Miller v. Miller

• Decision Date: 28 March 1975
• Docket Number: No. 450,450
• Citation: 227 N.W.2d 626,67 Wis.2d 435
• Parties: Patricia Farish (Owen) MILLER, now Patricia Farish (Owen) Steiner, Appellant, v. Roger Frederick MILLER, Respondent.
• Court: Wisconsin Supreme Court

Page 626

227 N.W.2d 626

67 Wis.2d 435

Patricia Farish (Owen) MILLER, now Patricia Farish (Owen) Steiner, Appellant, v. Roger Frederick MILLER, Respondent.

No. 450.

Supreme Court of Wisconsin.

March 28, 1975.

The parties to this action were heretofore divorced. The order appealed from denied a petition of the appellant-wife to require the husband to continue the support money payments beyond the eighteenth birthdays of the three children of the parties and to hold him in contempt for his failure to do so, to increase the support money payments, and to require the husband to pay the reasonable expenses for a college or university education for these children. The order appealed from also required the wife to contribute $500 toward payment of the husband's attorney's fees in this proceeding.

The respondent Roger F. Miller, a professor of economics at the University of Wisconsin, and appellant Patricia F. Miller (now Steiner), were married on September 6, 1952. They have three children: Gregory, born October 31, 1954; Matthew, born July 12, 1956; and Anthony, born April 26, 1960.

Professor Miller was granted a divorce from the appellant, upon his counterclaim, on June 1, 1967. Prior thereto the parties entered into a stipulation whereby the appellant, who was to receive custody of the children, would receive no alimony but would receive support payments for the children, in addition to $5,000 in property settlement.

The judgment in the divorce action required, inter alia, that Professor Miller make support payments of $110 per child per month until July 1, 1968. In July, 1968, the payments were to be increased to $142 per child per month 'until the further order of the court.' Professor Miller was also required to keep in effect health and life insurance with respect to each minor child.

On June 2, 1968, appellant married Peter O. Steiner, professor of economics at the Unversity of Michigan, and moved with him and the three Miller children to Ann Arbor, Michigan. Professor Miller remarried on August 23, 1968. By court order of November 21, 1968, Professor Miller's support payments were reduced to $125 per child per month.

On March 23, 1972, the age of majority in Wisconsin was changed from twenty-one to eighteen years by ch. 213, Laws of 1971. Professor Miller's oldest son, Gregory, became eighteen on October 31, 1972. Professor Miller stopped making support payments for Gregory in March, 1973, after being advised by the Family Court Commissioner that the judgment in the divorce action did not require continued support payments as to each son after he turned eighteen.

The appellant-wife served and filed the petition now under consideration in June of 1973. The trial court, subsequent to a hearing at which testimony and documentary evidence was received, filed a memorandum decision in the form of findings of fact and conclusions of law, and issued an order denying the appellant's petition and requiring that she contribute towards Professor Miller's attorney's fees in the amount of $500. Mrs. Steiner, the former Mrs. Miller, appeals from this order.

Additional facts will be set forth in the opinion.

Bieberstein, Cooper, Bruemmer, Gartzke & Hanson by Paul C. Gartzke, Madison, for appellant.

Wheeler, Van Sickle & Anderson, Madison, for respondent.

BEILFUSS, Justice.

We deem the issues to be:

1. Is the respondent estopped from asserting that his duty of support as to each of his sons terminated when each son attains the age of eighteen, the legal age of majority, in view of the stipulation entered into between the parties?

2. Did the trial court abuse its discretion in refusing to require the respondent to pay the college or university expenses of his sons, and in refusing to increase the amount of monthly support?

3. Is sec. 247.25, Stats., unconstitutional as violative of due process insofar as it requires consideration of the earning capacity of a parent's spouse when child support payments are modified?

4. Did the trial court abuse its discretion in ordering the appellant to contribute towards respondent's attorney's fees?

The appellant, Mrs. Steiner, contends the respondent is estopped from claiming he has no obligation to support his children after they become eighteen years old.

