Schulz v. Ystad
| Decision Date | 27 March 1990 |
| Docket Number | 88-1631 and 88-1594,Nos. 88-2018-F,88-0952,s. 88-2018-F |
| Citation | 456 N.W.2d 312,155 Wis.2d 574 |
| Parties | In re the Marriage of Julie SCHULZ, Petitioner-Appellant, v. Roger YSTAD, Respondent-Petitioner. In re the MARRIAGE OF Donald K. THOMPKINS and Jackie Thompkins. RACINE COUNTY CHILD SUPPORT AGENCY and Jacqueline Hunter, Respondents, d ] v. Donald THOMPKINS, Appellant-Petitioner. In re the Marriage of Eileen M. PIASKOSKI, Petitioner-Respondent-Petitioner, v. Paul A. PIASKOSKI, Appellant. In re the Marriage of Mary Carol HARMS n/k/a Mary Carol Parquet, Petitioner-Respondent, v. David L. HARMS, Respondent-Appellant. |
| Court | Wisconsin Supreme Court |
Mark R. Reitz, argued, and Quale, Hartmann, Bohl, Stevens & Reynolds, S.C., on brief, Baraboo, for Julie Schulz.
Donald P. Johns, Asst. Atty. Gen. and Donald J. Hanaway, Atty. Gen., amicus curiae and Constance M. Chesnik, Sherwood K. Zink, Dept. of Health and Social Services, of counsel, amicus curiae, for the Atty. Gen. of the State of Wis. Jack Longert and Legal Assistance to Institutionalized Persons Program, Madison, amicus curiae, for the Legal Assistance to Institutionalized Persons Program.
Eric Schulenburg, Asst. State Public Defender, on briefs, for Donald Thompkins.
William H. Honrath, Deputy Family Court Com'r, Racine and Sherwood Zink, Dept. of Health and Social Services, on brief for Racine County Child Support Agency and Jacqueline Hunter.
Nancy Phelps and Blumenthal, Jacquart, Blumenthal & Leib, S.C., on brief, Milwaukee, for Eileen M. Piaskoski.
Paul A. Piaskoski and Piaskoski & Associates, S.C., on brief, Milwaukee, for Paul A. Piaskoski.
Christopher D. Walther, Faye M. Wellworth and Christopher D. Walther & Associates, S.C., on briefs (in Court of Appeals), Milwaukee, for David L. Harms.
Terry M. Iaquinta and Madgrigrano, Gagliardi, Zievers and Aiello, S.C., on briefs (in Court of Appeals), Kenosha, for Mary Carol Harms.
These cases were consolidated in this court for purposes of decision. In each case, a child support arrearage accrued pursuant to an order or judgment for support entered prior to August 1, 1987, and the parent obligated to pay support sought reduction of the arrearage after that date. The cases present a common issue concerning the application of sec. 767.32(1m), Stats., which became effective on August 1, 1987, and provides that the circuit court may not revise the amount of child support due under an order or judgment for support prior to the date that notice of a petition to revise support is given to the custodial parent. The common issue is whether sec. 767.32(1m) applies retroactively to prohibit the circuit court from reducing or eliminating child support arrearages which accrue, or have accrued, pursuant to orders or judgments for support entered prior to the effective date of the statute.
In Schulz, the court of appeals held, in an unpublished decision filed May 18, 1989, that the statute applied retroactively and reversed an order of the circuit court for Sauk County, Robert F. Curtin, Circuit Judge, which expunged a child support arrearage on the basis of the law in effect prior to August 1, 1987. In Thompkins, the court of appeals held, in an unpublished decision filed June 21, 1989, that the statute applied retroactively and affirmed an order of the circuit court for Racine County, Dennis J. Flynn, Circuit Judge, which dismissed a motion to reduce a child support arrearage. In Piaskoski, the court of appeals implicitly held that the statute applied retroactively, but that it did not prevent the court from granting credit against a child support arrearage, and reversed an order of the circuit court for Milwaukee County, Patrick T. Sheedy, Circuit Judge, which denied a request to credit a child support arrearage. Marriage of Piaskoski v. Piaskoski, 151 Wis.2d 549, 445 N.W.2d 327 (Ct.App.1989). In Harms, the circuit court for Walworth County, John R. Race, Circuit Judge, apparently concluded that the statute applied retroactively and entered a judgment of contempt for nonpayment of child support. The court of appeals certified the case to this court.
