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FAMILY LAW: The law sometimes works in mysterious ways

Gregg Herman

Yes, the law sometimes works in mysterious ways.

Take, for example, a recent Wisconsin Court of Appeals opinion that reached the right conclusion, although for somewhat convoluted reasons. In the process, the court has, thankfully, cleared up one of the more silly aspects of family law in Wisconsin.

On July 3, 2012, the Dist. I court issued its opinion in Tierney v. Berger, No. 2011AP565, affirming the circuit court.

Several years after the divorce, John Tierney filed for a de novo hearing from a family court commissioner order requiring him to pay child support. Milwaukee County Circuit Court Judge Michael Guolee vacated the FCC’s ruling and found a substantial change in circumstances and also ordered child support.

Although the family court commissioner’s child support order had never been stayed, the trial court ordered that a percentage of Tierney’s bonus income should be paid towards the “arrears” between the time of the family court commissioner hearing and the trial court order. Once the arrears are paid in full, a percentage of any bonus was to be paid as child support.

Rebecca Berger appealed and Tierney cross-appealed.

Presiding Judge Patricia Curley’s opinion for the panel found that the trial court’s use of the word “arrears” was an attempt to craft a solution for the gap in child support between the time of the family court commissioner order and the trial court order.

The court also affirmed the trial court’s finding that there had been a substantial change in circumstances. In fact, the court called the evidence “overwhelming,” considering that the last order had been entered over 33 months prior, the now-teenaged children had greater expenses, one of the children was estranged from the father, the father was making more money and other evidence.

Finally, the appellate court held that the trial court’s percentage order on unknown future bonus income was acceptable, as it was another exception to the preferred method of having child support orders expressed as a fixed sum.

At first blush, it seems that perhaps this is one of those cases that should be “unpublished, but citable,” based on some of its unusual facts.

In particular, the trial court’s order was convoluted, although quite reasonable. The payor should not get a “break” between the family court commissioner order and the trial court order. But, either there were arrears or there were not. If there were no arrears, what in the world is Tierney paying since courts cannot order child support retroactively?

The end result was altogether appropriate: Tierney did not get a total break from having to pay child support between the two orders, but he can pay the back payments from his bonus rather than from current income at the same time as his current child support.

Still, if there are arrears and child support should be paid from the bonus (and it should), the order shorted Berger.

The most important part of the case, however, is the Court of Appeals clearly allowing a “mixed order.” A mixed order is where part of the order is dollar-expressed and part is percentage-expressed.

In a case like this one — and many others — a mixed order makes a great deal of sense. The base salary is known and a dollar-expressed order is entirely appropriate. However, a bonus can range from zero to quite substantial, so ordering a percentage of it to be paid as support when, as and if earned, also makes a lot of sense.

So what’s the problem?

It’s the statute, stupid — or, actually, it’s the stupid statute. For reasons that make no discernible sense, Wis. Stat. § 767.34(2)(am)3 seems to prohibit mixed orders.

For the life of me, I can’t think of a single rational reason why a mixed order should not be allowed in appropriate cases. Even if there were a reason, it should be weighed against the convenience to the parties in cases where there is a fixed salary and a variable bonus. I can’t think of any weighing test that even needs to be conducted. Mixed orders make sense in certain cases and there is no known argument against them.

As a result, many judges simply do what Judge Guolee did in Tierney v. Berger, which is to make a mixed order because it makes sense.

Now, the Court of Appeals, perhaps through the back door, has created legal authority to do so. Reasoning aside, and whether it was intentional or not, the family law system should welcome that back-door ruling.

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

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