Barbara B. v. Dorian H.

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2005 WI 6 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 03-1877 In re the Paternity of John R. B.: Barbara B., Petitioner-Respondent, v. Dorian H., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 269 Wis. 2d 543, 674 N.W.2d 681 (Ct. App. 2003-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 9, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Kenosha Barbara A. Kluka January 20, 2005 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs by Renee E. Mura and Renee E. Mura, S.C., Kenosha, and oral argument by Renee E. Mura. For the petitioner-respondent there was a brief by Barbara J. Beardsley, and oral argument by Barbara J. Beardsley. 2005 WI 6 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 03-1877 (L.C. No. 80 PA 1109) STATE OF WISCONSIN : IN SUPREME COURT In re the Paternity of John R. B.: Barbara B., FILED Petitioner-Respondent, JAN 20, 2005 v. Cornelia G. Clark Clerk of Supreme Court Dorian H., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 that PATIENCE retroactive DRAKE ROGGENSACK, applications of J. Wis. Because Stat. Affirmed. we conclude § 767.32(1m) and (1r) (2000-01)1 do not violate Dorian H.'s (Dorian) right to due process, we affirm the decision of the court of appeals. I. ¶2 BACKGROUND In 1982, Dorian and Barbara B. (Barbara) entered into a stipulation that formed the basis of a paternity judgment and child support order. 1 The parties stipulated that Dorian was the All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. No. father of John R.B. (John), born November 8, 1979, 03-1877 and that Dorian would make a payment of $30.00 per week to the clerk of court for John's support. This case arises out of an Order to Show Cause filed by Barbara on April 9, 2001 in Kenosha County Circuit Court, support order.2 determined alleging that that Dorian The Kenosha Dorian owes violated County Child $24,690.00 the 1982 child Support Agency child support in arrearages and $42,612.90 in interest. ¶3 On December 21, 2001, Family Court Commissioner James E. Fitzgerald held an evidentiary hearing, at which both Barbara and Dorian testified. In a written order dated January 21, 2002, the commissioner found that Dorian had not made any child support payments since 1983, but that Dorian had paid John's tuition while John was still a child and attending a private school. The commissioner additionally found that "there was an agreement made between the parties that the mother would not pursue child visitation support with the in return child." for The the father commissioner not having decided that Barbara was "not allowed to recoup the past child support money, as the child is now an adult, and she did not seek such payments while the child was a minor. Equity now demands that [Dorian] not be held to this large amount 2 of child support and Wisconsin Stat. § 893.415(2) (2003-04) provides that "[a]n action to collect child . . . support owed . . . shall be commenced within 20 years after the youngest child for whom the support was ordered under the judgment or order reaches the age of 18 or, if the child is enrolled full-time in high school or its equivalent, reaches the age of 19." 2 No. arrearages." The commissioner ordered Barbara 03-1877 estopped from pursuing past child support and denied her request for payment of the child support arrearages. ¶4 Barbara sought review in circuit court. There, the Honorable Barbara A. Kluka conducted a de novo review of the evidence that had been presented to the commissioner. In an oral decision, the court found that there "was some type of an agreement between [Barbara] and [Dorian] with respect to the payment of child support, visitation issues, and the child's attending [a private school]" and that Dorian directly paid the private school $800 a year through John's sixth grade year. The court concluded that application of the doctrine of equitable estoppel is inappropriate under existing Wisconsin law, specifically Wis. Stat. § 767.32(1r) and the court of appeals decision in Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999). that Dorian did not The court explained in its oral decision meet any of the criteria listed in § 767.32(1r) that would allow credit against a child support arrearage and further determined that retroactive application of § 767.32(1r) is not unconstitutional. ¶5 While both the court commissioner and the circuit court found that Barbara and Dorian had an agreement regarding Dorian's child support obligations, neither made a finding as to when that agreement was reached. Dorian, however, alleges that the parties entered into the extrajudicial agreement in 1983. 