Paternity of Brad Michael L., In re

• Decision Date: 29 April 1997
• Docket Number: No. 94-3050,94-3050
• Citation: 210 Wis.2d 437,564 N.W.2d 354
• Parties: In re the PATERNITY OF BRAD MICHAEL L. BRAD MICHAEL L., Petitioner-Appellant, v. LEE D. and Catherine R.L., Respondents-Respondents.
• Court: Wisconsin Court of Appeals

Page 354

564 N.W.2d 354

210 Wis.2d 437

In re the PATERNITY OF BRAD MICHAEL L.

BRAD MICHAEL L., Petitioner-Appellant, v. LEE D. and Catherine R.L., Respondents-Respondents.

No. 94-3050.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 4, 1997.

Opinion Released April 29, 1997.

Opinion Filed April 29, 1997.

For the petitioner-appellant the cause was submitted on the briefs of Legal Aid Society of Milwaukee, Inc., with Kathleen A. Thiemann and Brad Michael L., of Milwaukee.

For the respondents-respondents, Lee D., the cause was submitted on the briefs of Schellinger & Associates, with Neal C. Schellinger of Brookfield.

Amicus curiae brief was filed by State of Wisc., with Sheila M. Parrish-Spence of Milwaukee.

Before FINE, SCHUDSON and CURLEY, JJ.

SCHUDSON, Judge.

Brad Michael L., by his guardian ad litem, the Legal Aid Society of Milwaukee, appeals from the trial court's "Findings of Fact, Conclusions of Law & Order" in a paternity action. Brad challenges the trial court's determination of child support that his father, Lee D., is obligated to pay.

Brad argues that the trial court erred in concluding: (1) that Lee had no obligation to pay past child support for the first fifteen years of Brad's life because Lee was unaware of Brad's existence; (2) that if, by its terms, § 767.51(4), STATS. (1991-92), ¹ allows for payment of past child support for the period during which Lee was unaware of Brad's existence, the statute would be "retroactive and unreasonable" and "may be unenforceable because violative of the ex post facto clause of the U.S. Constitution;" (3) that ignorance of one's paternity is among the factors properly considered when determining child support; (4) that marital property law principles apply to the determination of base income when setting child support; (5) that depreciation value should not be included in the determination of Lee's income; and (6) that child support for Brad could be modified after he would reach adulthood should college costs require additional support. Brad is correct in all respects and, accordingly, while affirming the order of paternity, we also reverse and remand for the proper determination of child support.

I. FACTUAL BACKGROUND

Brad was born to Catherine L., on November 7, 1977. Catherine was unmarried at the time and Brad's paternity was never established. In 1992, however, Catherine, concerned about Brad's potential college costs, wrote to Lee informing him that he was Brad's father and asking that his "name be placed on the birth certificate as his father." She wrote:

I love Brad very much and want the best for him. I plan on him attending college. I do work but don't make enough to afford college. I'm not asking you for any money, please know that. I tried to enroll him on my tribal roll (Menominee) so that he would be eligible for grants for college. Unfortunately he doesn't have enough Menominee blood to qualify. I want to try to enroll him on your (Stockbridge) tribal roll.

After receiving no response from Lee, Catherine contacted Milwaukee County's Child Support Enforcement office. Catherine learned that the statute of limitations barred her and the State from bringing a paternity action, but Brad, under § 893.88, STATS., could do so. ² The Legal Aid Society of Milwaukee as guardian ad litem, then filed Brad's paternity action. ³

After blood tests established a 99.96% probability of Lee's paternity, he admitted his paternity but testified that he had had no knowledge of Brad's existence. Ultimately, the parties stipulated that Lee had not known of Brad for the first fifteen years of his life. In the fifteen years since Brad's birth, Lee had married and fathered two children. With his wife, he had successfully maintained a farm and logging business.

The trial court ordered Lee to pay $500 monthly for future support. The trial court order further provided that "[t]he child support order may be later modified ... to pay for Brad's subsequent education if Brad's academic performance and attitude warrant." ⁴ The trial court, however, denied past support concluding that application of § 767.51(4), STATS., would violate the Ex Post Facto Clause of the United States Constitution ⁵ and, further, would be unfair to Lee because he had not known of Brad and had had no opportunity to develop a relationship with him.

II. STANDARD OF REVIEW

We recently summarized the standard of review applicable to several of the issues on appeal:

A determination of child support is committed to the sound discretion of the trial court. Discretion contemplates a reasoned application of the law to the facts of the case. We will reverse a discretionary determination that misapplies the law.

