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  • January 27, 2022

    'Be Proactive:' Wisconsin Appeals Court Sends Message to Child Support Payers

    A recent Wisconsin court of appeals decision sends a message to child support payers. Jacob S. Wiese discusses why the decision makes it clear to parties paying child support that they must be proactive in revising child support orders when a child reaches the age of majority.

    Jacob S. Wiese

    father and daughter

    Under Wisconsin law, a parent’s duty to support their child continues until the child turns 18, or age 19 if the child is still enrolled in high school or working on a high school equivalency course (GED).1

    When 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.

    However, it was not clear until recently that it is critical for paying parties to promptly file a motion to modify the support due. The Wisconsin District II Court of Appeals recently held 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.2

    The Case

    In In re Marriage of Zimmer,3 Lisa Zimmer and the State appealed from a Fond du Lac County Circuit Court order reducing Michael Zimmer’s child support arrears, entered as part of an action to modify child support. Michael Zimmer did not bring a motion to modify the support payment for his three minor children until two years after the oldest child reached the age of majority. He argued that the support should have automatically been reduced when the oldest child reached the age of majority, and any excess payments should have been applied to arrears. The circuit court agreed and modified the arrears.

    Jacob S. Wiese Jacob S. Wiese, Sandra Day O’Connor College of Law 2020, is an associate attorney with Kowalski, Wilson & Vang, LLC, in Madison, where he focuses on divorce, child custody and placement, support issues, and guardianships.

    The circuit court relied on Wisconsin law, holding that a court cannot order a parent to pay child support for an adult child.4 The court applied all support that Michael Zimmer paid for the oldest child past her age of majority as a credit toward the amount owing in arrears. The court concluded any support that Michael Zimmer paid “for [the oldest child] past her age of majority violated the law and was tantamount to an error in calculation.”5

    Lisa Zimmer used the same statute used by the circuit court, Wis. Stat. section 767.59(1m), to argue the opposite conclusion. The statute states:

    In an action under sub. (1c) to revise a judgment or order with respect to child support … the court may not revise the amount of child support … due, or an amount of arrearages in child support … that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.6

    Lisa Zimmer argued that this statute prohibits the court from making a retroactive child support modification.7

    The appeals court recognized that there has been a narrow interpretation of the statutory exception allowing modification for “previous errors in calculations,” holding that

    [t]he legislature, by using the term calculation, restricted the court’s authority to revise the amount of child support due or the amount of child support arrearages in mistakes of mathematical errors only.8

    Therefore, retroactive alterations cannot be used for nonmathematical mistakes.

    Ultimately, the appeals court found that Michael Zimmer’s failure to bring a motion to modify the child support did not constitute a previous error in calculation.9

    The Message: A Proactive Motion is in the Children’s Best Interest

    As the appeals court notes in footnote 4, the requirement of a motion can ultimately aid in looking out for the best interest of the minor children. A motion can ensure that the courts have an opportunity to revisit relevant circumstances, such as changes in parental income, thereby ensuring the remaining minor children receive the proper level of support.10

    The message to child support payers? There is no statutory mechanism by which child support is automatically adjusted after a child reaches the age of majority and there is an existing obligation to continue payment for other minor children. Parties must take steps to be proactive and file a motion to modify when their child approaches the age of majority.

    This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section webpages to learn more about the benefits of section membership.


    1 See Wis. Stat. § 767.511(4).

    2 In re Marriage of Zimmer, 961 N.W.2d 898, 900, 2021 WI App 40 (Ct. App. 2021).

    3 Id.

    4 Poehnelt v. Poehnelt, 94 Wis.2d 640, 655-66, 289 N.W.2d 296 (1980).

    5 Zimmer at 900.

    6 Wis. Stat. § 767.59(1m).

    7 Zimmer at 900.

    8 Id. at 901, citing State v. Jeffrie C.B., 218 Wis.2d 145, 149-50, 579 N.W.2d 69 (Ct. App. 1998).

    9 Zimmer at 901.

    10 Id. at 903.

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    Family Law Blog is published by the Family Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Donna Ginzl and review Author Submission Guidelines. Learn more about the Family Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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