3 No. ¶6 03-1877 Dorian appealed to the court of appeals, and the court of appeals affirmed the circuit court decision. Dorian then filed a petition for review, which we granted. II. ¶7 process Dorian argues under the DISCUSSION that state it violates and his federal right to due constitutions to retroactively apply Wis. Stat. § 767.32(1m) and (1r) instead of the law that was in place at the time he alleges that he and Barbara entered into the extrajudicial agreement. A. Standard of Review ¶8 violates de novo. Whether due the process retroactive is a application question of law of that a we statute review Neiman v. American Nat'l Prop. and Cas. Co., 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160. B. Revision of Child Support Arrearages ¶9 In 1983, the year Dorian alleges that the parties entered into the extrajudicial agreement, the circuit court had the discretion to revise a child showing of cause or justification. support arrearage upon a Schulz v. Ystad, 155 Wis. 2d 574, 593, 598, 456 N.W.2d 312 (1990) (noting this discretionary power of the circuit courts prior to the enactment of Wis. Stat. 4 No. 03-1877 § 767.32(1m) in 1987);3 see Rust v. Rust, 47 Wis. 2d 565, 570-73, 177 N.W.2d 888 (1970)4 (upholding circuit court's cancellation of arrearages because the findings in the underlying child support order had been incomplete); Foregger v. Foregger, 40 Wis. 2d 632, 641-43, duplicative Subsequent 162 N.W.2d child to (1968)5 553 support payments when oral 1983, the (upholding against offset of arrearages). modification of support allegedly occurred, Wisconsin appellate courts addressed whether a child support expenditures made payer on was the entitled child's to behalf credit and based on whether an extrajudicial agreement between a child support payer and payee was enforceable. ¶10 Whether a child support payer is entitled to credit against court-ordered child support was addressed in 1984, in Hirschfield v. Hirschfield, 118 Wis. 2d 468, 347 N.W.2d 627 (Ct. 3 1987 Wis. Act. 27 created Wis. Stat. § 767.32(1m), which provided that "[i]n an action . . . to revise a [child support judgment] . . . the court may not revise the amount of child support . . . payments due . . . except to correct previous errors in calculations." 1987 Wis. Act. 27, § 2135i. The court in Schulz v. Ystad, 155 Wis. 2d 574, 456 N.W.2d 312 (1990), held that this statute applied prospectively, but that legal principles in place prior to the statute coming into effect applied where child support arrearages had accrued pursuant to an order entered before the statute's effective date of August 1, 1987. Id. at 598-99. 4 Rust v. Rust, 47 Wis. 2d 565, 177 N.W.2d 888 (1970), is cited for historical background, not as current precedent. 5 Foregger v. Foregger, 40 Wis. 2d 632, 162 (1968), is cited for historical background, not precedent. 5 N.W.2d 553 as current No. App. 1984), ordered to voluntary where pay the court child of support expenditures for specifically ordered." appeals is the not held that entitled child not Id. at 470-71. made at 603-04. We identified two "a parent to credit in the for manner However, in 1990, we carved out two exceptions to the Hirschfield rule. Wis. 2d 03-1877 Schulz, 155 circumstances "of an equitable nature," id. at 602, under which the payer's direct expenditures made for a child may be credited: (1) "under compulsion of circumstances" or (2) "with express or implied Id. at 604. consent of the custodial parent." were further instructed circumstances only where result and where a to "manifest particularized within the decision, was met. ¶11 Wis. 2d allow credit Circuit courts under these two injustice" would otherwise burden proof, outlined of Id. It was not until April 1993, in Harms v. Harms, 174 780, parties' 498 N.W.2d extrajudicial 229 (1993), that agreement could be the issue, enforced whether against a custodial parent seeking payment of child support arrearages, was addressed by a Wisconsin appellate court. custodial parent sent the child support In Harms, the payer a letter "informing him that she had moved the children to the state of Florida and that she no longer expected him to pay child support or hospital insurance," id. at 782, and as a result of the letter, the child support payer stopped paying child support, id. The custodial parent subsequently brought a contempt motion due to the cessation of child support payments, but we determined that the extrajudicial agreement between the parties 6 No. was enforceable. Id. at 785. Citing the doctrine of equitable estoppel, we held for the child support payer. ¶12 03-1877 Id.6 However, later in 1993, Wis. Stat. § 767.32(1r) was created, which provided: In an action . . . to revise a judgment or order with respect to child support or family support, the court may not grant credit to the payer against support due prior to the date on which the action is commenced for payments made by the payer on behalf of the child other than payments made to the clerk of court under s. 767.265 or 767.29 or as otherwise ordered by the court. 1993 Wis. Act 481, § 119 (emphasis added). The same legislative act amended § 767.32(1m), which as amended provided: In an action . . . to revise a judgment or order with respect to child support . . . the court may not revise the amount of child support . . . due, or an amount of arrearages in child support . . . that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations. 