Justia.com Opinion Summary: Michael May sought to reduce his child support payments to his former wife, Suzanne May, approximately one year after entry of an order by the circuit court establishing a thirty-three-month unmodifiable floor for child support payments pursuant to a stipulation entered into by the parties. The court of appeals certified the appeal to the Supreme Court. The Court affirmed the decision of the circuit court, holding that the Mays' stipulation and order for child support was enforceable, as (1) the parties freely and knowingly entered into the stipulation at issue, and the terms of the stipulation were fair and equitable to the parties; (2) the agreement was not contrary to public policy because the circuit court retained its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affected the best interests of the children; and (3) Michael did not demonstrate the existence of such circumstances.
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2012 WI 35
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
10AP177
In re the marriage of:
Suzanne R. May,
Petitioner-Respondent,
v.
Michael T. May,
Respondent-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
April 3, 2012
October 6, 2011
Circuit
Dane
Maryann Sumi
BRADLEY, J., concurs (Opinion filed).
ABRAHAMSON, C.J., dissents (Opinion filed).
ATTORNEYS:
For the respondent-appellant there were briefs by Keith
Wessel, Kristen Lehker and Wessel, Lehker & Fumelle, Inc.,
Madison, and Angela C. Foy and Daniel E. Exner, Cordell Law,
LLP, Milwaukee, and oral argument by Keith Wessel.
For the petitioner-respondent there was a brief by Robert
Stanton Jones and Reinhart Boerner Van Deuren, S.C., Milwaukee,
and oral argument by Robert Stanton Jones.
2012 WI 35
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2010AP177
(L.C. No.
2006FA1556)
STATE OF WISCONSIN
:
IN SUPREME COURT
In re the marriage of:
Suzanne R. May,
FILED
Petitioner-Respondent,
APR 3, 2012
v.
Diane M. Fremgen
Clerk of Supreme Court
Michael T. May,
Respondent-Appellant.
APPEAL from an order of the Circuit Court for Dane County,
Maryann Sumi, Judge.
¶1
PATIENCE
Affirmed.
DRAKE
ROGGENSACK, J.
This
case
is
before
the court on certification by the court of appeals, pursuant to
Wis.
Stat.
whether
a
§ 809.61
(2007–08).1
stipulation
and
order
The
certified
question
establishing
a
is
33-month
unmodifiable floor for child support payments is enforceable.
¶2
order
was
1
The circuit court for Dane County concluded that the
enforceable
when
Michael
May
(Michael),
the
payor
All subsequent references to the Wisconsin Statutes are to
the 2007–08 version unless otherwise indicated.
No.
spouse,
sought
to
reduce
his
child
support
2010AP177
payments
to
his
former wife, Suzanne May (Suzanne), a little more than one year
after entry of the order.
On Michael's appeal from the circuit
court's order, the court of appeals certified the appeal to us
because
existing
case
law
could
be
read
as
conflicting
and
because the court of appeals concluded that there existed a need
for clarification of the proper legal standard upon which to
evaluate unmodifiable floors for child support payments.
¶3
We conclude that the Mays' stipulation and order for
child support is enforceable.
The parties freely and knowingly
entered into the stipulation at issue, and the terms of the
stipulation
were
Furthermore,
the
because
circuit
the
consider
fair
and
agreement
is
court
circumstances
in
equitable
not
to
contrary
retains
its
existence
when
the
to
parties.
public
equitable
the
policy
power
stipulation
to
was
challenged that were unforeseen by the parties when they entered
into the agreement if those circumstances adversely affect the
best interests of the children.
Michael has not demonstrated
the existence of such circumstances.
Accordingly, we affirm the
decision of the circuit court.
I.
¶4
1996.
BACKGROUND
Michael and Suzanne May were married on November 9,
During the couple's almost nine years of marriage, they
had two children, N.N.M. in 1998 and J.J.M. in 2002.
In mid-
2005, Suzanne petitioned for divorce in the circuit court for
Will
County,
Illinois,
and
on
October 25,
2005,
issued a judgment dissolving the Mays' marriage.
2
that
court
The divorce
No.
2010AP177
judgment incorporated the parties' Marital Settlement Agreement
and Joint Parenting Agreement, in which the couple stipulated to
shared
custody
of
the
children,
as
well
as
child
support
payments from Michael to Suzanne.
¶5
At
the
time
of
the
stipulation,
Michael
was
unemployed, having recently lost his job as a packaging engineer
at Molex, Inc.
Because Michael was unemployed at that time, the
parties agreed that his child support payments would be $444.44
per month, in addition to certain past due payments to be made
soon after entry of the judgment of divorce, as well as costs
for daycare and extracurricular activities for the children.
As
part of the stipulation, Michael was required to inform Suzanne
of any changes in his employment, at which point his support
obligations
provided
would
that
be
Michael
recalculated.
was
The
responsible
for
stipulation
50
percent
also
of
the
children's medical, dental, and vision insurance premiums until
he became reemployed, after which he would be responsible for
100 percent of such premiums.
¶6
On September 25, 2006, Michael registered the Illinois
court's judgment in the Dane County circuit court and moved the
Wisconsin court to modify
sought
modifications
to
the
his
judgment
of
obligations
divorce.
for
Michael
child
support,
insurance premiums, and daycare costs, as well as a placement
change
prevent
schedule
for
the
Suzanne
when
children.
from
Additionally,
unilaterally
conflicts
arose
3
Michael
altering
with
the
the
sought
to
placement
children's
No.
extracurricular
activities,
an
issue
that
would
2010AP177
continue
to
raise hackles in the ensuing years.
¶7
The family court commissioner, the Honorable Marjorie
Schuett, dismissed Michael's motion on January 9, 2007, on the
ground
that
there
circumstances
order.
since
had
the
been
entry
no
of
substantial
the
earlier
change
child
in
support
Michael sought a de novo hearing before the circuit
court,
and
Suzanne
responded
Michael's alleged overtrial.2
allowed
the
parties
ten
by
seeking
attorney
fees
for
At the hearing, the circuit court
days
to
modify
or
withdraw
their
motions, after which a guardian ad litem would be appointed.
Michael withdrew his motion for modification and, at the same
time, the court granted Michael's attorney's request for leave
to withdraw from representation.
¶8
order
In
based
July
2007,
on
new
a
Commissioner
stipulation
Schuett
that
entered
established
monthly child support obligation of $1,203.
another
Michael's
Even before the
actual entry of that second comprehensive order, Michael sought
a de novo review, and soon thereafter, he again moved to revise
physical
placement
and
to
modify
his
support
payments.
Additionally, in September 2007, Commissioner Schuett issued an
2
Overtrial is a family law doctrine that courts employ when
one party's approach to litigation is unreasonable and causes
the other party to incur unnecessary expense.
Frisch v.
Henrichs, 2007 WI 102, ¶2 n.1, 304 Wis. 2d 1, 736 N.W.2d 85.
When a finding of overtrial is made, a court may order that the
offending party pay a larger part of the attorney fees of the
other party. Id. at ¶2.
4
No.
2010AP177
order to show cause regarding remedial contempt for Michael's
failure to make medical and daycare payments, as well as other
various payments owed to Suzanne under the July 2007 order.
¶9
In October 2007, Michael again moved to modify his
support payments.
As the parties prepared for a hearing on the
motion in December 2007, he withdrew that motion and the parties
entered into another comprehensive stipulation, which ostensibly
resolved all outstanding issues between them.
On January 7,
2008, the court entered an order based on that stipulation.
stipulation
and
order
included
a
reaffirmation
of
The
Michael's
obligation to pay $1,203 per month for child support, which the
parties agreed "shall be the minimum amount due for a period of
no less than thirty-three (33) months from December 11, 2007,
and Michael may not file for a reduction in that amount for the
full 33 month period."
¶10
As an apparent quid pro quo for Michael agreeing to
the unmodifiable floor on child support payments and to make
payments accordingly, Suzanne agreed to assume 100 percent of
child care costs as of December 2007.
Additionally, the parties
agreed that Michael could temporarily make decreased payments on
his child support arrearages, because, as of the date of the
stipulation
and
order,
he
approximately $11 per hour.
was
working
part-time
and
earning
The specifics of the agreement were
read into the record at the hearing before the circuit court,
and both the parties and their attorneys acknowledged that the
terms stated constituted the agreement of the parties.
5
No.
