Bliwas v. Bliwas, 324

• Decision Date: 26 June 1970
• Docket Number: No. 324,324
• Citation: 47 Wis.2d 635,178 N.W.2d 35
• Parties: Beatrice BLIWAS, Respondent, v. Arnold BLIWAS, Appellant.
• Court: Wisconsin Supreme Court

Page 35

178 N.W.2d 35

47 Wis.2d 635

Beatrice BLIWAS, Respondent, v. Arnold BLIWAS, Appellant.

No. 324.

Supreme Court of Wisconsin.

June 26, 1970.

On October 14, 1954, the parties to this action were divorced in the municipal court for Racine county. Prior to entry of the judgment, the parties had entered into a stipulation as to the division of property, as well as custody and support of the minor children. This stipulation of the parties was approved by the court and incorporated into the judgment of divorce.

On March 4, 1968, an order was entered by the county court of Racine county, amending the judgment insofar as it related to support payments for the children of the parties. This order was entered following a stipulation, signed by both parties, their attorneys and the family court commissioner. The stipulation provided, and the court order directed, that the appellant furnish his son the opportunity to receive a college and graduate professional education in a Wisconsin school. The stipulation provided, and the court order directed, that appellant pay the cost of tuition, books, supplies, rent, food allowance and certain miscellaneous expenses. The amended order, pursuant to the stipulation, provided that the support payments would be reduced while the son was in school, and that the support payments as such would terminate on the son's twenty-first birthday. At the time of this stipulation and admended order, the son of the parties was under the age of twenty-one.

On August 4, 1969, the respondent obtained an order to show cause why the appellant should not be held in contempt for failure to comply with the amended order of March 4, 1968. The appellant entered a special appearance, claiming the court was without jurisdiction to proceed by way of contempt proceedings, and moved to quash the order. The trial court denied the motion. Appellant appeals from such denial of his motion.

Victor C. Cairo, Racine, for appellant.

Weber, Gerard & Bonk, Racine, for respondent.

ROBERT W. HANSEN, Justice.

One question--and one question only--is asked by this appeal:

Where the parties stipulate and the family court orders that a father contribute to the education of a son beyond his twenty-first birthday, is such order enforceable by contempt proceedings?

Both parties to this appeal agree that if there had been no stipulation or agreement of the parties involved, the family court would have been without jurisdiction to enter an order requiring the father to contribute to the education of his son beyond the son's twenty-first birthday. By statute, ¹ upheld in several cases in this court, ² in the absence of stipulation at least, the trial court's jurisdiction to make provisions for the care, custody, maintenance and education of children of the parties is limited to minor children, that is, those who have not yet reached their twenty-first birthday. As applied to a severely handicapped offspring, the application of the statute may be harsh. As applied to secondary education of any child, which nowadays customarily goes beyond the age of twenty-one, it may have become unrealistic. But the public policy set is for the legislature to establish, and for the legislature alone to amend or change.

Both parties agree that the written stipulation of the parties, upon which the amended order of 1968 was based, is binding. Respondent contends that the agreement of the parties, incorporated into the judgment of divorce, gives the family court the right to enforce the provisions agreed upon by contempt proceedings. Appellant sees the agreement of the parties as enforceable only in separate proceedings brought by the guardian, or the child upon reaching majority, based on the law of contract. If the father missed a monthly payment, the action for default in such payment would be the subject of a separate action, brought, presumably, in the small claims court.

A stipulation between the parties in a divorce action is an agreement between them--a recommendation jointly made by them to the court suggesting what the judgment, if granted, is to provide. In Wisconsin it is not required that the family court accept or reject the stipulation in toto; the trial court has the right to make such modifications in the suggested provisions that the interests of justice, or the interests of minor children of the parties, may require. ³ In this state a family court is not bound to accept, nor even to accept or reject in its entirety, a stipulation presented by the parties to a divorce action. What it does, it does on its own responsibility, and the provisions it sets forth in the judgment are its judgment. ⁴ So caution must be exercised in following rulings in states where a judge is bound to accept a valid separation agreement, or where the phrase 'incorporated in the divorce decree' has a meaning different than it has in this state. The Wisconsin situation does not change the basic nature of a stipulation of the parties submitted to the court in a divorce proceeding; it is in fact an agreement of the parties asking that certain provisions be included in any judgment of divorce that may be granted. For this reason, where there was a stipulation of the parties that it be done, this court has upheld the ordering of alimony to be paid after the death of the party who bore the liability for making such payments. ⁵

However, we hold that the enforcement of a family court order, which would not be enforceable without a prior stipulation of the parties that it be made part of the decree, rests not so much in the enforcement of a contractual obligation or even extension of jurisdiction of the court, as it does in recognizing that a person who agrees that something be included in a family court order, especially where he receives a benefit for so agreeing, is in a poor position to subsequently object to the court's doing what he requested the court to do. One leading text puts the proposition involved in the following language:

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