Please ensure Javascript is enabled for purposes of website accessibility

Court interferes with agreement between parents

By: dmc-admin//October 11, 2006//

Court interferes with agreement between parents

By: dmc-admin//October 11, 2006//

Listen to this article

Herman
Gregg Herman

It appears that this is no longer a free country. Instead, the “Big Brother” court system has the right to throw out agreements between two parents who enter into voluntary stipulations, even where there is no state interest involved.

In Motte v. Motte, No. 2005AP2776 (Wis. Ct. App. Sept. 27, 2006) (recommended for publication), the Wisconsin District II Court of Appeals affirmed and remanded a post judgment order rendered by Ozaukee County Circuit Court Judge Joseph D. McCormack concerning child support arrears calculations.

In the case, Paula and David Motte were divorced in 1995, with primary placement of their two children awarded to Paula, and David being ordered to pay child support (which was modified in 1996).

In September 1998, the parties entered into two stipulated orders. The first waived all child support arrears (the amount was apparently not specified). No consideration appears to be given for the waiver. The second maintained the child support at its current level, but provided for a step down when the oldest child graduated from high school. Furthermore, in the second stipulation, the parties agreed that child support would not be affected by future changes in the placement schedule, in an effort to avoid future litigation.

In 2004, Paula brought an order to show cause believing that, since the September 1998 order, David had not been paying the proper amount of child support ordered. The circuit court found that the second portion of the stipulation precluding modification was void as against public policy because it abrogated the court's jurisdiction over child support contrary to law. In addition, the circuit court granted credit back to when the older child moved with the husband in 2000, pursuant to Wis. Stats. Section 767.32(1r)(e).

In a unanimous opinion authored by Judge Richard S. Brown, the appellate court affirmed the circuit court's order voiding of the agreement freezing child support on public policy grounds, thus approving of the credit granted. This holding, in and of itself, is an infringement on the right of parties to privately agree on children issues where there is no state interest.

Under Wisconsin law, child placement is intrinsically tied into child support: The more time a parent has with a child, the less child support is paid or the more received by that parent. This frequently leads to placement battles premised less on wanting to be a parent, and more on wanting a financial advantage.

This is sometimes referred to as “marketing in children,” and it is not always easy to identify. Sometimes, parents agree that the placement arrangement of the children is more important than the financial consequences. Such an agreement would allow parents to negotiate placement arrangements based purely upon the best interests of the children by making the financial ramifications a lesser priority than placement schedules.

By declaring this type of agreement to be against public policy, the court of appeals is essentially placing its order of priorities — that money is primary — over that of parents who may believe that avoiding the harm to children that occurs through parents fighting is more important than money.

As unfortunate as this holding is, it is not the most troubling one in this case. Sua sponte, the appellate court held that parties cannot stipulate to the waiver of arrears, except to correct errors in calculations.

Despite the fact that neither party raised the issue either in the circuit court or on appeal, the stipulation forgiving David’s past arrearage was held to be void as a violation of public policy.

Putting aside for the moment the “Big Brother” nature of the trial court overriding the voluntary agreement of two people, who reached an agreement, which involved no state interest, this holding poses great danger to child support recipients.

As every businessperson knows, cash is king. Businesses, including lawyers, frequently discount bills for actual payment. Similarly, child support recipients often prefer actual cash, to large arrearages, as one can be used at the grocery store, while the other cannot. This holding appears to prohibit the normal business transaction where a lesser amount of cash is traded for a promise to pay more later.

Hopefully, either the Publications Committee will overrule the publication recommendation and assign this case to oblivion, or the Supreme Court will grant review and restore sanity.

Bad enough that parents cannot make agreements that they believe is in their and their children’s best interests. Even worse would be a case that would significantly harm both parents and their children, without doing any good for anyone.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached by e-mail at gherman@ loebherman.com.

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests