Family Law Attorney Provides Fresh Frisch Observations

By Attorney Gregg Herman
September 10, 2007

This is the second of two articles discussing the recent state Supreme Court opinion in Frisch v. Henrichs, 2007 WI 102, which reversed the published decision of the District II Court of Appeals concerning the remedial contempt powers of the circuit courts.

In my first article, I summarized the opinion of the majority of the high court as written by Justice David T. Prosser Jr. — chiefly, that the trial court had properly employed remedial contempt since Ronald’s contempt was continuing at the time of the contempt hearing. The justices also concluded that the stipulation between the parties setting a ceiling on child support was unenforceable, even though it was for a limited period of time, because it was not in the best interests of the children and therefore contrary to public policy.

When the Supreme Court accepted this case for review, I suggested that, due to the complex facts, this might not be an appropriate case for further appellate law. As one quantifiable example, the high court took nearly 17 pages to summarize the facts of the case. No surprise, then, that these holdings raise difficult questions and policy implications.

Freeze ‘Ignores Practicality And Precedent

As I have previously expressed in this column and elsewhere, prohibiting stipulations freezing child support not only prevents individuals from contracting voluntarily, but make public policy assumptions that might not be valid. See Gregg Herman, “Dishonoring Honore,” 27 Wis. J. of Fam. L. 3 (July, 2007).

To believe that child support is the child’s money ignores practicality and precedent. The precedent is that in almost all cases, the parent receiving the support need not account for its use. Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997). The practicality is that the monies are paid to the parent, not to the child. Therefore, by prohibiting these types of stipulations, the court is prohibiting two presumably knowledgeable people from voluntarily arranging their affairs as they believe to be in their own interests. In a free country, one would think they should be allowed to do so.

Worse, by prohibiting parties from agreeing to avoid litigation, the Supreme Court ignores (or does not appreciate) the significant effect of contested court proceedings between parents on their children. The court is making the highly questionable policy determination that maximizing child support is more important to children than avoiding strife between the parents. Even if this is arguably so, one would think that this choice should be made by the child’s parents, not by “Big Brother,” a/k/a, the government.

Contempt for the Contempt Holding

The contempt holding additionally raises some difficult questions.

In Frisch, the court held that although Ronald had provided Heidi with complete tax and income information at the time of the hearing, as required by statute and court order, his failure to produce the information in a timely manner, permitted him to evade exposure to the possibility of a modification of his child support obligation and thereby deprived Heidi and their children of their traditional remedies under statutory provisions for modification of child support. Thus, the contempt was continuing and the trial court had authority to sanction Ronald.

The holding is disturbing because the majority decision did not have to go to such lengths to reverse the Court of Appeals. In his concurring opinion, Justice Louis Butler Jr., joined by Justice Ann Walsh Bradley, opined that the majority opinion “does violence to the law of remedial contempt” by holding that failure to meet a deadline constitutes a “continuing contempt” of court.

Justice Butler pointed out that since Ronald had been found by the trial court to have engaged in on-going efforts to conceal his income and financial interests, the circuit court could be affirmed for holding Ronald in contempt by a straightforward application of Wis. Stat. §785.01(3). By doing so, the problems with the definition of “continuing contempt” in the majority decision could have been avoided.

More Bad News Than Good

The good news is that this holding avoids the fear discussed in my article when the Supreme Court accepted review of this case: That the Court of Appeals’ holding could be interpreted as allowing a party to violate a court order and then avoid sanctions by compliance immediately prior to the contempt hearing, but after the other party had incurred costs as a result of the violation.

The not-so-good news is that other questions are raised:

  1. Since the continuing contempt was caused by the damage done by failing to provide the requisite information timely, is there continuing contempt if the only damage is financial, such as a failure to pay support, and the arrears are brought current prior to the hearing? If not, forget the “good news” above.
  2. The court noted that a failure to afford visitation is not a continuing contempt since the damage cannot be purged by a subsequent order. Does this mean that remedial contempt does not apply to visitation disputes?
  3. Since most payors ignore the requirement to provide financial information annually (in fact, are there any who do so?), are they all in continuing contempt?
  4. If so, is there a statute of limitations? If the payee does not request the information, does laches apply?
  5. If the answer to #3 is “yes”, has the law prohibiting retroactive increases in support been essentially gutted?

It is the last three questions which are the most worrisome. By a strict reading of the case, at any time in the future, a payer can be civilly prosecuted for unreported increases in income. As a result, absent providing “financial information” (which is nowhere defined in the statutes), payors may have to live with the Sword of Damocles hanging over their head.

Unfortunately for parties (and especially their children), the future is rife for litigation.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.