One final look at the family law decisions of 2007

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During the past year, there was only one Wisconsin Supreme Court case and only a few published Court of Appeals cases in family law. While some of the cases earned approval in this column (not that either court particularly cared), others drew flak. Not being satiated with one kick at the courts and not being smart enough to leave bad enough alone, let’s take another look at the appellate family law cases in 2007.

The only Supreme Court decision in family law in 2007 was Frisch v. Henrichs, 2005AP534, in which the court held that a family court may use its remedial contempt power, where a party has consistently failed to provide tax returns and income information in a timely manner, even though the party does produce the information before the contempt hearing.

The high court decision alleviated the worst fear arising from the Court of Appeals decision, which was that contempt was no longer a viable option once the underlying act was remedied, even if the consequences were not. By utilizing the concept of “continuing contempt,” the justices recognized in Frisch that all manifestations of violating a court order were available for a purge order. Still, the concept of “continuing contempt” is worrisome since everyone typically ignores the requirement of exchanging “financial information” — a vague concept typically ignored in practiced.

As opined in my original articles critiquing this case, Justice Louis B. Butler Jr. got it right in his concurring opinion — the Court of Appeals could and should have reached the same conclusion by applying a straightforward statutory analysis of contempt without have to create the seemingly new concept of “continuing contempt.”

Big Brother is Back

Much of my criticism of 2007 appellate decisions arose from two cases where the courts tied the hands of parties trying to avoid litigation.

In Frisch, the justices appeared to hammer the final nail into the coffin of Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), a case where the court appeared to allow parties to devise a child support agreement, which would not be subject to modification, at least for a certain time period.

In Motte v. Motte, 2005AP2776, the Court of Appeals reached the same conclusion, although fortunately — and to their credit — they withdrew a holding which would have prevented parties from negotiating a forgiveness of a portion of arrears for a partial payment.

The result of these cases, and of Jalovec v. Jalovec, 2007 WI App 206, is to make America a bit less of a free country to divorcing couples. Some couples value protecting the stability of their children over money. As a result, they would like to remove financial incentives from the list of possible disputes which can harm their children.

Unfortunately, the Wisconsin appellate courts will not allow them to do so. With the apparently misguided notion that child support modification proceedings do not harm children, these decisions prohibit consenting parents from determing their own priorities and parenting their children as they deem best. For more criticism of this holding, see Gregg Herman, “Dishonoring Honore,” 27 Wis. J. Fam. L. 3 (July, 2007).

The Right Decisions

On the positive side, one case, Jantzen v. Jantzen, 2007 WI App 171, included several important holdings. For one, financial changes must be substantial to warrant a modification of maintenance.

The word “substantial” is designed to limit postjudgment modification proceedings and this decision stresses its importance.

In addition, the case holds that the oral statements of the trial court are only important to the extent they are carried over into the written judgment. If there is a disparity between the two, as occurred in this case, the written judgment controls. It is possible to “lose the battle, but win the war,” by drafting a judgment that says what a lawyer wants it to say, rather than what the judge actually said.

Finally, the case holds that if the payee is going to seek an increase in maintenance after child support ends, the judgment should clearly reflect that income from child support was considered in setting maintenance or the cessation in child support will not constitute a substantial change in circumstances.

The Court of Appeals also correctly decided (in my never-to-be-humble opinion) Waters v. Waters, 2007 WI App 40, by reversing the trial court for finding that a child support stipulation was percentage-based. The appellate court held that the language in the agreement “[T]he monthly amount of $400 (17% of current income of $28,000/year)” was unambiguously a dollar expressed order and only used the percentage to exhibit how it arrived at the dollar amount.

The Flip Side

That’s enough praise. I also criticized the holding in Wright v. Wright, 2006 WI App 2111.

While the appellate court property held that an account was divisible property where deposits made to the account were made from marital property, the troubling holding was reversing the trial court’s exercise of discretion on maintenance.

Despite the trial court’s opinion of 121 pages and 1,062 findings of fact, the Court of Appeals substituted its judgment as to what businesses should be included for maintenance (all of them), found no double-counting and held that certain earnings were a return on capital rather than a source of income. What happened to the rule that discretionary orders afford a trial court certain latitude in making decisions? And, if a court that gave this much thought and consideration to its decision on a discretionary issue is reversed, is any trial court decision safe?

Ending on a Positive Note

In Hatch v. Hatch, 2007 WI App 136, 302 Wis. 2d 215, 733 N.W.2d 648, the appellate court held that where a wife moved to Wisconsin when pregnant and filed action after the child was born, Wisconsin was the child’s “home state” under Wis. Stat. §822.02(7), and Wisconsin has initial jurisdiction under Wis. Stat. §822.21(1).

Finally, in Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, the appellate court held that grandparents did not rebut the presumption that the decision of the mother, a fit parent with primary placement, regarding the existing visitation, sufficiently served the best interests of the children, even though the grandparents had a parent-like relationship with the children.

Both cases are consistent with prior law and sound policy.

While not agreeing with the courts on all the issues, it is such disputes that make the practice of law interesting. We look forward to continued compelling dialogue in 2008.