Frisch Is Wrong Case to Address Failure to Provide Income Info

By Attorney Gregg Herman
August 2, 2006

After the Publication Committee of the Wisconsin Court of Appeals rejected the pleas of three organizations, the American Academy of Matrimonial Lawyers, the Wisconsin Department of Workforce Development and the Wisconsin Family Court Court Commissioners Association, and ordered its decision in Frisch v. Heinrichs, 2006 WI App 64, to be published, the Wisconsin Supreme Court has now granted review.

As opined in an earlier column, if the court of appeals is going to have an absurd rule on publication, this case is an example of where it should be applied.  Similarly, if the Supreme Court is going to have only one family law case on its docket (and this is currently the only one), this is not the case to choose.

As earlier summarized in this column, in Frisch, the court of appeals reversed and remanded a post-judgment contempt order with sanctions arising from the husband’s failure to timely provide copies of his income tax returns to the wife.

Under other circumstances, the application of Wis. Stats. Sec. §767.27(2m), which requires an annual exchange of financial information when child support is ordered, and the prohibition of most retroactive modifications of child support, would make a fascinating analysis.

Unfortunately, Frisch presents a tortured factual and procedural history.  Cutting through a morass of detail, the eventual holding was that a circuit court cannot use its remedial contempt powers to sanction a child support payor who fraudulently fails to timely provide copies of his tax returns, which, when produced, revealed greater income that previously represented.

The major problem with this case is its failure to clearly present an important issue.  There is a case out there someday where a party ordered to pay child support will have failed to provide financial information annually as required by Wis. Stats. §767.27(2m).  In such a hypothetical case, the court would be faced with the issue of what sanction could be issued to remedy the failure to provide the financial information.

Frisch, however, is not the case for this analysis.

First, in the case, the parties stipulated to a four-year moratorium on child support modifications.  Such a limited-term moratorium was specifically approved by the Court of Appeals in Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989) and Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997).  Such stipulations are of great value to parties who would like to avoid continual litigation.

Second, the court of appeals summarily rejected various legal theories which were argued before the trial court and on appeal, and exclusively focused on the issue of contempt.  After summarizing the various types of contempt, the appellate court held that the trial court improperly utilized remedial contempt because the payer had already furnished his tax returns — the basis for the contempt finding — prior to the court’s pronouncement of contempt.  If read tightly, this holding could mean that the costs associated with seeking compliance with the court order need to be paid in order for a violator to avoid contempt sanctions.  Such a holding could create severe hardship to innocent parties by allowing the other party to cause costs to be incurred without adequate redress.

It is not clear why the supreme court saw fit to accept review of this case.  The issue regarding failure to produce income information is too confused with the unusual issue of the child support moratorium to serve as a precedent for most cases.  The contempt issue, hopefully, can simply be ignored as it is highly doubtful that the court of appeals intended to give remedial contempt such a narrow basis.  While the court of appeals ignored pleas to let this case lie as unpublished, perhaps the supreme court will realize that review was improvidently granted and save its time for cases likely to have a broader impact.

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.