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Child support in Wisconsin

 

 

Table of Contents

 

 

Child support in Wisconsin.. 1

Child Support in WI 2

767.25. Child support. 2

25. Modification or termination--In general 5

26. ---- Age of children required to be supported, modification or termination. 6

27. ---- Time, modification or termination. 6

28. ---- Change of circumstances, modification or termination. 6

33. Arrearages--In General 7

34. ---- Interest, arrearages. 9

802.12. Alternative dispute resolution.. 9

Modification of Child Support.. 12

767.32. Revision of certain judgments.. 12

767.081. Information from family court commissioner.. 14


Child Support in WI

 

 

WEST'S WISCONSIN STATUTES ANNOTATED

MARRIAGE AND FAMILY

CHAPTER 767. ACTIONS AFFECTING THE FAMILY

767.25. Child support

 

 

(1) Whenever the court approves a stipulation for child support under s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in an action under s. 767.02(1)(f) or (j) or 767.08, the court shall do all of the following:

(a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum.

(b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under 26 USC 151(c)(1)(B), or as an exemption for state income tax purposes under s. 71.07(8)(b) or under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child's health care expenses under sub. (4m) is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to s. 632.897(10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.

(1g) In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under s. 49.22(2m) to the department or the county child support agency under s. 59.53(5).

(1j) Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22(9).

(1m) Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:

(a) The financial resources of the child.

(b) The financial resources of both parents as determined under s. 767.255.

(bj) Maintenance received by either party.

(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902(2).

(bz) The needs of any person, other than the child, whom either party is legally obligated to support.

(c) The standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.

(d) The desirability that the custodian remain in the home as a full-time parent.

(e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.

(ej) The award of substantial periods of physical placement to both parents.

(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.24.

(f) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under sub. (4m).

(g) The child's educational needs.

(h) The tax consequences to each party.

(hm) The best interests of the child.

(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.

(i) Any other factors which the court in each case determines are relevant.

(1n) If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.

(2) The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.

(3) Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.

(4) The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.

(4m)(a) In this subsection, "health insurance" does not include medical assistance provided under subch. IV of ch. 49.

(b) In addition to ordering child support for a child under sub. (1), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court approves a stipulation for child support under s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in an action under s. 767.02(1)(f) or (j) or 767.08, the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this subsection. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.

 

 

<Text of subsec. (4m)(c)1 eff. until date published by department of

workforce development or Oct. 1, 1999 (whichever is earlier). See 1997

legislation notes.>

 

(c)1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in s. 767.265(3h), or sent to the clerk of court or support collection designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under s. 767.265(2r) and may include the notice of assignment under this subdivision with a notice of assignment under s. 767.265. The clerk of court shall keep a record of all moneys received and disbursed by the clerk for health care expenses that are directed to be paid to the clerk and the support collection designee shall keep a record of all moneys received and disbursed by the support collection designee for health care expenses that are directed to be paid to the support collection designee.

 

 

<Text of subsec. (4m)(c)1 eff. upon date published by department of workforce

development or Oct. 1, 1999 (whichever is earlier). See 1997 legislation

notes.>

 

(c)1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in s. 767.265(3h), or sent to the department or its designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under s. 767.265(2r) and may include the notice of assignment under this subdivision with a notice of assignment under s. 767.265. The department or its designee, whichever is appropriate, shall keep a record of all moneys received and disbursed by the department or its designee for health care expenses that are directed to be paid to the department or its designee.

2. If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under s. 767.265(2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under s. 767.265, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in s. 767.265(3h).

(d) If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:

1. Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.

2. Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county child support agency under s. 59.53 (5), or upon receiving a notice under par. (f) 1.

2m. Notify the county child support agency under s. 59.53(5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child's other parent.

3. After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.

(e) 1. If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.

2. Section 767.265(4) applies to a garnishment based on a judgment obtained under subd. 1.

(f)1. If a parent who provides coverage of the health care expenses of a child under an order under this subsection changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under s. 59.53 (5) shall provide notice of the order to provide coverage of the child's health care expenses to the new employer and to the parent.

