Case may clarify the enforceability of child support agreements that
set minimum payments
Agreements that set "ceiling" amounts on child support
payments are unenforceable if there has been a change in circumstances.
Now, the Wisconsin Supreme Court may decide whether agreements that set
minimum "floor" amounts are unenforceable if there has been a
change in circumstances.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Jan. 11, 2011 – After the divorce, Michael May agreed to
pay Suzanne May no less than $1,203 per month in child support for no
less than 33 months. But after 17 months, May requested a downward
adjustment to account for an involuntary loss of employment.
A circuit court denied May’s request, concluding that the
33-month “floor” was not against public policy and therefore
enforceable. May appealed.
Now, the District IV Wisconsin appeals court has certified the case to
the Wisconsin Supreme Court to determine whether stipulations that
impose a minimum payment (floor) are unenforceable as against public
In Wisconsin, “ceiling” stipulations are unenforceable.
That means a support-receiving parent can seek an increase in child
support payments, even if the parties stipulated to a maximum payment,
if there has been a change in circumstances.
But, according to the appeals court, the supreme court has never
squarely decided whether floor payment agreements are unenforceable.
In Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d
85, the supreme court said in a footnote that: “Stipulating to a
minimum amount for a limited period of time does not violate public
policy because it ensures that a certain amount of child support is
received, which is in the best interests of the children.” But
that was not the holding of the case.
Before Frisch, the appeals courts had determined that a child
support floor violates public policy if there is no time limit or
opportunity for review, or permanently prevents a paying parent from
seeking a reduction despite a change in placement.
After Frisch, the appeals court ruled in Jalovec v.
Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, that a
four-year floor violated public policy.
“Jalovec appears to be inconsistent with the supreme
court’s footnote in Frisch,” the appeals court
wrote in May
v. May, 2010AP177 (Jan. 6, 2010) (certification).
May argues that support floors may not be in the best interest of the
child in shared placement arrangements. Changed circumstances could
negatively affect a paying parent’s ability to provide for the
children when placed with that parent, May argues.
The supreme court is also asked to decide whether a 33-month (two
years, nine months) floor period constitutes a “limited
period of time.” May argues that such a period violates public
policy “if not tied to a point in time when it would be logical to