Sec. 247.24(1), Stats., provides in part:

'Judgment; care and custody, etc., of minor children. (1) In rendering a judgment of . . . divorce . . . the court may make such further provisions therein as it deems just and reasonable concerning the care, custody, maintenance and education of the minor children of the parties . . ..'

It is well established that, divorce being a statutory proceeding, the authority of the court to order support is limited to the minor children of the parties. ¹ Since in Wisconsin a person loses his status as a minor upon attaining the age of eighteen, ² the respondent contends that he cannot be compelled to make support payments for his sons after they reach eighteen.

Mrs. Steiner places primary reliance upon Bliwas v. Bliwas (1970), 47 Wis.2d 635, 178 N.W.2d 35, where this court affirmed the general rule, but stated at pages 639, 640, 178 N.W.2d at page 37:

'. . . 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. . . .'

The court concluded that the father in Bliwas, who had stipulated that he would contribute to his son's college education beyond his twenty-first birthday, was estopped from challenging the court's authority to enter a judgment ordering him so to do.

Based on Bliwas, Mrs. Steiner contends that Professor Miller is estopped from denying his duty to continue support payments to age twenty-one.

The stipulation entered into between the parties provided that Professor Miller, from June 12, 1967 to July 1, 1968, would pay $110 per month per child and thereafter $142 per month for each child 'until further order of the Court.' ³

The judgment provided that the written stipulation as amended in open court be approved as to all its provisions; and then ordered support money payments in the same amounts and manner as provided for in the stipulation. Mrs. Steiner contends that the intent of the stipulation is that Professor Miller should make support payments until the boys become twenty-one years old.

It should be noted that the cases from other jurisdictions interpreting stipulations and judgments, cited by the parties, are inapposite because in each of them the stipulation or judgment specifically required support payments to be made until 'majority,' during 'infancy,' until age twenty-two, etc. ⁴ In this case, both the stipulation and the judgment incorporating it specify only that support payments shall be made 'until the further order of the court.' The term 'minor' is used only with respect to medical and dental expenses, health insurance and life insurance provisions, none of which are in dispute in this case.

Counsel on behalf of Mrs. Steiner argues that the testimony received at the hearing on the petition reveals that the parties intended that support payments continue for each child to age twenty-one. ⁵ No ambiguity appears on the face of the stipulation, therefore resort to the subjective intents of the parties at the time of the stipulation is unnecessary. ⁶ As stated in Marion v. Orson's Camera Centers, Inc. (1966), 29 Wis.2d 339, 345, 138 N.W.2d 733, 736, quoting from Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin (1897), 95 Wis. 111, 115, 69 N.W. 354:

". . . the office of judicial construction is not to make contracts or to reform them, but to determine what the parties contracted to do; not necessarily what they intended to agree to, but what, in a legal sense, they did agree to, as evidence by the language they saw fit to use."

Both parties were represented by counsel during negotiations prior to the stipulation. Their intent, as expressed in the stipulation, is that payments are to be 'until the further order of the court.' Barring a stipulation to the contrary, the court cannot order support payments beyond the age of majority, ⁷ therefore Professor Miller was under no obligation to continue making such payments. Because he agreed to nothing more in the stipulation, he is not estopped from asserting so.

Mrs. Steiner contends the trial court abused its discretion in refusing to require the respondent to pay the college or university expenses of his sons, and in refusing to increase the amount of monthly support.

The authority of the court to modify the judgment of divorce with respect to the amount of support payments is derived from sec. 247.25, Stats.:

'Revision of judgment. The court may from time to time afterwards, on the petition of either of the parties and upon notice to the family court commissioner, revise and alter such judgment concerning the care, custody, maintenance and education of any of the children, and make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require. Any change in child support because of alleged change in circumstances shall take into consideration the earning capacity of each parent and the parent's spouse, if any.'

An increase in support payments will be granted only where the party seeking such increase demonstrates that there has been a substantial or material change in the circumstances upon which the existing payments were predicated, and that such an increase is justified. ⁸ The aging of the children, ⁹ the increased cost of living, ¹⁰ and the ability of the...