Court Has Chance to Settle Big Issue

By Attorney Gregg Herman
February 1, 2011

Could it be that our Supreme Court, which has gone over two years without deciding a single significant family law case, could have not one, but two such cases before it in the present term?

Am I dreaming?

May vs. May

Last month, the court accepted review in McReath v. McReath, No. 2009AP639 (Wis. Ct. App. July 29, 2010), a case involving the difficult issues of professional goodwill and double dipping.

Now, District IV of the Court of Appeals has certified an important issue to the Supreme Court in May v. May, No. 2010AP177 (Filed January 6, 2011), whether “the enforceability of child support stipulations that set a child support payment amount, and then restrict the payor’s right to request downward adjustments.”  As readers of this column are aware, this is an issue near and dear to my heart.  Supremes: Make me proud and accept this case!

In May, the parties stipulated that Michael would pay a minimum amount of child support for 33 months and could not seek a reduction during that time period.  Seventeen months later, he lost his job and sought relief.  The trial court found that the stipulation was not against public policy and denied his motion.  Michael appealed.

The Court of Appeals in its certification acknowledged that ceilings on child support are contrary to public policy because they “may deprive children of a needed increase in support.”  However, there is a conflict between cases regarding whether a floor would also violate public policy.

In Frisch v. Henrichs, 2007 WI 102, ¶74, n.23, 304 Wis. 2d 1, 736 N.W. 2d 85, the court stated, in a footnote, that “[S]tipulating to a minimum amount for a limited period of time does not violate public policy because it ensures that a certain amount of child support is received, which is in the best interests of the children.”

Compare that to a subsequent court of appeals case, Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, which held that a stipulation setting a four-year floor on child support violates public policy.

The certification noted that, while the holding in Jalovec was not categorical, it was sufficiently contradictory to the footnote in Frisch to warrant certification.

The issue of whether parties can stipulate to limit the court’s authority on child support has a long history in Wisconsin.  (See Gregg Herman, “Dishonoring Honore”, W.J.F.L., Vol 27, No. 3 [July, 2007]).  As discussed in this column on several occasions, the “best interests” of children should not be so narrowly defined as to encompass only their financial welfare.  As long as financial resources reach the level of basic needs, children’s best interests also encompasses the degree of conflict between the parents.  As long as their basic needs are met,  children would be better served with fewer financial resources and a peaceful environment, rather than more money and less peace.

Wisconsin courts have continually failed to recognize this, and instead have equated financial resources with best interests.  One wonders if any judge writing those opinions has ever read child development literature, spoken with an expert in the field or spoken with a child who is caught between battling parents.

In addition, from a philosophical view point, why should courts interfere with the decisions of fit parents, assuming they are acting voluntarily and with full knowledge of the consequences?  I’m not a member of the tea party movement, but the concept of limited government has validity.  Parents know their financial circumstances and the cost — both financially and emotionally — of litigation.  In my opinion, our legal system should be encouraging parents to reach agreements, not prohibiting them.  Yes, sometimes their agreements may not work out – but that doesn’t mean they should be prohibited.

Accepting for a moment the argument that ceilings should be prohibited because children benefit more from money than peace, what is the reason for prohibiting floors?   After all, if the public policy is maximum support for children, floors are consistent with that policy.  If the courts are going to get the public policy wrong, they should at least get it consistently wrong.

So, please, Supreme Court, accept the certification!  And, if you want to do children a favor, open the debate to whether our public policy should encourage all efforts to avoid litigation, not just some efforts.

This article originally appeared in Wisconsin Law Journal.

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