Paternity of Roberta Jo W., In re, 96-2753

• Decision Date: 22 May 1998
• Docket Number: No. 96-2753,96-2753
• Citation: 578 N.W.2d 185,218 Wis.2d 225
• Parties: In re the PATERNITY OF ROBERTA JO W. ROBERTA JO W., Petitioner-Appellant, v. LEROY W., Respondent-Respondent, Portage County, a quasi-municipal corporation, Intervenor-Respondent.
• Court: Wisconsin Supreme Court

Page 185

578 N.W.2d 185

218 Wis.2d 225

In re the PATERNITY OF ROBERTA JO W.

ROBERTA JO W., Petitioner-Appellant, v. LEROY W., Respondent-Respondent, Portage County, a quasi-municipal corporation, Intervenor-Respondent.

No. 96-2753.

Supreme Court of Wisconsin.

Argued Feb. 18, 1998.

Decided May 22, 1998.

For the petitioner-appellant there were briefs by Shane J. VanderWaal and VanderWaal Law Firm, Wausau and oral argument by Shane J. VanderWaal.

For the respondent-respondent there was brief by Russell T. Golla and Anderson, Shannon, O'Brien, Rice & Bertz, Stevens Point and oral argument by Russell T. Golla.

For the intervenor-respondent there was a brief by Brian G. Formella and Portage County Corporation Counsel, Stevens Point and oral argument by Brian G. Formella.

Amicus Curiae brief was filed by John J. Prentice, Andrew T. Phillips and Prentice & Phillips, Milwaukee, for Wisconsin Counties Association.

¶1 WILLIAM A. BABLITCH, Justice

When Roberta Jo W. was 18 years and eight months old and had graduated from high school, she filed a petition requesting determination of paternity and child support. Because paternity had not been established during her minority, child support had never been ordered nor paid. Roberta Jo appeals the order of the circuit court denying her child support. The issue is whether a circuit court has authority to create a retroactive child support obligation directly for a person who is an adult at the time he or she commenced an action requesting support. We hold that a court has authority to order child support directly to the person only if the person is less than 19 years old and is pursuing a high school diploma at the time she commenced the action requesting support. Accordingly, we affirm the circuit court's order denying support.

¶2 This case raises an additional issue: whether the circuit court erroneously exercised its discretion when it terminated court-appointed counsel upon the filing of a notice of appeal. We hold that after a notice of appeal is filed, the case is within the jurisdiction of the court of appeals and the circuit court no longer has discretion to terminate court-appointed counsel. Accordingly, we reverse the circuit court order on this issue and remand the cause to the circuit court for determination of appropriate county-paid appellate attorney fees.

¶3 When Roberta Jo was born on March 12, 1976, her mother, JoAnn L., did not name a father on the birth certificate. After JoAnn applied for Aid to Families with Dependent Children and Medical Assistance (AFDC/MA), the district attorney's office interviewed her about Roberta Jo's father. JoAnn named three potential fathers including Leroy W., the respondent. The district attorney's office did not contact JoAnn again regarding Roberta Jo's paternity, and JoAnn did not receive child support for Roberta Jo from any party. ¹

¶4 Roberta Jo turned 18 on March 12, 1994, and graduated from high school in May 1994. On August 12, 1994, the circuit court appointed counsel to represent Roberta Jo in her own paternity action.

¶5 In November 1994, Roberta Jo filed a petition requesting that the court determine whether one of two named respondents was her father. She also requested, upon determination of her father, that the court order child support and contribution to her health insurance and medical expenses.

¶6 In accord with the procedures set forth in Wis. Stat. §§ 767.45-767.60 (1993-94) ² for determining paternity the court ordered blood tests of all involved parties. See § 767.48. The test results showed a 99.79 percent statistical probability that Leroy is Roberta Jo's father. Because the statistical probability of Leroy's parentage is 99.0 percent or higher, he is rebuttably presumed to be her father. See § 767.48(1m).

¶7 Leroy then filed a motion for declaratory judgment requesting that the court dismiss Roberta Jo's claims for child support and contributions toward her health insurance and medical expenses. On September 22, 1995, the court ordered that regardless of the paternity determination, Roberta Jo would not be entitled to past, present, or future child support, including educational and health care expenses. The court later denied Roberta Jo's motion for reconsideration of this order. Thereafter, on July 15, 1996, the court determined that Leroy is Roberta Jo's father. About one month later, the circuit court also ordered that when Roberta Jo's time for appeal expired or when she filed a notice of appeal, the court-appointed counsel would be discharged and Portage County would no longer be responsible for any fees incurred. Roberta Jo appealed the circuit court's orders finding that she is not entitled to child support and terminating court-appointed counsel at the filing of a notice of appeal. The court of appeals certified the case to this court pursuant to Wis. Stat. § (Rule) 809.61.

