Nichols v. Nichols

• Decision Date: 23 May 1991
• Docket Number: No. 89-1985-FT,89-1985-FT
• Citation: 162 Wis.2d 96,469 N.W.2d 619
• Parties: In re the Marriage of Mitzi NICHOLS, Petitioner-Appellant, v. James NICHOLS, Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 619

469 N.W.2d 619

162 Wis.2d 96

In re the Marriage of Mitzi NICHOLS, Petitioner-Appellant, v. James NICHOLS, Respondent-Petitioner.

No. 89-1985-FT.

Supreme Court of Wisconsin.

Argued Jan. 24, 1991.

Decided May 23, 1991.

Patricia L. Grove, argued, Steven J. Rollins and Halling & Cayo, S.C., on brief, Milwaukee, for respondent-petitioner.

Thomas O. Mulligan, argued, Kissack & Mulligan, S.C., on brief, Spooner, for petitioner-appellant.

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 Judge, which denied Mitzi Nichols' (Mitzi) motion for an increase in maintenance. The circuit court denied Mitzi's motion on the grounds that it lacked jurisdiction to increase the amount of maintenance because the divorce judgment contained a clause incorporated from the parties' stipulation that maintenance was not subject to modification. The court of appeals held that the divorce judgment did not deprive the circuit court of the power to modify the award of maintenance.

Two issues are presented on this review. The first issue is whether a divorce judgment can preclude modification of maintenance. We hold that a divorce judgment can preclude modification of maintenance if one of the parties is estopped from seeking modification of maintenance. We further hold that a party to a divorce judgment is estopped from seeking an increase in maintenance if four conditions are met: ¹ first, the parties freely and knowingly stipulated to fixed, permanent, and nonmodifiable maintenance payments and said stipulation was incorporated into the divorce judgment; second, the stipulation was part of a comprehensive settlement of all property and maintenance issues which was approved by the circuit court; third, the overall settlement, at the time it was incorporated into the divorce judgment, was fair, equitable, not illegal, and not against public policy; and, fourth, the party seeking release from the terms of the divorce judgment is seeking release on the grounds that the court did not have the power to enter the judgment without the parties' agreement.

The second issue presented by this review is whether the stipulation in this case, as incorporated into the divorce judgment, is against public policy. We hold that the stipulation, as incorporated into the divorce judgment, is not against public policy.

The material facts relevant to this review are not in dispute. Mitzi and James Nichols (James) were divorced on November 21, 1978. The circuit court which granted the Nicholses' divorce incorporated into its divorce judgment a stipulation of the parties which settled all the issues in the divorce, including maintenance. The portion of the divorce judgment relevant to this review provided that: ²

Petitioner, James Nichols, shall pay the sum of $279.50 per month pursuant to the present Court Order until such time as the home of the parties is sold at which time the maintenance shall be increased to $450.00 per month of which $250.00 shall be allocated to maintenance for Mrs. Nichols and the balance shall be divided equally to the maintenance of the children....

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.

(Emphasis added).

In December of 1987, Mitzi moved the circuit court for Burnett county to increase her maintenance payments from $250.00 per month to $750.00 per month. The circuit court, by memorandum opinion dated March 20, 1989, ordered that maintenance be increased to $400.00 per month. However, the circuit court reversed itself by an order dated September 29, 1989, nunc pro tunc March 20, 1989, because it concluded that the portion of the divorce judgment set forth above deprived it of jurisdiction to review the award of maintenance made in the divorce judgment.

Mitzi appealed from the order entered on September 29, 1989, denying any increase in maintenance. The court of appeals held that the stipulation as incorporated into the divorce judgment did not deprive the circuit court of jurisdiction to review maintenance. ³ The court of appeals reasoned that under secs. 767.32(1) and 767.08(2)(b), Stats., ⁴ maintenance is always subject to modification unless maintenance is waived. The court of appeals rejected James's argument that Mitzi is estopped from bringing a motion to increase maintenance under Marriage of Rintelman v. Rintelman, 118 Wis.2d 587, 348 N.W.2d 498 (1984). The court reasoned that the provision of the judgment providing that maintenance is not subject to modification violates public policy.

James petitioned this court for review of the decision of the court of appeals. We granted the petition.

