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Lying-in costs depend on ability to pay

What the court held

Case: Rusk County Department of Health and Human Services v. Thorson, No. 04-2267.

Issue: Can a court order a father to pay a mother’s lying-in expenses, even though he has no ability to pay?

Holding: No. Pursuant to section 767.51(3)(e), a father’s ability to pay is a prerequisite.

Counsel: Carol A. Conklin, Ladysmith, for appellant; Michael P. Weiler, Ladysmith, for respondent.

Section 767.51(3)(e) does not permit a court to order a father to pay the mother’s lying-in expenses without finding that he has the ability to pay, the Wisconsin Court of Appeals held on Jan. 11.

Leonard M. Thorson fathered twins born Sept. 28, 2003. The Wisconsin Medical Assistance Program paid the expenses associated with their births.

The Rusk County Department of Health and Human Services filed a paternity petition seeking, among other things, reimbursement for lying-in expenses. The parties agreed, and Rusk County Circuit Court Judge Frederick A. Henderson found, that Thorson did not have the present ability to pay any of the expenses.

Nevertheless, the court ordered that Thorson was obligated for the total of $4,333, although it held payment in abeyance. The court also ordered Thorson to provide copies of his tax returns and to report to the County any change of address, employer or income.

Thorson appealed, and the court of appeals reversed in a decision by Judge Gregory A. Peterson.

Section 767.51(3)(e) authorizes the circuit court to order a "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."

The court concluded that the plain language of the statute makes the court’s ability to order payment contingent on "the father’s ability to pay." Because the parties did not dispute Thorson’s inability to pay at the time of the hearing, the court concluded the order to pay lying-in expenses exceeded the court’s authority.

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Case Analysis

The County argued that the order was valid because the court only set an obligation for payment, rather than an order to pay. Absent statutory authority for such an obligation, however, the court rejected the argument that the order was permissible.

The court also rejected the County policy’s argument that the holding would "virtually eliminate collection of lying-in expense from a father," reasoning, "a county cannot collect the expense until a father has the ability to pay. Therefore, an order setting the obligation amount with payment held in abeyance does nothing to aid the County in collecting the expenses. When and if a father has the ability to pay, the court may order him to pay or contribute to the lying-in expenses. If the father’s ability to pay changes, the order may be modified. Wis. Stat. secs. 767.51(6) and 767.32."

Accordingly, the court reversed.

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David Ziemer can be reached by email.

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