2. The notice provided to the parent shall inform the parent that coverage for the child under the new employer's health benefit plan will be in effect upon the employer's receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child's health care expenses should remain in effect. A motion under this subdivision may be heard by a family court commissioner. If the parent requests a hearing and the court or family court commissioner determines that the order to provide coverage of the child's health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.

(5) Liability for past support shall be limited to the period after the birth of the child.

 

 

<Text of subsec. (6)(intro.), eff. until date published by department of

workforce development or Oct. 1, 1999 (whichever is earlier). See 1997

legislation notes.>

 

(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4) or 815.05 (8) and is paid to the clerk of court or support collection designee under s. 767.29. Except as provided in s. 767.29 (1m), the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for child support as follows:

 

 

<Text of subsec. (6)(intro.), eff. upon date published by department of

workforce development or Oct. 1, 1999 (whichever is earlier). See 1997

legislation notes.>

 

(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01(4), 814.04(4) or 815.05 (8) and is paid to the department or its designee under s. 767.29. Except as provided in s. 767.29(1m), the department or its designee, whichever is appropriate, shall apply all payments received for child support as follows:

(a) First, to payment of child support due within the calendar month during which the payment is received.

(b) Second, to payment of unpaid child support due before the payment is received.

(c) Third, to payment of interest accruing on unpaid child support.

(7) An order of joint legal custody under s. 767.24 does not affect the amount of child support ordered.

 

 

25. Modification or termination--In general

 

Trial court has no authority to make order directing retroactive increase in support payments. Strawser v. Strawser (App. 1985) 377 N.W.2d 196, 126 Wis.2d 485.

 

Burden of proof to show that modification of divorce judgment is justified is on party seeking to alter provisions of prior judgment. Poehnelt v. Poehnelt (1980) 289 N.W.2d 296, 94 Wis.2d 640.

 

Wisconsin permits modification, elimination or forgiveness of support awards. Monson v. Monson (App. 1978) 271 N.W.2d 137, 85 Wis.2d 794.

 

On record, it was not an abuse of discretion to order husband to pay additional $20 per month toward annual expense of sending child of divorced parties to summer camp. Chandler v. Chandler (1964) 131 N.W.2d 336, 25 Wis.2d 587.

 

26. ---- Age of children required to be supported, modification or termination

 

In order to uphold decree modifying obligation of divorced husband to support minor children until age 21, in face of apparent loss of jurisdiction occasioned by legislature's enactment of L.1971, c. 213, reducing age of majority to 18, it must have been established that statute applied retroactively to detriment of vested rights. Schmitz v. Schmitz (1975) 236 N.W.2d 657, 70 Wis.2d 882.

 

Legislative declaration of adulthood carrying complementary release of support obligations, constitutes sufficient change of condition to warrant modification of decree of absolute divorce incorporating child support award. Schmitz v. Schmitz (1975) 236 N.W.2d 657, 70 Wis.2d 882.

 

Ex-husband, who stipulated that he would pay $110 per month per child from June 12, 1967 until July 1, 1968 and thereafter $142 per month for each child until further order of the court, was not estopped from asserting that his duty of support terminated when each of his sons attained age of 18, the legal age of majority. Miller v. Miller (1975) 227 N.W.2d 626, 67 Wis.2d 435.

 

Test in determining whether to terminate support payments to minor child at age of 18 or to continue such payments for support or education is one of discretion, and supreme court will not reverse if there is evidence that discretion was in fact exercised and not abused. Beberfall v. Beberfall (1969) 171 N.W.2d 390, 44 Wis.2d 540.

 

Court is under no obligation to terminate support payments to minor child at age of 18, and should not relieve father from continuing payments in at least same amount as before when it appears that continuance of such payments would not place undue burden on divorced father and where such payments are necessary for continued support or education of child. Beberfall v. Beberfall (1969) 171 N.W.2d 390, 44 Wis.2d 540.

 

27. ---- Time, modification or termination

 

An obligor may request retroactive as well as prospective modification of a support order at any time after it has been registered in Wisconsin under the Revised Uniform Reciprocal Enforcement of Support Act, St.1977, 52.10; modification is not required to be requested within the 20-day statutory period in which an obligor may move, after registration, to vacate the registration or for further relief. Monson v. Monson (App. 1978) 271 N.W.2d 137, 85 Wis.2d 794.

