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FAMILY LAW: The good, bad and ugly family court opinions of 2012

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

As a family law attorney, I prefer when the courts get it right. It makes it much easier to practice law when there is consistency.

More importantly, there are significant societal issues at stake, and especially when decisions involve children, it’s critical that the courts understand how their opinions affect them.

As a columnist, however, it’s no fun when the courts get it right. An article congratulating the court on a proper result is boring.

Fortunately, for my role as a columnist, there was plenty of fodder in 2012. Here is a look at the good, not-so-good and downright worst court opinions of the past year.

Pension or disability plan?

Maybe I was wrong (never!) in criticizing the state Supreme Court in 2011 for wasting its time on a case differentiating between a pension and a disability plan.

In Topolski v. Topolski, 2011 WI 59, the justices interpreted an agreement regarding a retirement plan consistent with the intent of the parties, notwithstanding the nomenclature between retirement and disability.

While it still seems to be the wrong case to decide the issue — both parties were pro se at trial so there was a poor record and the Court of Appeals’ opinion was merely a summary one — apparently the issue is not that rare.

In 2012, in Dickau v. Dickau, 2012 WI App 111, the Court of Appeals affirmed (except for a minor quibble about interest) a trial court which also refused to allow a right to retirement benefits to be defeated by calling them “disability” payments.

Although in Dickau both sides were represented, there were certain facts which made it difficult for a court to rule in the husband’s favor. Namely, he intentionally withheld information from his ex-wife. Also, he probably didn’t endear himself to either court with his testimony about why he didn’t feel that he was under an obligation to provide required information regarding his pension to his ex-wife. Mr. Dickau referenced his wife’s feeling of entitlement, and said, “Well, I was entitled to sex at home. I was entitled to a clean house. I didn’t get either, but she was entitled to my pension. That just irked me.”

While the narrow facts of both Topolski and Dickau are unlikely to commonly occur, the broader holding — that a trial court has the discretion to consider the intent of the parties in assessing a marital settlement agreement — will be of value in the future.

And, let the word go out to friend and foe alike, not getting sex or a clean home during a marriage is unlikely to engender sympathy from the courts.

Maintenance remains murky

Maintenance continues to be a troubling area due to a lack of either statutory or caselaw guidance.

In Lemke v. Lemke, 2012 WI App 96, the Court of Appeals reversed a trial court for terminating maintenance after three years in a 24-year marriage, where the wife had significant injuries from a car accident and there was a substantial differential in income.

Not willing to give the trial court another chance on remand, the appellate court held the wife is entitled to indefinite maintenance.

The interesting aspect of this case was the judge’s incorporation of his personal experience into the decision. Most areas in family law are discretionary, but none as much as maintenance. A trial court is allowed relatively wide discretion to fit the individual circumstances of each case. While in Lemke, the trial court went too far, the case is illustrative of the risks taken at trial where these personal proclivities may be unknown, but play a decisive role.

Child support law is mixed up

One of the sillier aspects of family law in Wisconsin is the prohibition against “mixed” support orders, where typically support is set as a dollar expressed order from a base salary but a percentage expressed order from a variable bonus.

In Tierney v. Berger, 2012 WI App 91, the Court of Appeals allowed such an order, although they did so in a convoluted manner.

The case involved a de novo proceeding from a family court commissioner ruling. The trial court tiptoed in trying to not find the father in arrears for payments not made between the two proceedings, while at the same time trying to get the mother back support.

The appellate court upheld the trial court’s discretion, which was creative if technically a bit mysterious. But, in the process — and perhaps not even recognizing the importance of the holding — the Court of Appeals allowed a “mixed order.”

Whether it meant to do so or not, we practitioners thank the court for allowing trial courts to ignore a silly statute that helps no one, but complicates support cases.

A nonsensical jurisdiction ruling

The Court of Appeals saved perhaps its most problematic decision for the end of the year.

In December, the court held in Montalvo v. U.S. Title and Closing Services, No. 2012AP102, that the trial court lacked jurisdiction to transfer a husband’s interests in real estate because he wasn’t personally served in the divorce action and didn’t appear in any of the divorce proceedings.

For some reason, the Court of Appeals didn’t reference Wis. Stats. §801.05(11), which establishes a clear basis for personal jurisdiction over the husband as he fulfilled the requisite contacts and residency with Wisconsin. Once personal jurisdiction exists, the court can order the house awarded to the wife, even if the husband was served by publication (assuming he couldn’t be found for personal service after due diligence).

