issued its decision in Rohde-Giovanni v. Baumgart, 2004 WI 27, 269 Wis.2d 598, 676 N.W. 2d 452, affirming last year's decision of the District IV Court of Appeals, 2003 WI App 136, affirming last year’s decision of the District IV Court of Appeals, 2003 WI App 136, which, in turn, affirmed the order of the trial court that converted the wife's maintenance award from an indefinite term to a limited term. The good news was that the supreme court specifically overruled the absurd holding of Johnson v. Johnson, 217 Wis. 2d 124, 576 N.W.2d 585 (Ct. App. 1998) that fairness is not a factor in a maintenance modification action. The problematic part of the holding was the affirmance of a trial court decision which changed an unlimited maintenance order into a limited one. Historically, in a long term marriage, once the court orders indefinite maintenance, it has been difficult to convince a court that a former spouse has reached the theoretical "standard of living enjoyed during the marriage" to have support terminated. It can be expected that Rohde-Giovanni will be frequently cited for years to come in such an effort.

Kenyon v. Kenyon

Perhaps to ameliorate the effects of Rohde-Giovanni, in December, the supreme court decided Kenyon v. Kenyon, 2004 WI 147. In Kenyon, the supreme court held that in a maintenance modification proceeding, the trial court needs to compare the facts that exist at the time of hearing to the facts as they existed at the time of the most recent maintenance order, whether that is the original divorce judgment or a subsequent modification order. If the court finds that there has been a substantial change in circumstances, it is not bound by either issue preclusion or claim preclusion to order the same amount of maintenance as was awarded in the original judgment of divorce. Rather, the court must apply the two-prong test of fairness and support as required by LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987).

As Rohde-Giovanni overruled a troublesome case, so did Kenyon. In Kenyon, the supreme court overruled Harris v. Harris, 141 Wis. 2d 569, 415 N.W.2d 586 (Ct. App. 1987), which held that the point of comparison in a maintenance modification proceedings is between the time of divorce and at the time of the modification, even if the order had been modified in the interim. Moreover, by emphasizing the fairness prong of maintenance, Kenyon may be cited on the other side of Rohde-Giovanni motions to terminate maintenance due to the support factor. The battle of income and budgets may not be as simple as mere arithmetic.

In re the Paternity of John R.B.

On Jan. 20, 2005, the Supreme Court held that retroactive applications of Wis. Stat. § 767.32(1m) and (1r) do not violate the payor’s right of due process. In re the Paternity of John R.B., 2005WI6. The issues involved whether the retroactive application of Wis. Stat. § 767.32(1) is unconstitutional and whether equitable remedies are available to those who entered into extrajudicial agreements for the purpose of eliminating the obligation to pay interest on child support arrearages, when the payor relied on the payee's promise, and the payee reneged on the promise 18 years later.

Chen v. Warner

The high court has several family law cases still pending for argument or decision in 2005. Most notably, the supreme court review of Chen v. Warner, 2004 WI App 112, 274 Wis.2d 443, 683 N.W. 2d 468, is scheduled for oral argument on February 4. The Supreme Court will have the opportunity to clarify a frequent and troublesome issue in family law cases - whether "shirking" includes intent as an element. People frequently choose employment opportunities for a variety of reasons - maximum income being only one factor. Others factors may include the nature of the employment, the travel required and job enjoyment. Where there is a support order, any employment choice is subject to scrutiny. Some decisions have rephrased the test from "shirking" to whether the employment choice is reasonable given the support obligation present. However, the court has not been consistent and the result is confusion as to the proper test of employment choice where there is a support obligation. Chen v. Warner presents an opportunity for the court to clear up this confusion.

State v. Denis L.R

While not a family law case, the court’s review of State v. Denis L.R., 2004 WI App 51, 270 Wis.2d 663, 678 N.W. 2d 326, which was argued on January 5, 2005, may impact many custody/placement cases. The issue is whether a parent, who participates in psychotherapy with a child, waives the child's privilege of confidentiality when the parent discloses to a third party part of what the child says to the psychotherapist. The holding may be critically important, as it may destroy the ability of a therapist for a child to promise confidentiality.

Clearly, there will be plenty of material for this column for 2005.

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