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Lying-In Costs Case Analysis

In the aftermath of this decision, Wisconsin courts should expect a deluge of motions for modification of paternity orders by fathers ordered to pay mothers’ lying-in expenses.

For decades, orders such as the one in the case at bar have been entered without an objection as to the lawfulness of the orders, or consideration of the statute. The "ability to pay" issue has been dealt with by courts ordering fathers to pay X number of dollars per month, according to ability to pay, until the balance is paid.

Now, paternity judgments can provide that fathers pay nothing at all, although, as the court noted, the State can go back and seek modification, should the ability to pay change.

Pursuant to sec. 767.32(1)(a), "the court may, from time to time, on the petition, motion, or order to show cause of either of the parties … may make any judgment or order respecting any of the matters that such court might have made in the original action."

Thus, fathers may also file such motions, regardless of whether there has been a change in circumstances (they were able to pay at the time of the order, but no longer are), or if there has been no change in circumstances (they have never been able to pay, but the original judgment required them to pay anyway).

Change in circumstances is a prerequisite only to modifications of child or family support. And given the language in sec. 767.32(1)(a), it does not appear that the father’s failure to object at the time of the original order would constitute waiver.

In fact, however, the decision should not affect numerous paternity judgments that implicitly did comply with the statute, and required fathers to pay X amount of dollars per month. Effectively, the courts, in entering those orders, have found that the father does not have the present ability to pay the full lying-in expenses, and are entering an order "based on the father’s ability to pay or contribute to those expenses (emphasis added)."

However, as sometimes happens when a court decision abandons an implicit assumption to a long-standing statute, the court may have opened a Pandora’s box.

Many attorneys have represented fathers in paternity actions without ever really looking at sec. 767.51(3)(e). As noted above, the extent of consideration given to the subsection frequently consists of nothing more than asking the father how much he could afford per month, and obtaining the county’s corporation counsel’s consent to that sum.

After this decision is published, attorneys (not to mention angry pro se fathers) can be expected to take a fresh look at the statute for other long-held assumptions that may be invalid.

Two challenges that courts and corporation counsel should expect are that the statute does not permit the government to seek lying-in expenses from fathers at all, but that only mothers may do so, and that the statute violates the Equal Protection Clause.

The statute provides, "A judgment or order determining shall contain all of the following provisions: … (e) An order requiring the father to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth, based on the father’s ability to pay or contribute to those expenses."

It is arguable that the statute implicitly contemplates that the mother has paid her own lying-in expenses, and therefore should be able to obtain contribution from the father, but that the statute does not apply when the state has voluntarily undertaken to pay the mother’s expenses, and now seeks contribution from the father.

In the case of In re the Paternity of N.L.M., 166 Wis.2d 306,479 N.W.2d 237 (Ct.App.1991), the Wisconsin Court of Appeals held that the state could not recover its lying-in expenses from the mother, only the father. In light of that, a father could argue that, because the statute only permits lying-expenses to be recovered from the father, but not the mother, the statute violates equal protection, and the state cannot recover from him either.

This argument was made, and rejected, in an Arkansas case, Eaves v. Dover, 726 S.W.2d 276 (Ark. 1987).

However, the Arkansas scheme is different from that in Wisconsin in two significant respects. First, the authorizing statute expressly provides that judgment may be recovered in favor of the "mother, or person who incurred the [lying-in expenses]." Eaves, 726 S.W.2d at 546.

Second, the Arkansas court noted that the decision to order the father to pay lying-in expenses rests with the discretion of the court, and that the court may consider the mother’s financial resources in setting the amount of the payment.

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In the medical assistance context, it could be argued that the distinction between mothers and fathers is justifiable because the mother must be unable to pay the expenses, or the state wouldn’t have had to in the first place, while no such presumption exists for the father.

Nevertheless, if, by the time of the paternity order, the mother is very financially well-off, and the father is poor as a church mouse, yet the state can only seek contribution from the father, the father m
ay have a good equal protection claim.

Consider also the possibility that the state was not involved at all, but the father, rather than the mother, paid the lying-in expenses. Then, in the paternity action, he seeks to recover contribution of those expenses from the mother. The statute does not allow the court to order that contribution.

Again, suppose that, at the time of the paternity judgment, the mother is well-off financially, and the father is not. The statute would seem to clearly violate the equal protection clause in this circumstance.

Thus, while it is not clear how these issues will be decided, two things are clear: courts should expect an avalanche of motions seeking modification of paternity judgments; and a statute that previously drew little attention will come under the microscope.

– David Ziemer

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David Ziemer can be reached by email.

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