 

Child support provisions of a divorce decree may be modified at any time. Monson v. Monson (App. 1978) 271 N.W.2d 137, 85 Wis.2d 794.

 

28. ---- Change of circumstances, modification or termination

 

Modification of statute governing child support orders subsequent to initial award to wife did not require rehearing on remand of support order, where husband's request for rehearing concerned changes in his circumstances after trial and did not assert that there existed at time of trial undisclosed factors made relevant by statutory modification. Guzikowski v. Kuehl (App. 1989) 451 N.W.2d 145, 153 Wis.2d 227, review denied 451 N.W.2d 297, review denied 451 N.W.2d 298.

 

Trial court rationally exercised its discretion when it refused to modify child support and maintenance award after father quit his military career and married a woman with two dependent children, where father quit his job before he secured alternative employment, and since father's remarriage was not entitled to much judicial consideration since he was not responsible for support of his wife's children. Tozer v. Tozer (App. 1984) 358 N.W.2d 537, 121 Wis.2d 187.

 

Despite change of circumstances when father quit his military career and married a woman with two dependent children, trial court was not required to automatically modify level of child support father was required to pay for his own children. Tozer v. Tozer (App. 1984) 358 N.W.2d 537, 121 Wis.2d 187.

 

Award of support money is subject to modification if future circumstances warrant a revision. Johnson v. Johnson (1977) 254 N.W.2d 198, 78 Wis.2d 137.

 

If circumstances change so that a divorced spouse cannot make child support payments as ordered in divorce decree, it is that spouse's right and obligation to seek a modification of the child support order; not even an agreement between the custodian and the parent required to make payments for the support of the child can accomplish either modification or termination of the court- ordered child support payment. Paterson v. Paterson (1976) 242 N.W.2d 907, 73 Wis.2d 150.

 

Basic legal obligation to support minor children is implicit in decisional law describing payment modification as allowed only when circumstances of parties undergo change; basic legal obligation is regulated by legislature through its grant of power to order support during infancy. Schmitz v. Schmitz (1975) 236 N.W.2d 657, 70 Wis.2d 882.

 

While a court may modify the provision of a judgment of divorce relating to support money, it may do so only where there has been a substantial or material change in the circumstances of the parties or children. Krause v. Krause (1973) 206 N.W.2d 589, 58 Wis.2d 499.

 

Neither allegations in husband's petition, and supporting affidavit, to modify portion of divorce judgment providing for support and maintenance of his four children nor evidence presented to trial court demonstrated substantial change in circumstances so as to support modification of the support provision. Dittberner v. Dittberner (1972) 196 N.W.2d 643, 54 Wis.2d 671.

 

Where five years had passed and daughter of parties was 15 1/2 years old instead of 10 and at an age where summer camp experience would be of benefit to her, there was sufficient change of circumstances to justify increasing child support provisions of divorce judgment. Chandler v. Chandler (1964) 131 N.W.2d 336, 25 Wis.2d 587.

 

33. Arrearages--In General

 

Former husband's continued arrearages in child support supported employer's practice of taking child support payments out of every check, including one-day holiday paychecks issued in same week, even though wage assignment of divorce decree specified that husband was responsible for paying only $75 per week. Burger v. Burger (1988) 424 N.W.2d 691, 144 Wis.2d 514.

 

Reduction of child support arrears is discretionary remedy which should provide just result in light of circumstances; arrears are to be cancelled only upon cause or justification. Burger v. Burger (1988) 424 N.W.2d 691, 144 Wis.2d 514.

 

Contempt is appropriate remedy to enforce past-due child support payments after child reaches the age of majority; overruling Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317. Griffin v. Reeve (1987) 416 N.W.2d 612, 141 Wis.2d 699.

 

In determining father's ability to pay child support, trial court could apply Department of Social Services percentage guidelines in determining father's yearly ability to pay vis-a-vis what he was supposed to pay, however only after considering all past years could court make determination of credit to arrears. O'Brien v. Freiley (App. 1986) 387 N.W.2d 85, 130 Wis.2d 174.

 

Although reduction of support arrears is matter within sound discretion of trial court, such arrears are to be cancelled only upon cause or justification. O'Brien v. Freiley (App. 1986) 387 N.W.2d 85, 130 Wis.2d 174.

