Severson v. Severson, 538

• Decision Date: 10 February 1976
• Docket Number: No. 538,538
• Citation: 238 N.W.2d 116,71 Wis.2d 382
• Parties: Julie A. SEVERSON, Respondent, v. David L. SEVERSON, Appellant. (1974).
• Court: Wisconsin Supreme Court

Page 116

238 N.W.2d 116

71 Wis.2d 382

Julie A. SEVERSON, Respondent, v. David L. SEVERSON, Appellant.

No. 538 (1974).

Supreme Court of Wisconsin.

Submitted Dec. 2, 1975.

Decided Feb. 10, 1976.

Briefs by: DeWitt, McAndrews & Porter, S.C., Madison, for appellant.

Brief by: Lawton & Cates, Madison, for respondent.

ROBERT W. HANSEN, Justice.

The challenge on appeal is to changes subsequently made as to child support payments ordered in a judgment of divorce. Since, on appellate review, we are to apply the law of the state to the facts in the record, we look first to the law and then to the facts.

RULE OF LAW. In this state a trial court has the power to make reasonable provisions concerning the care, custody, maintenance and education of the minor children of the parties involved in a divorce. ¹ Thereafter the trial court may modify such provisions in a judgment of divorce relating to child support, but only when there has been a substantial or material change in the circumstances of the children. ² Without a change of circumstances, the court is without power to change the provisions for child support. ³ The judgment entered on a certain state of facts is thus given the effect of res adjudicata so long as that factual situation has not materially changed. ⁴ The party seeking to alter the terms of the judgment as to child support has the burden of proof as to whether modification is warranted by a change of circumstances. ⁵ While the court considering modification has a broad area of discretion as to whether the circumstances of the parties or the needs and welfare of the children have changed, any modification or revision, in the absence of a material change in the premises on which the original determination was made, constitutes an abuse of discretion. ⁶ The court's power to modify is not the power to grant a new trial or to re-try the issues determined in the original judgment, but '. . . only to adopt the decree to some distinct and definite change in the financial circumstances of the parties or children.' ⁷

CHANGE OF CIRCUMSTANCES. In the case before us, the successor judge, not the judge who tried the divorce case, did not find a change of circumstances. In fact, as to the motion of the plaintiff for an increase in child support payments, the court's finding was that the plaintiff and moving party had failed to establish a substantial or material change in circumstances. Review of the record, including comparison of income of the defendant at time of trial with income at time of hearing on the modification motion, supports completely such finding of a failure to establish a substantial change of circumstances. Nonetheless, the court did modify the divorce judgment as to child support payments by (1) increasing child support payments, and (2) striking a clause providing for a 20 percent automatic reduction when a child reached the age of majority, died or became legally emancipated.

AUTOMATIC REDUCTION CLAUSE. In modifying the divorce judgment, the court struck the 20 percent reduction clause, finding it to be against public policy and not in the best interests of the children. Without a change in circumstances of parties or children, this constitutes a re-trying of an issue decided in the original trial and is barred by the 'change of circumstances' requirement as a condition precedent to modification. Going further and to the merits, we would hold such provision not to be contrary to public policy, particularly not where it was recommended to the trial court in a stipulation of the divorcing parties. Here the parties stipulated and the trial court ordered that the child support payments be made for each of the five children, with the parent obligated to make such individual payments entitled to cease making the payments for a particular child when that child became of age, died or was emancipated. The plaintiff's contention is that, when one child leaves the home or is no longer awarded support payments, the cost of supporting the remaining children is not reduced, at least not by the 20 percent lost when such child is emancipated or attains majority. Plaintiff submitted budgets drawn up by her as to her needs and the family's needs to buttress this contention. But commingling of moneys required for her support with support for the children is not appropriate, for it confuses support for the divorced spouse with support for the children. Alimony for a divorced wife cannot be secured under an order only for support of the children. ⁸ As to child support only, comparing the budgets for child support at the time of the hearing with budgets for such support at the time of the trial, we agree with the trial court holding that the plaintiff did not here meet her burden of proof in establishing a significant and material change in the circumstances present.

CONSENT OF DEFENDANT. Particularly as to the increase in child support payments ordered, the court here found that the defendant consented to such increase, having indicated in open court a willingness to increase his obligation upon certain conditions. Such consent, while not broadening the authority of a court to modify a pre-existing judgment, could create an estoppel against claiming error as to an increase in payments which a litigant invited and to which he assented. However, we do not find in this record such consent or unconditional assent that would lead us to consider whether estoppel here applies.

At the hearing on modification of child support payments, in response to a series of questions, the defendant did state he would agree to an increase in the current amount of support 'under certain conditions.' The condition was that he be able 'to stop paying thousands of dollars to attorneys' and to 'end it and make it final.' He was told, 'Maybe it isn't possible, sir, but that's what you would like,' and was asked, 'What else would you like?' The defendant answered that he would also like 'to have some peace of mind,' but added, 'I am not going to be intimidated into giving her more because the more I gave her, the worse it gets. I gave her more than my net worth to start with.' Asked by his ex-wife's attorney if he would agree to an extra $150 now and then an increase of another $50 two years from now, he answered that he would but that 'If I went up in salary, she would get more; if I went down, she would get less if you want to do it that way.' The colloquy continued with the ex-wife's attorney asking,' 'So, you're willing to negotiate this thing then, this increase in support?' and the defendant answered that he was. Asked by counsel, 'Then why hasn't it been done?,' the defendant answered, 'You didn't tell me.'

We find in this record three reasons for holding this defendant not precluded by answers given to questions asked from challenging the increase in child support payments as being beyond the power of the court to make. They are: (1) His agreement to make increased payments for child support was conditioned on an assurance that the matter would be finalized and preclude any future judicial consideration or modifications being sought by the ex-wife. The wife did not agree to meet such condition, and, if she had, concern for the welfare of the children would have precluded the court's accepting and implementing such condition. Even if both parties here had agreed to it, the condition stated could not be met or provided. (2) The colloquy as to specific increases concluded with the exwife's attorney stating and defendant agreeing that he was 'willing to negotiate this thing then.' Negotiations could lead to a stipulation of the parties, but willingness to negotiate here was...