Nichols v. Nichols
| Decision Date | 06 March 1990 |
| Parties | In re the Marriage of Mitzi NICHOLS, Petitioner-Appellant, v. James NICHOLS, Respondent. d 89-1985-FT. |
| Court | Wisconsin Court of Appeals |
Thomas O. Mulligan of Kissack & Mulligan, S.C., Spooner, on the briefs, for petitioner-appellant.
Owen R. Williams of Williams Law Office, Amery, on the brief, for respondent.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Mitzi Nichols appeals an order 1 dismissing her motion for a review of maintenance ordered in a divorce judgment. Although the court initially ordered an increase, it ultimately concluded that it lacked jurisdiction to modify the maintenance payments because a stipulation incorporated in the judgment provided that maintenance would not be increased in the future. Mitzi contends that any agreement between the parties to limit the court's power to review maintenance is ineffective because it is contrary to law. James Nichols argues that the judgment precludes review and that, because she entered into a stipulation, Mitzi is equitably estopped from making such a motion. We conclude that neither the judgment nor the stipulation precludes a review of maintenance. Accordingly, we reverse and remand with directions to enter the original order modifying the maintenance award.
The parties were divorced in 1978. The judgment provided that James was to pay $250 per month as maintenance and contained the following language, adopted from a stipulation between the parties:
Said property division and maintenance payments of petitioner, Mitzi Nichols, to be considered as permanent and in lieu of any further or additional maintenance payments, except said maintenance payments shall terminate upon remarriage of petitioner, Mitzi Nichols.
In 1988, James filed a petition for a change of custody and Mitzi, while opposing this request, filed a motion to increase the amount of maintenance and support. After a series of hearings, the court concluded that, based upon Mitzi's meager income and poor health and James's annual income, which was greater than $50,000, the maintenance award should be increased to $400 per month. Following a motion for reconsideration, the court concluded that it was without authority to increase maintenance and entered judgment denying Mitzi's motion.
Although the trial court concluded that it lacked jurisdiction to increase the maintenance award, the issue here is whether either the stipulation or the judgment precluded judicial review of maintenance. The court's power to modify an award of maintenance is reflected in both the statutes and the decisions of our supreme court. Section 767.08(2)(b), Stats., provides as follows:
The amount [of support and maintenance] so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either party upon sufficient evidence.
Section 767.32(1), Stats., provides in part:
After a judgment providing for ... maintenance payments ... the court may, from time to time, ... revise and alter such judgment respecting the amount of such maintenance ... and the payment thereof, ... and may make any judgment respecting any of the matters which such court might have made in the original action, except that a judgment which waives maintenance payments for either party shall not thereafter be revised or altered in that respect....
The foregoing statutes unambiguously grant the trial court power to modify judgments regarding maintenance. Furthermore, court decisions have continually reaffirmed the court's power to review maintenance payments, even when the judgment seems to limit the court's power of review. See, e.g., Dixon v. Dixon, 107 Wis.2d 492, 319 N.W.2d 846 (1982). The court is foreclosed from reviewing maintenance only when maintenance has been waived and the waiver incorporated into the judgment. Fobes v. Fobes, 124 Wis.2d 72, 77, 368 N.W.2d 643, 645 (1985).
James contends that these established legal principles do not apply when the judgment provides that the maintenance provisions are not subject to modification. No such qualification exists in either the statutes or the case law. The issuance of a judgment that attempts to preclude review of maintenance cannot deprive the court of that power. See Dixon, 107 Wis.2d at 508, 319 N.W.2d at 854. Thus, we conclude that the original judgment did not strip the court of the power of review.
James also argues that Mitzi is equitably estopped from bringing such a motion because the parties' stipulation providing that maintenance payments are not subject to modification creates a contract right that precludes modification. He argues that this agreement reflects the various concessions made by each party during the negotiations of the stipulation and that this contractual relationship deprives the court of the power to increase maintenance because Mitzi has contracted away that right. James contends that the doctrine of equitable estoppel articulated in Rintelman applies because both parties freely and knowingly...
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Nichols v. Nichols
...CECI, Justice. This case is before the court on petition for review of a decision of the court of appeals, In re Marriage of Nichols v. Nichols, 156 Wis.2d 503, 457 N.W.2d 492 (1990). The court of appeals reversed an order of the circuit court for Burnett county, Harry F. Gundersen, Circuit......
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Ondrasek v. Tenneson, 90-0272
...Any attempt by the parties to isolate maintenance payments from judicial review is against public policy. Nichols v. Nichols, 156 Wis.2d 503, 508, 457 N.W.2d 492, 494 (Ct.App.), petition for review granted, 457 N.W.2d 323 ...
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Hildebrand v. Hildebrand, 90-1947
...is inapplicable and the court had the authority to modify maintenance. 1 The trial court relied in part on Nichols v. Nichols, 156 Wis.2d 503, 457 N.W.2d 492 (Ct.App.1990), in concluding that the doctrine of equitable estoppel precluded judicial review of the maintenance provisions of the d......