However, the appellate court’s holding would mean that personal service is required even if the requisite residence and contacts with the state were met. Therefore, if a spouse disappears, real estate can never be sold.

Sorry, but that makes no sense.

The worst opinion of 2012

Drumroll, please.

This distinction goes to the state Supreme Court for May v. May, 2012 WI 35, which continues to fail to recognize the value of freedom and peace. Yes, that’s a broad statement, but it is unfortunately true.

In May, while the high court held that it’s not against public policy to enter into a stipulation for an unmodifiable floor for child support as long as the duration doesn’t exceed 33 months, the high court went on to give trial courts equitable power to modify a “nonmodifiable order” if unforeseen circumstances occur which “adversely affect the best interests of the children.”

In addition to restricting parties from knowingly and voluntarily resolving issues, prior case law has made clear that Wisconsin courts give no credence whatsoever to the value of peace upon children. Where a ceiling on child support was concerned, at least an argument can be made that increased financial support trumps peace. That logic wouldn’t apply, however, to a floor on child support.

In May, by allowing a nonmodifiable order to be modified (huh?), we end up with a rule that’s confusing and contradictory. This confusion was pointed out in the concurrence by Justice Ann Walsh Bradley and in the dissent by Chief Justice Shirley Abrahamson, who used the term “incoherent” four times regarding the majority opinion.

So, it has been a fruitful year as a columnist. It would be nice if I had nothing to write about next year. But don’t bet on it.


  1. Lemke, and especially May do sound like convoluted decisions. It seems there is always discretionary wiggle room for even nonmodifiable orders to be modified. Inevitably, the discretion gets abused. Here in Sacramento Family Court, we have a judge who, with a single order, recently rewrote sections of the Family Code, Code of Civil Procedure and California Rules of Court. The judge assessed $2,500 in sanctions, declared a party a vexatious litigant, and issued 13 other rulings, all without a hearing. Our report is at this link:

  2. The May decision is problenmatic precisely because it contnues at least one narrow avenue of supposedly “non-modifiable” child support stipulations. Ironically, in quoting Justice Abrhamson’s dissent in supporting the assertion the majority opinion fails to value “freedom and peace” the wrong Justice is invoked – Justice Abrhamson’s opinion clearly points out that there shouldn’t be any non-modifiable child support stipulations but rather all support orders should be subject to s.767.59 modification. The majority opinion is not nearly as confusing as portrayed – no nonmodifiable support stipulations unless it’s for short term freezes on decreases unless unforseen circumstances warrant a reduction.

  3. Here’s a word problem for all you kids:

    Two business partners have a contract and one of them is dissatisfied and sues to disolve it. All the books are gone over and assets accrued during the contract are divided equally. The court voids the contract and they part ways. But the court felt sorry for one of them and did not view that person as potentially successful and tipped the scales. One former partner was now ordered by the court to continue the business alone and give a large portion of the profits to the other for a period of time until a new contract is entered by the payee or death of either party. If the payor refuses to pay it could mean jailtime for contempt.

    1) Was the court fair?
    2) Should laws be changed to restrict the latitude of court decisions and protect the rights of the payor when a contract is ended?
    3) Why is a marriage contract different than any other contract?

    I submit spousal maintenance and alimony should be abolished. When a marriage is over, it’s over and one spouse should not be punished for having more earning potential.

  4. Ending maintenance would be totally unfair to a spouse who stayed home, raised children, kept the home clean and made meals, amongst other things, while the other spouse pursued a career. This is not like a situation of two business partners. In that case, both people have equal opportunities. In a marriage, one spouse is usually working, meeting people and making business connections. The other spouse is limited to being home. Of course, every case is different, but without maintenance one spouse would have done all the work necessary for the other spouse to succeed and receive nothing in return.

  5. Unfair?, The government and courts made marriage a business partnership through legal involvement, licensing and taxation. Choosing not to work, like any choice has an element of risk. Was the person forced to abandon employment and stay home to raise children or even have children? I doubt it. There are plenty of single moms out there that work and raise kids so staying home is not a requirement of marriage. Spousal maintenance has become a financial safety net for those that chose not to work.

    Two consenting adults do indeed have equal opportunities, whether or not they exercise those opportunities is an individual choice. If that choice turns out to be the wrong one, nobody should owe you anything. You made a clear choice in life to stay at home, cook, clean etc. and have someone else provide for all your basic needs in lieu of a paycheck. By that logic, former employees should be paid “maintenance” by employers that terminate them. One party works to help the other succeed and gets nothing in return when the relationship ends. How is marriage not like a business partnership?

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