Child Support Modification

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WI Court of Appeals – District II

Case Name: Lisa M. Zimmer, et al., v. Michael P. Zimmer

Case No.: 2020AP919

Officials: Neubauer, C.J., Reilly, P.J., and Davis, J.

Focus: Child Support Modification

Child support payments in a divorce are typically ordered as monthly lump sum payments derived under a formula prescribed by state law. That formula computes payments based on the payer’s income multiplied by a percentage, which varies depending on the number of minor children. See WIS. ADMIN. CODE § DCF 150.03(1). Where multiple children are involved, as each child reaches the age of majority, the paying parent can seek modification to reduce ongoing payments to the remaining minor children, based on the reduced applicable percentage. All else being equal, the court would ordinarily order such modification upon the payer’s motion and reduce support payments accordingly.

Less clear is what happens when the payer fails to promptly file such a motion and, instead, continues to pay or incur the original ongoing support amount for some time after one of the children ages out. The issue in such a case is whether an order on a belated modification motion can be given retroactive effect, so as to reduce or allow for a credit against arrears, or even a refund. Those are the facts here. Lisa Zimmer (Lisa) and the State appeal from a circuit court order reducing Michael Zimmer’s (Michael) child support arrears, entered as part of an action to modify child support. It is undisputed that Michael did not move to modify the support order concerning his three minor children until two years after the eldest, Heidi had reached the age of majority under WIS. STAT. § 767.511(4). Michael argued below that his support obligation should have “reduced automatically” when Heidi aged out and that the “overages” he paid should be credited towards arrears. The circuit court agreed and modified arrears accordingly.

We conclude that our legislature has already decided whether a child support order can be applied retroactively, and has answered this question in the negative. Under WIS. STAT. § 767.59(1m), a payment modification order is prospective only. This means that a court cannot, on the basis of one child’s having reached the age of majority, refund or credit child support payments made prior to notice being given in an action to modify an ongoing support obligation. Consequently, we reverse.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.