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FAMILY LAW: Leave child support legislation alone

By: GREGG HERMAN//January 15, 2014//

FAMILY LAW: Leave child support legislation alone

By: GREGG HERMAN//January 15, 2014//

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Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at [email protected].

The headline in Sunday’s Milwaukee Journal Sentinel read: “GOP donor gets lawmaker to write bill to cut his child support.”

The story told of a wealthy business man, Michael Eisenga, who thinks he is paying too much in child support. After losing his appeal, Eisenga v. Eisenga, 2013AP91 (filed Oct. 3), Eisenga apparently asked his legislator, Rep. Joel Kleefisch, R-Oconomowoc — to whom, of course, he had contributed money — to draft legislation that would lower his child support.

According to the article, based upon requests by Eisenga and his lawyer, Kleefisch introduced a bill that “would cap the amount of income subject to child support to $150,000 a year — and assets could not be used in the calculation.” The article noted that Eisenga had donated $3,500 to Kleefisch; $7,500 to his wife, Lt. Gov. Rebecca Kleefisch; and $15,000 to Gov. Scott Walker.

These so-called “constituent bills” are rather common in the family law field. They are introduced by legislators who want campaign contributions and don’t like to say “no” to anyone who gives them.

But, they rarely go anywhere. In fact, many never even get a hearing. They are merely a mechanism for the legislator to placate a contributor. It offers a way to say “I’ll try,” instead of “no,” even though they know full well the effort will be fruitless.

Except once. Those of us with long memories will recall when a Dane County legislator introduced a seemingly innocuous bill requiring both parties, where there are children, to file with the court extensive medical history information about themselves and their siblings. The court, in turn, was to provide this information to the child’s physician. The confidentiality issue and logistical problems were, in and of themselves, mind-boggling.

Of course, no one complied and subsequent action by the State Bar Family Law Section caused the legislature to amend the statute so it applies only to those with sole custody. Even for those cases, the law is commonly ignored. The remnants of the law can be found as Wis. Stats. §767.41(7m). Prior to the amendment, of course, there was substantial confusion.

More commonly, it seems in every legislative session a bill is introduced to mandate equal placement in every case — even where the parties live many states away from each other.

Fortunately, few of those bills see the light of day and the family law section seems to have learned its lesson that they cannot be simply ignored. Last year, a representative of the section appeared at a hearing to explain why a bill was bad police and not necessary. It went nowhere.

Kleefisch’s bill has little prospect for success. Child support laws are driven by federal title IV-D regulations, which no state would risk violating due to the threat of losing federal aid.

Still, the question is worth asking: Does Wisconsin law regarding child support for high income payers need to be changed?

Under current law, the court may, under the guidelines, reduce support for income between $84,000 per year and $150,000 per year, with a further reduction for income over $150,000. After that the court can deviate from the guidelines if the court finds that application of the guidelines would be unfair to either party or to the child.

In addition, courts may require a high-income payor to contribute to a trust for the benefit of child’s higher education, as long as the contribution is made from the parent’s income earned while the child was still eligible for child support. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339.

After all, presumably in an intact marriage, parents put aside excess money for their children’s education. It only makes sense that a divorce court has the same power.

Certainly, there is a level at which it is ridiculous to pay child support. A colleague of mine calls it the “one-horse rule:” no child needs more than one horse to ride.

Yet, the amount varies based upon individual circumstances. The law allows the court the discretion about whether and where to cap support. That is the way it should be.

In short, if it’s not broke, don’t fix it. No matter how much money is contributed to a politician.


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