We conclude that sec. 767.32(1m), Stats., applies prospectively only and that child support arrearages which accrue, or have accrued, pursuant to an order or judgment for support entered prior to August 1, 1987, may be modified, reduced, or eliminated in accordance with the law in effect in this state prior to the effective date of the statute. 1 We therefore reverse the decisions of the court of appeals in Schulz and Thompkins and vacate the judgment of the circuit court in Harms. Although we agree with the result reached by the court of appeals in Piaskoski, we disagree with the court of appeals' implicit holding that sec. 767.32(1m) applies retroactively and its construction of the statute in light of the facts of that case.
Our conclusion that the present cases are governed by the prior law of this state requires us to determine whether the circuit courts in Schulz, Thompkins, and Harms abused their discretion in reducing or failing to reduce the support arrearages on the basis of a change of circumstances of the parties or children which rendered the level of child support ordered unfair. We hold that the circuit court properly exercised its discretion in Schulz, and we therefore uphold the circuit court's determination to expunge the support arrearage in full. We further hold that the circuit courts in Thompkins and Harms erred in failing to exercise their discretion on the basis of the controlling law and relevant facts of record. We therefore remand those cases to the circuit courts to determine whether the child support arrearages may be reduced or eliminated under the prior law of this state.
We also address an issue raised in both the Piaskoski and Harms cases concerning the allowance of equitable credits under prior law. Specifically, the issue is whether the circuit court may, in its discretion, grant credit against child support arrearages for expenditures made for a child's support in some manner other than that specifically prescribed in the order or judgment for support. We hold that the circuit courts may grant such credits if the expenditures were made by the noncustodial parent for the child's support either under compulsion of the circumstances or with the express or implied consent of the custodial parent. Accordingly, we remand the Piaskoski and Harms cases to the circuit courts to determine whether credit may be granted under the principles set forth in this decision.
The facts of the cases follow.
On January 4, 1979, Julie Schulz filed a petition for divorce from her spouse, Roger Ystad. The petition alleged that two minor children had been born to the marriage: Lori (born September 17, 1962) and Lisa (born January 13, 1964). The circuit court granted the divorce by judgment effective August 27, 1979. The judgment incorporated the provisions of a final stipulation entered between the parties. The stipulation provided that Julie would have custody of Lori and Lisa and set forth Roger's child support obligation as follows:
2. CHILD SUPPORT.
A. Until further order of the Court, [Roger Ystad] shall pay the sum of Four Hundred Fifty and no/100 ($450.00) Dollars per month toward the support of the minor children of the parties. Such payments shall be payable on the 15th and 30th of each month commencing with the 30th day of August, 1979.
B. Further, said payments shall continue until June 1, 1981, at which time the support for Lori Rae shall terminate. The support for Lisa Ann shall then continue on until June 1, 1982, in the sum of Two Hundred Fifty and no/100 ($250.00) Dollars per month payable on the 15th and 30th of each month.
. . . . .
Roger was current in his child support payments until October 14, 1980, when Lori moved out of her mother's home to live with the Cox family in Baraboo, Wisconsin. Lori resided with the Coxes from October of 1980 until sometime after her high school graduation in June of 1981. After Lori moved out of her mother's home, Roger made a child support payment of $162.50 on October 20, 1980, and made another payment of $225.00 on November 4, 1980. Thereafter, Roger made child support payments of $175.00 semimonthly. In July of 1981, Roger reduced his child support payments to $125.00 semimonthly. Lisa turned eighteen on January 13, 1982, and completed her high school course work that month. Roger ceased making child support payments after Lisa had finished her high school course work in January of 1982.
On June 8, 1988, Julie filed a motion with the circuit court, requesting that the court hold Roger in contempt for his failure to make child support payments pursuant to the judgment of divorce. The motion alleged that, as of June 4, 1982, Roger was in arrears in his child support payments in the amount of $1,862.50 and demanded payment of the amount of the arrearage plus interest. The court heard the motion on June 22, 1988. At the hearing, Roger argued that the child support arrearage should be reduced or expunged to reflect the fact that Julie was not supporting Lori after she moved out of Julie's home in October of 1980 and was not supporting Lisa after she turned eighteen and finished her high school course work in January of 1982. The court subsequently adjourned the hearing to allow the parties to file briefs addressing the issue of whether sec. 767.32(1m), Stats., applied retroactively to prohibit the court from expunging a support arrearage which accrued prior to August 1, 1987, the statute's effective date.
On September 23, 1988, the circuit court reconvened the motion hearing and made an initial ruling that sec. 767.32(1m), Stats., did not apply...
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