¶11
Soon
after
entry
of
the
order,
2010AP177
Michael's
(new)
attorney moved the circuit court to grant leave to withdraw as
Michael's counsel, which the court granted.
The record then
shows more than a year-and-a-half hiatus from litigation between
the parties, until June 2009.
At that time, Michael sought an
order for contempt against Suzanne, on grounds that Suzanne had
failed to comply with the previous court orders regarding shared
placement, decision-making authority, and previously adjudicated
childcare
costs.
At
the
same
time,
Michael
also
sought
a
reduction in his child support payments.3
¶12
This recommencement of litigation between the parties
in June 2009 marks the beginning of the events directly giving
rise to this appeal.
In response to Michael's motions, Suzanne
countered with a flurry of motions of her own, including motions
for contempt, to modify the judgment regarding extracurricular
activities,
and
to
support payments.
dismiss
Michael's
motion
to
reduce
child
On the eve of the hearing on the various
motions, the parties negotiated and ultimately rescheduled the
hearing before Commissioner Schuett for September 1, 2009.
At
the September 1 hearing, Commissioner Schuett denied Michael's
motions and he sought de novo review in the circuit court.
3
The record shows that at the time of his June 2009
motions, Michael had recently lost the job he had held since
approximately May 2008, as a result of his position having been
"eliminated." The record also shows that during that period of
employment, Michael failed to inform Suzanne of his increase in
salary, as required by earlier stipulations and orders.
6
No.
¶13
On
September 23,
2009,
the
circuit
2010AP177
court
denied
Michael's motion to hold Suzanne in contempt of court, denied
Michael's
motion
to
modify
his
support
obligations
and
held
Michael in contempt for his failure to comply with the court's
previous orders regarding payment of child support, healthcare
costs and past due childcare costs.
The court also concluded
that Michael was equitably estopped from seeking a reduction in
his support payments because allowing such modification would
"unravel" the parties' stipulation of December 2007.
Michael
appealed and the court of appeals certified the appeal to this
court, which certification we accepted.
II.
A.
¶14
2007
DISCUSSION
Standard of Review
The questions on review are:
stipulation
and
order
(1) whether the December
establishing
unmodifiable
minimum
child support payments for 33 months violate public policy, and
(2) whether the circuit court erred when it estopped Michael
from seeking modification of his child support payments, based
on the parties' agreement that was incorporated into a court
order.
If a trial court's decision to apply estoppel would
violate
public
policy,
a
reviewing
court
must
decision as an erroneous exercise of discretion.
King,
224
Wis. 2d
235,
248,
590
N.W.2d
480
reverse
that
See King v.
(1999).
The
determination of whether equitable estoppel may be applied to an
uncontested set of facts is a question of law that we review
7
No.
independently of the previous court decision.4
2010AP177
Randy A.J. v.
Norma I.J., 2004 WI 41, ¶12, 270 Wis. 2d 384, 677 N.W.2d 630.
Where
the
concluded
decision
circuit
that
to
discretion.
the
grant
court
has examined
elements
of
equitable
the
relevant
estoppel
relief
is
and
satisfied,
are
facts
the
within
the
court's
See Affordable Erecting, Inc. v. Neosho Trompler,
Inc., 2006 WI 67, ¶21, 291 Wis. 2d 259, 715 N.W.2d 620.
B.
¶15
the
case
Child Support Stipulations Generally
The court of appeals noted in its certification that
law
applicable
to
unmodifiable
stipulations could be read as conflicting.
court
of
appeals
requested
clarification
child
support
Accordingly, the
to
ensure
proper
application of public policy when examining the enforceability
of child support stipulations.
See May v. May, No. 2010AP177,
2011 WL 51579, at *1 (Wis. Ct. App. Jan. 6, 2011).
To clarify
the applicable public policy concerns, we examine the relevant
cases from both this court and the court of appeals.
¶16
We begin with an examination of the case that Michael
found so troubling that he requested it be overruled, Honore v.
Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989).
In
Honore, the court of appeals held that a stipulation that one
parent would continue to pay a certain minimum amount in child
support,
notwithstanding
any
changes
4
in
income
or
other
Although the parties dispute various facts relating to
each other's support or care for the children, the existence of
the December 2007 stipulation and the facts that led to that
stipulation are not in dispute.
8
No.
finances, was not contrary to public policy.
2010AP177
Id. at 516–18.
The court of appeals relied on the parties' explicit agreement
that
a
reduction
in
the
payor's
payor's child support obligation.
income
would
not
Id. at 516–17.
alter
the
In so doing,
the parties stipulated that a decline in the payor's "income or
other financial factors" would not constitute cause to reduce
child support, even though such a change would otherwise permit,
but not obligate, a court to reduce the support obligations.
Id. at 514; see also Wis. Stat. § 767.32 (1985–86).
¶17
Under
Honore,
then,
parties
are
generally
free
to
enter into stipulations governing the minimum amount due for
child
support,
and
a
circuit
court
that
approves
such
stipulations by incorporating them into its order will not be
reversed to the extent that the order comports with existing law
and public policy.
We have recently reaffirmed this principle
in Frisch v. Henrichs, 2007 WI 102, ¶75, 304 Wis. 2d 1, 736
N.W.2d 85.
¶18
In Frisch, we explained that "we are sensitive to the
importance and prevalence of stipulations in helping families
going
through
difficult
and
litigious
disagreements [between] the parties.
divorces
and
curbing
The ability to contract is
fundamental to our legal system and may aid parties in settling
their divorces more amicably."
Id.
We also stated in Frisch
that, notwithstanding the rights of parents to stipulate for
child
support,
"the
child's
best
interests
are
paramount,"
suggesting that where a conflict between the two values exists,
the child's best interests must prevail.
9
Id.
No.
¶19
Even
prior
to
the
court
of
appeals'
2010AP177
decision
in
Honore, we have long recognized that the best interests of the
child are the primary guidepost for courts considering approval
and modification of orders for child support.
As early as 1970,
in Bliwas, we recognized that a court is empowered to make such
orders and modifications as the best interests of the child may
require.
Bliwas v. Bliwas, 47 Wis. 2d 635, 639, 178 N.W.2d 35
(1970).
We
equitable
authority
based
the
on
also
recognized
could
that
issue
stipulation
of
a
court
certain
the
exercising
child
parties,
support
even
its
orders
though
the
provisions to which the parties stipulated could not be imposed
absent the agreement.
¶20
See id. at 638–40.
In Bliwas, the payor father had agreed to pay child
support for one of the children until that child reached age 21
in
exchange
minority.
did
not
for
reduced
support
See id. at 640.
violate
public
between the parties.
payments
during
the
child's
We concluded that the stipulation
policy
and
Id. at 638-41.
that
it
was
enforceable
Our conclusion rested not
solely on a theory of private contract or inherent authority of
the court, but on equitable principles that required that "'a
party who procures or consents to the entry of [a] decree is
estopped
to
question
its
validity,
obtained a benefit from it.'"
¶21
especially
where
he
has
Id. at 640 (citation omitted).
Soon after Bliwas, we held in Severson v. Severson, 71
Wis. 2d 382, 238 N.W.2d 116 (1976), that an automatic reduction
clause in a child support stipulation (reducing the father's
payments by 20 percent upon each of five children's reaching the
10
No.
age of majority) did not violate public policy.
Therein,
we
agreement
again
on
a
held
that
particular
where
the
provision
Id. at 387-88.
parties
in
the
2010AP177
reached
child
an
support
stipulation, and where that provision did not, either on its
face or in effect, interfere with the best interests of the
children,
the
provision.
¶22
498
courts
would
not
excuse
enforcement
of
the
See id. at 386–88.
In Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d
(1984),
we
upheld
a
stipulation
to
continue
spousal
maintenance payments after the payee wife's remarriage, on the
ground that she had relied on the agreement and, therefore, the
payor
husband
obligation.
was
estopped
from
denying
his
continuing
We stated in Rintelman that no quid pro quo was
necessary to demonstrate the applicability of estoppel; rather,
in the context of spousal maintenance and child support:
[A]ll that need be shown to constitute an estoppel is
that both parties entered into the stipulation freely
and knowingly, that the overall settlement is fair and
equitable and not illegal or against public policy,
and that one party subsequently seeks to be released
from the terms of the court order on the grounds that
the court could not have entered the order it did
without the parties' agreement.
Id. at 596.
¶23
Accordingly, we recognize that Wisconsin courts have
long utilized their equitable authority to uphold stipulations
governing child support, and that such stipulations should be
upheld unless doing so would threaten the best interests of the
children.
