Dishonoring Honore
July 1, 2007
The specter of never-ending litigation is a frightening one in any area of law. Where children are involved, it is even scarier. As a result, good lawyers try to negotiate agreements that are designed to prevent future litigation. Where no minor children are involved, the law allows such settlements, even where the parties agree to terms which absent their agreement, the court could not otherwise order.
Paradoxically, issues of custody and placement are always open to being relitigated before the court. Recent cases now seem to have established a relatively black-line rule that child support as well must always be open for re-litigation, even when two knowledgeable, self-supporting parents voluntarily choose to close the issue and avoid the potential horrors of ongoing litigation.
I. History
The case law history consists of three cases: First, in Honore v. Honore, the Wisconsin Court of Appeals held that a stipulation maintaining a specified level of child support, notwithstanding any subsequent reduction in income, is enforceable and not contrary to public policy. The appellate court relied on two cases, Bliwas v. Bliwas and Rintelman v. Rintelman, both standing for the rule that if a party voluntarily stipulates to an order which the court could not have entered absent the stipulation, that order becomes enforceable in the future. Both Bliwas and Rintleman dealt with spousal support, but in Honore, the same rationale was applied to child support stipulations.
Ever since Honore, the court of appeals has limited its holding, to the point of making it effectively moot. In Ondrasek v. Tenneson, the appellate court held that a stipulation waiving or putting a limit on child support violates public policy. Strangely, the court did not distinguish, or even cite, Honore. Therefore, there is no explanation of why Bliwas and Rintleman would not apply to the stipulation in Ondrasek. It appeared after Ondrasek that stipulations limiting future child support litigation may only be enforceable on the downside, but not on the upside.
Then, in Krieman v. Goldberg, the appellate court held that a child support agreement with a floor violated public policy where the agreement is not time limited and had no opportunity for review. In Krieman, the husband had agreed to maintain a level of child support not withstanding later changes in income. When he lost his job (apparently, due to no fault of his own), his former wife, apparently not of the forgiving sort, brought an action to enforce the child support order and find the payor in contempt. The court of appeals appeared to want to avoid the harsh result of punishing the payor for not making payments that he had no ability to make. The court distinguished Honore by noting that the child support freeze was for a limited period of time, whereas in Krieman the freeze had no such limit. While that tightrope walk was an accurate version of the facts in each case, it totally ignored the rational of Honore, which was to hold parties to their agreements even when it was outside the power of the court to independent make such an orders. It appears that the court in Krieman would have liked to have overruled Honore completely, but being unable to do, did the next best thing by limiting it strictly to its facts.
II. New Cases
Two recent cases have gone even further to dishonor the holding in Honore. In Motte v. Motte, the parties had entered a stipulated order that child support would not be affected by future changes in the placement schedule. Apparently, the parties feared that a teenage child of the parties would migrate between the parents and they wished to avoid child support as an incentive to lure the child. By agreeing to maintain child support regardless of placement, the parties were making an effort to avoid future litigation, apparently making the value judgement that the effect of such fighting on the minor child would be a worse evil than not receiving the highest amount of child support possible. The court of appeals affirmed the circuit court’s order, which found that the agreement violated public policy. Even though the original decision was withdrawn sua sponte by the court for reconsideration, the eventual decision did not change this holding.
Then, in Wood v. Propeck, the court reversed and remanded a post-judgment order which denied the former wife’s request for child support modification The appellate court held that the case was governed by Ondrasek. The court held that, under Ondrasek, the parties’ agreement was against public policy. The court held that, “the provision at issue, if it were enforced, would prevent a court from considering whether a modification in child support should be ordered to ensure the children’s best interests are protected when circumstances substantially change from those at the time of the divorce.”
The court also rejected the former husband’s argument that the holding in Krieman, limited the holding in Ondrasek. In fact, the court held that Krieman supports their holding that “any attempt to deprive a court of the ability to modify child support in the best interests of the children upon a showing of a substantial change in circumstances is against public policy.”
III. Public Policy
The cases striking down these agreements are premised on the court’s determination of the public policy of the state. Ignoring the fact that the legislature has never promulgated these public policies through a democratic process, exactly what public policy is the court espousing and is such policy truly in the best interests of the public?
The “public policy” espoused by the court of appeals seems to be premised on two assumptions: One is that child support is for the children and therefore should not be compromised since the children are not parties to the action. The second is that the more support paid to support children, the better, without regard for the cost, both financial and emotional, which may be incurred . Both of these assumptions are, at best, questionable and at worse, seriously misplaced.
The first assumption is simply not the real world. Child support is paid to an adult, not to a child. The adult determines how the payments are used. Absent extraordinary circumstances, neither the court nor the payor retain any power to police the application of the payments. Practically speaking, once paid, child support belongs to the payee to use as he or she deems appropriate. Since most living expenses, such as rent, food and utilities, are shared between the children and the adults in the home, any attempt to distinguish usage would be futile, anyway.
The second assumption is one of priorities. While money to support children is certainly a necessity, there are many other factors involved in child raising other than finances. Therefore, the equation of more child support as equal to the best interests of the child is open to question because the other factors will also need to be considered. One significant factor is limiting the conflict between the child’s parents. It is not unusual for a child support recipient to choose to forgo pursuing an increase in child support out of the fear about effect of such an action upon the relationship with the other parent. Assuming that the parent is not receiving any government assistance, one has to wonder why the priority choice of preserving the relationship with the child’s other parent and minimizing stress upon the child as being more important than money is not a choice which a knowing adult should be able to make on a voluntary basis, rather than having the choice imposed by government. In addition to the public policy of being able to make choices in a free country, some may find a preference of peace over money to be an admirable one.
The court of appeals seems to assume that pursuing an increase in child support is a rather simple task. Certainly, it can be. Current income applied to the guidelines can lead to a modification with the use of simple arithmetic. But it also may not be quite so simple. Knowing that income will be examined may lead a payor to make choices of employment or hours worked. Even absent manipulation, not all income is simple to discover. Moreover, the pursuit of additional payment is as unlikely to be welcomed by the payor as an increase in taxes. One common reaction is a retaliatory action for a change in placement. Even without a retaliatory action, the additional tension between the parents may very well adversely affect the child. All of these potential consequences are ignored in a calculus which equates money with best interests. Certainly that may be the case. But shouldn’t that the choice of the parents?
IV. The Law After Propeck
For the most part, without being overruled, Honore has essentially been dishonored by subsequent cases. It appears that it is still possible for parents to agree to freeze a downward modification of child support for brief period of time, although there is not guidance as to how long a period of time constitutes “brief.” Otherwise, any attempt to prevent future court action over child support has been outlawed by a court of appeals who has promoted a questionable set of priorities in the guise of public policy over those of parents who presumably would act in the best interests of their child, if only given the freedom to do so.
This article first appeared in the Wisconsin Journal of Family Law.
Footnotes
Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991); Ross v. Ross, 149 Wis. 2d 713, 439 N.W.2d 639 (Ct. App. 1989). But see Patrickus v. Patrickus, 2000 WI App 255, 239 Wis. 2d 340, 620 N.W.2d 205.
Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989).
Bliwas v. Bliwas, 47 Wis. 2d 635, 178 N.W.2d 355 (1970).
Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (Ct. App. 1984).
Ondrasek v. Tenneson, 158 Wis.2d 690, 462 N.W.2d 915 (Ct. App. 1990).
Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997).
Motte v. Motte, 2007 WI App 111, 731 N.W.2d 294 (2007)
Wood v. Propeck, 2007 WI App 24, 728 N.W.2d 757 (2007)
Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997).
In Motte, the parents seemed to wish to avoid creating a incentive for either parent to manipulate a teen-age child into choosing placement with the other parent.
