Loeb & Herman, S.C. ::: Articles | Case Spotlight: State v. Hamilton

Case Spotlight: State v. Hamilton

By Matthew J. Price

On May 30, 2003, the Supreme Court of Wisconsin issued its opinion in State v. Hamilton, 2003 WI 50 (May 30, 2003), aff'g 2002 WI App 89, 253 Wis. 2d 805, 644 N.W.2d 243, concerning the application of the statute of limitations in independent actions to collect child support arrears.

Walter and Elaine Hamilton were divorced in Grant County in June 1970, following a five- year marriage which produced two children. Pursuant to the judgment of divorce, Walter was ordered to make nominal alimony and child support payments to Elaine. Walter subsequently moved to Dane County. In 1977, a stipulation and order was entered in Dane County Circuit Court which terminated alimony, expunged alimony arrears and modestly increased Walter’s child support obligation. No further child support orders were entered. Walter’s child support obligation ran through April 1985, when the parties younger child reached the age of majority. Walter failed to make a substantial number of child support payments.

Elaine died in June 1989, never having brought an enforcement action against Walter.

In May 2000, the State brought an independent action to collect the child support arrearages (as opposed to filing a contempt action in the underlying divorce action), on the basis that the State was a real party in interest due to Elaine’s receipt of AFDC payments during the time Walter failed to make child support payments. The State sought more than $15,500 in child support arrears, plus an additional $11,000 in interest.

In response to the State’s action, Walter alleged that the 20-year statute of limitations for actions on judgments set forth in WIS. STAT. § 893.40 applied and that because the last judgment was entered in 1977, an independent action was barred after 1997. Although the circuit court agreed that the 20-year statute of limitations applied, it determined that the statute of limitations did not accrue until the younger child reached majority in 1985. Therefore, according to the circuit court’s holding, the State had until 2005 to bring the action.

The circuit court remanded the matter back to the family court commissioner for calculation of arrears and interest. When the matter returned to the circuit court, the court expunged all existing and future interest because of the State’s unreasonable delay in seeking enforcement. The State did not appeal that ruling. Arrears were set at $15,000, payable at the rate of $100 per month. Walter appealed.

The court of appeals reversed. In doing so it separated Walter’s arrears into two categories: a) those that accrued before the July 1, 1980, effective date of the new 20-year statute of limitations and b) those accrued thereafter under the new 20-year statute of limitations. With respect to the former, the court of appeals concluded that the State had a vested right in the prior statute of limitations when the new statute became effective and, therefore, the 20-year period under the old statute began to run on July 1, 1980, which would have barred an action on the arrears accumulated up to July 1, 1980, as of July 1, 2000, one month after the State filed their action. However, regarding the latter, the court of appeals held that the new 20-year statute of limitations began to run upon entry of the last child support order (1977), and thus, the State was time-barred from 1997 forward, to pursue an independent action for the arrears accrued on or after July 1, 1980.

The State petitioned for review to the supreme court on the applicability of the new statute of limitations to the arrears accrued on and after July 1, 1980. Walter failed to cross-petition for review on the pre-July 1, 1980 arrears and the supreme court declined to address it.

The issues, as framed by the supreme court, are quoted as follows: "(1) Does WIS. STAT. § 893.40 (2001-2002) apply to independent actions to collect child support not paid after July 1, 1980, and (2) if § 893.40 applies, when does the 20-year limitations period in the statute begin to run?"

In affirming the court of appeals, following a relatively straightforward process of statutory interpretation, the supreme court answered those two questions, as follows:

"We hold that WIS. STAT. § 893.40, which became effective on July 1, 1980, governs the time within which a party may bring an independent action to collect child support arrearages that accumulated after the statute's effective date. In addition, we conclude that, under the statute, an action brought to enforce a child support judgment must be commenced within 20 years of the date when the judgment is entered. The period of limitation begins to run upon entry of judgment, irrespective of whether any payment under that judgment has been missed."

Accordingly, the supreme court concluded that because the final child support order was entered in 1977, the State had until 1997 to commence an independent action to collect any arrears that accrued on or after July 1, 1980. Because the State did not initiate the action until 2000, the statute of limitations bars recovery.

Perhaps, the most valuable practice tip contained in Hamilton is that for those bringing independent actions, the window to do so following the date the youngest child reaches the age of majority may be fleeting. For example, if the one and only child support order is that entered at the time of the divorce judgment, and the youngest child is 6 months old at the time, the opportunity to bring an independent action for collection of child support arrears expires a mere two and one-half years (at age 20.5) after the youngest child reaches majority. As a result, parties (and their counsel) must be diligent in arrearages recovery following the youngest child reaches majority.

However, what Hamilton may be best known for is what it did not decide. It merely addressed the statute of limitations for independent actions brought to secure the payment of arrears. The supreme court explicitly took no position on how the statute of limitations applies to the contempt powers of the circuit courts in the underlying divorce action. Footnote 4 of the opinion provides:

The court of appeals noted that both Walter and the State agree that the State’s motion is an "independent action" upon the judgment. Apparently, neither party argues that the State could not bring a motion within the context of the original action. We do not address this issue because it has no bearing on our present decision.

While the State may routinely bring these independent actions, the vast majority of private practitioners in Wisconsin have never brought an independent action, instead electing to file an order to show cause for contempt in the divorce or paternity action in which judgment was entered.

Thus, Hamilton’s practical application remains questionable.

Matthew J. Price, senior associate at Loeb & Herman, S.C., Milwaukee, primarily concentrates his practice in the area of trial and appellate family law.

Back to Price Article Archive

© 2008, Loeb & Herman, S.C.
Suite 1725 - Chase Tower
111 East Wisconsin Avenue
Milwaukee, WI 53202-4868
414.272.5632 | Fax 414.272.7918