I.

¶8 It is well-established in Wisconsin jurisprudence that circuit courts are prohibited from retroactively creating or increasing child support obligations in paternity and divorce actions. Divorce and paternity actions are both statutory proceedings. See generally Wis. Stat. ch. 767. The divorce statutes do not confer any authority on the circuit courts to order support of adult children. ³ See O'Neill v. O'Neill, 17 Wis.2d 406, 408, 117 N.W.2d 267 (1962). "The statutory provisions are plain and concise limiting the support, maintenance, and education of the children to the period of their minority. Hence, any order awarding support money for an adult child in a divorce action would necessarily be extrajudicial, a nullity." Id. This concept has been consistently applied in divorce actions. See, e.g., Poehnelt v. Poehnelt, 94 Wis.2d 640, 655-56, 289 N.W.2d 296 (1980); Schmitz v. Schmitz, 70 Wis.2d 882, 891, 236 N.W.2d 657 (1975); Miller v. Miller, 67 Wis.2d 435, 439, 227 N.W.2d 626 (1975); Foregger v. Foregger, 40 Wis.2d 632, 645, 162 N.W.2d 553 (1968); Greenwood v. Greenwood, 129 Wis.2d 388, 391, 385 N.W.2d 213 (Ct.App.1986); Strawser v. Strawser, 126 Wis.2d 485, 489, 377 N.W.2d 196 (Ct.App.1985); Whitwam v. Whitwam, 87 Wis.2d 22, 30, 273 N.W.2d 366 (Ct.App.1978).

¶9 Prohibiting the creation of a child support obligation for an adult child has also been consistently applied in paternity actions. See, e.g., Gerhardt v. Estate of Moore, 150 Wis.2d 563, 574-75, 441 N.W.2d 734 (1989); In re Paternity of P.J.W., 150 Wis.2d 123, 130, 441 N.W.2d 289 (Ct.App.1989). "[A] child who has reached majority does not have a cause of action against a parent for an award or modification of child support." P.J.W., 150 Wis.2d at 130, 441 N.W.2d 289. "Wisconsin case law has ... consistently prohibited retroactive increases in [child] support payments. This denial of authority extends to the creation of a support obligation." Gerhardt, 150 Wis.2d at 574-75, 441 N.W.2d 734 (internal citations and footnote omitted). ⁴

¶10 Given this well-established law in Wisconsin that a circuit court has no authority to retroactively create a child support obligation directly for a person who is an adult at the time she commenced an action requesting support, the resolution of the issue presented by this case depends on whether the legislature has overturned this settled case law. Both parties rely on Wis. Stat. §§ 767.51(3) and 767.51(4) (reprinted below) ⁵ to advance their respective positions. We discern nothing in these statutes or their legislative history that indicates a legislative intent to overturn Wisconsin's settled precedent that a court has no authority to retroactively create a child support obligation for an adult.

¶11 This court reviews questions of statutory interpretation independently, but benefiting from the analysis of the circuit and appellate courts. See Carlson & Erickson Builders v. Lampert Yards, 190 Wis.2d 650, 658, 529 N.W.2d 905 (1995).

¶12 The goal of statutory interpretation is to ascertain the intent of the legislature. See In Interest of P.A.K., 119 Wis.2d 871, 878, 350 N.W.2d 677 (1984). To determine legislative intent, this court must first look to the plain language of the statute. See id. If the language is ambiguous, the court may turn to legislative history, the context, scope and purpose of the statute. See id. A statute is ambiguous if it can be understood differently by reasonably well-informed persons. See id. at 878-79, 350 N.W.2d 677. Differing interpretations of a statute does not alone create ambiguity, but rather "equally sensible interpretations of a term by different authorities are indicative" of a statute's ability "to support more than one meaning ... " State ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 122, 561 N.W.2d 729 (1997) (citation omitted).

¶13 Neither the statutory language nor legislative history of Wis. Stat. §§ 767.51(3) and (4) indicates that the legislature intended to overturn settled law. The legislature has modified § 767.51 several times since courts clarified that a circuit court has no authority to create a child support obligation after the child reaches majority. Despite several opportunities, the legislature has not addressed or questioned this settled law. When ascertaining legislative intent, this court assumes the legislature knew the laws in effect at the time and judicial interpretation of those laws. See State v. Olson, 175 Wis.2d 628, 641, 498 N.W.2d 661 (1993). "Moreover, we presume that the legislature is aware that absent some kind of response this court's interpretation of the statute remains in effect. Legislative silence with regard to new court-made decisions indicates legislative acquiescence in those decisions." Id. (internal citations omitted).

¶14 Wisconsin Stat. § 767.51(3) provides that "[t]he court shall order either party or both to pay for the support of any child of the parties who is less than 19 years old and is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its...