The cases in which binding support agreements have
11
No.
2010AP177
been invalidated typically have involved factual scenarios in
which enforcement of the agreements would have run afoul of the
best interests of the child.
These specific scenarios, however,
have not materially altered the underlying rule of law where
stipulations are reviewed to determine whether they are in the
best interests of the child.
Wisconsin
courts
agreements.
in
their
This policy continues to guide
evaluations
of
child
support
See, e.g., Severson, 71 Wis. 2d at 387–88, Bliwas,
47 Wis. 2d at 639–40.
¶24
The
prototypical
case
in
which
an
unmodifiable
agreement has been invalidated involves a stipulation limiting
the ability of a parent receiving child support to act in the
best interests of the children.
For example, in Ondrasek v.
Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990), the
court of appeals invalidated a stipulation that provided for
"periodic payments," but barred any other payments designated as
"child support."
Id. at 693–94.
The court determined that the
stipulation could have been read either as a complete waiver of
child
support
payments
or
as
establishing
ceiling on the payor's support obligations.
¶25
an
unmodifiable
Id. at 694.
Under either interpretation, the court concluded that
the parties' stipulation impermissibly precluded reconsideration
of support obligations when one child's placement changed from
primarily living with the father to primarily with the mother.
See
id.
Therefore,
the
stipulation
threatened
unaddressed the changing needs of the children.
to
leave
Id. at 696–97.
Accordingly, Ondrasek has been cited for the rule that a child
12
No.
support
stipulation
that
would
prevent
seeking
an
upward
modification
substantial
change
in
a
upon
the
circumstances
is
payee
2010AP177
spouse
occurrence
per
se
interfering with the best interests of the child.
from
of
a
invalid
as
See id.; see
also Wood v. Propeck, 2007 WI App 24, ¶21, 299 Wis. 2d 470, 728
N.W.2d 757.
¶26
In addition to affirming the payee spouse's ability to
seek modifications in the best interests of the child, we also
acknowledge
the
responsibility
principle
to
act
in
that
the
a
best
payor
spouse
interests
of
has
the
a
child.
Therefore, where a child support stipulation would hinder the
payor
spouse's ability to protect
the
best
interests
of
the
child, such stipulation will be invalidated on the same grounds
as
would
a
stipulation
protect the children.
that
hinders
the
payee's
ability
to
See Krieman v. Goldberg, 214 Wis. 2d 163,
177, 571 N.W.2d 425 (Ct. App. 1997).
¶27
In
Krieman,
the
court
of
appeals
concluded
that
a
child support stipulation that imposed an unmodifiable floor on
the payor spouse's payment obligations without any durational
limit would not be upheld.
See id. at 178.
The child support
stipulation in Krieman provided that "neither party shall under
any circumstances have the right to petition the court for a
modification of the child support provided for herein."
167.
The
court
reasoning
that
threatened
to
the
of
appeals
agreement's
deprive
the
payor
Id. at
invalidated
the
lack
durational
of
of
the
a
stipulation,
opportunity
to
limit
seek
modification upon a substantial change in circumstances, even
13
No.
2010AP177
when such change may have negatively affected the best interests
of his children.
¶28
A
Id. at 175-76.
central
component
in
determining
whether
an
unmodifiable child support floor is enforceable is the duration
of the provision, as the court of appeals has recognized.
Wood,
299
Wis. 2d
470, ¶20; Krieman,
Honore, 149 Wis. 2d at 513–14.
court
of
appeals
concluded
214
Wis. 2d
at
See
175-76;
In Honore, for example, the
that
an
approximately
three-year
unmodifiable floor did not violate public policy, even where the
payor
asserted
Honore,
149
a
decrease
Wis. 2d
at
in
his
during
Conversely,
513–14.
income
in
that
time.
Krieman,
the
court concluded that a stipulation without any durational limit
was
unenforceable
Wis. 2d at 165.
indefinitely
on
public
policy
grounds.
Krieman,
214
Therefore, a child support obligation that is
unmodifiable
will
likely
violate
public
policy.
See id. at 175–78.
¶29
a
child
However, a durational limit will not necessarily save
support
prohibited
support
either
stipulation.
party
seeking
stipulation
modification
child
See Wood, 299
The
court
of
years
of
that
circumstances" was held to violate public policy.
¶1.
seven
a
"catastrophic
470,
for
Wood,
absent
Wis. 2d
obligations
from
In
appeals
determined
that
the
stipulation would have prevented the payee mother from obtaining
a modification even after the children's placement changed from
shared to primarily with the mother.
See id., ¶11 (citing Wis.
Stat. § 767.32(1)(a) (2003–04) (later renumbered to Wis. Stat.
§ 767.59(1f) by 2005 Wis. Act 443 §§ 148–59)).
14
The court of
No.
2010AP177
appeals concluded that even though the parties' stipulation was
intended to be fair to both spouses by imposing a bilateral
limitation,
the
stipulation
would
have
interfered
with
the
court's ability to make orders in the best interests of the
children.
Id., ¶¶14, 18.
¶30
In Frisch, we concluded that a four-year moratorium on
child support litigation violated public policy because such a
limitation would
have imposed
an upper
limit
ability to secure support for the children.
Wis. 2d 1, ¶67.
on
the
payee's
See Frisch, 304
Such a ceiling would have deprived the payee of
the ability to seek a modification even upon a showing of a
substantial change in circumstances necessitating an increase to
protect the best interests of the children.
Id., ¶74.
In
Frisch, we also stated that although the four-year unmodifiable
ceiling violated public policy, no such prohibition existed for
unmodifiable floors when they are limited in duration.
n.23.
Specifically,
we
reasoned
that
Id., ¶74
"[s]tipulating
to
a
minimum amount for a limited period of time does not violate
public policy because it ensures that a certain amount of child
support
is
children."
¶31
received,
which
is
in
the
decision
in
best
interests
of
the
Id.
Soon
after
our
Frisch,
the
court
of
appeals decided Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d
467,
739
N.W.2d
834,
which
involved
moratorium on child support litigation.
the
challenge
implicated
what
could
yet
another
four-year
In Jalovec, however,
be
argued
to
be
an
unmodifiable floor on child support, because the payor father
15
No.
2010AP177
sought to decrease his payment obligations after taking primary
placement of one of the children.
See id., ¶¶6, 19.
Relying on
our statement in Frisch that a four-year ceiling was contrary to
public
policy, the
court of appeals
held
that
the
four-year
moratorium on requesting a support reduction was also contrary
to
public
prompted
policy.
the
Id.,
court
clarification
of
unmodifiable
floor
of
¶19.
It
was
in
the
question
the
appeals
of
this
when
for
child
support
reasoning
instant
a
case
limited
violates
that
to
seek
duration,
public
policy.
See May, 2011 WL 51579, at *1, 4.
¶32
In addition to the relevant case law, we also examine
the statutory bases upon which child support obligations are
founded.
Of importance to this case is Wis. Stat. § 767.59(1f),
which guides courts' decisions about whether to modify child
support orders in two separate ways.
provides
courts
constitute
with
examples
"substantial
of
changes
On its face, § 767.59(1f)
factual
in
scenarios
sufficient to modify orders for child support.
may
that
circumstances"
that
are
Some of those
scenarios, listed in § 767.59(1f)(b), give rise to a rebuttable
presumption
example,
dependent
that
a
substantial
"[c]ommencement
children"
of
sets
change
receipt
up
a
of
example
those
listed
in
paragraph
occurred.
aid
rebuttable
substantial change under § 767.59(1f)(b)1.
for
has
to
For
families
presumption
with
of
a
Other circumstances,
(c),
relate
possible
instances in which a court may find that such a change has
occurred.
Therefore,
these
provisions
16
signal
to
courts
and
No.
litigants
when
modification
to
child
support
2010AP177
orders
may
be
proper.
¶33
Moreover, Wis. Stat. § 767.59(1f) also provides some
preliminary guidance to parties seeking to enter into agreements
to
govern
provides
child
that
support.
after
the
In
passage
particular,
of
33
§ 767.59(1f)(b)2.
months,
a
rebuttable
presumption arises that a substantial change in circumstances
has occurred
that
warrants
a
revision
of
the
previous child
support order, unless the order is expressed as a percentage of
the payor's income.