1993 Wis. Act. 481, § 118 (emphasis added). ¶13 Wisconsin Stat. § 767.32(1m) initially was created by 1987 Wis. Act 27, § 2135i, but we construed it to apply only prospectively, so that a child support arrearage that had accrued pursuant to an order entered prior to August 1, 1987 was Schulz, 155 Wis. 2d at 598-99.7 unaffected by the new statute. However, 1993 Wis. Act. 481 brought an explicit reference to child support arrearages to § 767.32(1m), 1993 Wis. Act. 481, 6 Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993), is cited for historical background, not as current precedent. 7 See supra note 3. 7 No. 03-1877 § 118, and also required courts to apply both § 767.32(1m) and (1r) "regardless of when the judgment or order under which the arrearages accrued, or the child support . . . payments are owed, was entered," 1993 Wis. Act. 481, § 9326. ¶14 In Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), the court of appeals explained that pursuant to Wis. Stat. § 767.32(1m) and (1r), as respectively amended and created by 1993 Wis. Act. 481, circuit courts "cannot grant credit for direct payments for support made in a manner other than that prescribed in the order or judgment providing for support." at 813. Id. The Fisher court further held that this new law applies retroactively, so that as of its effective date, June 11, 1994, "a court arrearages entered." ¶15 is without regardless discretion of when to the grant judgment credits or against order was Id. at 814; accord Monicken, 226 Wis. 2d at 129. More latitude to grant a child support payer credit against an arrearage came in 1997, when the legislature amended Wis. Stat. § 767.32(1r). As amended the subsection provided: the court may grant credit to the payer against support due prior to the date on which the petition, motion or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.265 or 767.29, in any of the following circumstances . . . ." 1997 Wis. Act 273, § 1 (emphasis added). The legislature then enumerated the circumstances under which such credit could be 8 No. granted in newly created § 767.32(1r)(b)-(f).8 273, §§ 3-7. 03-1877 1997 Wis. Act. In Monicken, the court of appeals made clear that the revised § 767.32(1r) changed the law regarding the granting of credit superceding to the child Harms support and payers Schulz Monicken, 226 Wis. 2d at 130-31. who were holdings on in arrears, that point. Based on 1997 Wis. Act 273, § 10,9 the Monicken court also held that the 1997 changes to § 767.32 apply retroactively. Id. at 131-32. Therefore, after the law's effective date, which the legislature set at June 25, 1998, a circuit court is permitted to grant credit against child support arrearages pursuant only to the limited circumstances enumerated in § 767.32(1r)(b)-(f), regardless underlying child support order was entered. ¶16 of when the Id. at 131-32. Dorian does not contest the circuit court's conclusion that none of the circumstances allowing credit against a child support arrearage under Wis. Stat. § 767.32(1r) was met here.10 8 Wisconsin Stat. § 767.32(1r) and (1m) are unchanged in the 2001-02 version in all material respects from those effective June 25, 1998. 9 1997 Wis. Act. 273, § 10 provided, "Initial applicability. (1) This act first applies to arrearages existing and child or family support payments past due on the effective date of this subsection, regardless of when the judgment or order under which the arrearages accrued or the child or family support is owed was entered." (Emphasis added.) 10 Wisconsin Stat. § 767.32(1r)(b) provides that a circuit court may grant credit where: [t]he payer shows payments were made money order, and evidence that the by documentary evidence that the directly to the payee by check or shows by a preponderance of the payments were intended for support 9 No. Rather, Dorian argues that the retroactive 03-1877 applications of § 767.32(1r) and (1m), which limit a circuit court's power to grant him credit against child support due, violate his right to due process under Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment to the United States Constitution. We disagree. C. Due Process and Retroactive Legislation ¶17 Retroactive legislation Neiman, 236 Wis. 2d 411, ¶16. is presumed constitutional. It is the challenger's burden to overcome that presumption, Martin v. Richards, 192 Wis. 2d 156, 200, 531 N.W.2d 70 unconstitutionality (1995), beyond a by demonstrating reasonable doubt, the statute's Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶26, 244 Wis. 2d 720, 628 N.W.2d 842. and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee. In the circuit court's oral decision, it noted that this statutorily enumerated circumstance was not met. The circuit court also referenced the language of § 767.32(1r)(c), which provides for granting credit where: [t]he payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.265 or 767.29 not including gifts or contributions for entertainment. The circuit court explained in its oral decision that this circumstance was also not met, as there was no written agreement. 