Wood v. Propeck has several significant flaws

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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 second of two articles discussing this case and its application.

In the first article, I summarized the holding: The court of appeals held that the circuit court erred in determining that the wife should be estopped from seeking modification of the terms of a marital settlement agreement into which the parties had entered 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 this agreement violated public policy.

This is the second time recently where these types of stipulations have been held to violate public policy. The first time was in Motte v. Motte, No. 2005AP2776 (Wis. Ct. App. Sept. 27, 2006) (withdrawn, Oct. 5, 2006), where the appellate court held that a stipulation that child support would not be affected by future changes in the placement schedule violated public policy. In addition, the appellate court held that a second stipulation waiving arrears violated public policy, despite the fact that neither party briefed nor argued the issue.

In an article in this column, (“Court interferes with agreement between parent,” Oct. 11, 2006), I severely criticized this holding. Prior to the article appearing (so I take no credit for it!), the appellate court, sua sponte, withdrew the decision for further consideration.

Now the court of appeals is, once again, refusing to allow two consenting adults to voluntarily arrange their financial affairs as they deem appropriate. In addition to the “Big Brother” aspect of disallowing agreements between consenting parties, the court exhibits, at best, a fundamental misunderstanding of the effect divorce has on children, and at worst, a questionable set of priorities.

The legal basis of the court’s decision is based on a prohibition of parties overruling the mandate of the state Legislature. As far back as 1988, in Herrell v. Herrell, 144 Wis. 2d 479, 424 N.W.2d 403 (1988), the court refused to allow parties to agree to a legal standard different than that mandated by the lawmakers.

Yet, the concept of devising non-statutory remedies, and even voluntarily waiving rights, has been accepted in other areas. Section 71 payments, which avoid modification, are well recognized in case law, despite never having been legislated. Further, criminal defendants frequently waive constitutional rights — much more important than legislative rights — to face incarceration.

The test in such cases is whether the decision is knowing and voluntary. Why then, when the ramifications are purely financial, do the courts decide to become Big Brother and prevent an exercise of free will?

Much, if not all, of the reason is that the orders in cases like Propeck and Herrell are designed to protect children. Child support is (supposedly) for the children and since the children are not parties to the action, their rights cannot be compromised. That is theory. In reality, child support is received and spent by a parent and, absent extreme circumstances, the use of child support is not policed by the courts.

Underlying the legal theory seems to be a public policy concern that children are best served by receiving the maximum amount of child support. Therefore, it would follow that keeping options open for increases in child support is tantamount to their best interests.

To the extent this theory is responsible for the public policy enunciation, it consists of a questionable priority. Yes, child support is critical and necessary for children. Yet, many child development experts and many parents recognize that children are best served not by maximizing money received, but by minimizing conflict between their parents. The harm that continuing conflict between parents can cause their children frequently cannot be healed by money. Litigation over child support modification is often not a simple matter of arithmetic by calculating income by child support standards. Rather, it often involves choice of employment, work hours, education, training and even relocation.

This is not to argue that child support is not important. It is to argue that money may not be the most important thing in life. It is also to say that if two adults voluntarily and knowingly place their peaceful co-existence as a higher priority than money, there should be no overriding government interest warranting interference with their parenting judgment.

Apparently, however, the court of appeals — which so far has the final word — disagrees.

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.