Whether the trial court misapplied the law by concluding that [certain forms of income] are not included in gross income and thereby not subject to child support requires us to interpret the definition of gross income under Wis. Adm.Code ch. HSS 80. The rules governing the construction of administrative rules are the same as those applicable to statutory construction. The application of a statute or administrative rule to undisputed facts presents a question of law. We review questions of law independently without deference to the trial court.

Stephen L.N. v. Kara L.H., 178 Wis.2d 466, 471-72, 504 N.W.2d 422, 424-25 (Ct.App.1993) (citations omitted). Additional standards of review will be noted in the appropriate sections of our discussion.

III. PAST CHILD SUPPORT--AUTHORITY

Brad first argues that "the trial court's paternity judgment should have required [Lee] to pay past child support" under § 767.51(4), STATS. He contends that the trial court erred in concluding that application of the statute would be inequitable and violative of Lee's constitutional protection against ex post facto laws.

Statutes are presumed to be constitutional. State v. Holmes, 106 Wis.2d 31, 41, 315 N.W.2d 703, 708 (1982). One challenging the constitutionality of a statute bears the burden of proving unconstitutionality beyond a reasonable doubt. Id. Whether a statute is constitutional presents a question of law we review de novo. Id. at 41 n.7, 315 N.W.2d at 708 n.7.

Section 767.51(4), STATS., in part provides: "The father's liability for past support of the child shall be limited to support for the period after the birth of the child." The statute in no way suggests that the limitation is further qualified by a condition that the father know of the child's birth. ⁶ Thus, if § 767.51(4) applies to support for children born before its enactment, Lee would be responsible for Brad's support for all years following his birth, whether or not Lee knew of his birth.

"[L]egislation is presumed to apply prospectively unless the statutory language reveals, by express language or necessary implication, an intent that it apply retroactively." Schulz v. Ystad, 155 Wis.2d 574, 597, 456 N.W.2d 312, 320 (1990). The express statutory language of 1987 Wis. Act 27, § 3203(10)(bm), provides that § 767.51(4), STATS., applies "to paternity actions commenced" on or after October 1, 1987. Brad's paternity action commenced on October 27, 1992 and, therefore, is governed by § 767.51(4).

We disagree with the trial court's conclusion that retroactive application of § 767.51(4), STATS., violates Lee's protection against ex post facto laws. Article I, Section 9 of the Constitution of the United States provides that "[n]o ... ex post facto Law shall be passed." As the supreme court recently reiterated, however, "It is well established that the constitutional prohibition on ex post facto laws applies only to penal statutes." State v. Carpenter, 197 Wis.2d 252, 272, 541 N.W.2d 105, 113 (1995) (declaring that sexually violent person civil commitment statute is not violative of the Ex Post Facto Clause). Rejecting a father's ex post facto challenge to the retroactive application of a paternity statute to a child born before the statute's enactment, the Massachusetts Court of Appeals explained:

The constitutional prohibitions against ex post facto laws ... only apply to statutes which are penal in nature. Actions brought pursuant to [the paternity statute] are ... civil in nature. The statute was not enacted to punish the parent of a child born out of wedlock but, instead, to enforce his duty, established long ago, to provide support for the benefit of his or her children born out of wedlock.

Department of Revenue v. Roe, 31 Mass.App.Ct. 924, 577 N.E.2d 323, 325 (1991) (citations omitted).

Moreover, the general rule requiring prospective application of substantive legislation is to ensure that informed people can conduct themselves according to legal expectations and requirements. See Schulz, 155 Wis.2d at 597, 456 N.W.2d at 320 (discussing the presumption against retroactive legislation). Lee, aside from asserting his lack of knowledge of Brad, cannot claim that he could not conduct himself according to law. Even before the enactment of § 767.51(4), STATS., Wisconsin law required support payment from the time of a child's birth, without any condition connected to a father's knowledge of the birth. Section 52.37(1), STATS. (1977), in part provided that upon a determination of paternity, "the father ... shall be ordered to pay ... for the past care and support of the child, from the time of its birth until the date of ... the entry of judgment." ⁷

Thus, the trial court decision was simply incorrect in stating that "[i]t goes against the basic concepts of justice to impose liability on an individual where, from the time the action accrued to the time the action was filed, the individual was not liable." (Emphasis added.) Lee always was liable; he just did not know of his liability.

Accordingly, we conclude that retroactive application of § 767.51(4), STATS., does not violate Lee's protection against ex post facto laws or the rule favoring prospective application of substantive legislation and, further, that by its...