Paternity of Shelby N.B., In re

• Decision Date: 31 March 1998
• Docket Number: No. 97-2453,97-2453
• Citation: 579 N.W.2d 69,218 Wis.2d 145
• Parties: In re the PATERNITY OF SHELBY N.B. STATE of Wisconsin, Petitioner-Appellant, v. JEFFRIE C.B., Respondent-Respondent. d
• Court: Wisconsin Court of Appeals

Page 69

579 N.W.2d 69

218 Wis.2d 145

In re the PATERNITY OF SHELBY N.B. STATE of Wisconsin, Petitioner-Appellant, v. JEFFRIE C.B., Respondent-Respondent. ^d No. 97-2453.

Court of Appeals of Wisconsin.

Submitted on Briefs March 10, 1998.

Opinion Released March 31, 1998.

Opinion Filed March 31, 1998.

APPEAL from orders of the circuit court for Lincoln County: RONALD KEBERLE, Reserve Judge, and J. MICHAEL NOLAN, Judge. ¹ Reversed and cause remanded.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Donald J. Dunphy, Assistant Corporation Counsel for Lincoln County, Merrill.

On behalf of the respondent-respondent, the cause was submitted on the brief of James Wedemeyer of Schmitt, Hartley & Koppelman, S.C. of Merrill.

Before CANE, P.J., and MYSE and HOOVER, JJ.

CANE, Presiding Judge.

The sole issue on appeal is whether a trial court has authority to reduce accrued child support arrearages retroactively because the obligor's support payments normally would have been ordered at the lesser rate of a serial family payer. Because the trial court only has the authority to retroactively revise the amount of child support due or the amount of child support arrearages in order to correct a previous error in calculation, we reverse the trial court's order reducing the amount of child support arrearages and the order denying the State's motion for reconsideration.

The issue arises from an October 1993 paternity judgment, ordering Jeffrie C.B. to pay child support at the rate of 17% of his gross income, but no less than $125 per month. At the time, Jeffrie was already subject to a previous child support order in a separate paternity judgment requiring him to pay 17% of his gross income. However, for some reason, the family court was not made aware of the previous support order.

In response to the State's February 1997 order to show cause alleging that Jeffrie should be held in contempt for failing to pay child support under the October 1993 judgment, Jeffrie filed a motion to have the court recalculate the arrearages. The basis for his motion was that originally the court should have ordered his child support to be paid at the lesser rate of a serial family payer (14%) and, therefore, a portion of his child support arrearages should be expunged. The trial court agreed and retroactively revised its child support order to reflect the support payments to be paid at the 14% rate of a serial family payer, thereby reducing his arrearages.

The State contends the trial court was without authority to retroactively reduce the accrued child support arrearages since it was not done to correct a previous error in calculation. We agree. Section 767.32(1m), STATS., provides:

Revision of certain judgments.

....

(1m) In an action under sub. (1) to revise a judgment or order with respect to child support, maintenance payments or family support payments, the court may not revise the amount of child support maintenance payments or family support payments due, or an amount of arrearages in child support, maintenance payments or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations. (Emphasis added.)

When the legislature enacted § 767.32(1m), STATS., it did so for the purpose of reducing the court's authority to retroactively eliminate arrearages. Schulz v. Ystad, 155 Wis.2d 574, 595-96, 456 N.W.2d 312, 320 (1990). Here, both sides agree that the trial court may not retroactively revise the amount of child support due or the amount of arrearages in child support except to correct previous errors in calculation. Thus, the only question is whether the trial court had corrected a previous error in calculation.

Interpretation and application of a statute is a question of law that we review independently of the trial court's determination. Douglas County Child Support Enforce. Unit v. Fisher, 200 Wis.2d 807, 811, 547 N.W.2d 801, 803 (Ct.App.1996). The objective in interpreting statutory language is to identify and give effect to the intent of the legislature. See Stockbridge School Dist. v. DPI Boundary Appeal Bd., 202 Wis.2d 214, 219, 550 N.W.2d 96, 98 (1996). In an attempt to construe the legislature's intent, we first consider the plain language of the statute. See id. at 220, 550 N.W.2d at 98 (citing Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 327, 548 N.W.2d 519, 522 (1996)). If the meaning of the statutory language is clear, we will not look outside the language of the statute to ascertain legislative intent. See Ball v. District No. 4 Area Bd. of VT & AE, 117 Wis.2d 529, 537-38, 345 N.W.2d 389, 394 (1984).

Words in a statute are to be construed according to the common and approved usage, § 990.01(1), STATS., and the approved meaning of a word may be determined by reference to a recognized dictionary, State v. Mattes, 175 Wis.2d 572, 578, 499 N.W.2d 711, 713 (Ct.App.1993). The word "calculate" is defined as "to determine by mathematical processes." WEBSTER'S NEW COLLEGIATE DICTIONARY 154 (1980).

Jeffrie asserts that the error was the trial court's original failure to...