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JANUARY 20, 2005

::: Special Alert :::
Child Support Arrearages

Today, the Supreme Court of Wisconsin issued their opinion in In re the Paternity of John R. B., 2005 WI 6, which affirmed an unpublished decision of the District II Court of Appeals, in a case originating out of Kenosha County Circuit Court, the Honorable Barbara A. Kluka, presiding. This case concerns the impact of an alleged post-judgment oral agreement between the parties to modify child support, as a defense to arrears accumulated thereafter based upon the terms of the judgment. The supreme court concludes that retroactive application of Wis. Stat. § 767.32 (1m) and (1r) does not violate due process.

In 1982, Barbara B. and Dorian H. entered into a paternity judgment concerning their young son John, which among other things, required Dorian to pay $30.00 per week in child support. In 2001, when John was 21, Barbara brought an enforcement action against Dorian for non-payment of child support, which according to the Kenosha County Child Support Agency, totaled nearly $68K ($25k in principal and $43k in arrears).

At the hearing before the court commissioner, the commissioner concluded that while Dorian had not paid child support since 1983, he had paid the child's private school tuition. The commissioner also found that there was an oral agreement between the parties that Barbara would not pursue child support if Dorian did not exercise placement with the child. The commissioner declined to enforce the arrears, holding that Barbara is "not allowed to recoup the past child support money, as the child is now an adult, and she did not seek such payments while the child was a minor. Equity now demands that [Dorian] not be held to this large amount of child support and arrearages."

On de novo review before Judge Kluka, though she found that the parties did have some type of an oral agreement concerning child support and visitation, and that Dorian contributed $800 toward the child's private school tuition through sixth grade, she held that application of equitable estoppel is inequitable under both Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999) and Wis. Stat. § 767.32(1r) (which limits the court's ability to grant retroactive credit for non-reflected child support payments). Judge Kluka further concluded that retroactive application of Wis. Stat. § 767.32(1r) is constitutional.

(Note: Neither the commissioner nor the circuit court judge made a finding as to when the alleged oral agreement occurred, though Dorian asserted that it took place in 1983, presumably to coincide with his discontinuation of paying child support.)

Dorian appealed and the court of appeals affirmed in an unpublished opinion. The supreme court granted Dorian's petition for review.

Dorian argues that retroactive application of Wis. Stat. § 767.32(1m) (which prohibits retroactive modification of support or arrears accrued) and (1r), instead of applying the law in effect at the time of the extrajudicial agreement (which then provided wide discretionary latitude to circuit courts to revise arrears), violates his right to due process under the state and federal constitutions.

The supreme court affirmed in a unanimous opinion authored by Justice Patience D. Roggensack.

Justice Roggensack analyzed the evolution of the legislative history concerning retroactive support arrears modification, including the multiple modifications to Wis. Stat. § 767.32 (1m) and (1r) that demonstrate the intent of the legislature to further restrict the circuit court's powers and their intent to apply these statutes retroactively. Also, having noted Dorian's high burden to demonstrate beyond a reasonable doubt that a statute is unconstitutional in order to defeat its presumed constitutionality, Justice Roggensack applied the balancing test required in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), to determine whether retroactive application of these statutes comports with due process. The results of the balancing test performed by Justice Roggensack did not weigh in Dorian's favor.

Justice Roggensack summarized the court's holdings, as follows (footnote omitted):

"¶32 In sum, we conclude that Dorian has not established beyond a reasonable doubt that retroactive applications of Wis. Stat. § 767.32(1m) and (1r) violate his right to due process. Balancing the public's interest against Dorian's private interest, we weigh the public interest as more substantial. Retroactive applications of § 767.32(1m) and (1r) serve significant public purposes, while remedying general social and economic issues. Any expectations Dorian may have had regarding his child support obligation were not well-founded in the law, and moreover, throughout these proceedings, Dorian has never asserted that he was unable to pay $30/week in support or that John had no need for his financial support. Accordingly, his private interest in property is weak. As the Martin analysis demonstrates, retroactive applications of § 767.32(1m) and (1r) are rational and do not violate state or federal constitutional due process provisions."

If one message can be taken from the supreme court's opinion, it is their underscoring of strong disfavor as to the viability of oral agreements made between parties. Though this case focuses largely on oral agreements, one could logically go a step farther and conclude that the safest road to travel is not simply a written agreement between the parties, but rather, a written agreement of the parties which is incorporated into a signed and entered order of the circuit court.

Full Opinion (PDF)

The Respondent-Appellant-Petitioner Dorian H. was represented in the supreme court by: Renee E. Mura (Kenosha) (argued)

The Petitioner-Respondent Barbara B. was in the supreme court by: Barbara B., pro se non-lawyer (argued)

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