The Law Sometimes Works in Mysterious Ways

By Attorney Gregg Herman
July 20, 2012

Yes, the law sometimes works in mysterious ways.

Take, for example, a recent Wisconsin Court of Appeals opinion that reached the right conclusion, although for somewhat convoluted reasons.  In the process, the court has, thankfully, cleared up one of the more silly aspects of family law in Wisconsin.

On July 3, 2012, the Dist. I court issued its opinion in Tierney v. Berger, No. 2011AP565, affirmed the circuit court.

Several years after the divorce, John Tierney filed for a de novo hearing from an family court commissioner order requiring him to pay child support.  Milwaukee County Circuit Court Judge Micheal Guolee found a substantial change in circumstances and also ordered child support.

Although the family court commissioner’s child support order had never been stayed, the trial court ordered that a percentage of Tierney’s bonus income should be paid towards the “arrears” between the time of the family court commissioner hearing and the trial court order.  Once the arrears are paid in full, a percentage of any bonus was to be paid as child support.

Rebecca Berger appealed and Tierney cross-appealed.

Presiding Judge Patricia Curley’s opinion for the panel found that the trial court’s use of the word “arrears” was an attempt to craft a solution for the gap in child support between the time of the family court commissioner order and the trial court order.

The court also affirmed the trial court’s finding that there had been a substantial change in circumstances.  In fact, the court called the evidence “overwhelming,” considering that the last order had been entered over 33 months prior, the now teenaged children had greater expenses, one of the children was estranged from the father, the father was making more money and other evidence.

Finally, the appellate court held that the trial court’s percentage order on unknown future bonus income was acceptable, as it was another exception to the preferred method of having child support orders expressed as a fixed sum.

At first blush, it seems that perhaps this is one of those cases that should be “unpublished, but citeable,” based on some of its unusual facts.

In particularly, the trial court’s order was convoluted, although quite reasonable.  The payor should not get a “break” between the family court commissioner order and the trial court order.  But, either there were arrears or there were not.  If there were no arrears, what in the world is Tierney paying since courts cannot order child support retroactively?

The end result was altogether appropriate: Tierney did not get a total break from having to pay child support between the two orders, but he can pay the back payments from his bonus rather than from current income at the same time as his current child support.  Still, if there are arrears and child support should be paid from the bonus (and it should), the order shorted Berger.

The most important part of the case, however, is the Court of Appeals clearly allowing a “mixed order.”  A mixed order is where part of the order is dollar-expressed and part is percentage expressed.

In a case like this one – and many others –  a mixed order makes a great deal of sense.  The base salary is known and a dollar expressed order is entirely appropriate.

However, a bonus can range from zero to quite substantial, so ordering a percentage of it to be paid as support when, as and if earned, also makes a lot of sense.

So what’s the problem?

It’s the statute, stupid – or, actually, it’s the stupid statute.  For reasons that make no discernable sense, Wis. Stats. §767.34(2)(am)3  seems to prohibits such a mixed order.

For the life of me, I can’t think of a single rational reason why a mixed order should not be allowed in appropriate cases.   Even if there were a reason, it should be weighed against the convenience to  the parties in cases where there is a fixed salary and a variable bonus.  I can’t think of any weighing test which even needs to be conducted.  Mixed orders make sense in certain cases and there is no known argument against them.

As a result, many judges simply do what Judge Goulee did in Tierney, which is to make a mixed order because it makes sense.

Now, the Court of Appeals, perhaps through the back door, has created legal authority to do so.  Reasoning aside, and whether it was intentional or not, the family law system should welcome that back-door ruling.

This article originally appeared in the 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.