Commentary: Family law attorney provides fresh Frisch observations.

Byline: Gregg Herman

This is the second of two articles discussing the recent state Supreme Court opinion in Frisch v. Henrichs, 2007 WI 102, which reversed the published decision of the District II Court of Appeals concerning the remedial contempt powers of the circuit courts. In the first article, I summarized the opinion of the majority of the high court as written by Justice David T. Prosser Jr. -- chiefly, that the trial court had properly employed remedial contempt since Ronald's contempt was continuing at the time of the contempt hearing. The justices also concluded that the stipulation between the parties setting a ceiling on child support was unenforceable, even though it was for a limited period of time, because it was not in the best interests of the children and therefore contrary to public policy. When the Supreme Court accepted this case for review, I suggested that, due to the complex facts, this might not be an appropriate case for further appellate law. As one quantifiable example, the high court took nearly 17 pages to summarize the facts of the case. No surprise, then, that these holdings raise difficult questions and policy implications. Freeze 'Ignores Practicality and Precedent' As I have previously expressed in this column and elsewhere, prohibiting stipulations freezing child support not only prevents individuals from contracting voluntarily, but makes public policy assumptions that might not be valid. See Gregg Herman, "Dishonoring Honore," 27 Wis. J. of Fam. L. 3 (July, 2007). To believe that child support is the child's money ignores practicality and precedent. The precedent is that in almost all cases, the parent receiving the support need not account for its use. Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997). The practicality is that the monies are paid to the parent, not to the child. Therefore, by prohibiting these types of stipulations, the court is prohibiting two presumably knowledgeable people from voluntarily arranging their affairs as they believe to be in their own interests. In a free country, one would think they should be allowed to do so. Worse, by prohibiting parties from agreeing to avoid litigation, the Supreme Court ignores (or does not appreciate) the significant effect of contested court proceedings between parents on their children. The court is making the highly questionable policy determination that maximizing child support is more important to children than avoiding strife...

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