Family — child support – arrears — interest

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Wisconsin Court of Appeals

Civil

Family — child support – arrears — interest

Where the court awarded a lump sum as child support, there were no arrears, and thus, no interest on the amount due.

“WISCONSIN STAT. § 767.511(6), titled ‘[i]nterest on arrearage,’ reads, in pertinent part:  ‘A party ordered to pay child support under this section shall pay simple interest at the rate of 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month.’  (Some capitalization omitted.)  As noted, Tierney was under no child support order for a period of time because of the trial court’s decision to vacate the child support order set by the family court commissioner.  This had the effect of wiping out the order entered by the family court commissioner requiring Tierney to pay child support and placed the parties in the same position they had been in for the last eight years; i.e., a hold-open on child support.  Consequently, no arrears existed.  Indeed, the literal reading of the statute requiring ‘simple interest at the rate 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month’ would not be applicable because there was no ‘child support due in one month.’”

“While not directly on point, the case of Lyman v. Lyman, 2011 WI App 24, 331 Wis. 2d 650, 795 N.W.2d 475, supports this conclusion.  In Lyman, the trial court determined that no interest was due on the settlement proceeds that Scot Lyman received after successfully suing his former employer on a breach of contract suit.  See id., ¶¶5, 8, 27-28. The parties had entered into a stipulation concerning child support.  Id.

After Scot Lyman settled his wrongful termination suit for over three million dollars, Sally Lyman sought child support from the settlement amount.  See id., ¶10.  The trial court awarded her $220,000, but did not order any interest.  Id., ¶11.  This court affirmed the trial court’s conclusion that the child support award did not create an arrearage under WIS. STAT. § 767.511(6).  Id., ¶28.  Similarly, the trial court’s decision here, to order lump-sum child support for the period of time that no legal support order was in effect, did not create an arrearage and the trial court correctly refused to order interest on the amount.”

Affirmed.

Recommended for publication in the official reports.

2011AP565 Tierney v. Berger

Dist. I, Milwaukee County, Guolee, Gordon, JJ., Curley, J.

Attorneys: For Appellant: Grove, Patricia L., Milwaukee; Parkinson, Carolyn R., Madison; For Respondent: Dodd, Kelly M., Milwaukee