10 No. ¶18 03-1877 We have determined that the due process clauses of Article 1, § 1 of the Wisconsin Constitution11 and the Fourteenth Amendment to the United States Constitution are substantially equivalent.12 Neiman, 236 Wis. 2d 411, ¶8; Martin, 192 Wis. 2d at 198 n.6. The Fourteenth Amendment of the Constitution in pertinent part provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. applications of unconstitutional, Wis. the Stat. particular In arguing that retroactive § 767.32(1m) right Dorian and (1r) appears to are be 11 Article 1, § 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." 12 This court has also said that it "will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin . . . require[s] that greater protection of citizens' liberties ought to be afforded." See State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977). 11 No. 03-1877 asserting is the right not to be deprived of property,13 without due process of law.14 ¶19 balancing As the parties correctly note, this court adopted a test to determine comports with due process. whether a retroactive statute Martin, 192 Wis. 2d at 201. The Martin balancing test examines whether the retroactive statute has a rational basis,15 Matthies, 244 Wis. 2d 720, ¶27; Neiman, 236 Wis. 2d 411, ¶9, requiring a reviewing court to "weigh the public interest served by the retroactive statute against the 13 Dorian asserts that his "economic viability" and his "ability . . . to freely contract with others" are affected. (Pet. Br. at 15.) 14 Dorian does not explain whether he believes the retroactive applications of these statutes violate his right to substantive due process or to procedural due process. The right to substantive due process "protects against governmental actions that are arbitrary and wrong 'regardless of the fairness of the procedures used to implement them,'" Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis. 2d 51, 678 N.W.2d 831 (citation omitted), whereas procedural due process addresses the fairness of the manner in which a governmental action is implemented, State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (citation omitted). Dorian is not arguing that the procedure applied in his case was unfair. Instead, he is arguing that it is unfair to apply Wis. Stat. § 767.32(1m) and (1r) retroactively because he believes that it is wrong to apply those substantive rules to his case in light of the law that he alleges had previously been in place. See Schulz, 155 Wis. 2d at 598. Thus, it appears that Dorian is asserting a substantive due process claim, rather than a procedural due process claim. 15 The United State Supreme Court has explained that, for the purpose of due process, the retroactive application of legislation must be justified by a rational, as opposed to arbitrary and irrational, purpose. Pension Benefit Guar. Corp. v. R.A. Gray Co., 467 U.S. 717, 729-30, 104 S. Ct. 2709 (1984). 12 No. private interests Wis. 2d at 201 that are (citation overturned by omitted). it," "Implicit 03-1877 Martin, within 192 this analysis is a consideration of the unfairness created by the retroactive legislation." ¶20 whether Id. (citation omitted). However, our precedent instructs us to determine first application of challenging the the statute statute actually in has question a to the retroactive party effect, Matthies, 244 Wis. 2d 720, ¶19, Neiman, 236 Wis. 2d 411, ¶14; see Martin, 192 Wis. 2d at 199-200, an inquiry that turns on whether the right is "vested," Matthies, 244 Wis. 2d 720, ¶¶2123; see Neiman, 236 Wis. 2d 411, ¶14. "[t]he concept of vested rights is As noted in Neiman, 'conclusory a right is vested when it has been so far perfected that it cannot be taken away by statute.'" omitted). Neiman, 236 Wis. 2d 411, ¶14 (citation Only upon concluding that the statute in question "retroactively affects a substantive right that accrued before the passage of the legislation," do we proceed with the Martin balancing test. ¶21 As Matthies, 244 Wis. 2d 720, ¶27. discussed discretion to make above, in a revision if 1983 the cause or shown, but it had no obligation to do so. II.B. circuit court had justification was See supra Section In 1982, Dorian was ordered to pay child support. The circuit court's discretionary power to reduce or cancel Dorian's arrearages at a particular point in time after that did not vest a right in him to have the arrearages reduced or cancelled. Woodmansee v. Woodmansee, 151 Wis. 2d 242, 248-49, 444 N.W.2d 13 No. 03-1877 393 (Ct. App. 1989) (citing Miller v. Miller, 67 Wis. 2d 435, 448, 227 N.W.2d 626 (1975)). ¶22 However, because neither party argued that Dorian did not have a vested right, we will assume he did have a vested right and turn considering the applications of to retroactive applying public Wis. application the Martin interest test. We served by (1m) and Stat. § 767.32 of legislation must begin by retroactive (1r). serve a The public purpose that is "'substantial, valid and intended to remedy a general economic or social issue.'" Matthies, 244 Wis. 2d 720, ¶31 (quoting Neiman, 236 Wis. 2d 411, ¶23). ¶23 In reviewing the