Griffin v. Reeve
| Decision Date | 21 December 1987 |
| Docket Number | No. 87-0639,87-0639 |
| Citation | 141 Wis.2d 699,416 N.W.2d 612 |
| Parties | In re the Marriage of Janet GRIFFIN (Reeve), Petitioner-Appellant, v. Dennis REEVE, Respondent. |
| Court | Wisconsin Supreme Court |
William H. Honrath, Deputy Family Court Com'r, with whom on the briefs was Kevin Van Kampen, Family Court Com'r, Racine and Sherwood K. Zink, co-counsel, Madison, for petitioner-appellant.
Guilio Fornary, argued, Racine, for respondent.
This is an appeal from an order entered by the circuit court for Racine county, Dennis J. Flynn, Circuit Judge, dismissing a proceeding brought against Dennis Reeve to hold him in contempt for failing to pay child support which was ordered by the circuit court and had accrued before the child reached the age of majority. Relying on Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317 (1945), the circuit court dismissed the proceeding, reasoning that it had no jurisdiction to enforce past due child support payments through contempt proceedings when the proceedings were commenced after the child reached the age of majority. This court granted the petition to bypass. Sec. 808.05(1), Stats. 1985-86.
On October 15, 1987, a few weeks before this court was to hear this case, Dennis Reeve paid the amount due under the support order and moved this court to dismiss the appeal on the ground that the matter was moot. The family court commissioner opposed the motion, arguing that there are unresolved issues concerning attorney's fees, reasonable court costs and court-assessed interest and that because the case presents an issue of public importance a decision from this court would assist circuit courts. This court denied Dennis Reeve's motion.
We conclude that contempt is an appropriate remedy to enforce past due child support payments after the child reaches the age of majority. Accordingly, we vacate the order dismissing the proceeding and remand the cause to the circuit court for further proceedings.
The facts giving rise to this appeal are undisputed. Janet and Dennis Reeve were married in February 1968 and divorced in 1978. The divorce court awarded sole custody of the minor child to Janet Reeve, granted Dennis Reeve reasonable visitation rights, and ordered Dennis Reeve to pay the sum of $25 per week as support for the child until the child reached the age of 18 years or became self-supporting or the court ordered otherwise, whichever event occurred first.
In December 1986 the child reached the age of 18 years. On February 17, 1987, the family court commissioner, on behalf of Janet Reeve and pursuant to sec. 767.29(1), Stats. 1985-86, 1 filed an order to show cause why Dennis Reeve should not be held in contempt for failing to pay $5375, the amount of child support in arrears when the child reached eighteen. On March 27, 1987, the father paid $3,500 to the mother.
On April 3, 1987, relying on Halmu v. Halmu, supra 247 Wis. 124, 19 N.W.2d 317, the circuit court dismissed the action on the ground that it lacked jurisdiction over a contempt proceeding because the child had reached the age of eighteen.
In the Halmu case, the court awarded the mother custody of the three minor children and ordered the father to pay child support. For seventeen years following the divorce, the father refused to pay child support, and the mother initiated several contempt proceedings. The youngest child reached the age of majority in 1942, and in 1944 the mother brought a contempt action to collect the unpaid child support. The circuit court entered a money judgment against the father. On appeal this court upheld the judgment, reasoning that although it was error for the circuit court to entertain a contempt proceeding, the circuit court had jurisdiction to enforce the support order as an action on debt and to enter a money judgment against the father. 2
This court's central concern in Halmu was whether contempt was the appropriate remedy to enforce a support order after the child reached the age of majority. Similarly, the central issue in this case is whether contempt is an appropriate remedy to enforce a support order after the child reaches the age of majority.
In Halmu, the court concluded that contempt was not an appropriate remedy. The court reasoned that once the purpose of the support order was accomplished, namely, the care and custody of the minor child, the "force and life" of the support order expires. In other words, when the child is a minor and needs support, contempt is available as a remedy to ensure that support; but when the child reaches majority the purpose and justification for this remedy cease. Accordingly, the Halmu court held that a mother who has had custody of the minor child and supported the minor child cannot, after the child reaches majority, enforce the child support order by a contempt proceeding. 3 The Halmu court concluded that the mother is entitled to a judgment for money damages enforceable like other judgments.
