Paternity of B.W.S., In re, 84-2547

• Decision Date: 24 June 1986
• Docket Number: No. 84-2547,84-2547
• Citation: 131 Wis.2d 301,388 N.W.2d 615
• Parties: In re the PATERNITY OF B.W.S. Gary R. WEIDNER, Guardian ad Litem for B.W.S., Petitioner-Respondent, v. W.G.N., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 615

388 N.W.2d 615

131 Wis.2d 301

In re the PATERNITY OF B.W.S. Gary R. WEIDNER, Guardian ad Litem for B.W.S., Petitioner-Respondent, v. W.G.N., Respondent-Appellant-Petitioner.

No. 84-2547.

Supreme Court of Wisconsin.

Argued March 4, 1986.

Opinion Filed June 24, 1986.

Thomas W. Batterman (argued), Wausau, for respondent-appellant-petitioner; and Terwilliger, Wakeen, Piehler, Conway & Klingberg, S.C., Wausau, on brief.

Gary R. Weidner (argued), Green Bay, for petitioner-respondent; and Hanaway, Ross, Hanaway, Weidner & Garrity, S.C., Green Bay, on brief.

BABLITCH, Justice.

The circuit court's judgment named W.G.N. as the father of B.W.S., a nonmarital child, and ordered W.G.N. to support the child. W.G.N. appeals, arguing that an agreement which he and the child's mother, L.M.S., executed in settlement of a Michigan paternity action relating to this child bars the child from bringing an action for support in Wisconsin. W.G.N. also argues that court abused its discretion in setting the terms of its support order.

Because we conclude that the agreement does not release W.G.N. from future claims by B.W.S. under Michigan law, we hold that the agreement does not bar the child's action for support in this state. Accordingly, we affirm the decision of the court of appeals in that respect. Because we further conclude that the circuit court abused its discretion in setting some of the terms of the support order, we reverse the judgment of the circuit court in part and remand the cause for further proceedings consistent with this opinion.

The relevant facts of this case are undisputed. In early 1975, W.G.N. and L.M.S. conceived a child in Wisconsin. W.G.N. remained in this state, but L.M.S. moved to Michigan and gave birth to B.W.S. on November 27, 1975. In 1977, L.M.S. commenced a paternity action in Michigan, alleging that W.G.N. was the father of B.W.S. and seeking child support for the child.

In 1978, W.G.N. and L.M.S. entered into a paternity agreement authorized by Michigan law. Section 722.713, Mich.Stats. In relevant part, the document expressing that agreement provides:

"This Agreement, made and entered into ... by and between LMS ... and WGN ... Witnesseth:

"WHEREAS, ... LMS has ... been delivered of a child ... in the City of Hancock, County of Houghton and State of Michigan, and alleges that WGN is the father of said child; and

"WHEREAS, ... WGN admits ... paternity; and

"WHEREAS, the parties desire to settle and compromise the liability and paternity of said putative father for the support and education of said child; and

"NOW THEREFORE IT IS AGREED AS FOLLOWS:

"[W.G.N.] shall pay ... the sum of one thousand dollars ($1000.00) as payment for the confinement and medical expenses of [L.M.S.].

"[W.G.N.] agrees to pay the sum of three thousand dollars ($3,000.00).... through the Friend of the Court of Houghton County.... [to] be deposited in a savings account or certificate of deposit in a savings institution located in Houghton County, Michigan for the longest term possible at the highest rate of interest available. Said account or certificate of deposit shall accumulate and not be withdrawn and said interest and principal shall be invested and retained solely and exclusively for the benefit of ... BWS and shall be delivered and surrendered only to ... BWS when he becomes eighteen (18) years of age or upon subsequent order of this Court, whichever occurs first. Said account shall be designated 'In trust for the benefit of BWS. (sic)

"IT IS MUTUALLY AGREED, after the approval hereof by the Circuit Court for Houghton County, that if [W.G.N.] shall make payment ... as ... provided, then all other remedies of [L.M.S.] or said child, for support and education of said child shall be forever barred."

On August 10, 1978, the parties filed the agreement in circuit court. The court signed the agreement and approved it, as follows:

"APPROVAL BY CIRCUIT COURT

"On reading and filing the foregiong (sic) Agreement, and the Court having considered the same, and it appearing to the Court that said Agreement reasonably secures the continuing support and education for said child, to the greatest extent possible considering the earnings and responsibilities of the parties:

"IT IS ORDERED, that the foregiong (sic) Agreement be and the same is hereby approved."

