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Chen was significant Supreme Court decision in 2005

Gregg Herman

Welcome back to the 2005 “Year in Review” for the Wisconsin appellate courts in family law. Last week I looked at a number of important decisions from the court of appeals. This week, the spotlight turns to the Wisconsin Supreme Court. While there was only one major and one minor family law decision by the justices this past year, a “non-decision” was of critical importance, as well.

First, the Decisions

In a case which will likely be often-cited due to the frequency of the issue, the Supreme Court, in Chen v. Warner, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 758, affirmed the circuit court’s conclusion that a physician-mother’s post-judgment decision to quit her employment to stay home with the children (with whom she had shared equal placement with the physician-father), was not shirking and, thus, entitled her to an increase in child support from her former spouse.

The majority opinion, authored by Chief Justice Shirley S. Abrahamson, defined shirking as a “party’s employment decision to reduce or forego income [that] is voluntary and unreasonable under the circumstances.” The court also held that the standard of appellate review of reasonableness in shirking cases requires an appellate court to independently determine the issue of reasonableness, giving appropriate deference to the circuit court.

The court provided a wide breadth of factors for trial courts to consider in these cases. The problem is that few parties can afford to litigate over the application of those factors. Although certainly not intended by the court, the broad holding leaves the option available for two working parties to stop working, see the children more frequently and neither be found to be shirking.

At the time of the decision, I said that this case is an example of “bad facts make bad law.” As pointed out in the dissents by Judge Charles Dykman in the court of appeals decision and Justice Louis Butler at the Supreme Court, this case presented the unusual feature of two high-asset and income parties. The decision whether or not to work involves different considerations in those cases than in cases where the income and assets are not high enough to afford the luxury of such a choice. It is feared that Chen will serve as precedent for parents wanting to avoid a support obligation where the financial circumstances are limited.

In a far less controversial case, the Supreme Court issued its opinion in In re the Paternity of John R.B., 2005 WI 6, 277 Wis. 2d 378, 690 N.W.2d 849, which affirmed an unpublished decision of the District II Court of Appeals, in a case originating out of Kenosha County Circuit Court.

This case concerned the impact of an alleged post-judgment oral agreement between the parties to modify child support as a defense to arrears accumulated based upon the terms of the judgment. The high court concluded that retroactive application of Wis. Stat. § 767.32 (1m) and (1r) does not violate due process and thus rejected the father’s claim.

It certainly did not help the father that he propounded that the “trade-off” in the oral agreement for not paying support was that he not see the child. While that type of trade occurs not infrequently in the real world, it is not a good ploy for sympathy in the court system.

Next, the Non-Decision

An issue not decided by the state Supreme Court avoided a potential significant problem.

In State v. Denis L.R., 2005 WI 110, 283 Wis. 2d 358, 699 N.W.2d 154, the Supreme Court reviewed a court of appeals decision affirming a finding by the trial court that a mother’s disclosure to a third party of her child’s statements to a therapist constituted a waiver of the child’s privilege.

That holding, if affirmed, could have created havoc in family courts by effectively eliminating the ability of therapists for minor children to promise the child confidentiality. However, the Supreme Court affirmed the court of appeals decision on very narrow grounds, by holding that there was no privilege due to the mandatory reporting obligations under Wis. Stat. §48.891. In a footnote, the court held that the mandatory reporting of sexual abuse does not waive privilege for other communications.

Finally, as a preview for 2006, there is only one family law case pending before the Supreme Court in its current term. On Dec. 13, 2005, the Wisconsin Supreme Court heard oral arguments in Landwehr v. Landwehr, No. 2003AP2555. The case presents the issue of the proper standard of review when determining a motion to modify physical placement. Two statutes seem to conflict: Wis. Stat. § 767.24(4)(a)(2) requires a court to set a placement schedule that maximizes the amount of time a child may spend with each parent, whereas the post-judgment statute, Wis. Stat. §767.325(1)(b)2 presumes that the current allocation of physical placement is in the best interest of a child.

For a previous analysis of the case, see “Supreme Court will review conflicting custody elements,” Wisconsin Law Journal [June 22, 2005], and an upcoming article in this column analyzing the case after oral arguments.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to or sending an e-mail.

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