steps the legislature took to arrive at the current formulations under Wis. Stat. § 767.32(1m) and (1r), we see that its first step in restricting a court's authority to revise past due child support amounts began with 1987 Wis. Act. 27, § 2135i. The revision was made on the recommendation of the Governor's Welfare Reform Commission ["the commission"]. Legislative Reference Bureau Drafting Record for 1987 Wis. Act. 27. The commission recommended implementing "a new federal requirement that prohibits retroactive adjustments to child support orders," Governor's Welfare Reform Commission, Report on Recommendations of the Governor's Welfare Reform Commission 13 (May 22, 1987), apparently referring to 42 U.S.C. 14 No. § 666(a)(9)(C).16 03-1877 The State may have risked jeopardizing its eligibility for certain federal funds if it had not complied. See Schulz, 155 Wis. 2d at 594-95; Woodmansee, 151 Wis. 2d at 246-47. As one commentator has summarized the pertinent legislative history, the Commission and the Legislature (1) were concerned about the loss of federal . . . funds; (2) wanted to reduce the welfare budget by having non-custodial parents (instead of the state) support their children; and (3) wanted to protect custodial parents from having to return child support payments should the support order later be reduced. Aaron Bransky, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123, 1138. ¶24 Further restriction on retroactive modification of child support arrearages was passed in 1993, which prohibited credit to the obligor against child support arrearages, 1993 Wis. Act. 481, § 119, regardless of when the underlying child support order was entered, id. at § 9326. These amendments were also intended to bring Wisconsin into compliance with federal 16 42 U.S.C. § 666 provides that "each State must have in effect laws requiring . . . that any payment or installment of support under any child support order . . . is . . . not subject to retroactive modification," with one limited exception. 42 U.S.C.A. § 666(a), (a)(9)(C). The law was introduced in 1986. Omnibus Budget Reconciliation Act of 1986, Pub. L. 99-509, § 9103, 100 Stat. 1874 (1986). See generally Lisa Dukelow, Child Support in North Carolina: What is the State of the Law And How Did We Get Here?, 22 N.C. Cent. L.J. 14, 18 (1996); Aaron Bransky, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123, 1135-38. 15 No. 03-1877 law. Legislative Reference Bureau Drafting Record for 1993 S.B. 44.17 Prior to the 1993 statutory changes, the court of appeals had recognized the soundness of a rule prohibiting credit against an arrearage for voluntary expenditures made in a manner not specifically such payments ordered, or noting expenditures that would "[a]llowing condone the credit for unilateral modification of court orders and interference with the custodial parent's right to decide how support money should be spent." O'Brien v. Freiley, 130 Wis. 2d 174, 181, 387 N.W.2d 85 (Ct. App. 1986) (citing Hirschfield, 118 Wis. 2d at 471). After the 1993 statutory changes, the court of appeals explained that the amendments apparently determination problem of that were "the nonpayment based public of child on interest support a public in addressing is best policy served the by limiting payments to those made in accordance with the divorce judgment. This policy fixes arrearages with certainty and facilitates the determination as to who owes arrearages and what amount." ¶25 Fisher, 200 Wis. 2d at 815. Then, in 1997, the Family Law Section of the State Bar of Wisconsin recommended language that it believed both complied with federal law and was fair, allowing credit to be granted a child support circumstances. obligor under specifically articulated Legislative Reference Bureau Drafting Record for 17 Language essentially identical to May 1994 Senate Bill 2, §§ 118-19, 9326, which created 1993 Wis. Act 481, §§ 118-19, 9326, (2), was earlier considered by the legislature in 1993 Senate Bill 44, §§ 3637-38, 9326(2g)(b). 16 No. 1997 Wis. Act. 273. 03-1877 The State Bar's proposal served as the foundation for 1997 Wis. Act. 273, which allowed credit to be granted under carefully described circumstances. See id.; 1997 Wis. Act 273 §§ 1-7. ¶26 In sum, the retroactive application of Wis. Stat. § 767.32(1m), which generally forbids modification of past due child support, serves: (1) the general public purpose of financially providing for children; (2) the more particular and corollary purpose of requiring parents, rather than the State, to provide financial support for their children; and (3) the pragmatic goal of securing federal funds for the State via compliance with federal law. ¶27 The retroactive application of Wis. Stat. § 767.32(1r), which allows a child support payer to be granted credit only under specifically enumerated circumstances, was also enacted to maintain the State's eligibility for certain federal funds, but further recognizes the public's interest in having changes to child support arrangements be supervised by a court, so that children's needs are met as fully as possible by their parents. ¶28 Having considered the public interest served by Wis. Stat. § 767.32(1m) and (1r), in accordance with the Martin test, we next consider the private interest affected. Of primary concern is whether the retroactive statute unfairly overturns the challenger's settled expectation in any accrued rights. Schultz v. Natwick, 2002 WI 125, ¶26, 257 Wis. 2d 19, 653 N.W.2d 266; Matthies, 244 Wis. 2d 720, ¶¶42-43; Neiman, 236 Wis. 2d 17 No. 411, ¶¶20, 22. 03-1877 Consistent with that concern, we also consider whether the statute's challenger had reasonably relied on prior law. Neiman, 236 Wis. 2d 411, ¶21. ¶29 As noted earlier, Dorian contends that his right to due process, that is, the right not to be deprived by the State of life, liberty, or property without due process of law, is violated here. At stake, according to Dorian, is his private interest in property, specifically his economic viability and his ability to contract freely. ¶30 Although the total amount Dorian will have to pay in order to satisfy the child support arrearages, plus interest, is considerable, we conclude that in light of the circumstances, his private interest in property here is weak. Dorian's obligation to pay $30 a week in child support to the county clerk was explicit in the 1982 court order. Wisconsin Stat. § 767.32 provided Dorian the opportunity to return to court and request a modification of the order.18 He chose not to do so. Instead, he waited until he was called into court to pay the arrearages. ¶31 Dorian argues that his extrajudicial agreement with Barbara subsequent to the 1982 order was enforceable at the time of its creation, which he alleges was in 1983. However, as discussed above, the prevailing law in 1983 regarding revision of child support arrearages was 18 that the In the current codification, such a filed pursuant to Wis. Stat. § 767.32(1)(a). 18 circuit request court would had be No. discretion to make shown. a revision if See supra Section II.B. cause or 03-1877 justification was As all that Dorian had to rely on under prior law was the court's discretionary power, Dorian's expectation that he could successfully enforce his extrajudicial agreement with Barbara regarding child support was far from settled.19 ¶32 In sum, we conclude that Dorian has not established beyond a reasonable doubt that retroactive applications of Wis. Stat. § 767.32(1m) and (1r) violate his right to due process. Balancing interest, the we Retroactive public's weigh the applications interest public of against interest as § 767.32(1m) Dorian's private more substantial. and (1r) serve significant public purposes, while remedying general social and economic issues. Any expectations Dorian may have had regarding his child support obligation were not well-founded in the law, and moreover, throughout these proceedings, Dorian has never asserted that he was unable to pay $30/week in support or that John had no need for his financial support. private interest in property is weak. Accordingly, his As the Martin analysis demonstrates, retroactive applications of § 767.32(1m) and (1r) 19 In their briefs, the parties did not argue whether the agreement between Dorian and Barbara was enforceable under the Statute of Frauds. Wis. Stat. § 241.02(1). Accordingly, we do not address this issue. 19 No. 03-1877 are rational and do not violate state or federal constitutional due process provisions.20 III. ¶33 CONCLUSION Because we conclude that retroactive applications of Wis. Stat. § 767.32(1m) and (1r) do not violate Dorian H.'s right to due process, we affirm the decision of the court of appeals. By the Court. The decision of the court of appeals is affirmed. 20 Dorian makes two additional arguments that are without merit. First, he argues that retroactive applications of Wis. Stat. § 767.32(1m) and (1r) violate Article I, § 9 of the Wisconsin Constitution, which guarantees a "certain remedy in the laws for all injuries, or wrongs which [a person] may receive in his person, property, or character," Wis. Const. art. I, § 9. We agree with the court of appeals that this argument fails because the legislature has provided both a procedure and a forum that accommodate his concerns. Barbara B. v. Dorian H., No. 03-1877, slip op. at 8-9 (Ct. App. Dec. 10, 2003). Dorian also urges us to adopt equitable remedies, such as equitable estoppel, to address the interest he has been ordered to pay on the child support arrearages. However, we are unpersuaded by these arguments because Dorian had the use of the funds that he should have paid to support his son, and the legislature has clearly articulated its policy determinations in Wis. Stat. § 767.25(6) regarding interest on child support arrearages. Further, the legislature has decided that the interest provided for in § 767.25(6) "shall," that is, must, accrue and be paid. See State v. Douangmala, 2002 WI 62, ¶31, 253 Wis. 2d 173, 646 N.W.2d 1 (holding that the word "shall" in a statute is generally presumed to be mandatory). 20 No. 1 03-1877

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