 

Crediting father's child support arrearages with the equivalent of nine months worth of support it had just ordered mother to pay father pursuant to a custody transfer was improper, since effect of court's action was to impose a retroactive support obligation on mother. Greenwood v. Greenwood (App. 1986) 385 N.W.2d 213, 129 Wis.2d 388, review denied 388 N.W.2d 186, 129 Wis.2d 550.

 

Independent action for money judgment for child support arrearages cannot be brought until child attains majority; while child is a minor, support may be revised, but when child attains majority, amount payable is fixed and beyond the control of the court and the total due can be computed. Kroeger v. Kroeger (App. 1984) 353 N.W.2d 60, 120 Wis.2d 48.

 

A family court has discretion to reduce or eliminate support arrearages with cause or justification; a family trial court has no authority to make an order directing retroactive increase of support payments. Whitwam v. Whitwam (App. 1978) 273 N.W.2d 366, 87 Wis.2d 22.

 

Though support money payments past the age of majority can be considered gratuitous, this is not an absolute rule, and offset of excess support payments against arrears in alimony payments may be permissible; thus, trial court abused its discretion by failing to consider the facts underlying the requested offset and, in particular, whether the excess support payments were used for the emancipated child or for the mother. Anderson v. Anderson (1978) 261 N.W.2d 817, 82 Wis.2d 115.

 

Alleged errors in failing to cancel alimony arrears or to allow divorced husband setoff against those arrears based on support payments made after son attained majority did not invalidate contempt finding where husband chose to disobey court order as to alimony before bringing his claims for modification before the court. Anderson v. Anderson (1978) 261 N.W.2d 817, 82 Wis.2d 115.

 

Though court which entered divorce judgment lost jurisdiction over son when he attained majority, it had jurisdiction to consider husband's claim for offset against alimony arrears based on child support payments made after child attained majority, on theory of unjust enrichment of the ex-wife. Anderson v. Anderson (1978) 261 N.W.2d 817, 82 Wis.2d 115.

 

In wife's divorce action, trial court did not abuse its discretion in exercising its equitable powers to restrain husband from collection of court costs while he was in arrears for support of his minor child under order to pay alimony and support money. Eule v. Eule (1960) 100 N.W.2d 554, 9 Wis.2d 115, certiorari denied 80 S.Ct. 1076, 362 U.S. 988, 4 L.Ed.2d 1021.

 

After children of divorced persons have attained their majority, a separate action is necessary to recover arrearages in allowance made for them in divorce decree. Halmu v. Halmu (1945) 19 N.W.2d 317, 247 Wis. 124.

 

Wife's action against divorced husband for arrearages in allowance for children after which they became of age was an action which at common law would be denominated an action for debt upon a record. Halmu v. Halmu (1945) 19 N.W.2d 317, 247 Wis. 124.

 

After children of divorced parents became of age, former wife suing for arrears in allowance for children was only required to show amounts due by reason of judgment as modified, during minority of children, subtract the payments made, and the balance would be what she was entitled to. Halmu v. Halmu (1945) 19 N.W.2d 317, 247 Wis. 124.

 

34. ---- Interest, arrearages

 

Although interests of children of divorced parents are at heart of child support system, parents have cognizable interests too as reflected in statute providing for imposition of interest on unpaid child support obligations. Cameron v. Cameron (1997) 562 N.W.2d 126, 209 Wis.2d 88.

 

Trial court had no discretion in assessing interest on child support arrearage, even though it determined awarding interest would be inequitable. Douglas County Child Support Enforcement Unit for Niemi v. Fisher (App. 1996) 547 N.W.2d 801, 200 Wis.2d 807, review denied 549 N.W.2d 735, 201 Wis.2d 439.

 

Statute [W.S.A. 767.25(6)] providing for interest on unpaid child support applies not only to support arrearages occurring after its effective date but also to arrearages accrued as of that date. Greenwood v. Greenwood (App. 1986) 385 N.W.2d 213, 129 Wis.2d 388, review denied 388 N.W.2d 186, 129 Wis.2d 550.