On the same day, the clerk of the circuit court certified to the State Department of Public Health that the court had made an order of filiation which named W.G.N. as the father of B.W.S. Sometime thereafter, W.G.N. paid $3000 into a trust account as the agreement required.

Subsequently, L.M.S. and B.W.S. moved to Wisconsin. In 1983, L.M.S. petitioned the circuit court for Brown county to appoint a guardian ad litem to initiate a support action against W.G.N. on behalf of B.W.S. In May, 1983, the guardian ad litem commenced an action, pursuant to sec. 767.51, Stats., seeking a determination of paternity and an order that W.G.N. provide support for B.W.S. By 1983 W.G.N. had married and become the father of two more children. L.M.S. had also married.

In his answer to B.W.S.'s action, W.G.N. submitted defenses, claims and counterclaims against L.M.S. which are not before this court. W.G.N. denied paternity of B.W.S. initially, but stipulated to paternity following blood tests which the court ordered. He also moved to dismiss the action on grounds that the Michigan court had dismissed L.M.S.'s prior action when it approved the settlement agreement and that, therefore, the Wisconsin court lacked jurisdiction to adjudicate either paternity or support. The court denied his motion, ruling that the Michigan court had only discontinued the action. W.G.N. then moved the court to reconsider its denial.

Following a hearing in June, 1984, the court denied the motion. It concluded that the parents' agreement did not bar B.W.S.'s action for support because the child had not been independently represented in the execution of the agreement. On September 28, 1984, the court issued a judgment which named W.G.N. as the father of B.W.S. and ordered him to pay 10 percent of his gross monthly income for child support to L.M.S. (with annual adjustments) until B.W.S. reaches age 19 (or age 18 and graduates from high school). It also ordered W.G.N. to be responsible for the "... reasonable and necessary medical, dental, optical, surgical, drug and funeral expenses ..." of B.W.S.

W.G.N. appealed this judgment to the court of appeals, which affirmed it on other grounds. The court of appeals held that the Michigan court's action and the statute which authorized it violated the equal protection clause of the federal constitution. In re Paternity of B.W.S., 125 Wis.2d 212, 215-16, 371 N.W.2d 379 (Ct.App.1985). The court did not address the issue of the terms of the support order. W.G.N. then petitioned this court for review, which we granted.

The issues for review are: (1) does the agreement which W.G.N. and L.M.S. executed in Michigan bar B.W.S. from bringing an action against W.G.N. for support in Wisconsin and (2) did the circuit court abuse its discretion by ordering W.G.N. to be responsible for certain medical costs of B.W.S., in addition to paying 10 percent of his gross monthly income for support of the child?

Issue 1: Does the agreement which W.G.N. and L.M.S. executed in Michigan bar B.W.S. from bringing an action against W.G.N. for support in Wisconsin?

There is no dispute that the circuit court of Brown county has jurisdiction to hear B.W.S.'s action against W.G.N. if the parents' prior agreement does not bar the action. Therefore, to resolve this issue we need only determine the effect of the Michigan agreement, if any, on the authority of a Wisconsin court to hear this action. This question is a question of law which we decide without deference to the decisions of the lower courts. Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis.2d 63, 71, 375 N.W.2d 649 (1985).

W.G.N. characterizes the paternity agreement as a final judgment of a Michigan court. Therefore, he argues that the circuit court must give the agreement full faith and credit, as required by article IV, sec. 1 of the Federal Constitution, preventing B.W.S. from relitigating paternity or support. In contrast, B.W.S. construes the agreement as a modifiable judgment under Michigan law and argues that the Wisconsin court may order W.G.N. to provide additional support for B.W.S. without denying full faith and credit to the Michigan court's action.

Article IV, sec. 1 of the Federal Constitution requires that "[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." See also: 28 U.S.C. 1738. As this court has stated:

"The purpose of the full-faith-and-credit clause is 'to establish throughout the federal system the salutory principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that in which the judgment was rendered, so that a cause of action merged in a judgment in one state is likewise merged in every other.' " Anderson v. Anderson, 36 Wis.2d 455, 463, 153 N.W.2d 627 (1967). (Citation omitted.)

We also accord the records and judicial proceedings of other states "... 'such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.' " Hartenstein v. Hartenstein, 18 Wis.2d 505, 510-11 n. 1, 118 N.W.2d 881 (1963). (Citation omitted.) Therefore, the first step in our analysis must be to determine the effect which a Michigan court would give to the agreement in this case. If we determine that a Michigan court would modify or vacate an order based on the agreement, then we need proceed no further.

The legislative purpose of the Michigan paternity act is:

"... to confer upon circuit courts jurisdiction over proceedings to compel and...