The legislature's inclusion of a period of
time giving rise to a rebuttable presumption conveys that until
the
provided
time
period
is
reached,
the
passage
of
time,
without more, may not support the conclusion that a substantial
change in circumstances has occurred.
Notably, this legislative
policy comports with decisions of this court and the court of
appeals
examining
durational
limits
in
child
support
stipulations.
¶34
From the foregoing, we conclude that there exists a
framework
governing
child
support
stipulations
and
orders.
First, ceilings on child support payments are presumed to be
invalid.
Wis. 2d
See Frisch, 304 Wis. 2d 1, ¶74; see also Ondrasek, 158
at
694–97.
The
foundation
for
this
rule
is
long-
established:
the best interests of the child require that a
payee
cannot
spouse
be
deprived
modification in child support.
694–97.
17
of
the
ability
to
seek
a
See Ondrasek, 158 Wis. 2d at
No.
¶35
Second,
an
unmodifiable
floor
on
2010AP177
child
support
payments that is not limited in duration, e.g., Krieman, 214
Wis. 2d at 178, or that has an excessively long duration, e.g.,
Wood, 299 Wis. 2d 470, ¶¶12–14, may violate public policy.
Just
as payees have a duty, and therefore must have the ability, to
protect the best interests of the children, payors have a duty,
and therefore also must have the ability, to protect the best
interests of their children.
Stated otherwise, an unmodifiable
floor of excessive duration has the potential to impose undue
hardship on the payor parent's ability to provide for the best
interests
of
the
children,
thereby
negatively
children's relationships with that parent.
Wis. 2d at 177–78.
affecting
the
See Krieman, 214
However, we decline to adopt a rule that
unmodifiable floors that are limited in duration are invalid per
se.
See Frisch, 304 Wis. 2d 1, ¶74 n.23.
Agreements that
provide an unmodifiable child support floor for a limited period
of
time
often
parties.
are
created
to
lessen
litigation
between
the
Repetitive litigation and the tension it creates are
not in the best interests of children.
¶36
Third, where the parties to a child support order have
entered into a stipulation in regard to child support for a
limited period of time that the court has adopted, courts will
attempt
to
give
effect to
the
parties'
intentions
where
the
stipulation was entered into freely and knowingly, was fair and
equitable when entered into, and is not illegal or violative of
public policy.
See id., ¶68.
In this context, a court's review
typically will consider the doctrine of equitable estoppel, by
18
No.
2010AP177
which a party may be precluded from challenging an agreement
when
the
elements
satisfied.
of
of
estoppel
set
forth
in
Rintelman
are
See Rintelman, 118 Wis. 2d at 596 (stating elements
estoppel
as
(1)
both
parties
entered
into
the
agreement
freely and knowingly; (2) overall, the settlement is fair and
equitable; and (3) the agreement is not illegal or violative of
public policy).
In the event that the elements of estoppel are
met, courts have the equitable authority to decide whether to
hold the parties to their bargain or to release them from it.
See Jalovec, 305 Wis. 2d 467, ¶11.
¶37
Finally, courts retain the equitable power to consider
circumstances in existence when the stipulation is challenged
that were unforeseen by the parties when they entered into the
stipulation
if
those
circumstances
interests of the child.
children
and
adversely
affect
the
best
This is so because the protection of
intervening
in
their
best
interests
constitute
long-standing grounds for exercising the equity jurisdiction of
the courts.
(1944).
See Dovi v. Dovi, 245 Wis. 50, 57, 13 N.W.2d 585
Accordingly,
if
presented
with
the
circumstances
described above when a party seeks to enforce such an agreement
and
the
other
incorporates
the
party
seeks
agreement,
to
modify
courts
the
retain
judgment
the
that
equitable
authority and discretion to refuse to uphold all child support
stipulations, even those that under principles of estoppel would
otherwise be enforceable.
19
No.
C.
¶38
2010AP177
Application
The circuit court concluded that the Mays' stipulation
and the facts of this case required that Michael be held to his
contractual and judicial child support obligations.
determined
that the
elements
of
estoppel
were
The court
met,
and
that
there were no circumstances that would warrant relief from the
parties'
agreement.
As
discussed
below,
we
reach
the
same
conclusion.
¶39
Our review is two-fold:
we first examine the facts as
found by the circuit court to determine whether the elements of
estoppel are satisfied as a matter of law; if we conclude that
they
are,
we
examine
the
circuit
court's
decision
to
apply
estoppel to determine whether doing so was an erroneous exercise
of discretion.
We will affirm the circuit court if it examined
the relevant facts, applied the proper legal standard and, using
a
demonstrated
rational
process,
reached
a
reasonable
conclusion.
See Miller v. Hanover Ins. Co., 2010 WI 75, ¶29,
326
640,
Wis. 2d
785
N.W.2d
493.
Accordingly,
we
begin
by
examining the elements of estoppel in light of the facts of this
case.
¶40
first
In
the
element
of
context
of
estoppel
child
asks
support
whether
stipulations,
Michael
and
Suzanne
freely and knowingly entered into the support stipulation.
Frisch, 304 Wis. 2d at 1, ¶68.
examination
determine
See
Judge Sumi conducted a careful
understanding
and
acceptance of the terms of the December 2007 stipulation.
Her
examination
to
the
demonstrates
each
that
the
20
party's
parties
were
assisted
by
No.
2010AP177
skilled counsel; that the terms of the stipulation were clearly
expressed; and that both parties were aware of and in agreement
on those terms.
both
parties
We therefore agree with the circuit court that
freely
and
knowingly
second
element
entered
into
the
support
stipulation.
¶41
The
of
stipulation was fair and equitable.
estoppel
Id.
requires
that
the
At the outset, we note
the apparent incongruity in Michael's stipulation to pay $1,200
per month when his monthly income from part-time employment at
the time of the stipulation ranged between $1,600 and $1,800.
We also note that when Michael became unemployed between the
time of the stipulation and the time of his challenge to it in
mid-2009, his income was practically the same as it had been at
the time of the December 2007 stipulation.
¶42
At
first
blush,
Michael's
agreement
approximately 75 percent of his income seems high.
to
pay
Upon further
examination, though, we are satisfied that the stipulation was
both
fair
and
equitable
because
it
held
Michael,
who
had
previously earned $72,000 per year, to his obligation to support
his children.
The stipulation's provision that support could
not be reduced for 33 months demonstrates that the parties were
21
No.
2010AP177
aware of historical fluctuations in Michael's income,5 as well as
his history of non-payment and non-compliance with prior orders.
In addition, the stipulation and order exhibit a quid pro quo:
Michael
was
obligated
to
comply
with
the
minimum
payment
schedule in exchange for modification of his then-existing child
support
obligations,
including
substantial
arrearages.
Therefore, we conclude that the parties' stipulation was fair
and equitable.
¶43
was
The third element of estoppel is whether the agreement
illegal
or
contrary
to
public
policy.
Id.,
¶68.
The
parties' stipulation for child support was not illegal; such
agreements are provided for by Wis. Stat. § 767.511(1) and Wis.
Stat. § 767.59(2s).
Rather, the crux of Michael's argument is
that the stipulation violates public policy.
As discussed in
our examination of the case law, a stipulation that sets an
unmodifiable floor for child support for a limited term does not
necessarily run afoul of the public policy of protecting the
best interests of the child.
Id.
5
The record shows that less than six months after entering
the stipulation, and nearly one year before his challenge,
Michael once again found employment in his field earning
approximately $72,000 per year.
The record also shows that
Michael failed to report this substantial change in his income
to Suzanne as required by the December 2007 stipulation.
Although these facts could not retroactively support a finding
that the stipulation was "fair," this behavior does, according
to the record, demonstrate the continuation of a pattern of
obstreperousness toward multiple child support orders during the
years following the parties' divorce. From that pattern, there
is ample support for the conclusion that the December 2007
stipulation was, overall, fair and equitable.
22
No.
¶44
2010AP177
As an initial policy matter, we recognize that this
stipulation does not implicate the prohibition on unmodifiable
child support ceilings.
See id., ¶74.
Instead, Michael asserts
that the 33-month unmodifiable floor on his support payments
suffers from the same infirmities as do ceilings.
As suggested
in our preceding discussion, we have located no support for the
conclusion
that the
33-month
unmodifiable
floor
is
a
per
se
violation of the policy of protecting the best interests of the
child.