 

WEST'S WISCONSIN STATUTES ANNOTATED

CIVIL PROCEDURE

CHAPTER 802. CIVIL PROCEDURE--PLEADINGS, MOTIONS AND PRETRIAL PRACTICE

 

802.12. Alternative dispute resolution

 

 

(1) Definitions. In this section:

(a) "Binding arbitration" means a dispute resolution process that meets all of the following conditions:

1. A neutral 3rd person is given the authority to render a decision that is legally binding.

2. It is used only with the consent of all of the parties.

3. The parties present evidence and examine witnesses.

4. A contract or the neutral 3rd person determines the applicability of the rules of evidence.

5. The award is subject to judicial review under ss. 788.10 and 788.11.

(b) "Direct negotiation" means a dispute resolution process that involves an exchange of offers and counteroffers by the parties or a discussion of the strengths and weaknesses or the merits of the parties' positions, without the use of a 3rd person.

(c) "Early neutral evaluation" means a dispute resolution process in which a neutral 3rd person evaluates brief written and oral presentations early in the litigation and provides an initial appraisal of the merits of the case with suggestions for conducting discovery and obtaining legal rulings to resolve the case as efficiently as possible. If all of the parties agree, the neutral 3rd person may assist in settlement negotiations.

(d) "Focus group" means a dispute resolution process in which a panel of citizens selected in a manner agreed upon by all of the parties receives abbreviated presentations from the parties, deliberates, renders an advisory opinion about how the dispute should be resolved and discusses the opinion with the parties.

(e) "Mediation" means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.

(f) "Mini-trial" means a dispute resolution process that consists of presentations by the parties to a panel of persons selected and authorized by all of the parties to negotiate a settlement of the dispute that, after the presentations, considers the legal and factual issues and attempts to negotiate a settlement. Mini-trials may include a neutral advisor with relevant expertise to facilitate the process, who may express opinions on the issues.

(g) "Moderated settlement conference" means a dispute resolution process in which settlement conferences are conducted by one or more neutral 3rd persons who receive brief presentations by the parties in order to facilitate settlement negotiations and who may render an advisory opinion in aid of negotiation.

(h) "Nonbinding arbitration" means a dispute resolution process in which a neutral 3rd person is given the authority to render a nonbinding decision as a basis for subsequent negotiation between the parties after the parties present evidence and examine witnesses under the rules of evidence agreed to by the parties or determined by the neutral 3rd person.

(i) "Settlement alternative" means any of the following: binding arbitration, direct negotiation, early neutral evaluation, focus group, mediation, mini- trial, moderated settlement conference, nonbinding arbitration, summary jury trial.

(j) "Summary jury trial" means a dispute resolution process that meets all of the following conditions:

1. Attorneys make abbreviated presentations to a small jury selected from the regular jury list.

2. A judge presides over the summary jury trial and determines the applicability of the rules of evidence.

3. The parties may discuss the jury's advisory verdict with the jury.

4. The jury's assessment of the case may be used in subsequent negotiations.

(2) Referral. (a) A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference.

(b) The parties shall inform the judge of the settlement alternative they select and the person they select to provide the settlement alternative. If the parties cannot agree on a settlement alternative, the judge shall specify the least costly settlement alternative that the judge believes is likely to bring the parties together in settlement, except that unless all of the parties consent, the judge may not order the parties to attempt settlement through binding arbitration, nonbinding arbitration or summary jury trial or through more than one of the following: binding arbitration, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.

(c) If the parties cannot agree on a person to provide the settlement alternative, the judge may appoint any person who the judge believes has the ability and skills necessary to bring the parties together in settlement.

(d) If the parties cannot agree regarding the payment of a provider of a settlement alternative, the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative.

(3) Actions affecting the family. In actions affecting the family under ch. 767, all of the following apply:

(a) All settlement alternatives are available except focus group, mini-trial and summary jury trial.

(b) If a guardian ad litem has been appointed, he or she shall be a party to any settlement alternative regarding custody, physical placement, visitation rights, support or other interests of the ward.