Application of a statute to an undisputed set of facts is a question of law. Kania v. Airborne Freight Corp., 99 Wis.2d 746, 758, 300 N.W.2d 63 (1981). The decision to apply or not to apply the doctrine of estoppel set forth in Rintelman to an undisputed set of facts is a question of law. In re Marriage of Ross v. Ross, 149 Wis.2d 713, 719, 439 N.W.2d 639 (Ct.App.1989). Accordingly, we review the issues raised here independently and without deference to the circuit court or the court of appeals. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

WHETHER A DIVORCE JUDGMENT MAY PRECLUDE MODIFICATION OF MAINTENANCE

The court of appeals, relying upon Dixon v. Dixon, 107 Wis.2d 492, 319 N.W.2d 846 (1982); Fobes v. Fobes, 124 Wis.2d 72, 368 N.W.2d 643 (1985); and secs. 767.32(1) and 767.08(2)(b), Stats., held that a divorce judgment can never preclude a court from subsequently modifying maintenance unless maintenance is waived. We disagree.

As a general rule, maintenance is always subject to modification upon a showing of the requisite change in circumstances. Sections 767.32(1) and 767.08(2)(b), Stats. However, in Rintelman, we recognized an exception to the general rule that maintenance is always subject to modification when we held that a party is estopped from seeking modification of the terms of a stipulation incorporated into a divorce judgment ⁵ if

both parties entered into the stipulation freely and knowingly, ... the overall settlement is fair and equitable and not illegal or against public policy, and ... one party subsequently seeks to be released from the terms of the court order on the grounds that the court could not have entered the order it did without the parties' agreement.

Rintelman, 118 Wis.2d at 596, 348 N.W.2d 498. ⁶ The stipulation in Rintelman provided for nonmodifiable maintenance and met the criteria set forth above. Accordingly, we held that the payor spouse was estopped from seeking a modification in maintenance even though the payee spouse had remarried and sec. 767.32(3), Stats., provides that maintenance shall terminate upon motion of the payor spouse after the payee spouse has remarried. Id. at 596-98, 348 N.W.2d 498.

Thus, Rintelman stands for the proposition that the consent of the parties to nonmodifiable maintenance makes such a maintenance provision in a divorce judgment enforceable notwithstanding the provisions of secs. 767.32(1) and 767.08(2)(b) that maintenance is always subject to modification. The court of appeals held that Mitzi's consent to nonmodifiable maintenance is not enforceable because maintenance is always modifiable under the statutes. Nichols, 156 Wis.2d at 507, 457 N.W.2d 492. Therefore, the holding of the court of appeals is directly contrary to our holding in Rintelman.

Furthermore, neither Dixon nor Fobes supports the court of appeals' conclusion that maintenance is subject to modification where the parties freely and knowingly consented to nonmodifiable maintenance. Dixon, unlike Rintelman and the case at bar, did not involve a stipulation of the parties. See Fobes, 124 Wis.2d at 78, 368 N.W.2d 643. Fobes did involve a stipulation of the parties; however, the parties in Fobes, unlike the parties in Rintelman and the parties in the case at bar, stipulated to a form of maintenance ⁷ the court had the power to order without the consent of the parties. Id. at 80, 368 N.W.2d 643. The doctrine of estoppel recognized in Rintelman only applies to terms a court does not have the power to order without the consent of the parties, such as nonmodifiable or permanent maintenance. Rintelman, 118 Wis.2d at 596, 348 N.W.2d 498.

Similarly, none of the cases Mitzi cites ⁸ to support her position that stipulations do not bar modification of maintenance involved a stipulation providing for nonmodifiable maintenance. Accordingly, they do not apply to cases such as Rintelman and the case at bar which involve judgments that incorporated stipulations providing for nonmodifiable maintenance.

Contrary to Mitzi's assertion, refusing to modify maintenance in this case does not nullify secs. 767.32(1) and 767.08(2)(b), Stats. If the legislature intended to prevent parties from entering into nonmodifiable maintenance agreements, it would have expressly prohibited such agreements. Historically, the legislature has explicitly stated when the terms of a statute may not be modified by contract. For example, the Fair Dealership Law provides that its terms may not be modified by agreement, sec. 135.025(3), Stats.; and the Uniform Commercial Code as adopted in Wisconsin prohibits sales contracts from substituting certain remedies for those provided by the code, secs. 402.719(2) and (3), Stats.

Nothing in sec. 767.32(1) or in sec. 767.08(2)(b) prohibits parties from entering stipulations which modify the statutory provisions. Moreover, we expressly approved of stipulations which provide that...