¶45
Contrary to the purpose of a child support ceiling, a
floor setting the minimum amount of child support payments does
not threaten to deprive a payee parent of the ability to seek
more support for his or her child.
the
payee
is
the
parent
that
a
This is important because
court
and
the
parties
have
determined to be more in need of financial support, as between
the two parents, in order to provide for the best interests of
the child.
See, e.g., Wis. Stat. § 767.511, Wis. Admin. Code
§ DCF ch. 150 (prefatory note).
Therefore, when a floor for
child support payments is implemented and enforced, there is no
fear that a payee parent will be hindered in his or her ability
to
protect
discussed
the
in
best
cases
interests
such
as
of
the
child.
The
Wood,
299
Wis. 2d
470,
concerns
¶18,
or
Ondrasek, 158 Wis. 2d at 696–97, are not relevant here, where
Suzanne, as the payee, was free to seek an upward modification
if the need presented itself.
¶46
Next,
we
note
that
there
exists
some
potential
confusion regarding the permissible duration of an unmodifiable
23
No.
child support floor.
2010AP177
Without rejecting Honore's determination
that a three-year stipulation was acceptable, we reaffirm our
deference to the legislature's presumptive durational limit for
changed
circumstances,
§ 767.59(1f)(b)2.
33
months.
Beyond
the
See
Wis.
legislature's
Stat.
rebuttable
presumption of 33 months, case law suggests that stipulations
lasting more than four years could be too lengthy.
304 Wis. 2d 1, ¶74.
See Frisch,
So, too, stipulations that are not related
to a point in time that reasonably would support a reevaluation
of the parties' support obligations and needs may not meet with
the approval of the circuit court.
¶20.
Section
767.59(1f)(b)2.'s
arises
at
months
See Wood, 299 Wis. 2d 470,
33
rebuttable
represents
what
presumption
the
that
legislature
has
determined is a reasonable time to reconsider support.
¶47
month
From these principles, we conclude that the Mays' 33-
stipulation
did
not
violate
public
policy.
Where
the
parties entered into the stipulation freely and knowingly, where
the
overall
agreement
is
fair
and
equitable,
and
where
the
stipulation is not violative of public policy, a court should be
cautious when asked to allow one of the parties to disavow the
agreement.
modify
Although
child
support
courts
retain
payments
their
equitable
notwithstanding
the
power
to
parties'
agreement to an "unmodifiable" floor, due to the absence in this
case of unforeseen circumstances that negatively affect the best
interests
of
the
children,
the
24
agreement
and
order
do
not
No.
violate public policy.6
court
and
conclude
2010AP177
Accordingly, we agree with the circuit
that
the
final
element
of
estoppel
is
satisfied.
¶48
Our analysis turns, then, to whether the circuit court
erroneously
exercised
its
discretion
when
it
held
Michael
estopped from challenging the stipulation within the 33-month
period of its existence.
See King, 224 Wis. 2d at 248.
We
conclude that the circuit court did not erroneously exercise its
discretion:
the
court
examined
the
relevant
facts,
applied
proper legal standards, and used a demonstrated rational process
to
reach
a
conclusion
that
a
Miller, 326 Wis. 2d 640, ¶29.
court's
decision
to
apply
reasonable
judge
could
reach.
Therefore, we affirm the circuit
equitable
estoppel
to
preclude
Michael's challenge to the Mays' stipulation by modifying the
order that incorporates it.
¶49
As a final matter, we acknowledge Michael's argument
that the passage of time and the development of more holistic
notions of post-divorce family structure warrant overruling the
court of appeals' decision in Honore.
Michael argues that the
shift in policy, as expressed in the relevant administrative
code
sections,
see,
e.g.,
Wis.
Admin.
Code
§ DCF
ch.
150,
support his argument that the financial integrity of the payor
parent has become a greater priority than ever before, and that
that
policy
supports
his
attempt
6
to
reduce
Indeed,
Michael
has
not
pointed
to
circumstances since the entry of the 2007 order.
25
his
any
payments.
changed
No.
2010AP177
Although Michael seems to argue that the policies of the late1980s are of a bygone era, we nonetheless continue to view the
Honore
court's
analysis
and
conclusion
as
persuasive.
In
Frisch, we referred to Honore with approval, and therefore, even
if times have changed since 1989 when Honore was decided, we do
not accept the argument that such changes justify our rejection
of the equitable principles enunciated in Honore.
III.
¶50
CONCLUSION
We conclude that the Mays' stipulation and order for
child support is enforceable.
The parties freely and knowingly
entered
at
into
the
stipulation
issue
stipulation were fair and equitable.
is
not
contrary
retains
existence
its
to
public
equitable
when
the
policy
power
to
stipulation
and
the
terms
of
the
Furthermore, the agreement
because
consider
was
the
circuit
court
circumstances
challenged
that
in
were
unforeseen by the parties when they entered into the agreement
if those circumstances adversely affect the best interests of
the children.
Michael has not demonstrated the existence of
such circumstances.
Accordingly, we affirm the decision of the
circuit court.
By the Court.—The order of the circuit court is affirmed.
26
No.
¶51
presents
Wisconsin
ANN
an
WALSH
BRADLEY,
important
circuit
issue
courts
J.
(concurring).
with
far-reaching
have
divorces across the state.
2010AP177.awb
jurisdiction
over
This
case
consequences.
thousands
of
To ease contentious litigation and
settle their expectations, parties to a divorce often enter into
purportedly "unmodifiable" stipulations establishing a set level
of child support.
¶52
so
that
The court of appeals certified this case to this court
we
could
unmodifiable,
clarify
whether
limited-duration
contrary to public policy.
stipulations
floors
on
child
establishing
support
are
The responsibility of this court is
to provide clear guidance on this important issue that affects
courts
and
majority
litigants
out
of
on
concern
a
daily
that
basis.
its
I
purported
do
not
answer
join
the
to
this
question creates confusion rather than clarity.
I
¶53
I agree with many of the underpinnings of the majority
opinion.
The child's best interests are, and should be, the
guidepost of a court's determination on whether to modify child
support.
Majority
limited-duration,
op.,
¶19.
Parties
unmodifiable
child
may
support
stipulate
floor,
and
to
a
such
stipulations are not categorically contrary to public policy.
Id., ¶35.
Such a stipulation can help a family going through a
difficult divorce by curbing disagreements and litigation among
the spouses.
See id., ¶¶35-36.
Nevertheless, a court retains
the discretion to modify a limited-duration unmodifiable floor
1
No.
2010AP177.awb
on child support when the facts of an individual case warrant a
modification.
¶54
As
Id., ¶¶15, 24.
I
see
it,
the
court's
discretion
to
modify
an
otherwise unmodifiable child support floor can be explained as
follows: As a result of the party's stipulation to make child
support unmodifiable for a limited duration, a party under a
child
support
order
modification.
equitable
may
However,
defense
of
be
estopped
even
from
if
are
estoppel
all
met,
later
the
a
seeking
elements
circuit
its
of
the
court
may
within its discretion decline to apply the doctrine of estoppel.
See id., ¶36 (citing Jalovec v. Jalovec, 2007 WI App 206, ¶11,
305
Wis. 2d 467,
739
N.W.2d 834).
Circuit
courts
should
be
trusted to wisely exercise their discretion under the facts of a
particular case.
¶55
This
is
precisely
circuit court in this case.
of
estoppel were
met, and
the
analysis
undertaken
by
the
The court found that the elements
then
it
exercised
estopping Michael from seeking a modification.
its
discretion,
I agree with the
majority that the circuit court examined the relevant facts,
applied
a
proper
standard
of
law,
and
used
a
demonstrated
rational process to reach a conclusion that a reasonable judge
could reach.
Id., ¶48.
Accordingly, there was no erroneous
exercise of discretion.
II
¶56
The
majority's
approach
is
not
so
straightforward.
Rather, as explained by the dissent, the majority's analysis of
2
No.
2010AP177.awb
this reoccurring situation leaves many unanswered questions in
its wake.
¶57
First, the majority employs circular reasoning.
concludes
that
unmodifiable
stipulations
are
not
It
contrary
to
public policy because, when they are contrary to public policy,
they can be modified.
¶58
Second,
unmodifiable
the
majority's
stipulation
understand.
"consider
See id., ¶3.
The
should
majority
circumstances
in
discussion
be
modified
asserts
that
existence
a
when
of
is
an
difficult
circuit
the
when
court
to
may
stipulation
is
challenged that were unforeseen by the parties when they entered
into the stipulation if those circumstances adversely affect the
best interests of the child."
