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A first look at the court of appeals’ decision in Wood v. Propeck

By: dmc-admin//February 12, 2007//

A first look at the court of appeals’ decision in Wood v. Propeck

By: dmc-admin//February 12, 2007//

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Herman
Gregg Herman

Recently, the Wisconsin Court of Appeals issued its decision in Wood v. Propeck, No. 2005AP2674 (Wis. Ct. App. Jan. 25, 2007) (recommended for publication). The court reversed and remanded a post-judgment order rendered by Dane County Circuit Court Judge Steven D. Ebert, which denied the former wife’s request for a child support modification. This is the first of two articles discussing this case and its consequences.

In the case, Pamela Propeck appealed an order denying her motion to modify the child support order paid by her former husband, William Wood. Propeck claimed that the circuit court erred in determining that she should be estopped from seeking the modification by the terms of a marital settlement agreement the parties had entered into at the time of their divorce. The parties had agreed that, absent “catastrophic circumstances,” neither party could request a change in child support for the first seven years following their divorce.

The appellate court held that the case was governed by Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990). Under Ondrasek, the parties’ agreement contravenes public policy and cannot give rise to estoppel.

Wood attempted, unsuccessfully, to distinguish this case from Ondrasek, arguing that the parties’ agreement is limited in duration, is reciprocal as to both parties (i.e. as to increases and decreases), and that the agreement neither constitutes a complete waiver of future child support modifications, nor does it place a ceiling on the amount of support that may be awarded in the future.

The court rejected this argument, holding that: “[T]he provision at issue, if it were enforced, would prevent a court from considering whether a modification in child support should be ordered to ensure the children’s best interests are protected when circumstances substantially change from those at the time of the divorce. The provision thus contravenes the legislative directive and is precisely what we said in Ondrasek that divorcing parties may not agree to.”

The court further rejected Wood’s argument that the agreement is valid as it binds both parties, not just one party as in Ondrasek.

The court also rejected Wood’s argument that the holding in Krieman v. Goldberg, 214 Wis. 2d 163, 178, 571 N.W.2d 425 (Ct. App. 1997) limited the holding in Ondrasek.

In Krieman, the court held that a child support agreement with a “floor” requiring a minimum amount of support violated public policy, where the agreement is not time limited and has no opportunity for review.

In fact, the court held that Krieman supports its holding that “any attempt to deprive a court of the ability to modify child support in the best interests of the children upon a showing of a substantial change in circumstances is against public policy.”

Keeping it Simple

The good news is that under this case, there is now a simple, black-letter rule: Parties cannot stipulate to anything that limits the court’s jurisdiction over child support. It does not matter:

  • If the agreement is time limited;
  • If there is an exception based on “catastrophic circumstances;” or,
  • If both parties knowingly and voluntarily entered into an agreement where there is no overriding state interest.

The good news is that the rule is simple: These agreements are not valid.

But, keeping the last “S” in mind of the KISS rule, is there bad news? Is this simple rule also bad public policy? Tune in next week.

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.

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