(c) If the parties agree to binding arbitration, the court shall, subject to ss. 788.10 and 788.11, confirm the arbitrator's award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following:

1. Property division under s. 767.255.

2. Maintenance under s. 767.26.

3. Attorney fees under s. 767.262.

4. Postjudgment orders modifying maintenance under s. 767.32.

(d) The parties, including any guardian ad litem for their child, may agree to resolve any of the following issues through binding arbitration:

1. Custody and physical placement under s. 767.24, 767.458 (3), 767.51 (3) or 767.62 (4) (a).

2. Visitation rights under s. 767.245.

3. Child support under s. 767.25 , 767.458 (3), 767.51 or 767.62 (4)(a).

4. Modification of subd. 1, 2 or 3 under s. 767.32 or 767.325.

(e) The court may not confirm the arbitrator's award under par. (d) and incorporate the award into the judgment or postjudgment modification order unless all of the following apply:

1. The arbitrator's award sets forth detailed findings of fact.

2. The arbitrator certifies that all applicable statutory requirements have been satisfied.

3. The court finds that custody and physical placement have been determined in the manner required under ss. 767.045, 767.11 and 767.24.

4. The court finds that visitation rights have been determined in the manner required under ss. 767.045, 767.11 and 767.245.

5. The court finds that child support has been determined in the manner required under s. 767.25 or 767.51.

(4) Admissibility. Except for binding arbitration, all settlement alternatives are compromise negotiations for purposes of s. 904.08 and mediation for purposes of s. 904.085.

JUDICIAL COUNCIL NOTE--1993:

 

 

1994 Main Volume

 

This section provides express statutory authority for judges to order that litigants attempt settlement through any of several defined processes. The parties may choose the type of process, the service provider, and the manner of compensating the service provider, but the judge may determine these issues if the parties do not agree.

Subsection (2)(b) prohibits the judge from requiring the parties to submit to binding arbitration without their consent; this restriction preserves the right of trial by jury. Nor may the judge order nonbinding arbitration, summary jury trial or multiple facilitated processes without consent of all parties; these restrictions allow the parties to opt out of the typically more costly settlement alternatives.

Lawyers have a duty to their clients and society to provide cost-effective service. The State Bar encourages lawyers to provide volunteer service as mediators, arbitrators and members of settlement panels.

Subsection (3) sets forth several special considerations for family actions. Even when the parties consent to binding arbitration, the court retains the responsibility of ensuring that the arbitration award in custody, placement, visitation and support matters conforms to the applicable law. The court is not bound to confirm the arbitrator's award. Rather, it must review the arbitrator's decision in light of the best interest of the child. If following this review the court finds that the arbitration process and its outcome satisfy the requirements of all applicable statutes, the court may adopt the decision as its own. Miller v. Miller, 620 A.2d 1161, 1166 (Pa.Super.1993). Reasons for deviating from child support guidelines must be in writing or made part of the record.

Modification of Child Support

WEST'S WISCONSIN STATUTES ANNOTATED

MARRIAGE AND FAMILY

CHAPTER 767. ACTIONS AFFECTING THE FAMILY

 

767.32. Revision of certain judgments

 

 

(1)(a) After a judgment or order providing for child support under this chapter or s. 48.355 (2)(b) 4., 48.357 (5m), 48.363 (2), 938.183 (4), 938.355 (2)(b) 4., 938.357 (5m), 938.363 (2) or 948.22 (7), maintenance payments under s. 767.26 or family support payments under this chapter, or for the appointment of trustees under s. 767.31, the court may, from time to time, on the petition, motion or order to show cause of either of the parties, or upon the petition, motion or order to show cause of the department, a county department under s. 46.215, 46.22 or 46.23 or a county child support agency under s. 59.53 (5) if an assignment has been made under s. 46.261, 48.57 (3m)(b) 2. or (3n)(b) 2., 49.19 (4)(h) or 49.45(19) or if either party or their minor children receive aid under s. 48.57 (3m) or (3n) or ch. 49, and upon notice to the family court commissioner, revise and alter such judgment or order respecting the amount of such maintenance or child support and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment or order respecting any of the matters that such court might have made in the original action, except that a judgment or order that waives maintenance payments for either party shall not thereafter be revised or altered in that respect nor shall the provisions of a judgment or order with respect to final division of property be subject to revision or modification. A revision, under this section, of a judgment or order with respect to an amount of child or family support may be made only upon a finding of a substantial change in circumstances. In any action under this section to revise a judgment or order with respect to maintenance payments, a substantial change in the cost of living by either party or as measured by the federal bureau of labor statistics may be sufficient to justify a revision of judgment or order with respect to the amount of maintenance, except that a change in an obligor's cost of living is not in itself sufficient if payments are expressed as a percentage of income.