¶59
the
Id., ¶37.
Although the majority's analysis appears to rest upon
above
statement,
statement's import.
it
is
difficult
to
evaluate
that
It may be that the majority means nothing
more than what I have set forth above.
That is, estoppel is an
equitable defense, and even when all of the elements of estoppel
are
met,
the
circuit
court
must
exercise
its
discretion
in
interpreted
as
deciding whether to apply it.
¶60
creating
However,
a
circumstances.
new
the
majority
or
different
According
to
can
the
3
also
legal
be
standard——unforeseen
majority,
a
party
must
No.
2010AP177.awb
demonstrate unforeseen circumstances before a circuit court can
exercise its authority to modify the parties' stipulation.1
¶61
existing
Is this "new" standard really nothing more than the
"substantial change
Wis. Stat. § 767.59(1f)?
in
circumstances"
See dissent, ¶83.
intend to create a new standard?
standard under
Does the majority
Whatever it is doing, it
should be clearly stated in order to provide clear guidance to
litigants and courts.
¶62
In addition to uncertainty about whether the majority
has created a new standard, further questions remain.
If the
majority does intend to create a new standard, how does this new
standard, "unforeseen circumstances," fit with the "substantial
change in circumstances" standard for modifying orders in the
absence
of
a stipulation?
"unforeseen
circumstances"
See
a
Wis.
Stat.
higher
"substantial change in circumstances"?
or
§ 767.59(1f).
lower
hurdle
Is
than
The majority does not
say.
¶63
exercise
I agree that the circuit court did not erroneously
its
discretion
when
it
denied
Michael's
modify child support on account of equitable estoppel.
motion
to
However,
because I am concerned that the majority confuses rather than
clarifies the law, I respectfully concur.
1
If the majority has created a new standard, I fear that
its effect will be to limit the circuit court's authority to
safeguard the best interests of the child.
If a party must
establish unforeseen circumstances, then the majority has
shifted the focus from the best interests of the child to
whether the litigants actually foresaw the circumstances when
they entered into the stipulation.
4
No.
¶64
SHIRLEY S. ABRAHAMSON, C.J.
presents an oft-recurring situation.
2010AP177.ssa
(dissenting). This case
A clear answer is needed,
one that can readily be applied in the numerous child support
cases that present substantially the same issue.
The majority
opinion does not, in my opinion, fit the bill.
I
¶65
The
issue
presented
is
"whether . . . a
33-month
unmodifiable floor for child support payments is enforceable."
Majority op., ¶1.1
relying
on
the
The majority answers in the affirmative,
equitable
power
of
circuit
courts
to
modify
unmodifiable child support orders (notwithstanding the parties'
stipulation that it is "unmodifiable"), unforeseen circumstances
that
adversely
affect
the
best
interests
of
the
child,
the
doctrine of equitable estoppel, case law discussing equitable
estoppel,
and
the
duration
Majority op., ¶3 & passim.
opinion,
the
parties
of
an
"unmodifiable"
stipulation.
Thus, according to the majority
cannot
effectively
stipulate
to
unmodifiable child support.
¶66
Stripping away the language in the majority opinion
about the doctrine of equitable estoppel and the application of
the doctrine, I read the essence of the majority opinion as
holding that a stipulation imposing a floor on child support is
1
The circuit court's 2008 judgment incorporated the
parties' stipulation regarding child support. Both parties were
represented by counsel.
Neither party appealed the judgment.
Neither party claims in the present proceeding that he or she
did not understand the stipulation or that when the stipulation
was adopted it was unfair to the parties or was not in the best
interests of the child.
1
No.
enforceable
against
the
payer
(here
Michael
May)
2010AP177.ssa
unless
the
payer shows that "unforeseen circumstances" exist at the time
the
payer
seeks
to
modify
child
support
and
that
"those
circumstances adversely affect the best interests of the child."
¶67
I agree with the majority opinion that a circuit court
has the power to modify a support order, regardless of whether
the stipulation purports to be "unmodifiable."
I do not join
the majority opinion because there is a simpler, more straightforward approach to this case.
¶68
Once the court acknowledges that the circuit court has
the power to modify "unmodifiable" support orders, which it does
in the present case, the court should not, in my opinion, create
its own rules and standards to govern when this power may be
exercised.
governing
Rather,
modification
Wis.
of
Stat.
support
§767.59(1f),
orders,
should
the
statute
take
over.
Wisconsin Stat. § 767.59(1f) demonstrates that the legislature
has carefully attempted to shape circuit courts' and parties'
power to modify child support.
In its entirety, Wis. Stat.
§ 767.59(1f) provides:
SUPPORT: SUBSTANTIAL CHANGE IN CIRCUMSTANCES.
(a) Except as provided in par. (d), a revision under
this section of a judgment or order as to the amount
of child or family support may be made only upon a
finding of a substantial change in circumstances.
(b) In an action under this section to revise a
judgment or order with respect to the amount of child
support, any of the following constitutes a rebuttable
presumption of a substantial change in circumstances
sufficient to justify a revision of the judgment or
order:
2
No.
2010AP177.ssa
1. Commencement of receipt of aid to families with
dependent children under s. 49.19 or participation in
Wisconsin works under ss. 49.141 to 49.161 by either
parent since the entry of the last child support
order, including a revision of a child support order
under this section.
2. Unless the amount of child support is expressed in
the judgment or order as a percentage of parental
income, the expiration of 33 months after the date of
the entry of the last child support order, including a
revision of a child support order under this section.
3. Failure of the payer to furnish a timely disclosure
under s. 767.54.
4. A difference between the amount of child support
ordered by the court to be paid by the payer and the
amount that the payer would have been required to pay
based on the percentage standard established by the
department under s. 49.22(9) if the court did not use
the percentage standard in determining the child
support payments and did not provide the information
required
under
s.
46.10(14)(d),
49.345(14)(d),
301.12(14)(d),
or
767.511(1n),
whichever
is
appropriate.
(c) In an action under this section to revise a
judgment or order with respect to an amount of child
support, any of the following may constitute a
substantial change of circumstances sufficient to
justify revision of the judgment or order:
1. Unless the amount of child support is expressed in
the judgment or order as a percentage of parental
income, a change in the payer's income, evidenced by
information received
under
s.
49.22(2m) by the
department or the county child support agency under s.
59.53(5) or by other information, from the payer's
income determined by the court in its most recent
judgment or order for child support, including a
revision of a child support order under this section.
2. A change in the needs of the child.
3. A change in the payer's earning capacity.
4. Any other
relevant.
factor
that
3
the
court
determines
is
No.
2010AP177.ssa
(d) In an action under this section to revise a
judgment or order with respect to child or family
support, the court is not required to make a finding
of a substantial change in circumstances to change to
a fixed sum the manner in which the amount of child or
family support is expressed in the judgment or order.
¶69
apply
In sum, my preferred holding in the present case is to
Wis.
Stat.
§ 767.59(1f)
to
govern
the
circuit
court's
power and the rights and responsibilities of payers and payees
in modification of a child support order, regardless of whether
the
stipulation
for
support
(upon
which
the
circuit
court's
order is based) is purportedly "unmodifiable."
¶70
My
preferred
holding
would
forthrightly
accomplish
what the majority opinion might be doing in what I consider a
circular, hard-to-follow fashion.
¶71
majority
My preferred holding, just like the majority opinion,
op.,
¶¶3,
47,
deprives
parties
of
the
ability
to
stipulate to a truly unmodifiable child support floor.
This
result
take
is
necessary
because
freedom
of
contract
precedence over the best interests of the child.2
more
frequently
the
case
that
raising
the
cannot
While it is
amount
of
child
support would be in the child's best interests, situations could
arise in which lowering the amount would be in the child's best
interests because of fluctuations in the parents' income levels.
See majority op., ¶35.
¶72
When an "unmodifiable" floor or a ceiling on child
support is at issue, the judicial methodology, in my opinion,
should be the same as when the child support stipulation is
2
See Frisch v. Henrichs, 2007 WI 102, ¶75, 304 Wis. 2d 1,
736 N.W.2d 85.
4
No.
silent
about
whether
§ 767.59(1f)
to
it
is
determine
modifiable:
whether
the
2010AP177.ssa
Apply
parties
Wis.
may
Stat.
obtain
a
modification of child support.
¶73
to
I recognize that "unmodifiable" stipulations are meant
avoid
the
frivolous,
repeated
motions
that
unfortunately
sometimes are filed in the aftermath of a contentious divorce.
