Minimum child support agreements don't violate
public policy if limited in duration
The Wisconsin Supreme Court clarified that parties can enter child
support agreements that set minimum floor payments for up to 33 months,
but circuit courts can still use their equitable powers to modify those
agreements under certain circumstances.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
April 3, 2012
– Agreements that require one parent to make minimum
“floor” child support payments to the other parent for a
period of time, without modification, will generally be upheld, the
Wisconsin Supreme Court clarified in a recent decision.
In 2007, Michael May (May) agreed to pay his ex-wife (Suzanne) a
minimum of $1,200 per month in child support and also agreed that he
would not seek a reduction for 33 months.
In return, Suzanne agreed to pay 100 percent of child care costs and
allowed May to pay decreased amounts on child support arrearages that he
owed.
A circuit court judge entered an order based on the parties’
stipulations.
About a year-and-a-half later, May sought a reduction in monthly child
support payments after losing his job. A court commissioner denied his
motion, and a circuit court affirmed, ruling that May was
“equitably estopped” from seeking a reduction based on the
2007 agreement.
The court of appeals certified the case to the Wisconsin Supreme Court,
which recently affirmed the circuit court in May
v. May, 2012 WI 35 (April 3, 2012), by a 6-1 vote.
Public policy and equitable estoppel
The Wisconsin Supreme Court explained that child support stipulations
and agreements should generally be upheld when parties freely and
knowingly enter agreements, the stipulations are fair and equitable, and
the stipulations do not violate public policy considerations.
The public policy at issue, the court explained, concerns the best
interests of the child, and “a stipulation that sets an
unmodifiable floor for child support for a limited term does not
necessarily run afoul of the public policy of protecting the best
interests of the child.”
May argued that unmodifiable child support floors violate public policy
per se – since changed circumstances could negatively impact the
best interest of the child – and thus the agreement at issue could
not be enforced on equitable estoppel grounds.
But unlike unmodifiable ceilings, which violate public policy,
unmodifiable floor payments don’t prevent payee parents from
seeking additional support for their children, the court noted.
“This is important because the payee is the parent that a court
and the parties have determined to be more in need of financial support,
as between the two parents, in order to provide for the best interest of
the child,” wrote Justice Roggensack.
The supreme court majority reiterated that the best interest of the
child drives the analysis, and agreeing to pay floor minimums can reduce
litigation on the issue.
“Agreements that provide an unmodifiable child support floor for
a limited period of time often are created to lessen litigation between
the parties,” wrote Justice Patience Roggensack. “Repetitive
litigation and the tension it creates are not in the best interests of
children.”
Limited duration and equitable power
The court ruled that in general, unmodifiable child support floor
amounts will be upheld if payable not more than 33 months, noting that
under Wis. Stat. § 767.59(1f)(b)2,
child support agreements are subject to the rebuttable presumption that
changed circumstances should allow modification after 33 months, unless
support is tied to a percentage of income.
In addition, the supreme court majority explained that circuit courts
have “equitable power” to modify child support agreements
that, based on circumstances unforeseen at the time of the agreement and
stipulation, adversely impact the best interest of the child at
issue.
However, the court ruled that May did not demonstrate the existence of
circumstances warranting the circuit court’s exercise of equitable
power to modify the 2007 order.
Concurrence and dissent
Justice Ann Walsh Bradley wrote a concurring opinion, agreeing with the
ultimate conclusion but questioning whether the majority opinion creates
a new standard, “unforeseen circumstances,” for circuit
courts to follow when exercising authority to modify stipulations.
“Does the majority intend to create a new standard? Whatever it
is doing, it should be clearly stated in order to provide clear guidance
to litigants and courts,” Justice Bradley wrote.
Chief Justice Shirley Abrahamson wrote a dissenting opinion,
disagreeing with the majority’s analysis and stating: “[T]he
circuit court’s discretionary decision was not based on the legal
standard the majority creates today.”
The chief justice would have remanded the case to let May determine
whether “unforeseen circumstances” that “adversely
affect the interests of the child” demand modification.