(b) In any action under this section to revise a judgment or order with respect to an amount of child support, any of the following shall constitute a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:

1. Commencement of receipt of aid to families with dependent children under s. 49.19 or participation in Wisconsin works under ss. 49.141 to 49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section.

2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.

3. Failure of the payer to furnish a timely disclosure under s. 767.27(2m).

4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10 (14)(d), 301.12 (14)(d), 767.25 (1n), 767.51 (5d) or 767.62 (4)(f), whichever is appropriate.

(c) In any action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:

1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer's income, evidenced by information received under s. 49.22(2m) by the department or the county child support agency under s. 59.53(5) or by other information, from the payer's income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section.

2. A change in the needs of the child.

3. A change in the payer's earning capacity.

4. Any other factor that the court determines is relevant.

(1m) In an action under sub. (1) to revise a judgment or order with respect to child support, maintenance payments or family support payments, the court may not revise the amount of child support, maintenance payments or family support payments due, or an amount of arrearages in child support, maintenance payments or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.

(1r) In an action under sub. (1) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.265 or 767.29 , in any of the following circumstances:

(b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.

(c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.265 or 767.29, not including gifts or contributions for entertainment.

(d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under 42 USC 402 (d) based on the payer's entitlement to federal disability insurance benefits under 42 USC 401 to 433. Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under 42 USC 402 (d) were paid.

(e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child's relocation to the payer's home was not mutually agreed to by both parents.

(f) The payer proves by a preponderance of the evidence that the payer and payee resumed living together with the child and that, during the period for which a credit is sought, the payer directly supported the family by paying amounts at least equal to the amount of unpaid court-ordered support that accrued during that period.

(2) Except as provided in sub. (2m) or (2r), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under s. 49.22(9).

(2m) Upon request by a party, the court may modify the amount of revised child support payments determined under sub. (2) if, after considering the factors listed in s. 767.25 (1m) , 767.51 (5) or 767.62 (4)(e), as appropriate, the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.

(2r) If the court revises a judgment or order providing for child support that was entered under s. 48.355 (2) (b) 4., 48.357 (5m), 48.363 (2), 938.183 , 938.355 (2) (b) 4., 938.357 (5m) or 938.363 (2), the court shall determine child support in the manner provided in s. 46.10 (14) or 301.12 (14), whichever is applicable.

(2s) In an action under sub. (1), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under s. 46.10 (14), 301.12 (14), 767.25, 767.51 or 767.62 (4), whichever is appropriate.

(2w) A revision of a judgment or order with respect to child support, family support or maintenance payments has the effect of modifying the original judgment or order with respect to such payments to the extent of the revision from the date on which the order revising such payments is effective. The child support, family support or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising such payments is effective.

(3) After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of remarriage, vacate the order requiring such payments.

(4) In any case in which the state is a real party in interest under s. 767.075, the department shall review the support obligation periodically and whenever circumstances so warrant, petition the court for revision of the judgment or order with respect to the support obligation.

(5) A summons or petition, motion or order to show cause under this section shall include notification of the availability of information under s. 767.081(2).

 

767.081. Information from family court commissioner

 

 

(1) Upon the filing of an action affecting the family, the family court commissioner shall inform the parties of any services, including referral services, offered by the family court commissioner and by the director of family court counseling services under s. 767.11.

(2) Upon request of a party to an action affecting the family, including a revision of judgment or order under s. 767.32 or 767.325:

(a) The family court commissioner shall, with or without charge, provide the party with written information on the following, as appropriate to the action commenced:

1. The procedure for obtaining a judgment or order in the action.

2. The major issues usually addressed in such an action.

3. Community resources and family court counseling services available to assist the parties.

4. The procedure for setting, modifying and enforcing child support awards or modifying and enforcing legal custody or physical placement judgments or orders.

(b) The family court commissioner shall provide a party, for inspection or purchase, with a copy of the statutory provisions in this chapter generally pertinent to the action.