But
crucially,
litigation
courts
tactics.
are
not
powerless
See
majority
op.,
to
curb
abusive
¶7
n.2.
More
importantly, the legislature has attempted to reduce motions to
change child support by creating a high bar for modifying child
support (i.e., a substantial change in circumstances) precisely
to put a brake on repetitive, unnecessary litigation.
If this
legislative brake is insufficient, the legislature should create
a steeper burden on those seeking modification of child support
and
impose
steeper
consequences
attempts to modify child support.
for
frivolous
or
abusive
Until that time, I believe
courts should apply Wis. Stat. § 767.59(1f).
II
¶74
approach,
Beyond my fundamental disagreement with the majority's
I
do
not
join
the
majority
because
its
reasoning
presents numerous quandaries and glitches.
¶75
First, the majority's rule is circular.
It in effect
holds that unmodifiable floors on child support, for limited
durations,
are
enforceable,
but
explains
that
enforceable because circuit courts may modify them.
they
are
In other
words, a stipulation adopting an unmodifiable floor on child
support is enforceable because it is judicially modifiable!
5
No.
¶76
This
circularity
allows
the
majority
2010AP177.ssa
to
confusingly
and incorrectly apply equitable estoppel in the present case.
Majority op., ¶¶3, 38-48.
The first two elements of estoppel
are not implicated by the present case.
First, the parties
freely and knowingly entered into the stipulation.
Second, the
terms were fair and equitable to the parties when made.
¶77
The confusion arises in the majority's treatment of
the third element:
Equitable estoppel is not available if the
stipulation is contrary to public policy.
¶78
The majority holds that the stipulation in the present
case is not contrary to public policy because a court may modify
it.
Majority op., ¶¶3, 47.
Accordingly, as a matter of law,
the payer in the present case is not equitably estopped from
seeking a modification.
¶79
I understand why the majority opinion falls into the
trap of trying to apply equitable estoppel in the present case.
Prior cases have analyzed an unmodifiable floor on support in
terms
of
the
third
element
of
equitable
estoppel
(public
policy), and the parties' arguments in the present case discuss
equitable
estoppel
and
public
policy.3
Consequently,
the
majority opinion feels compelled to use this analysis.
¶80
The
majority
errs,
however,
because
it
fails
to
recognize that the third element of equitable estoppel no longer
applies because the majority holds, as a matter of law, that the
"unmodifiable" floor is judicially modifiable, and consequently
3
Michael May's brief addresses estoppel but takes a broader
view of the case law. See majority op., ¶49.
6
No.
the stipulation is not against public policy.
¶¶3, 47.
2010AP177.ssa
Majority op.,
Thus, as a matter of law, the doctrine of equitable
estoppel does not apply in the present case.
The majority is
oblivious to the fact that as a result of its opinion, the
equitable estoppel analysis falls out of the picture.
¶81
Nevertheless,
the
majority
moves
to
the
second
question applying the doctrine of equitable estoppel according
to our prior case law.
The question then becomes, may the payer
(here Michael May) get a modification of the support stipulation
inasmuch as he is not equitably estopped?
the
circuit
support
according
court
regardless
to
the
exercise
of
its
equitable
majority
In other words, may
discretion
estoppel?
opinion,
on
to
modify
That
whether
child
depends,
the
payer
demonstrates that unforeseen circumstances exist that adversely
affect the best interests of the child, which leads me to the
next reservation I have about the majority opinion.
¶82
Second, the majority opinion unnecessarily introduces
new, undefined criteria to cases involving modification of a
stipulation on child support.
¶83
Are "unforeseen circumstances," majority op., ¶3, the
same as a "substantial change in circumstances" under Wis. Stat.
§ 767.59(1f), which governs modification of support orders?4
4
Noting that no statutory definition exists for what
constitutes a substantial change in circumstances, the court of
appeals has explained that "[o]ne shorthand definition for a
substantial change in circumstances is that it is some
unforeseen event which occurs after an agreement has been
executed."
Jalovec v. Jalovec, 2007 WI App 206, ¶24, 305
Wis. 2d 467, 739 N.W.2d 834.
7
No.
¶84
2010AP177.ssa
Is "adversely affect the best interests of the child,"
majority op., ¶3, the same standard as "in the best interests of
the child?"
¶85
I
cannot
tell
whether
the
majority
is
creating
a
higher bar for a circuit court to modify child support when the
parties'
stipulation
is
"unmodifiable"
than
Wis.
Stat.
§ 767.59(1f) provides when the stipulation does not include an
"unmodifiable" provision.
and
a
stipulation
Since an "unmodifiable" stipulation
that
does
not
include
an
"unmodifiable"
provision are, as a matter of law, both judicially modifiable,
why shouldn't a court treat the two stipulations the same?
¶86
Third, the majority opinion's reliance on a circuit
court's power to modify "unmodifiable" stipulations is a break
from
the
analyses
in
past
case
law.
Because
the
majority
nevertheless relies on equitable estoppel and does not explain
prior
cases
in
terms
of
this
change
in
the
analysis,
the
majority creates confusion and incoherence in the case law.
¶87
In
prior
cases,
the
court
has
assumed
that
an
"unmodifiable" stipulation is actually unmodifiable and analyzed
the stipulation as such.
¶88
77,
For example, in Frisch v. Henrichs, 2007 WI 102, ¶¶76-
304
Wis. 2d 1,
unmodifiable
736
stipulation
N.W.2d 85,
imposing
this
a
court
ceiling
violates public policy and is unenforceable.
on
held
that
child
any
support
The Frisch court
acknowledged that "[t]he ability to contract is fundamental to
our legal system and may aid parties in settling their divorces
more
amicably,"
but
recognized
8
that
in
the
child
support
No.
2010AP177.ssa
context, "the child's best interests are paramount."
304 Wis. 2d 1, ¶75.
Frisch,
A truly unmodifiable ceiling would violate
public policy because it would prevent a modification of child
support even when there is a substantial change in circumstances
and modification would be in the child's best interests.
¶89
the
Frisch seems to have been wrongly decided in light of
majority's
newfound
reliance
on
the
circuit
court's
equitable power to modify "unmodifiable" stipulations.
Under
the majority's reasoning, unmodifiable stipulations imposing a
ceiling on child support should be enforceable because circuit
courts have
the discretion
to
modify
protect the child's best interests.
them
when
necessary
to
Despite the incoherence
injected into the Frisch holding by the majority's holding in
the present case, the majority opinion, ¶¶31, 45-46, claims it
reaffirms
Frisch
(although
it
adds
a
new
twist
that
is
not
present in the Frisch opinion).5
¶90
Similar incoherence arises in the majority's treatment
of Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct.
App. 1997).
unmodifiable
duration
In Krieman, the court of appeals held that an
floor
violates
on
child
public
support
policy
and
that
is
was
unlimited
unenforceable.
in
The
Krieman court stated that "an unreviewable stipulation for child
5
The majority opinion at ¶34 reads Frisch as holding that
ceilings on child support payments are "presumed" to be invalid,
citing ¶74 of Frisch and Ondrasek v. Tenneson, 158 Wis. 2d 690,
694-96, 462 N.W.2d 915 (Ct. App. 1990).
Neither Frisch nor
Ondrasek refers to a presumption.
Both cases held that the
unmodifiable agreements placing a ceiling on child support were
per se unenforceable as contrary to the public policy of
protecting the best interest of the child.
9
No.
support
could
jeopardize
future . . . ."
Id.
at
a
parent's
payer
178
(emphasis
2010AP177.ssa
financial
added).
Such
a
stipulation "may have detrimental effects on the parent/child
relationship and in this way would ultimately not serve the best
interests of the child."
¶91
As
duration
Krieman
of
the
importance.
understood
unmodifiable.
demonstrates,
unmodifiable
But
that
Id.
duration
under
prior
stipulation
was
"unmodifiable"
was
significant
in
the
case
law,
of
because
stipulation
the
great
it
was
meant
Duration was a proxy for determining whether the
stipulation was in the best interests of the child or against
public policy (that is, not in the best interests of the child).
The longer the duration of the stipulation, the more likely the
stipulation
would
prevent
a
modification
of
child
support
despite a substantial change in circumstances that rendered the
current support not in the best interests of the child.
¶92
Under
irrelevant.
dispositive.
the
majority's
reasoning,
duration
should
be
Yet the majority treats duration as potentially
Majority op., ¶¶36, 44, 47.