Upon consideration of the statutes governing child support and contempt, we conclude that this part of the Halmu decision is no longer good law in this state and is overruled. We are persuaded that contempt is an appropriate means to enforce child support arrears after the child has reached majority.
The Wisconsin legislature significantly revised the family law code, including child support, in 1977. Child nonsupport had become a pervasive problem, and the legislature attempted to address the problem with the 1977 Divorce Reform Act (ch. 767, Stats.), which adopted several new provisions expressly designed to assist the court in enforcing financial orders entered in divorce actions. The 1977 Act and subsequent amendments enumerated several means of enforcing an order to pay child support, including bonding and trust arrangements (sec. 767.31), money judgments (sec. 767.30(3)(c)), attachment of property (sec. 767.30(3)(d)), a charge against real property (sec. 767.30(2)), garnishment (sec. 767.30(3)(e)), and contempt of court (sec. 767.29(1), 767.30(3)(b)). See Wisconsin Legislative Council Note to sec. 767.305, West's Wis.Stats. Ann. sec. 767.305, pp. 378-79 (1981).
The 1977 Act, unlike the divorce statute in existence when Halmu was decided, expressly provides that a support order is enforceable by contempt. Sec. 767.305 grants the circuit court broad powers to enforce child support orders through the use of contempt proceedings. It provides as follows:
"In all cases where a party has incurred a financial obligation under ... 767.25 [child support] ... and has failed within a reasonable time or as ordered by the court to satisfy such obligation, and where the wage assignment proceeding under s. 767.265 is inapplicable, impractical or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at some reasonable time therein specified why he or she should not be punished for misconduct as provided in ch. 785 [the contempt statute]."
Nothing in sec. 767.305 indicates that past due child support payments may not be collected through contempt proceedings after the child reaches majority.
The legislative intent expressed in ch. 767 demonstrates the legislature's overriding concern that parents not shirk their obligations to support their children. The legislature granted the circuit court numerous enforcement tools, including contempt, to ensure compliance with the support orders. If the circuit court lacks the power to enforce child support orders through contempt after the child reaches majority, a nonpaying parent may be encouraged to elude the court until the child's majority. A nonpaying parent with no property subject to execution may prefer a civil action on a debt rather than a contempt proceeding. The parent dependent on support who has expended his or her own money to maintain the minor child is unfairly denied the remedy of contempt and is left with the less effective civil action in debt.
We believe the legislature intended to arm the parent dependent on support for a minor with the more effective means of enforcing compliance--the proceeding in contempt. Accordingly, we conclude that the Halmu holding, which rejects contempt as a means of enforcing child support in arrearage after the child's majority, does not comport with the 1977 Divorce Reform Act.
Furthermore, we are persuaded that nothing in ch. 785, the statute governing contempt of court, prohibits a circuit court from using contempt to remedy a violation of a child support order after the child reaches majority. Ch. 785, which became effective in 1980, substantially restates the law of contempt. 4
The parties apparently agree for purposes of this appeal that under ch. 785 Mr. Reeve's failure to pay court-ordered support is an "intentional disobedience of the authority, process or order" of the court, sec. 785.01(1)(b), 5 which constitutes contempt of court. The parties also agree that because this case was brought on behalf of the aggrieved party, Janet Reeve, only a remedial sanction may be sought in this case. A remedial sanction is defined in sec. 785.01(3) as a "sanction imposed for the purpose of terminating a continuing contempt of court."
Mr. Reeve urges that the act of contempt, his refusal to pay support, cannot be said to continue beyond the child's majority. He contends that once the child reaches the age of majority the divorce court's power to modify support terminates, the parent's duty to support ceases, and a delinquent parent's contempt ends. Mr. Reeve concludes that the court may not impose a remedial sanction after the child reaches majority because there is no continuing contempt for the court to terminate.
Mr. Reeve further argues that the underlying purpose for imposing a remedial sanction can not be achieved after the child reaches majority. The purpose of a remedial sanction under ch. 785 in child...
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...directed only at past conduct, its imposition cannot directly aid a litigant harmed by the contempt."); see also Griffin v. Reeve, 141 Wis.2d 699, 706-07, 416 N.W.2d 612 (1987) (stating that the sanctions in that case must be remedial because the case was brought on behalf of a private liti......
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