According to the
majority opinion (which admits to being influenced by Wis. Stat.
§ 767.59(1f)),
a
33-month
stipulation
is
acceptable
but
a
stipulation lasting more than four years may be too lengthy.
Majority op., ¶46.
If circuit courts have the power to modify
unmodifiable stipulations imposing a floor on child support, why
does the duration of the stipulation matter?
Under the logic of
the majority opinion, an unmodifiable stipulation of unlimited
duration
imposing
a
floor
on
child
10
support
is
not
per
se
No.
contrary to public
policy
because
the
circuit
2010AP177.ssa
court
has the
power to modify it at any time for unforeseen circumstances that
adversely affect the best interests of the child.
¶93
Frisch and Krieman
are
not
the
only
cases
longer make sense in light of the majority opinion.
that no
A dramatic
additional example is Honore v. Honore, 149 Wis. 2d 512, 439
N.W.2d 827 (Ct. App. 1989), in which the court of appeals held
that an unmodifiable floor lasting approximately three years was
enforceable and not contrary to public policy, despite the fact
that
the
stipulation
prevented
even on "a showing of cause."
¶94
The
present
pattern as Honore.
case
modification
of
child
support
Honore, 149 Wis. 2d at 516.
features
a
nearly
identical
fact
The child support floor is unmodifiable here
for 33 months, compared to approximately 36 months in Honore.
The
majority
determination
claims
that
a
that
it
three-year
is
not
rejecting
stipulation
was
"Honore's
acceptable,"
majority op., ¶46, but in fact, the majority overrules Honore
sub silentio.
¶95
The Honore court explicitly held that the stipulation
could not be modified even on a showing of cause; the floor on
child support in Honore was truly unmodifiable for three years
and was nevertheless declared enforceable.
Under the majority's
reasoning in the present case, Honore is no longer good law.
According to the majority opinion, the Honore stipulation could
be judicially modified for cause within the three-year period,
that is, the stipulation would be judicially modified if the
payer or payee demonstrated at any time unforeseen circumstances
11
No.
2010AP177.ssa
that adversely affected the best interests of the child.
The
majority
the
does
not
come
to
terms
with
this
reality
or
incoherence in the case law.
¶96
The court of appeals certified the instant case to
this court to clarify what the court of appeals saw as confusion
in the case law.
The certification memorandum asks whether a
recent court of appeals decision, Jalovec v. Jalovec, 2007 WI
App 206,
305 Wis. 2d 467,
739
N.W.2d 834,
which
held
that a
four-year unmodifiable floor on child support was against public
policy, was inconsistent with the following footnote in Frisch,
304 Wis. 2d 1, ¶74 n.23:
"Stipulating to a minimum amount for a
limited period of time does not violate public policy because it
ensures
that
a
certain
amount
of
child
support
is
received,
which is in the best interests of the children."
¶97
whether
The
it
certification
mattered
for
also
asked
purposes
of
this
court
public
to
policy
explain
if
the
duration of an unmodifiable floor on child support was "tied to"
a future time when it would be logical to reexamine support.
¶98
continued
How does the majority opinion clarify the meaning and
validity
of
the
Frisch
footnote
and
the
continued
validity of Jalovec and other case law developed by the court of
appeals?
¶99
question
It doesn't.
The majority does not answer the court of appeals'
about
a
stipulation's
logical point in the future.
duration
being
"tied
to"
a
It merely states that stipulations
not related to a reasonable future reevaluation point "may not
meet with the approval of the circuit court."
12
Majority op.,
No.
¶47.
2010AP177.ssa
Under the standard actually adopted by the majority, why
does the duration of the stipulation matter, irrespective of
whether it is "tied to" a logical point in the future?
A court
may modify the terms of the stipulation if needed for the best
interests of the child.
¶100 The
majority
has
created
a
new
approach
unmodifiable stipulations imposing a floor on child support.
focuses
on
the
circuit
court's
equitable
power
to
to
It
modify
"unmodifiable" stipulations under certain circumstances and has
jammed this approach onto past case law without explaining the
dramatic shift in the court's analytical framework.
Rather than
acknowledging that its methodology clashes with prior case law
involving "unmodifiable" floors on child support, the majority
tries to save prior cases in some form and muddies the waters
even further.
III
¶101 Despite these concerns, I believe that circuit courts
will wisely apply the majority's opinion in the same way that
they apply Wis. Stat. § 767.59(1f) to payers and payees seeking
to
modify
child
support
"unmodifiable" provision).
orders
(that
do
not
include
any
The majority's analysis relying on
equitable estoppel and unforeseen circumstances that adversely
affect
the
best
interests
of
the
child
will
morph
into
the
statutory standards of "substantial change in circumstances" and
"the best interests of the child."
¶102 Nevertheless, I dissent rather than concur because the
majority errs in its bottom line in the present case.
13
No.
2010AP177.ssa
¶103 The majority claims that the circuit court applied the
majority
opinion's
analysis
when
the
circuit
court
applied
equitable estoppel and denied the payer's attempt to modify the
stipulation.
Majority op., ¶48.
Yet the circuit court did not
know about the majority opinion's newly minted equitable power
of the circuit court and therefore could not have applied it and
did not apply it.
¶104 The circuit court heard legal argument by counsel for
both
parties
policy"
about
(which
whether
was
not
the
defined)
equitable estoppel could apply.
court
addressed
the
stipulation
and,
violated
relatedly,
"public
whether
Neither counsel nor the circuit
significance
of
any
"unforeseen
circumstances" that might "adversely affect the best interests
of the child."
summarize
Although the circuit court heard counsel briefly
background
facts
that
led
the
payer
to
seek
modification, the circuit court did not hold a hearing to figure
out whether there were unforeseen circumstances that adversely
affect
the
best
interests
of
the
child.
The
circuit
court
focused entirely on the question whether a 33-month unmodifiable
child support floor was void as a matter of law as contrary to
public policy, the third element of equitable estoppel.
¶105 The circuit court carefully applied the then-existing
equitable estoppel framework.
unmodifiable
satisfied
floor
the
was
third
not
legal
It concluded that the 33-month
void
as
element
a
of
matter
of
equitable
law,
which
estoppel.
Therefore, the payer could be equitably estopped from seeking
modification of the "unmodifiable" stipulation.
14
No.
2010AP177.ssa
¶106 The circuit court then announced, properly, that it
was
exercising
estoppel
in
its
the
discretion
present case
whether
and
to
decided
apply
to
apply
equitable
equitable
estoppel, but did not explain why it decided to do so, beyond
the fact
that the
satisfied.
legal
elements
of
equitable
The circuit court stated:
estoppel
were
"So all the requirements
for the application of estoppel have been met.
I exercise my
discretion, which is the final step under [Jalovec], I exercise
my discretion to apply the doctrine of estoppel . . . ."
¶107 As this court often notes, a discretionary decision
must be founded upon proper legal standards.6
case,
the
circuit
court
simply
concluded
In the present
that
estopping
the
payer spouse did not violate public policy "where the children's
best interest demand that they continue to receive a certain
amount of child support or at least a minimum level."
This
language is reminiscent of Frisch, in which the court explained
in a footnote that unmodifiable floors do not violate public
policy because they "ensure[] that a certain amount of child
support is received."7
decision
creates
was
not
today.
But the circuit court's discretionary
based
The
on
the
circuit
legal
court
standard
made
no
the
majority
findings
about
unforeseen circumstances that might adversely affect the best
interests
of
the
child
and
this
court
cannot
make
any
such
findings on the basis of the record before it.
6
See, e.g., McCleary v. State, 49 Wis. 2d 263, 277, 182
N.W.2d 512 (1971).
7
Frisch, 304 Wis. 2d 1, ¶74 n.23.
15
No.
2010AP177.ssa
¶108 The majority opinion is correct that the payer has not
demonstrated the existence of such circumstances, majority op.,
¶3, but it fails to acknowledge or realize that the payer was
never
given
the
opportunity
to
make
any
such
because it was not the focus of the hearing.
demonstration
Thus, under the
reasoning of the majority opinion, the matter must be remanded
to
the
circuit
demonstrate
court
"unforeseen
to
give
the
payer
circumstances"
an
that
the best interests of the child."
¶109 For the reasons set forth, I dissent.
16
opportunity
"adversely
to
affect
No.
1
2010AP177.ssa
]]>
